Ahearn v. State
| Decision Date | 18 March 2016 |
| Docket Number | No. 66123,66123 |
| Parties | JAMISON AHEARN, Appellant, v. THE STATE OF NEVADA, Respondent. |
| Court | Nevada Supreme Court |
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of multiple transactions involving fraud or deceit in course of enterprise or occupation and racketeering. Eighth Judicial District Court, Clark County; David B. Barker, Judge.
First, appellant Jamison Ahearn argues that the indictment failed to provide specific factual allegations to place him on notice of the charges against him. He argues further that the racketeering count was deficient for failing to list predicate crimes and their elements. To provide a defendant with an opportunity to prepare an adequate defense, a charging instrument must provide adequate notice to the accused of the prosecution's theories by stating the essential facts constituting the offense in ordinary and concise language. NRS 173.075(1); Viray v. State, 121 Nev. 159, 162, 111 P.3d 1079, 1081-82 (2005). Its sufficiency will be determined by practical and not technical standards. Laney v. State, 86 Nev. 173, 178, 466 P.2d 666, 669 (1970). When the indictment is first challenged after all the evidence has been presented, as here, a reduced standard of review will be applied, and any defect will be disregarded unless it affected Ahearn's substantial rights by impairing his ability to prepare a defense. See State v. Jones, 96 Nev. 71, 76, 605 P.2d 202, 205-06 (1980). The racketeering count alleged liability through specific sections of NRS 207.400(1); the indictment alleged specific acts of misconduct by Ahearn and his codefendants involving specific victims, see Lewis v. State, 100 Nev. 456, 460, 686 P.2d 219, 221 (1984) (), op. corrected, 696 P.2d 993 (1985);1 and the racketeering count alleged a course of criminal conduct into which these specific acts fit. Unlike the indictment in State v. Hancock, 114 Nev. 161, 955 P.2d 183 (1998), the present indictment specifically alleged how Ahearn participated in the charged conduct. Ahearn's claim that the count should have included the predicate offenses and their elements lacks merit, as that would risk impermissibly charging multiple crimes in the same count and would be very confusing to the jury. See Gordon v. Eighth Judicial Dist. Court, 112 Nev. 216, 228-29, 913 P.2d 240, 248 (1996). Ahearn has failed to provide cogent argument supporting his claim that vagueness of the pleadings impaired his ability to cross-examine witnesses, and we decline to consider the claim. See Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987). We conclude that Ahearn had practical notice of theState's theory of racketeering and an adequate opportunity to prepare his defense.2
Second, Ahearn argues that insufficient evidence supported his convictions and that the district court abused its discretion in denying his motion for an advisory verdict or a new trial. The district court has discretion to advise the jury to acquit a defendant when it deems the evidence insufficient for a conviction, NRS 175.381(1), and we review its decision for an abuse of discretion. See Milton v. State, 111 Nev. 1487, 1494, 908 P.2d 684, 688 (1995). We will not overturn its decision on a motion for a new trial absent an abuse of discretion. Johnson v. State, 118 Nev. 787, 796, 59 P.3d 450, 456 (2002), overruled on other grounds by Nunnery v. State, 127 Nev. 749, 263 P.3d 235 (2011). Our review of the record on appeal, however, reveals sufficient evidence to establish guilt beyond a reasonable doubt as determined by a rational trier of fact. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998).
The record shows the following. Officer Charles Peck visited Club Exclusive II as an undercover officer. Several attendants there insinuated the sale of sexual services, and Peck agreed to purchase their services, paying $220. Peck was led to another area where he was asked to upgrade to purchase additional sexual services that were superior. He agreed and paid another $260. His attendant performed a hand massage while seeking to elicit another upgrade, suggesting that he would then receive the sexual services that he had paid for. Peck declined, and hisattendant left. Ahearn arrived shortly thereafter and told Peck to leave the premises, standing very close to Peck to physically intimidate him. Ahearn escorted Peck from the premises. Testimony established that the club's business was for its attendants to make male patrons think they could get sexual services by touching them suggestively, speaking provocatively, mentioning one-on-one time, telling patrons that they would have a great time, and mentioning repeat customers. The attendants would seek to elicit as many upgrades as possible from the patrons and would never provide the sexual services sold. Ahearn was one of the bouncers, and the bouncers would monitor a security video feed for a signal from an attendant that a patron was unruly or would no longer upgrade and would remove the patron from the premises. Ahearn and all other staff members attended regular staff meetings at which the club's business practices, namely defrauding its patrons through misrepresenting the sale of sexual services, were discussed.
