Nguyen v. State, No. 34555.

• Docket Nº: No. 34555.
• Citation: 116 Nev. 1171, 14 P.3d 515
• Case Date: December 14, 2000
• Court: Supreme Court of Nevada

14 P.3d 515
116 Nev. 1171

Tuan Ngoc NGUYEN, Appellant,
v.
The STATE of Nevada, Respondent

No. 34555.

Supreme Court of Nevada.

December 14, 2000.

14 P.3d 516

William L. McGimsey, Las Vegas, for Appellant

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent.

Lionel Sawyer & Collins and Anthony N. Cabot, Dennis L. Kennedy and David N. Frederick, Las Vegas, for Amicus Curiae Nevada Resort Association.

BEFORE YOUNG, MAUPIN and BECKER, JJ.

OPINION

MAUPIN, J.:

Appellant Tuan Ngoc Nguyen was arrested and charged with passing bad checks at the following Las Vegas gaming resorts: Harrah's Las Vegas Hotel and Casino, the Luxor Hotel and Casino, the Excalibur Hotel Casino, and the Flamingo Hilton Hotel and Casino. Nguyen was thereafter convicted on one count of drawing and passing a check without sufficient funds in violation of NRS 205.130(1). We affirm the judgment entered thereon by the district court.

FACTS

Tuan Ngoc Nguyen is a resident of the state of Texas. In December of 1995, he secured gambling credit through the issuance of markers from several licensed Las Vegas gaming establishments. Each followed standard industry procedures with respect to the extension of credit to Nguyen. These procedures are described immediately below.

In general, patrons apply for casino credit by completing a standard form setting forth the name of the applicant, his or her address, the name of the applicant's bank, and the bank account number. Casino personnel approve the applications pending verification of the basic bank information, including the average balance of the applicant's account.

An applicant may receive all or a portion of the credited amount at a gaming table in the form of a "marker." The marker is an instrument, usually dated, bearing the following information: the name of the player; the name, location, and account number of the player's bank; and the instruction "Pay to the Order of" the casino for a specific value in United States dollars. The marker also contains a stipulation whereby the payor represents that the amount drawn by the marker is on deposit in the referenced financial institution, and that he guarantees payment. The player and a casino representative sign the marker. The player then exchanges the marker for gaming tokens or "chips," which may be exchanged for currency with the casino cashier.

When a patron has concluded play, he either pays the full amount of the marker he has obtained or leaves the casino with the marker outstanding. If the marker remains outstanding, casino personnel attempt to notify the patron and, after a specified period of time, submit the marker to the patron's bank for collection.¹ Should the bank account contain

14 P.3d 517

insufficient funds, the casino will again attempt contact with the patron. If payment is not forthcoming, the gaming establishment has the option to refer the customer for possible criminal prosecution

On December 9, 1995, Harrah's Las Vegas issued a marker to Nguyen in the amount of $5,000. On December 10, 1995, he obtained markers for $5,000 from the Luxor Hotel and Casino and $2,500 from the Excalibur Hotel Casino.² Nguyen signed each marker and departed the state without paying the debt incurred.

Each establishment sent notice to Nguyen that his obligation remained outstanding. Later, each establishment sent its marker to Nguyen's bank, the Texas First National Bank, for payment. The bank returned all of the markers with the notation, "Account Closed." Casino representatives unsuccessfully sought to personally contact Nguyen. Thereafter, these matters were referred for prosecution and the Clark County District Attorney charged Nguyen in three criminal complaints with violations of NRS 205.130. An amended criminal complaint was filed on April 9, 1998, and a preliminary hearing held on April 14, 1998. Nguyen was held to answer and an information was filed in the district court on April 23, 1998.³

Nguyen entered into a plea agreement with the State, pursuant to which he pleaded guilty in connection with the Harrah's Las Vegas marker to one count of drawing and passing a check without sufficient funds in the drawee bank and with intent to defraud. The plea agreement included a provision reserving Nguyen's right to appeal two issues: (1) whether NRS 205.130(1) applies to casino markers and (2) whether he was selectively prosecuted in violation of his right to equal protection under the Federal Constitution. The district court accepted the guilty plea and entered a judgment of conviction accordingly. This timely appeal followed.

DISCUSSION

The bad check statute

The primary question before us is whether the term "check or draft," as used in NRS 205.130(1), the Nevada criminal statute prohibiting the drawing or passage of "bad" checks, applies to gaming credit instruments commonly known as "markers."

The interpretation of a statute is a question of law, which we review de novo.⁴ County of Clark v. Upchurch, 114 Nev. 749, 753, 961 P.2d 754, 757 (1998).

The Nevada bad check statute, NRS 205.130(1), prohibits a person from drawing or passing "a check or draft" to obtain "[c]redit extended by any licensed gaming establishment," drawn on a bank "when the person has insufficient money, property or credit with the drawee of the instrument to pay it in full upon its presentation ." Although NRS 205.130(1) does not explicitly define the term "check or draft," we construe this undefined term in accordance with its ordinary and plain meaning. See Attorney General v. Board of Regents, 114 Nev. 388, 392, 956 P.2d 770, 774 (1998) (quoting McKay v. Bd. of Supervisors, 102 Nev. 644, 648, 730 P.2d 438, 441 (1986)).

A "draft" is "[a] written order by the first party, called the drawer, instructing a second party, called the drawee (such as a bank), to pay money to a third party, called the payee."

14 P.3d 518

Black's Law Dictionary 493 (6th ed.1990). The Uniform Commercial Code (codified in Nevada at NRS 104.1101 et seq.) defines "draft" as an "order," a "written instruction to pay money signed by the person giving the instruction." U.C.C. § 3-103(a)(6); U.C.C. § 3-104(e); NRS 104.3103(f); NRS 104.3104(5). A "check" is an instrument drawn upon a bank and payable on demand,⁵ signed by the drawer, containing an instruction to pay a certain amount to another party. See Black's Law Dictionary 493 (6th ed.1990); U.C.C. § 3-104(f)(i); NRS 104.3104(6)(a); see also 12 C.F.R. § 210.2(h) (Federal Reserve Board definition...