Nguyen v. State

Decision Date14 December 2000
Docket NumberNo. 34555.,34555.
Citation116 Nev. 1171,14 P.3d 515
PartiesTuan Ngoc NGUYEN, Appellant, v. The STATE of Nevada, Respondent.
CourtNevada Supreme Court

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 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." 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 of a check as a draft drawn on a bank and payable on demand). "An instrument may be a check even though it is described on its face by another term." U.C.C. § 3-104(f); NRS 104.3104(6).

"`"Where the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, ... the courts are not permitted to search for its meaning beyond the statute itself."'" Erwin v. State of Nevada, 111 Nev. 1535, 1538-39, 908 P.2d 1367, 1369 (1995) (quoting Charlie Brown Constr. Co. v. Boulder City, 106 Nev. 497, 503, 797 P.2d 946, 949 (1990) (quoting State v. Jepsen, 46 Nev. 193, 196, 209 P. 501, 502 (1922))). We believe the language of this statute is abundantly clear and unmistakable. By its terms, NRS 205.130 applies to instruments that are drawn upon a bank, payable on demand, signed by the payor, and which instruct the bank to pay a certain amount to the payee.

Given the foregoing analysis, we conclude that the markers at issue in the instant case fall within the purview of the bad check statute. The markers provided a mechanism for payment of a specific sum of money from the Texas National Bank to the order of these gaming establishments. Nguyen signed the instruments, which stated no time or date of payment—they were payable on demand, thus "subjecting the [drawer] payor to a repayment obligation at the will of the payee." Fleeger, 95 F.Supp.2d at 1131. We therefore hold that these markers were "checks" within the meaning of NRS 205.130(1).

Nguyen contends that the markers are better characterized as credit instruments outside the scope of NRS 205.130. According to Nguyen, the practice of delaying payment of a marker renders the instrument a loan document, whereby the signer agrees to pay the debt before an agreed-upon but unwritten disposition date. We disagree. Whether an obligee chooses to cash a check immediately or at a later date does not alter the character of the instrument. Further, there is no evidence that Nguyen and the casinos understood the marker to effect a contract for a loan. See Hillyer v. The Overman Silver Mining Co., 6 Nev. 51 (1870) (holding that parties to a contract must mutually assent to its terms).6

We turn now to Nguyen's contention that his conduct did not evidence sufficient criminal intent. The statute provides that, in order to be convicted for passing bad checks, a person must act "with an intent to defraud." NRS 205.130(1). Also,

[i]n a criminal action for issuing a check or draft against insufficient or no funds with intent to defraud, that intent and the knowledge that the drawer has insufficient money, property or credit with the drawee [bank] is presumed to exist if ... [p]ayment of the instrument is refused by the drawee when it is presented in the usual course of business, unless within [five] days after receiving notice of this fact from the drawee or the holder, the drawer pays the holder of the instrument the full amount due plus any handling charges.
NRS 205.132. We conclude that Nguyen's intent to defraud was circumstantially demonstrated by his failure to pay the full amount due within the statutory period, and by the return of the instruments from his bank with the notation "Account Closed." Thus, evidence such as that present in this case is sufficient to raise a jury question on the issue of guilt or innocence under NRS 205.130.

Nguyen alternatively contends that he had no intent to defraud...

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