Lampkin (Brittani) v. State ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
BRITTANI LAMPKIN, No: 66274
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. JAW 1 5 2016
RA.
U E CO
i
C K
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 the
course of enterprise or occupation, theft, and racketeering. Eighth
Judicial District Court, Clark County; David B. Barker, Judge.
Appellant Brittani Lampkin first argues that insufficient
evidence supported the jury's findings of guilt for multiple transactions
involving fraud or deceit in the course of enterprise or occupation and for
racketeering and that the district court erred in denying her motions for a
new trial and for an advisory verdict. 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 will not overturn its decision on a motion for a new trial
absent a palpable 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,
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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. Lampkin misrepresented the
sale of sexual services to Officer Peck when he first paid to enter Club
Exclusive II at the front desk and again when she lightly stroked Peck as
her colleague elicited a second payment from Peck. Peck paid $480 as a
result of these misrepresentations. Lampkin agreed to and did participate
in the affairs of Club Exclusive II, an enterprise that existed to
fraudulently acquire money from victims by misrepresenting the sale of
sexual services. Lampkin attended staff meetings, where management
discussed business practices, which included the practice of fraud, as that
was the Club's purpose. Lampkin's manager told employees that the Club
was a "hustle" and provided a script designed to perpetrate their scheme
in the most effective fashion. Lampkin overtly acted to effect the scheme
of the Club by defrauding Peck.
The jury could reasonably infer from the evidence presented
that Lampkin participated in at least two transactions involving acts in
the course of an enterprise with the knowing 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 Lampkin agreed to participate in Club
Exclusive II's fraudulent scheme and overtly acted to effect this
agreement. See NRS 207.400(j). Lampkin's mere-presence argument is
belied by the record. 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
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Nev. 53, 56, 825 P.2d 571, 573 (1992). Accordingly, the district court did
not abuse its discretion in denying Lampkin's respective motions to set
aside the jury verdict and for a new trial and for an advisory verdict.
Second, Lampkin argues that the district court abused its
discretion in settling jury instructions by (1) denying the proposed defense
instruction on. racketeering, (2) denying an instruction permitting
Lampkin to argue that unpreserved evidence should be considered adverse
to the State's case, and (3) shifting the burden of proof to the defense with
the provided ignorance-of-the-law instruction. 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). The proposed defense instruction on racketeering was misleading
and incomplete for suggesting that racketeering liability could inhere only
through finding racketeering activity when the statute clearly envisions
numerous modes of commission. See NRS 207.390; NRS 207.400(1)(a)-(j).
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 also Randolph v. State, 117 Nev. 970, 987, 36 P.3d 424,
435 (2001). Lampkin's argument that she was precluded from arguing
adverse inferences from unpreserved evidence is contradicted by a
codefendant's argument about inferences from that evidence. Lastly,
Lampkin has failed to explain how the ignorance-of-the-law instruction—
which reflects a well-established rule of law, Whiterock v. State, 112 Nev.
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775, 782, 918 P.2d 1309, 1314 (1996)—shifted the burden to the defense.
Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) (declining to
address issues not supported by relevant authority and cogent argument).
Third, Lampkin argues that the district court erred in denying
her motion to dismiss because she was merely present at Club Exclusive II
as an employee.' Presence coupled with other circumstances may support
an inference that one is a party to an offense and not merely present.
Winston v. Sheriff, Clark Cnty., 92 Nev. 616, 618, 555 P.2d 1234, 1235
(1976). We review the district court's denial of a motion to dismiss for an
abuse of discretion. Hill v. State, 124 Nev. 546, 550, 188 P.3d 51, 54
(2008). As substantial evidence supports Lampkin's convictions and
shows her active efforts to defraud Peck, we conclude that Lampkin
participated in the Club's fraudulent scheme and was not merely present
and that the district court did not abuse its discretion in denying her
motion to dismiss.
Lastly, Lampkin argues that cumulative error warrants
reversal. Having found no error, there is no error to cumulate.
'Lampkin asserts that this was error because of deficiencies in the
pleading instrument, but Lampkin did not make that argument in her
motion to dismiss below, and we decline to consider it on appeal. See Ford
v. Warden, 111 Nev. 872, 884, 901 P.2d 123, 130 (1995).
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Having considered Lampkin's contentions and concluded that
they are without merit, we
ORDER the judgment of conviction AFFIRMED. 2
J.
Hardesty
J.
Saitta
Oidebt. ,J.
Pickering i
cc: Hon. David B. Barker, District Judge
The Law Office of Dan M. Winder, P.C.
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
2We note that Lampkin's brief was seriously deficient for failing to
properly cite to the record. See Thomas v. State, 120 Nev. 37, 43, 83 P.3d
818, 822 (2004).
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