Adler v. State, No. 9744

• Docket Nº: No. 9744
• Citation: 594 P.2d 725, 95 Nev. 339
• Case Date: May 10, 1979
• Court: Supreme Court of Nevada

Page 725

594 P.2d 725 95 Nev. 339 Nat ADLER, Appellant,
v.
The STATE of Nevada, Respondent. No. 9744. Supreme Court of Nevada. May 10, 1979.
Rehearing Denied June 28, 1979.

[95 Nev. 340]

Page 727

Annette R. Quintana, ^* Las Vegas, for appellant.

Richard Bryan, Atty. Gen., Carson City, Robert Miller, Dist. Atty. of Clark County, and H. Douglas Clark, Deputy Dist. Atty., Las Vegas, for respondent.

[95 Nev. 341] OPINION

MANOUKIAN, Judge:

Appellant, while serving as public administrator of Clark County, was indicted for felonious attempt to obtain money by false pretenses. NRS 205.380, 208.070. ¹ The charge arose [95 Nev. 342] out of a petition for compensation Adler filed in the estate proceeding of James H. Gillespie, deceased, claiming $11,340.00 for transfer and storage of personal property in a warehouse Adler owned. The indictment alleged that the 1400 square feet represented in the petition exceeded the space required to store the property, and that the ten cent per square foot per day rate was far in excess of the normal and customary charge. The indictment further alleged that appellant had knowledge of the falsity of his claim. ²

Testifying in his own behalf, Adler defended essentially on the ground that he lacked any culpable intent. He stated that the rates and figures used in his petition for compensation were supplied by his employees. He presented the petition to his attorney who advised him that the charges were rather high but that the filed petition could always be amended if errors were subsequently discovered.

The jury returned a verdict of guilty and Adler was sentenced to three years in the Nevada State Prison, suspended, and placed on probation for an indeterminate period not to exceed five years. From the judgment of conviction and sentence Adler appeals, ³ contending: (1) the evidence was insufficient to support the verdict; (2) it was reversible error to refuse appellant's proffered jury instructions; (3) the conviction for attempting to obtain money under

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false pretenses is violative of due process; and (4) the grand jury selection process was fatally defective. We turn now to consider these questions.

1. Sufficiency of the Evidence.

Appellant questions the sufficiency of the evidence to support the verdict. The test for sufficiency of the evidence on appeal "is not whether this court is convinced of the guilt of the defendant beyond a reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be convinced to the degree of certitude by the evidence which it had a right to believe and accept as true." Crowe v. State, 84 Nev. 358, 366-367, 441 P.2d 90, 95 (1968). Edwards v. State, 90 Nev. 255, 524 P.2d 328 (1974). Here, there was evidence that appellant, while public administrator of Clark County, filed a petition for compensation claiming transfer and storage charges for an 81 day period amounting to $11,340.00. There [95 Nev. 343] was testimony that at the time of the decedent's death he occupied a two bedroom, two bath furnished apartment and had the use of an additional storage locker (measuring approximately 4' X 4' X 9'). The total living space of the apartment was estimated at 880 to 890 square feet and aside from a refrigerator, two televisions, and possibly a bureau, he owned no furniture. Indeed, Adler's employee in charge of the transfer of the decedent's property testified that he did not remove any large items of furniture from the premises and that the decedent's personal effects occupied a space in Adler's warehouse measuring 4 feet wide, 18 to 20 feet long and averaging 3 to 5 feet in height. Moreover, there was testimony from three moving and storage experts in the area that the prevailing storage rate at that time was five cents per cubic foot per month and that a reasonable charge for goods occupying a space of 540 cubic feet (4' X 5' X 20') would be approximately $30.00 per month.

Adler personally sealed off the apartment the day after the decedent's death. His most casual observation should have revealed that the unit did not contain 1400 square feet. The apartment manager told him that the unit was furnished and testified that he pointed out his furniture to Adler's employees.

Paul Meade, a trust officer of Valley Bank of Nevada, appointed to succeed as administrator of the estate, testified that he visited appellant's warehouse to inventory the decedent's property. Adler pointed out the property, including several items of furniture, as belonging to the estate. Meade noted that there were large discrepancies between his inventory and that taken by the prior special administrator. When Meade later returned with the decedent's son to inspect the items, Adler denied them entry, purportedly on advice of counsel.

Adler presented the testimony of his secretary who prepared a draft of the petition for compensation. She testified that although she thought the ten cent per square foot per day rate was "rather high" at the time, Adler nevertheless instructed her to prepare the petition on that basis. According to her, she determined the rate after talking with other transfer and storage companies in Las Vegas. However, cross-examination revealed that only one company, Las Vegas Transfer and Storage, gave her an estimate. A representative of that company testified that his company charged 4.5 cents per cubic foot per month in 1975.

Adler's attorney testified that the requested compensation sounded like a lot of money to him, but he filed the petition [95 Nev. 344] anyway when Adler stated that he would recheck the figures. The attorney advised Adler that the petition could always be amended if the figures were subsequently found erroneous.

"It is the function of the jury and not the reviewing court to weigh the evidence." McGuire v. State, 86 Nev. 262, 267, 468 P.2d 12, 15 (1970). Here, there was ample evidence upon which the jury could have concluded that Adler knew or should have known the customary rates as well as the actual square or cubic footage required for storage of the decedent's property were remarkably less than that alleged in his petition for compensation. Additionally,

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we find it significant that appellant refused to admit the decedent's son to inspect the stored property, and both his attorney and secretary were doubtful of the quantitative validity of the claim.

The jury has the prerogative to make logical inferences which flow from the evidence. Moreover, "where there is substantial evidence in the record to support the verdict of the jury, it will not be overturned by an appellate court." Tellis v. State, 85 Nev. 679, 679-680, 462 P.2d 526, 527 (1969). Although appellant attempted to explain his actions and denied any culpable intent, the jury was free to accord to his testimony the weight to which it was entitled. There was substantial evidence, albeit circumstantial, of appellant's guilt. Accordingly, we affirm on the issue of sufficiency of the evidence.

2. The Proffered Instructions.

Adler next complains of the trial judge's failure to give two proffered jury instructions. First, he contends the court erred in refusing to add a third paragraph to Instruction No. 4 on...