Prisoner status at root of court case

When a suspect in handcuffs kicks a Las Vegas police officer, no one denies it's a crime.

But exactly what kind of crime it constitutes is now a question for the Nevada Supreme Court.

On Thursday, a three-justice panel heard arguments in the case of Rodolfo Varela, who was convicted in 2007 of battery by a prisoner for kicking a cop.

At issue is whether Varela was actually a prisoner when he kicked the officer, Shawn Davideit.

The charge of battery by a prisoner is a felony and carries a one- to six-year sentence. The charge of battery upon a police officer is a gross misdemeanor and can carry a lesser sentence.

Varela was initially charged with possession of a stolen vehicle, battery on an officer and battery by a prisoner.

Authorities dropped the possession of a stolen vehicle charge. He was found guilty of battery by a prisoner and sentenced by District Judge Donald Mosley to two to five years in prison.

Authorities first came into contact with Varela on April 9, 2007. Officers arrived at Las Vegas Boulevard and Sahara Avenue after a stolen 2000 Pontiac Grand Prix believed to be driven by the defendant crashed into the center median of the road.

When officers arrived, they saw Varela walking away from the scene. An office handcuffed him and placed him on the sidewalk. Authorities said Varela was struggling and uncooperative during the incident.

Davideit then took Varela to a police car. Varela became belligerent when Davideit searched him. He kicked the officer in the chest, stomach, hand and arm, according to a Las Vegas police report.

Officers put him in the police cruiser, took him to the county jail and booked him on multiple charges.

Deputy Public Defender William Waters told the justices that Varela shouldn't have been convicted of the offense.

Varela, 44, hadn't been told he was formally under arrest when he kicked the officer, Waters said.

Waters also mentioned a jury instruction cited during Varela's trial which stated that a person isn't a prisoner until they "submit to the control" of an officer or is captured.

Varela didn't fit that description, Waters said.

Deputy District Attorney Daniel Westmeyer countered that police cuffed Varela, placed him on the sidewalk and told him that he was under arrest.

The court typically issues decisions 30 to 90 days after hearing arguments.

Contact reporter David Kihara at dkihara@reviewjournal.com or 702-380-1039.