                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                JAMES BALGAS,                                         No. 65512
                Appellant,
                vs.
                THE STATE OF NEVADA,
                Respondent.                                             FILED
                                                                        JAN 1 5 2016
                                                                                  EMAN



                                                                          EPUTY CLERK




                                       ORDER OF AFFIRMANCE
                            This is an appeal from a judgment of conviction, pursuant to a
                jury trial, of racketeering. Eighth Judicial District Court, Clark County;
                David B. Barker, Judge.
                            Appellant James Balgas argues that the district court erred in
                denying his motion to set aside the jury verdict and for a new trial after
                the jury found him guilty of racketeering despite finding him not guilty of
                coercion, robbery, and multiple transactions involving fraud or deceit in
                the course of an enterprise or occupation. He argues that his conviction
                was inconsistent with his acquittals and thereby merited relief as a matter
                of law. We review questions of law de novo. Sheriff v. Burcham, 124 Nev.
                1247, 1253, 198 P.3d 326, 329 (2008). Verdicts will not be disturbed for
                inconsistency when a jury acquits a defendant of a predicate offense while
                convicting of a compound offense. United States v. Powell, 469 U.S. 57, 65
                (1984); Bollinger v. State, 111 Nev. 1110, 1116, 901 P.2d 671, 675 (1995).
                Accordingly, a defendant's acquittal for a predicate offense does not
                invalidate a racketeering conviction that alleged commission of that


SUPREME COURT
     OF
     NEVADA


(0) I947A   e                                                                -0t4
                 predicate offense in order to allege a sufficient number of predicate
                 offenses. See United States v. Vastola, 899 F.2d 211, 225 (3d. Cir. 1990),
                 vacated on other grounds by Vast°la v. United States, 497 U.S. 1001
                 (1990); United States v. Tinsley, 800 F.2d 448, 450-52 (4th Cir. 1986); Corn.
                 v. Cassidy, 620 A.2d 9, 14 (Pa. Super. Ct. 1993). Even if the verdicts were
                 inconsistent, Balgas would not be entitled to relief. We conclude that the
                 district court did not abuse its discretion in rejecting Balgas' motion.
                             Balgas next argues that the evidence presented at trial was
                 insufficient to support the jury's finding of guilt for racketeering and that
                 the district court abused its discretion in denying his motion for an
                 advisory verdict on this ground. This court reviews the evidence in the
                 light most favorable to the prosecution to determine whether any rational
                 juror could find the elements of the offense beyond a reasonable doubt.
                 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 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 this court
                 reviews its decision for an abuse of discretion, Milton v. State, 111 Nev.
                 1487, 1494, 908 P.2d 684, 688 (1995).
                             The record shows the following. Balgas was employed by Club
                 Exclusive II as a bouncer, the club operated an ongoing fraudulent scheme
                 to acquire money from victims by misrepresenting the sale of sexual
                 services, the club's practices were discussed at meetings that all
                 employees attended, the bouncers monitored the club's attendants'
                 fraudulent practices by video feed to intervene when the fraudulent
                 scheme required removing a protesting victim from the premises,



SUPREME COURT
        OF
     NEVADA
                                                         2
(0) 1947A    e
                 removing victims from the premises was an integral part of the club's
                 criminal scheme, the criminal scheme involved more than two instances of
                 multiple transactions involving fraud or deceit in the course of enterprise
                 or occupation, and Balgas removed a victim from the premises after he
                 had been defrauded in furtherance of this scheme.
                             The jury could reasonably infer from the evidence presented
                 that Balgas conspired to participate in racketeering activity through the
                 Club's affairs (1) by agreeing to participate, through his employment, in
                 the Club's racketeering activity by removing victims from the premises
                 after the attendants had defrauded the victim and the victim had become
                 upset and (2) by overtly acting to effect the agreement in removing a
                 victim from the premises.      See NRS 207.360(33); NRS 207.390; NRS
                 207.400(1)(c)(2), (j); Thomas v. State, 114 Nev. 1127, 1143, 967 P.2d 1111,
                 1122 (1998) ("[Conspiracy] is usually established by inference from the
                 conduct of the parties."); Lisle v. State, 113 Nev. 679, 691-92, 941 P.2d 459,
                 467-68 (1997) ("[C]ircumstantial evidence alone may sustain a
                 conviction."), holding limited on other grounds by Middleton v. State, 114
                 Nev. 1089, 1117 n.9, 968 P.2d 296, 315 n.9 (1998). Balgas' contention that
                 he was merely an independent contractor is belied by the record and
                 nevertheless confers no defense to racketeering liability. We conclude that
                 the district court did not abuse its discretion in denying Balgas' motion for
                 an advisory verdict.
                             Lastly, Balgas argues that the indictment failed to set forth
                 facts with specificity alleging his culpability for racketeering. To provide a
                 defendant with an opportunity to prepare an adequate defense, a charging
                 instrument must provide adequate notice to the accused of the



SUPREME COURT
        OF
     NEVADA
                                                       3
(0) 1947A    e
                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). As Balgas first challenged the
                indictment when the State could not correct the alleged deficiency, we will
                hold the charging instrument to be sufficient unless there is no reasonable
                construction under which it charged an offense for which Balgas was
                convicted. See Larsen v. State, 86 Nev. 451, 456, 470 P.2d 417, 420 (1970).
                The indictment alleged that the defendants violated specific sections of
                Nevada's racketeering statute through their involvement in the club,
                through instructing employees to use force and the fear of force to retain
                illegally acquired monies, or through creating an enterprise to make
                customers believe that they would receive sexual services in exchange for
                money. It alleged a specific incident in which Balgas acted to implement
                the club's fraudulent scheme. The indictment thus alleged a specific
                incident and broader factual theories of liability, while providing specific
                statutory sections proscribing the alleged conduct. In contrast to the
                indictment in State v. Hancock, 114 Nev. 161, 164, 955 P.2d 183, 185
                (1998), we conclude that Balgas had notice of the charges against him and
                their theories of liability and that the indictment was sufficient.




SUPREME COURT
        OF
     NEVADA
                                                       4
(0) 1947A
                               Having considered Balgas' contentions and concluded that
                  they are without merit, we
                               ORDER the judgment of conviction AFFIRMED. 1




                                                                          •-ef--ett      , j,
                                                             Hardesty-,


                                                                                          J.



                                                                                          J.
                                                             Pickering


                  cc: Hon. David B. Barker, District Judge
                       Sylvia Bishai, Esq.
                       Thomas Michaelides
                       Attorney General/Carson City
                       Clark County District Attorney
                       Eighth District Court Clerk




                        1 We note that Balgas failed to include any trial transcripts, and a
                  complete review is only possible because the State submitted those
                  records. See Thomas v. State, 120 Nev. 37, 43, 83 P.3d 818, 822 (2004)
                  ("[C]ounsel failed to include many necessary parts of the record in the
                  Appellant's Appendix. We are able to address the merits of a number of
                  claims only because the State provided a[n] . . . appendix that includes
                  necessary parts of the record.").




SUPREME COURT
        OF
     NEVADA
                                                      5
(0) 1947A    em
