Ahearn (Jamison) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
JAMISON AHEARN, No. 66123
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent.
MAR 1 8 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 and racketeering. Eighth Judicial District Court,
Clark County; David B. Barker, Judge.
First, appellant Jamison Ahearn argues that the indictment
failed to provide specific factual allegations to place him on notice of the
charges against him. He argues further that the racketeering count was
deficient for failing to list predicate crimes and their elements. 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 fl
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 Ahearn's substantial rights by impairing his 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
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Ahearn and his codefendants 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"), op. corrected, 696 P.2d 993 (1985);' 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 Ahearn
participated in the charged conduct. Ahearn's claim that the count should
have included the predicate offenses and their elements lacks merit, as
that would risk impermissibly charging multiple crimes in the same count
and would be very confusing to the jury. See Gordon v. Eighth Judicial
Dist. Court, 112 Nev. 216, 228-29, 913 P.2d 240, 248 (1996). Ahearn has
failed to provide cogent argument supporting his claim that vagueness of
the pleadings impaired his ability to cross-examine witnesses, and we
decline to consider the claim. See Maresca v. State, 103 Nev. 669, 673, 748
P.2d 3, 6 (1987). We conclude that Ahearn had practical notice of the
'Ahearn asserts that incorporation must be express, relying on
federal case law. See Walker v. United States, 176 F.2d 796, 798 (9th Cir.
1949). But see United States v. Staggs, 881 F.2d 1527, 1531 (10th Cir.
1989); Hudspeth v. United States, 183 F.2d 68, 69 (6th Cir. 1950). We are
not persuaded in light of the adequate notice provided by the entire
indictment, as Ahearn identifies no Nevada authority for this proposition
and provides no reason to deviate from Laney's guidance that the test is
whether adequate notice of the charges has been provided, as a practical
matter. See 86 Nev. at 178, 466 P.2d at 669. We further note that, when
Ahearn and his codefendants first raised this challenge, codefendant's
counsel ignored the district court's question whether amending the
indictment to incorporate by reference allegations in other counts would
resolve this asserted deficiency.
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State's theory of racketeering and an adequate opportunity to prepare his
defense. 2
Second, Ahearn argues that insufficient evidence supported
his convictions and that the district court abused its discretion in denying
his motion for an advisory verdict or a new trial. 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. See Milton v. State, 111 Nev. 1487,
1494, 908 P.2d 684, 688 (1995). We will not overturn its decision on a
motion for a new trial absent an abuse of discretion. Johnson v. State, 118
Nev. 787, 796, 59 P.3d 450, 456 (2002), overruled on other grounds by
Nunnery v. State, 127 Nev. 749, 263 P.3d 235 (2011). 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. 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. Officer Charles Peck visited
Club Exclusive II as an undercover officer. Several attendants there
insinuated the sale of sexual services, and Peck agreed to purchase their
services, paying $220. Peck was led to another area where he was asked
to upgrade to purchase additional sexual services that were superior. He
agreed and paid another $260. His attendant performed a hand massage
while seeking to elicit another upgrade, suggesting that he would then
receive the sexual services that he had paid for. Peck declined, and his
Ahearn also challenged the multiple-transactions count, asserting
2
that the indictment improperly alleged a single transaction. We address
and reject Ahearn's characterization of NR.S 205.377 below.
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attendant left. Ahearn arrived shortly thereafter and told Peck to leave
the premises, standing very close to Peck to physically intimidate him.
Ahearn escorted Peck from the premises Testimony established that the
club's business was for its attendants to make male patrons think they
could get sexual services by touching them suggestively, speaking
provocatively, mentioning one-on-one time, telling patrons that they would
have a great time, and mentioning repeat customers. The attendants
would seek to elicit as many upgrades as possible from the patrons and
would never provide the sexual services sold. Ahearn was one of the
bouncers, and the bouncers would monitor a security video feed for a
signal from an attendant that a patron was unruly or would no longer
upgrade and would remove the patron from the premises. Ahearn and all
other staff members attended regular staff meetings at which the club's
business practices, namely defrauding its patrons through
misrepresenting the sale of sexual services, were discussed.
The jury could reasonably infer from the evidence presented
that Ahearn aided and abetted two transactions involving acts in the
course of an enterprise with the intent to defraud by means of a false
representation known to be false and the intent to induce reliance, causing
a loss greater than $250. See NRS 205.377(1) (2010). The jury could also
reasonably infer that Ahearn agreed to participate in racketeering activity
through Club Exclusive II's affairs and overtly acted to effect this
agreement. See NRS 207.400(j). Accordingly, a rational trier of fact could
find guilt beyond a reasonable doubt. See Jackson, 443 U.S. at 319. The
jury's verdict will not be disturbed on appeal where, as here, substantial
evidence supports the verdict. See Bolden v. State, 97 Nev. 71, 73, 624
P.2d 20, 20 (1981); see also McNair v. State, 108 Nev. 53, 56, 825 P.2d 571,
573 (1992). Ahearn fails to provide cogent argument in support of his one-
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sentence argument that his conviction for multiple transactions involving
fraud or deceit was inconsistent with his acquittal for theft when they
were both based on the same set of facts, and we decline to consider it. See
Maresca, 103 Nev. at 673, 748 P.2d at 6; cf. United States v. Powell, 469
U.S. 57, 65 (1984) (denying relief on inconsistent-verdict argument);
Bollinger v. State, 111 Nev. 1110, 1116-17, 901 P.2d 671, 675 (1995)
(applying Powell). Accordingly, the district court did not abuse its
discretion in denying Ahearn's respective motions to set aside the jury
verdict and for a new trial or for an advisory verdict.
