Boice appeal gives his family hope

Rocky Boice Jr. and his family hope an appeal before the Nevada Supreme Court of his murder conviction in the 1998 motel-room beating death of Sammy Resendiz will be successful.

"We want Rocky's sentence to be brought into line with the others or at least he be given a new trial," his mother, Terry Boice, said Thursday.

Boice, 24, was the lone defendant among 12 to stand trial on charges of first-degree murder based on the felony murder rule, burglary and battery with a deadly weapon.

Boice, along with the others, went to the Round House Motel on Carson Street, Aug. 21, 1998, after his cousin Jessica Evans said she was struck by a Hispanic gang member there.

The man they were looking for was gone, but the group attacked Resendiz and Carlos Lainez.

Lainez survived the beating. Resendiz died 13 hours later of head trauma.

He left behind two small children.

On Sept. 18, a Carson City jury convicted Boice of second-degree murder with a deadly weapon, battery with a deadly weapon and conspiracy to commit battery with a deadly weapon.

A sentence of 10 to 25 years was imposed and doubled by a deadly weapon enhancement.

His co-defendants all received plea bargains. Most were given probation, except for two who were given jail sentences one-tenth of Boice's.

Reno attorney Karla Butko cited 13 arguments -- from insufficient evidence to support a felony murder conviction to a flawed jury selection process -- and violation of Boice's Fourth, Fifth, Sixth, Eighth and 14th amendment rights as cause for vacating his conviction.

"The second-degree felony murder conviction cannot be sustained as the jury acquitted on the predicate felony of burglary," Butko argued.

First-degree murder under the felony murder rule is any murder committed during the commission of a burglary. A burglary, as defined by Nevada law, is entry into someplace to commit an underlying felony such as battery with a deadly weapon.

"The jury held there was no criminal intent to commit battery or assault upon entering the room. Thus, there was no application of the felony-murder rule with which to impose criminal liability," she said.

Saying "there is no justification for the end result of this case," Butko argued there was insufficient evidence to sustain the conviction under the theory that the group conspired to attack Resendiz.

"The state in its closing argument repeatedly told the jury that due to conspiracy liability, each and every defendant was guilty of murder," she said. "Yet what happened herein? Five defendants received gross misdemeanor convictions and probation. Five defendants received felony convictions and probation sentences. The remaining two defendants received sentences of 26-65 months in prison and 18-60 months in prison. One person appeared to not be charged at all.

"There is no justification for having one person of 11 serve 20-50 years in prison."

Carson City District Attorney Noel Waters has until July 24 to respond.

Terry Boice said Waters could still give Boice a deal.

"He could just agree with the brief and then it would be sent back to him and he could offer a plea bargain," she said.

In the meantime, she said, she and her husband, Rocky Boice Sr., are helping their son's wife, Kim, raise the couple's 2-year-old daughter, Tezia.

"This has affected all of our lives," she said. "Tezia doesn't have a father. Kim doesn't have a husband."

Not a day passes that Terry Boice doesn't think of her only child and find it hard to believe he could spend the rest of his life behind bars.

"You wake up, and just for that split second you think it's a bad dream and everything is OK," she said.