State v. Thomas (Lacy) ( 2013 )

 546, 550, 188 P.3d 51, 54 (2008). We review questions of statutory
interpretation and issues involving constitutional challenges de novo. See
State v. Lucero, 127 Nev. „ 249 P.3d 1226, 1228 (2011); West v.
State, 119 Nev. 410, 419, 75 P.3d 808, 814 (2003).
Sufficiency of the indictment
The State argues that the indictment sufficiently put Thomas
on notice of the specific conduct alleged to constitute theft and misconduct
of a public officer because the indictment alleged that Thomas used funds
entrusted to him for improper purposes. The State further argues that the
indictment provided more notice than is required by due process because
the facts underlying the charges were pleaded in detail and discussed at
length in the grand jury transcript.
Under NRS 173.075(1), an indictment "must be a plain,
concise and definite written statement of the essential facts constituting
the offense charged." "[The indictment] must be definite enough to
prevent the prosecutor from changing the theory of the case, and it must
inform the accused of the charge he is required to meet." Husney v.
O'Donnell, 95 Nev. 467, 469, 596 P.2d 230, 231 (1979). To provide
sufficient notice, "the indictment standing alone must contain the
elements of the offense intended to be charged and must be sufficient to
apprise the accused of the nature of the offense so that he may adequately
prepare a defense." Laney v. State, 86 Nev. 173, 178, 466 P.2d 666, 669
(1970) (internal quotations omitted); see Logan v. Warden, 86 Nev. 511,
514, 471 P.2d 249, 251 (1970) (stating that "the combined information
provided by the charging instrument and the [grand jury] transcript"
would sufficiently apprise a defendant of the offense charged in order to
mount a proper defense). However, an indictment "which alleges the
commission of the offense solely in the conclusory language of the statute
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is insufficient." Sheriff v. Levinson, 95 Nev. 436, 437, 596 P.2d 232, 233
(1979).
Theft, counts one to five
NRS 205.0832(1)(b) provides that
a person commits theft if, without lawful
authority, the person knowingly. . . [c]onverts,
makes an unauthorized transfer of an interest in,
or without authorization[,] . . . uses the services or
property of another person entrusted to him or her
or placed in his or her possession for a limited,
authorized period of determined or prescribed
duration or for a limited use.
(Emphasis added). In all five of the theft counts in the indictment, it is
alleged that Thomas used county funds in an unauthorized manner and
exceeded the county's entrustment for "limited use[s]" by distributing said
funds to his personal friends or associates under the guise of legitimate
contracts that were "grossly unfavorable" to the county, "unnecessary,"
and/or "us[ed] the services or property [of UMC] for another use."
Specifically, the State explained to the grand jury that it was presenting
an embezzlement-type theory of theft, which entails "taking money that is
entrusted to you for a particular purpose and using it for other purposes
outside that entrustment."
Count one of the indictment specifically references a contract
between UMC and Superior Consulting or ACS Company (collectively,
ACS) where some, albeit very limited, debt collection work was to be
performed. The contract called for the completion of debt collection work
that was already being performed by another entity and it is alleged the
work was performed poorly by ACS, leading to a decrease in overall debt
collection. While count one of the indictment included the relevant dates,
the parties, and the factual accounts of the contract entered with ACS, it
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failed to allege how Thomas's conduct was unlawfully authorized or how
his use of payments to ACS articulate the intended, unlawful purpose
when actual work had been performed under the contract. We conclude
that the indictment and grand jury transcript failed to provide Thomas
with sufficient notice of all the elements of the criminal acts charged in
count one in order to prepare his defense. See Laney, 86 Nev. at 178, 466
P.2d at 669.
With regard to theft counts two to five, in the indictment and
before the grand jury, Thomas is alleged to have entered into contracts on
behalf of UMS with Frasier Systems Group, TBL Construction, Premier
Alliance Management, LLC, and Crystal Communications, LLC. These
companies allegedly provided consulting and supervisory services in the
areas of information technology, utilities, landscaping, and
telecommunications. However, the State explicitly stated that they never
performed any work or delivered a final work-product under the terms of
these contracts. Because the State alleged in the indictment and before
the grand jury how Thomas engaged in conduct that was unlawfully
authorized (i.e. there was no work performed or final work-product
provided), we conclude that Thomas was sufficiently put on notice of the
criminal acts charged in counts two to five. Accordingly, we reverse the
district court's dismissal as to counts two to five; however, we affirm the
dismissal of count one.
Misconduct of a public official, counts six to ten
NRS 197.110(2) provides that "[e]very public officer
who. . . [e]mploys or uses any person, money or property under the public
officer's official control or direction, or in the public officer's official
custody, for the private benefit or gain of the public officer or another, is
guilty of a . . . felony." In counts six to ten of the indictment, the State
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alleges that Thomas, while acting as Chief Executive Officer of UMC,
"use [d} money under his official control or direction. . . for the private
benefit or gain of himself or another." Despite the fact that each count
failed to provide a detailed narrative of the facts as they related to each
charge, each count incorporated by reference the facts set forth in theft
counts one to five, respectively. And, counts one to five included
allegations that Thomas entered into contracts with his longtime friends
or associates that were "grossly unfavorable" to UMC. Thus, we conclude
that the elements of the offense of misconduct of a public officer as set
forth in counts six to ten of the indictment, when considered together with
the facts as alleged in counts one to five and the grand jury testimony, put
Thomas on sufficient notice of the crimes charged in counts six to ten so
that he could mount an adequate defense. See Logan, 86 Nev. at 513, 471
P.2d at 251 (establishing that the information in the charging instrument
and the grand jury transcript may be sufficient notice). Accordingly, we
reverse the district court's dismissal as to counts six to ten.
Amendment to count one is not warranted
The State contends that the appropriate remedy for
inadequate notice in a charging document is amendment, not dismissal.
Given our reversal of the district court's order dismissing counts two to
ten, the State's request for amendment only applies to count one. NRS
173.095(1) states that "[t]he court may permit an indictment or
information to be amended at any time before verdict or finding if no
additional or different offense is charged and if substantial rights of the
defendant are not prejudiced." Whether an indictment may be amended is
"a determination [wholly] within the district court's discretion." Viray v.
State, 121 Nev. 159, 162, 111 P.3d 1079, 1081 (2005).
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i
We conclude that the district court did not abuse its discretion
in denying the State the right to amend the indictment as to count one
because the indictment and grand jury transcript failed to put Thomas on
sufficient notice of the charged crime, and the State has failed to show
that it can cure the defective allegation. Thus, permitting the State to
amend count one would prejudicially affect Thomas's substantial rights.
Accordingly, for the reasons set forth above, we ORDER the
judgment of the district court AFFIRMED IN PART AND REVERSED IN
PART AND REMAND this matter to the district court for proceedings
consistent with this order.'
C.J.
Gibbons
%-l2A-ZL\
'esty
Saitta
'The Honorable Michael Douglas, Justice, voluntarily recused
himself from participation in the decision of this matter.
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cc: Hon. Michael Villani, District Judge
Attorney General/Carson City
Clark County District Attorney
Daniel J. Albregts, Ltd.
Franny A. Forsman
Eighth District Court Clerk
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