Third, Ahearn argues that he cannot be liable for racketeering
because he was not a manager but merely an independent contractor and
asks this court to adopt a federal rule to this effect. The federal statute
requires a person to be involved in directing the broader operation or
management of the enterprise. Reyes v. Ernst & Young, 507 U.S. 170, 179,
185 (1993) (interpreting language in 18 U.S.C. § 1962(c) proscribing a
person employed by or associating with an enterprise from participating
"in the conduct of such enterprise's affairs through a pattern of
racketeering activity" (emphasis added)). Nevada's statute is broader
than the federal statute, proscribing a person "employed by or associated
with any enterprise to . . . participate . . . in: (1) The affairs of the
enterprise through racketeering activity; or (2) Racketeering activity
through the affairs of the enterprise." NRS 207.400(1)(c). Nevada lacks
the "in the conduct of' language and thus the management requirement.
We reject Ahearn's claim and decline to adopt this requirement from
federal racketeering law.
Fourth, Ahearn argues that "multiple transactions" in NRS
205.377 requires different instances on different days or with different
victims. "The interpretation of a statute presents a question of law and is
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subject to de novo review." Mendoza-Lobos v. State, 125 Nev. 634, 642,
218 P.3d 501, 506 (2009). "This court will attribute the plain meaning to a
statute that is not ambiguous." Id. NRS 205.377 proscribes a person from
"engag[ing] in an act. . . which operates. . . as a fraud. . in at least two
transactions that have the same or similar pattern." A transaction is an
lalict of transacting or conducting any business." Transaction, Black's
Law Dictionary (6th ed. 1990). In arguing that a single event cannot
contain multiple transactions, Ahearn has not identified ambiguity in the
statute's construction, but rather challenges its application to the present
facts. Peck paid once to purchase admission to the premises and time with
an attendant, was led to another area, and paid again when offered to
upgrade by purchasing a purportedly better package of services. Under
the plain meaning of "transaction," Peck completed a transaction and then
completed another transaction shortly thereafter. We reject Ahearn's
proposed construction.
Fifth, Ahearn argues that jury instruction no. 32 misstated
racketeering law by permitting liability without finding that he committed
two predicate offenses. The 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). Accordingly, we reject this argument.
Ahearn further argues that instruction no. 32 added a theory
of liability not included in the indictment, warranting reversal. This court
has reversed a murder conviction where the State charged open murder,
the State added a felony-murder theory after the close of the evidence, and
this court concluded that the defendant did not have adequate notice of
the charges on which his conviction was based. Alford v. State, 111 Nev.
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1409, 1411-12, 1415, 906 P.2d 714, 715, 717-18 (1995). Where an
appellant has failed to timely object to a jury instruction, as Ahearn here,
his arguments are reviewed for plain error affecting his substantial rights.
GreenS v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003). The instruction
plainly contains error, as it omitted NRS 207.400(1)(b), which was alleged
in the indictment, and added NRS 207.400(1)(e)-(0, which were not. Yet
Ahearn did not incite others to use violence or threats in serving the club's
frauds or play any part in the club's financing or management, and thus
the erroneous subsections did not address liability pertinent to his
conduct, such that Ahearn did not suffer prejudice. We conclude that the
error did not affect Ahearn's substantial rights. 3
Sixth, Ahearn argues that the district court abused its
discretion in settling jury instructions by denying proposed instructions on
the presumption of innocence, the destruction of evidence, and the jury's
duty to acquit for the State's failure to present evidence on "criminal
enterprise." We review the district court's decisions in settling jury
instructions for an abuse of discretion or judicial error, Crawford v. State,
121 Nev. 744, 748, 121 P.3d 582, 585 (2005), and review de novo whether a
jury instruction is an accurate statement of law, Nay v. State, 123 Nev.
326, 330, 167 P.3d 430, 433 (2007). We have previously affirmed rejection
of the proposed innocence instruction when the jury was properly
instructed on reasonable doubt, see Bails v. State, 92 Nev. 95, 96-97, 545
3 We have considered the remainder of Ahearn's challenges to the
jury instructions provided that were not timely objected to and conclude
that he has failed to show plain error. See Green, 119 Nev. at 545, 80 P.3d
at 95. To the extent that Ahearn challenged instructions pertaining to
offense definitions, we conclude that his arguments lack merit, as
discussed above.
