Balgas (James) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
JAMES BALGAS, No. 65512
Appellant,
vs.
THE STATE OF NEVADA,
Respondent. FILED
JAN 1 5 2016
EMAN
EPUTY CLERK
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury trial, of racketeering. Eighth Judicial District Court, Clark County;
David B. Barker, Judge.
Appellant James Balgas argues that the district court erred in
denying his motion to set aside the jury verdict and for a new trial after
the jury found him guilty of racketeering despite finding him not guilty of
coercion, robbery, and multiple transactions involving fraud or deceit in
the course of an enterprise or occupation. He argues that his conviction
was inconsistent with his acquittals and thereby merited relief as a matter
of law. We review questions of law de novo. Sheriff v. Burcham, 124 Nev.
1247, 1253, 198 P.3d 326, 329 (2008). Verdicts will not be disturbed for
inconsistency when a jury acquits a defendant of a predicate offense while
convicting of a compound offense. United States v. Powell, 469 U.S. 57, 65
(1984); Bollinger v. State, 111 Nev. 1110, 1116, 901 P.2d 671, 675 (1995).
Accordingly, a defendant's acquittal for a predicate offense does not
invalidate a racketeering conviction that alleged commission of that
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predicate offense in order to allege a sufficient number of predicate
offenses. See United States v. Vastola, 899 F.2d 211, 225 (3d. Cir. 1990),
vacated on other grounds by Vast°la v. United States, 497 U.S. 1001
(1990); United States v. Tinsley, 800 F.2d 448, 450-52 (4th Cir. 1986); Corn.
v. Cassidy, 620 A.2d 9, 14 (Pa. Super. Ct. 1993). Even if the verdicts were
inconsistent, Balgas would not be entitled to relief. We conclude that the
district court did not abuse its discretion in rejecting Balgas' motion.
Balgas next argues that the evidence presented at trial was
insufficient to support the jury's finding of guilt for racketeering and that
the district court abused its discretion in denying his motion for an
advisory verdict on this ground. This court reviews the evidence in the
light most favorable to the prosecution to determine whether any rational
juror could find the elements of the offense beyond a reasonable doubt.
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 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 this court
reviews its decision for an abuse of discretion, Milton v. State, 111 Nev.
1487, 1494, 908 P.2d 684, 688 (1995).
The record shows the following. Balgas was employed by Club
Exclusive II as a bouncer, the club operated an ongoing fraudulent scheme
to acquire money from victims by misrepresenting the sale of sexual
services, the club's practices were discussed at meetings that all
employees attended, the bouncers monitored the club's attendants'
fraudulent practices by video feed to intervene when the fraudulent
scheme required removing a protesting victim from the premises,
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removing victims from the premises was an integral part of the club's
criminal scheme, the criminal scheme involved more than two instances of
multiple transactions involving fraud or deceit in the course of enterprise
or occupation, and Balgas removed a victim from the premises after he
had been defrauded in furtherance of this scheme.
The jury could reasonably infer from the evidence presented
that Balgas conspired to participate in racketeering activity through the
Club's affairs (1) by agreeing to participate, through his employment, in
the Club's racketeering activity by removing victims from the premises
after the attendants had defrauded the victim and the victim had become
upset and (2) by overtly acting to effect the agreement in removing a
victim from the premises. See NRS 207.360(33); NRS 207.390; NRS
207.400(1)(c)(2), (j); Thomas v. State, 114 Nev. 1127, 1143, 967 P.2d 1111,
1122 (1998) ("[Conspiracy] is usually established by inference from the
conduct of the parties."); Lisle v. State, 113 Nev. 679, 691-92, 941 P.2d 459,
467-68 (1997) ("[C]ircumstantial evidence alone may sustain a
conviction."), holding limited on other grounds by Middleton v. State, 114
Nev. 1089, 1117 n.9, 968 P.2d 296, 315 n.9 (1998). Balgas' contention that
he was merely an independent contractor is belied by the record and
nevertheless confers no defense to racketeering liability. We conclude that
the district court did not abuse its discretion in denying Balgas' motion for
an advisory verdict.
Lastly, Balgas argues that the indictment failed to set forth
facts with specificity alleging his culpability for racketeering. To provide a
defendant with an opportunity to prepare an adequate defense, a charging
instrument must provide adequate notice to the accused of the
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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). As Balgas first challenged the
indictment when the State could not correct the alleged deficiency, we will
hold the charging instrument to be sufficient unless there is no reasonable
construction under which it charged an offense for which Balgas was
convicted. See Larsen v. State, 86 Nev. 451, 456, 470 P.2d 417, 420 (1970).
The indictment alleged that the defendants violated specific sections of
Nevada's racketeering statute through their involvement in the club,
through instructing employees to use force and the fear of force to retain
illegally acquired monies, or through creating an enterprise to make
customers believe that they would receive sexual services in exchange for
money. It alleged a specific incident in which Balgas acted to implement
the club's fraudulent scheme. The indictment thus alleged a specific
incident and broader factual theories of liability, while providing specific
statutory sections proscribing the alleged conduct. In contrast to the
indictment in State v. Hancock, 114 Nev. 161, 164, 955 P.2d 183, 185
(1998), we conclude that Balgas had notice of the charges against him and
their theories of liability and that the indictment was sufficient.
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Having considered Balgas' contentions and concluded that
they are without merit, we
ORDER the judgment of conviction AFFIRMED. 1
•-ef--ett , j,
Hardesty-,
J.
J.
Pickering
cc: Hon. David B. Barker, District Judge
Sylvia Bishai, Esq.
Thomas Michaelides
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
1 We note that Balgas failed to include any trial transcripts, and a
complete review is only possible because the State submitted those
records. See Thomas v. State, 120 Nev. 37, 43, 83 P.3d 818, 822 (2004)
("[C]ounsel failed to include many necessary parts of the record in the
Appellant's Appendix. We are able to address the merits of a number of
claims only because the State provided a[n] . . . appendix that includes
necessary parts of the record.").
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