The jury could reasonably infer from the evidence presented that Ahearn aided and abetted two transactions involving acts in the course of an enterprise with the intent to defraud by means of a false representation known to be false and the intent to induce reliance, causing a loss greater than $250. See NRS 205.377(1) (2010). The jury could also reasonably infer that Ahearn agreed to participate in racketeering activity through Club Exclusive II's affairs and overtly acted to effect this agreement. See NRS 207.400(j). Accordingly, a rational trier of fact could find guilt beyond a reasonable doubt. See Jackson, 443 U.S. at 319. The jury's verdict will not be disturbed on appeal where, as here, substantial evidence supports the verdict. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see also McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992). Ahearn fails to provide cogent argument in support of his one-sentence argument that his conviction for multiple transactions involving fraud or deceit was inconsistent with his acquittal for theft when they were both based on the same set of facts, and we decline to consider it. See Maresca, 103 Nev. at 673, 748 P.2d at 6; cf. United States v. Powell, 469 U.S. 57, 65 (1984) (); Bollinger v. State, 111 Nev. 1110, 1116-17, 901 P.2d 671, 675 (1995) (applying Powell). Accordingly, the district court did not abuse its discretion in denying Ahearn's respective motions to set aside the jury verdict and for a new trial or for an advisory verdict.
Third, Ahearn argues that he cannot be liable for racketeering because he was not a manager but merely an independent contractor and asks this court to adopt a federal rule to this effect. The federal statute requires a person to be involved in directing the broader operation or management of the enterprise. Reues v. Ernst & Young, 507 U.S. 170, 179, 185 (1993) (). Nevada's statute is broader than the federal statute, proscribing a person "employed by or associated with any enterprise to . . . participate . . . in: (1) The affairs of the enterprise through racketeering activity; or (2) Racketeering activity through the affairs of the enterprise." NRS 207.400(1)(c). Nevada lacks the "in the conduct of language and thus the management requirement. We reject Ahearn's claim and decline to adopt this requirement from federal racketeering law.
Fourth, Ahearn argues that "multiple transactions" in NRS 205.377 requires different instances on different days or with different victims. "The interpretation of a statute presents a question of law and issubject to de novo review." Mendoza-Lobos v. State, 125 Nev. 634, 642, 218 P.3d 501, 506 (2009). "This court will attribute the plain meaning to a statute that is not ambiguous." Id. NRS 205.377 proscribes a person from "engag[ing] in an act . . . which operates . . . as a fraud . . . in at least two transactions that have the same or similar pattern." A transaction is an "[a]ct of transacting or conducting any business." Transaction, Black's Law Dictionary (6th ed. 1990). In arguing that a single event cannot contain multiple transactions, Ahearn has not identified ambiguity in the statute's construction, but rather challenges its application to the present facts. Peck paid once to purchase admission to the premises and time with an attendant, was led to another area, and paid again when offered to upgrade by purchasing a purportedly better package of services. Under the plain meaning of "transaction," Peck completed a transaction and then completed another transaction shortly thereafter. We reject Ahearn's proposed construction.
Fifth, Ahearn argues that jury instruction no. 32 misstated racketeering law by permitting liability without finding that he committed two predicate offenses. The predicate-offense argument disregards that liability under NRS 207.400(1) may be established without finding commission of two or more crimes related to racketeering, such as by conspiring to participate in racketeering activity through the affairs of an enterprise. See NRS 207.400(1)(j). Accordingly, we reject this argument.
Ahearn further argues that instruction no. 32 added a theory of liability not included in the indictment, warranting reversal. This court has reversed a murder...
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