Seaton (Nicole) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
NICOLE SEATON, No. 66590
Appellant,
vs.
THE STATE OF NEVADA,
Respondent.
FILED
JAN 15 2016
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of multiple transactions involving fraud or deceit in course of
enterprise or occupation, theft, obtaining money under false pretenses,
and racketeering. Eighth Judicial District Court, Clark County; David B.
Barker, Judge.
Appellant Nicole Seaton first argues that the district court
erred in denying her motion for a new trial when the indictment failed to
put her on notice of her racketeering charge. 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 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, as here, a reduced standard of review will be
applied, and any defect will be disregarded unless it affected Seaton's
substantial rights by impairing her ability to prepare a defense. See State
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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. Unlike the indictment
in State v. Hancock, 114 Nev. 161, 955 P.2d 183 (1998), the present
indictment specifically alleged how Seaton participated in the charged
conduct and thus we reject Seaton's contention that the racketeering count
impermissibly grouped the defendants together. See Lane v. Torvinen, 97
Nev. 121, 122, 624 P.2d 1385, 1386 (1981). We conclude that Seaton had
practical notice of the State's theory of racketeering and an adequate
opportunity to prepare her defense and that the district court did not
abuse its discretion in denying her motion for a new trial. See State v.
Carroll, 109 Nev. 975, 977, 860 P.2d 179, 180 (1993) (reviewing district
court's denial of motion for new trial for abuse of discretion).
Second, Seaton argues that the district court erred in denying
her motion for an advisory verdict because insufficient evidence supported
her convictions. 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 we review its decision for an abuse of
discretion, Milton v. State, 111 Nev. 1487, 1494, 908 P.2d 684, 688 (1995).
We conclude that the State has produced sufficient evidence to establish
guilt beyond a reasonable doubt as determined by a rational trier of fact
for three counts as to victim DS, three counts as to RN, and racketeering.
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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 record shows the following. Seaton worked for the club as
an attendant DS entered, was greeted by his attendant, and paid $300-
400 for time with one of the attendants on the suggestion that he had paid
for sexual services. DS's attendant was named "Nicole," and no other
"Nicole" worked for the club other than Seaton. Seaton persuaded DS to
upgrade and pay again for sexual services after DS's initial transaction.
DS paid an additional $1500 at Seaton's behest. After upgrading, Seaton
massaged DS's feet again and told him that he would need to pay more
money, again, if he wanted other parts massaged.
As to RN, Seaton's name was written on his receipt, and she
was among the five women who collaborated in defrauding RN of more
than $7000 by participating in RN's third transaction. RN's attendant
perpetrated a fraud where she implied to RN that he was buying sexual
services from the five women for an hour, and RN's attendant enlisted
other attendants to participate in this fraud. The women provided no
sexual services and danced around a pole briefly before leaving after less
than an hour. Seaton was not RN's initial attendant or present for his
first two upgrades.
Seaton, as with the other attendants, was given a script to use
in defrauding victims, was instructed on how to dress and perform,
attended staff meetings at which the club's business practices of fraud
were discussed, and used a signal to inform bouncers to remove from the
premises an upset victim who had been defrauded. Seaton was featured
in the club's printed advertising materials that insinuated the sale of
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sexual services and was one of the most effective attendants at getting
victims to upgrade.
The jury could reasonably infer from the evidence presented
that Seaton knowingly and with fraudulent intent engaged in an act or
course of business that operated a fraud by falsely representing something
Seaton knew to be false, that she intended DS and RN to rely upon, and
that resulted in a loss to DS and RN in at least two transactions, see NRS
205.377(1); that Seaton knowingly obtained property from DS and RN by
material misrepresentations with the intent to deprive them of that
property, see NRS 205.0832(1)(c); that Seaton knowingly and intentionally
obtained more than $250 each from DS and RN by false pretense with the
intent to cheat or defraud them, see NRS 205.380(1) (2010); and that
Seaton was employed by Club Exclusive II and participated in obtaining
money by false pretenses, obtaining property by false pretenses, and
taking property from another under circumstances not amounting to
robbery through its affairs and that these crimes had similar patterns, see
NRS 207.360(9), (26), (33); NRS 207.390; NRS 207.400(1)(c)(2).
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). As such, we conclude that the district court did not
abuse its discretion in denying Munoz's motion for an advisory verdict.
Third, Seaton argues that the district court improperly
admitted prior-bad-act evidence without holding an evidentiary hearing
beforehand. To overcome the presumption against the inadmissibility of
uncharged prior bad acts, the State must show its propriety at a hearing
outside the presence of the jury. Tavares v. State, 117 Nev. 725, 731, 30
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P.3d 1128, 1131 (2001), modified on other grounds by Mclellan v. State,
124 Nev. 263, 182 P.M 106 (2008). This requirement may apply to
uncharged prior bad acts committed by coconspirators. See Flores v. State,
116 Nev. 659, 662-63, 5 P.3d 1066, 1068 (2000). The district court's failure
to conduct a proper hearing is not cause for reversal where the result
would have been the same if the district court had not admitted the
evidence. Qualls v. State, 114 Nev. 900, 903-04, 961 P.2d 765, 767 (1998).
Seaton failed to object contemporaneously, and we review this contention
for plain error affecting her substantial rights. Mclellan, 124 Nev. at 269,
182 P.3d at 110. The State elicited brief testimony regarding a prior book-
sale fraudulent scheme to emphasize that the essential purpose of the club
was to perpetrate fraud. By failing to conduct a hearing as to the
propriety of this evidence, the district court committed error. The State's
subsequent reference to the testimony in closing, however, was
permissible argument on the evidence presented. See Klein v. State, 105
Nev. 880, 884, 784 P.2d 970, 973 (1989). In light of the overwhelming
evidence of the fraudulent reflexology scheme perpetrated at Club
Exclusive II, the very brief discussion of the book-sale fraud, and sufficient
evidence supporting Seaton's convictions, we conclude that the outcome
would have been the same had this evidence not been admitted and that
Seaton has failed to show that this error affected her substantial rights.
Lastly, Seaton argues that cumulative error deprived her of a
fair trial. As she has identified only the prior-bad-acts hearing error,
which does not warrant reversal, we conclude that this ground does not
warrant relief.
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Having considered Seaton's contentions and concluded that
they are without merit, we
ORDER the judgment of conviction AFFIRMED.
J.
Saitta
J.
cc: Hon. David B. Barker, District Judge
Drummond Law Firm
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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