Buford (Gia) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
GIA BUFORD, A/K/A JACQUELINE No. 66147
BUFORD,
Appellant,
vs. FILED
THE STATE OF NEVADA,
JAN 1 5 2016
Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of five counts of multiple transactions involving fraud or
deceit in the course of enterprise or occupation, five counts of theft, four
counts of obtaining money under false pretenses, and one count each of
attempt to obtain money under false pretenses and racketeering. Eighth
Judicial District Court, Clark County; David B. Barker, Judge.
Appellant Gia Buford first argues that the indictment failed to
provide sufficient notice of the State's theory of racketeering by improperly
failing to specify two predicate offenses for racketeering liability and
failing to distinguish which defendant performed what racketeering
conduct. 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
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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, a reduced standard of review will be applied, and any defect
will be disregarded unless it affected Buford's substantial rights by
impairing her 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 involving specific victims, see Lewis v. State, 100 Nev.
456, 460, 686 P.2d 219, 221 (1984) ("NRS 173.075(2) permits incorporation
of the allegations of one count in another count of an indictment"), and
the racketeering count alleged a course of criminal conduct into which
these specific acts fit. Buford's 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). Further, the indictment alleged that
Buford committed far more than two predicate offenses. Unlike the
indictment in State v. Hancock, 114 Nev. 161, 955 P.2d 183 (1998), the
present indictment specifically alleged how Buford participated in the
charged conduct—through management and supervision in most
instances—and thus we reject Buford's contention that the racketeering
count impermissibly grouped the defendants together. See also Lane v.
Torvinen, 97 Nev. 121, 122, 624 P.2d 1385, 1386 (1981). We conclude that
Buford had notice of the State's theory of racketeering.
Second, Buford argues that the district court abused its
discretion by refusing her instruction on racketeering and providing an
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improper instruction that allowed the jury to find her guilty of
racketeering without specifically finding that she committed two predicate
offenses. We review de novo "whether a proffered instruction is a correct
statement of the law," Nay v. State, 123 Nev. 326, 330, 167 P.3d 430, 433
(2007), and review the district court's denial of a proposed instruction for
an abuse of discretion or judicial error, Crawford v. State, 121 Nev. 744,
748, 121 P.3d 582, 585 (2005). Buford's argument lacks merit and reflects
a misunderstanding of Nevada's racketeering statutes. Buford's proffered
instruction was deficient by suggesting that the jury could only find her
guilty of racketeering under NRS 207.400(1)(c). The indictment alleged
liability under other subsections of NRS 207.400(1) as well as under NRS
207.400(1)(c). The relevant instruction provided to the jury included the
statutory text and allowed the jury to apply the precise language of the
statute to the facts presented to it. Further, while Buford's conviction did
not require a determination that she was engaged in two or more crimes
related to racketeering if the jury found her culpable under a section other
than NRS 207.400(1)(c), even if it did, she was convicted of 15 offenses
classifiable as crimes related to racketeering. See NRS 207.360. We
conclude that the provided instruction correctly stated the law, and the
district court did not abuse its discretion in denying the defense's proposed
instruction.
Third, Buford argues that the legislature intended to repeal
the statute codifying the common law offense of obtaining money by false
pretenses when it enacted the comprehensive theft statute and requests
that this court find the former repealed by implication. Repeal by
implication is strongly disfavored, and this court will not repeal a statute
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by implication "unless there is no other reasonable construction of the two
statutes." Washington v. State, 117 Nev. 735, 739, 30 P.3d 1134, 1137
(2001). We observe that the statutes have subtle distinctions: obtaining
money by false pretenses presents a different intent element from theft by
material misrepresentation, namely "intent to cheat or defraud the other
person" for obtaining money by false pretenses, NRS 205.380(1), and
"intent to deprive that person of the property or services" for theft by
misrepresentation, NRS 205.0832(1)(c). Legislative history disfavors
repeal by implication, as the legislature adopted the text of Arizona's
statute, but did not follow its example in repealing the prior statute
proscribing the common law offense of obtaining money by false pretenses.
Hearing on A.B. 694 Before the Senate Comm. on Judiciary, 65th Leg.
