Lesnick v. State
| Decision Date | 11 May 2023 |
| Docket Number | 84577 |
| Parties | RONALD A. LESNICK, Appellant, v. THE STATE OF NEVADA, Respondent. |
| Court | Nevada Supreme Court |
UNPUBLISHED OPINION
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a jury verdict, of one count of commission of a fraudulent act in a gaming establishment, one count of grand larceny, and one count of theft. Eighth Judicial District Court, Clark County Tierra Danielle Jones, Judge.[1]
The verdict does not violate Lesnick's double jeopardy protections
Appellant Ronald A. Lesnick's convictions stem from an incident in which Lesnick took a ticket, belonging to another gaming patron, from a gambling machine and presented it to the main cage clerk at the Wynn Hotel & Casino (the Wynn). Lesnick purported to be the ticket's owner and collected a cash payout from the Wynn. Lesnick first argues that the convictions violated his double jeopardy protections because they stem from the same conduct. See U.S. Const amend. V (); see also Nev. Const, art. 1, § 8 (). "Whether conduct that violates more than one criminal statute can produce multiple convictions in a single trial is essentially a question of statutory construction" that this court reviews de novo. Jackson v. State, 128 Nev. 598, 603, 291 P.3d 1274 1277 (2012).
We conclude that Lesnick's convictions do not violate the Double Jeopardy Clause. Indeed, Lesnick's convictions did not stem from the "same offense": his act of taking Brad Winters' (Winters) ticket is a separate action from his act of presenting the ticket as the purported winner and obtaining money from Wynn. See id. at 604-05, 291 P.3d at 1277-78 [explaining that the Double Jeopardy Clause protects against "multiple punishments for the same offense"). Furthermore, there are two separate victims Winters is the victim for Lesnick's grand larceny conviction, whereas/the Wynn is the victim for Lesnick's theft and commission of a fraudulent act in a gaming establishment convictions. Although each of Lesnick's actions are related, there were nonetheless separate acts and victims, justifying separate punishments for each act. Cf. Ashford v. Edwards, 780 F.2d 405 (4th Cir. 1985) ( that a defendant's conviction of two counts of attempted armed robbery arising from an incident involving two victims does not violate the Double Jeopardy Clause); see also Jones v. State, 95 Nev. 613, 619-29, 600 P.2d 247, 251-52 (1979) ().
We further conclude that the convictions do not violate the Double Jeopardy Clause because commission of a fraudulent act in a gaming establishment, theft, and grand larceny are unique and separate charges requiring proof of different elements. See Blockburger v. United States, 284 U.S. 299, 304 (1932) (); see also Jackson, 128 Nev. at 604-05, 291 P.3d at 1278 (); compare NRS 465.070(3) (), with NRS 205.0832(1)(c) (defining theft) and NRS 205.220(1)(a) (). Thus, Lesnick's convictions do not violate the Double Jeopardy Clause.
A rational trier of fact could find sufficient evidence supports the verdict
Lesnick next argues that insufficient evidence supports his convictions because a reasonable juror could not find that he had an intent to defraud or steal. To determine the sufficiency of evidence, this court considers ''whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Origel-Candido v. State, 114 Nev. 378, 381, 356 P.2d 1378, 1380 (1998). We conclude that sufficient evidence supports Lesnick's convictions.
As to his convictions for commission of a fraudulent act in a gaming establishment and theft, we conclude that a reasonable juror could find that Lesnick intended to defraud Wynn and that he had the specific intent to deprive the victim of his ticket. See NRS 465.070(3) (); see also NRS 205.0832(1) (). The State presented evidence, including video evidence, that Winters turned away from the machine in question after it "locked up" due to his jackpot win. Winters turned to another machine he was playing as he awaited an attendant. Within minutes of Winters turning away, Lesnick approached the machine in question, did not place a wager in the gambling machine, but he inserted two tickets that were rejected, and then ultimately pressed the "cash-out" button. Lesnick does not refute the video evidence and instead relies solely on the fact that bus defense of abandonment raises reasonable doubt. However, with Lesnick's repeated statements to the arresting gaming agent that he knew the ticket did not belong to him, a reasonable juror could find that he knew be was not entitled to the money on the gambling machine yet pressed the:ash-out button to obtain the leftover winnings on it. See McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) ("[I]t is the jury's function, not that of the [reviewing] court, to assess the weight of the evidence and determine the credibility of witnesses."); see also Desai v. State, 133 Nev. 339, 345, 398 P.3d 889, 894 (2017) (). Likewise, a reasonable juror could determine that Lesnick intentionally took something of value knowing that it was owned by another when he pressed "cash-out" on the machine without first placing a wager. Because Lesnick knew the $3,000 ticket did not belong to him and made no attempts to return it to anyone, a reasonable juror could determine Lesnick did not truly believe the property was abandoned and therefore had the requisite specific intent to deprive the victim of his property. See NRS 193.200 ("Intention is manifested by the circumstances connected with the perpetration of the offense, and the sound mind and discretion of the person accused.").
We also conclude that sufficient evidence supports Lesnick's 2jrand larceny conviction. A reasonable juror could find that Lesnick made a material misrepresentation when he presented the ticket to the main cage, even though he did not win it, and presented his identification card to claim it as his own. See NRS 205.0832(1)(c) (). All of the circumstantial evidence indicates that Lesnick presented himself as someone who was the rightful owner of the £3,000 ticket when in fact, he was not; there is no requirement that Lesnick affirmatively state that he won the ticket to support a finding that he made a material misrepresentation. See NRS 205.0832(1)(c) (defining "material misrepresentation"); Deveroux v. State, 96 Nev. 388, 391, 610 P.2d 722, 724 (1980) ().
The district court did not violate Lesnick's Confrontation Clause rights by allowing Winters to testify by video
Lesnick next argues that the district court violated his Sixth Amendment confrontation rights by permitting Winters to testify at trial remotely. See U.S. Const, amend. VI (providing that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him"); Crawford v. Washington, 541 U.S. 36, 42 (2004); see also Chavez v. State, 125 Nev. 328, 342, 213 P.3d 476, 486 (2009) [explaining that the Confrontation Clause also "guarantees the opportunity to cross-examine" witnesses). Whether a defendant's Confrontation Clause rights were violated is a question of law subject to de novo review. Chavez, 125 Nev. at 339, 213 P.3d at 484.
The State originally filed a motion to permit video testimony at a trial setting, explaining that Winters was 64 years old lived in Missouri, had not traveled since January 2020, had concerns about COVID, and was beyond its subpoena power. The district court deferred ruling on the motion due to the trial being continued. At the time of the calendar call for the January 2022 trial, the State renewed its motion, indicating that despite its efforts to have Winters present for trial, he was again unwilling to travel for the same reasons as well as the recent COVID omicron variant surge. The court questioned the State about Winters' availability on the first day 3f trial and learned that his status remained the same. The court noted that the omicron surge had led to a very high level of COVID infections and that there were no foreseeable changes likely in Winters' availability and therefore, allowed him to testify by video. We conclude that the district 20urt made sufficient findings to justify permitting Winters to testify via live two-way video. See Brown v. State, 138 Nev., Adv. Op. 44, 512 P.3d 269, 278 (2022) (). Furthermore, Winters testified under oath, was subject to cross-examination, and the jury had the opportunity to observe his behavior and assess his credibility. See Lipsitz v. State, 135 Nev. 131, 138, 442 P.3d 138, 144 (2019) (...
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