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P.2d 1155, 1155-56 (1976), and the jury was properly instructed here. The
record suggests that the police's failure to seize the digital-video recorder
was negligence, not gross negligence, such that an instruction pursuant to
Sanborn v. State, 107 Nev. 399, 812 P.2d 1279 (1991), was not warranted.
See Randolph v. State, 117 Nev. 970, 987, 36 P.3d 424, 435 (2001). The
district court rejected the duty-to-acquit instruction as an inaccurate
statement of law, noting that "criminal enterprise" is not a term of art,
and Ahearn fails to provide cogent argument that the district court erred.
See Maresca, 103 Nev. at 673, 748 P.2d at 6. We conclude that the district
court did not abuse its discretion in denying these proposed instructions.
Seventh, Ahearn argues that the district court erred in failing
to hold a hearing before admitting testimony about prior bad acts. The
district court has considerable discretion in determining whether evidence
is relevant and admissible. Castillo v. State, 114 Nev. 271, 277, 956 P.2d
103, 107-08 (1998). Uncharged prior bad acts are presumed to be
inadmissible. Tavares v. State, 117 Nev. 725, 731, 30 P.3d 1128, 1131
(2001), modified on other grounds by Mclellan v. State, 124 Nev. 263, 182
P.3d 106 (2008). The Manchester video was relevant and admissible as to
charges against Ahearn's codefendant. See NRS 48.015; NRS 48.025. The
chargeback letters were probative as to the intent to defraud and the
club's criminal objectives and were thus relevant and admissible. See NRS
48.015; NRS 48.025. The complaint-call and business-license testimony
were non-hearsay admitted to show the course of the police investigation.
See Wallach v. State, 106 Nev. 470, 473, 796 P.2d 224, 227 (1990); Sheriff
v. Blasko, 98 Nev. 327, 330 n. 2, 647 P.2d 371, 373 n. 2 (1982). The
screening-question and illegal-brothel testimony did not implicate the
defendants in a crime or provide inadmissible character evidence and were
not challengeable under a prior-bad-act analysis. See NRS 48.045; Lamb
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v. State, 127 Nev. 26, 41, 251 P.3d 700, 710 (2011). We conclude that the
district court did not abuse its discretion in admitting this evidence.
Eighth, Ahearn argues that the State improperly impeached
its witnesses with their guilty pleas and improperly used coperpetrators'
guilty pleas as substantive evidence of the defendants' guilt. The jury is
presumed to follow its instructions. Leonard v. State, 117 Nev. 53, 66, 17
P.3d 397, 405 (2001). The jury was instructed to determine the guilt of
each defendant individually and that each defendant was presumed
innocent. Further, juries may inspect a codefendant's plea agreement,
NRS 175.282(1); Sessions v. State, 111 Nev. 328, 334, 890 P.2d 792, 796
(1995), and other jurisdictions have widely held that the State may
anticipate a codefendant's cross-examination by asking about a plea
agreement to better assist the jury in assessing credibility, see, e.g., United
States v. Halbert, 640 F.2d 1000, 1004 (9th Cir. 1981). We conclude that
the testimony elicited was not itself improper and that Ahearn has failed
to support his implication that the jury used evidence of his codefendant's
plea agreements improperly.
Ninth, Ahearn argues that the district court erred in
permitting use of the phrase "clip joint" and that the State exceeded the
district court's order limiting its usage. Evidence may be excluded when
its probative value is substantially outweighed by the danger of unfair
prejudice. NRS 48.035(1). As the term was relevant to describing the
course of the police investigation, the prejudicial effect of this relatively
archaic phrase was minimal, and the State did not elicit this testimony
from other witnesses, we conclude that the district court did not abuse its
discretion in admitting the evidence and reject the argument that the
State exceeded the district court's order. See Castillo, 114 Nev. at 277, 956
P.2d at 107-08.
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Tenth, Ahearn argues that admitting the advertising
materials was error. As the advertisements were probative as to the
services the club represented that it provided, they were relevant to the
defendants' intents to defraud, deprive of property, and participate in
racketeering activity alleged in the indictment. See NRS 48.015; NRS
48.025. We conclude that the district court did not abuse its discretion in
this admission. See Castillo, 114 Nev. at 277, 956 P.2d at 107-08.
Eleventh, Ahearn argues that cumulative error warrants
reversal. Because Ahearn has shown only one error for which he has
failed to show prejudice, there is nothing to cumulate.
Twelfth, Ahearn argues that the district court abused its
discretion in sentencing by denying his motion to transfer him to veteran's
court. Transfer is discretionary under NRS 176A.290(1), and Ahearn has
failed to show that the district court abused that discretion in denying his
motion when it found no nexus between the crime and his service.
Having considered Ahearn's contentions and concluded that
they are without merit, we
ORDER the judgment of conviction AFFIRMED.
J.
Harksty -Th
Aitta
J.
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cc: Hon. David B. Barker, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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