(Nev., June 13, 1989). Further, each statute has been subsequently
amended without curtailing the other. See, e.g., 2001 Nev. Stat., ch. 587, §
1, at 3024-25 (NRS 205.0832); 1999 Nev. Stat., ch. 105, § 2, at 397-98
(NRS 205.380). As the two statutes do not conflict and the legislature has
not suggested that it intended to repeal the prior statute, we decline to
hold NRS 205.380 repealed by implication. Washington, 117 Nev. at 739,
30 P.3d at 1137.
Fourth, Buford argues that her convictions for obtaining
money under false pretenses and theft arising out of the same transaction
violate the prohibition against double jeopardy. When two statutes
penalize the same conduct, the Blockburger v. United States, 284 U.S. 299
(1932), test determines whether each contains an element distinct from
the other and thereby whether punishment under both statutes violates
double jeopardy. Jackson v. State, 128 Nev., Adv. Op. 55, 291 P.3d 1274,
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1278 (2012). We note that Buford has failed to discuss the elements of the
contested counts to demonstrate an error under Blockb urger. Mere
reference to a codefendant's earlier writ petition is not dispositive. As she
has failed to provide cogent argument supporting her request for relief, we
decline to consider this claim. See Maresca v. State, 103 Nev. 669, 673,
748 P.2d 3, 6 (1987).
Fifth, Buford argues that the verdict was deficient for failing
to specify the value that was fraudulently obtained in count 13 (attempt to
obtain property under false pretenses). If the value of property obtained
under false pretenses exceeds $250 (as of 2010), then it is a category B
felony; otherwise, it is a misdemeanor. NRS 205.380(1); see NRS 193.330.
A fact that must be determined to establish an element of an offense must
be determined by the jury. See Sellers v. State, 108 Nev. 1017, 1018-19,
843 P.2d 362, 364 (1992). Buford failed to object to the verdict form below,
and we review her contention for plain error. Green v. State, 119 Nev. 542,
545, 80 P.3d 93, 95 (2003). The jury is presumed to follow its instructions
and here was instructed that the offense of obtaining property under false
pretenses required the property obtained to be worth $250 or more and
that the jury must determine the value of the relevant property. See
Leonard v. State, 117 Nev. 53, 66, 17 P.3d 397, 405 (2001). We conclude
that Buford has not shown that the verdict form amounted to plain error
that affected her substantial rights.
Lastly, Buford argues that the State presented insufficient
evidence to support the jury's finding of guilt. 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.
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Virginia, 443 U.S. 307, 319 (1979); Origel-Candido v. State, 114 Nev. 378,
381, 956 P.2d 1378, 1380 (1998).
The record shows that Buford supervised the attendants at
the club, instructed the attendants on how to dress and how to interact
with prospective victims, provided the attendants with scripts, and
oversaw staff meetings during which the club's practices were discussed.
Buford hired, instructed on how to act, and induced to commit fraud the
attendants who induced victims to pay money by material
misrepresentations. Buford intentionally managed and supervised the
club, and the sole apparent purpose of the club was misrepresenting the
sale of sexual services and physically removing victims after conducting as
many fraudulent transactions as possible. Buford engaged in more than
two crimes of fraud related to racketeering with similar patterns and
within five years of each other and participated in the club's affairs
through this racketeering activity.
The jury could reasonably infer from the evidence presented
that Buford committed five counts of theft, five counts of multiple
transactions involving fraud or deceit in the course of enterprise or
occupation, four counts of obtaining money under false pretenses, one
count of attempt to obtain money under false pretenses, and one count of
racketeering. See NRS 205.0832; NRS 205.377; NRS 205.380; NRS
205.400. Circumstantial evidence is enough to support a conviction. Lisle
v. State, 113 Nev. 679, 691-92, 941 P.2d 459, 467-68 (1997), holding
limited on other grounds by Middleton v. State, 114 Nev. 1089, 1117 n.9,
968 P.2d 296, 315 n.9 (1998). Buford's argument that the indictment did
not allege her direct participation misapprehends the indictment, which
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alleges her supervision, hiring, and instruction of the attendants who
interacted with the victims—such oversight alleges Buford's participation
as a principal. NRS 195.020.
Having considered Buford's contentions and concluded that
they are without merit, we
ORDER the judgment of conviction AFFIRMED.
J.
Hardesty
J.
Saitta
cc: Hon. David B. Barker, District Judge
Nguyen & Lay
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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