                        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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                 of NRS 207.400(1); the indictment alleged specific acts of misconduct by
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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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