                          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
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                                           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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