                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                JENNIFER MUNOZ,                                        No. 66264
                Appellant,
                vs.
                THE STATE OF NEVADA,
                Respondent.
                                                                                  FILED
                                                                                  JAN 1 5 2016
                                                                                  V.   E UNF4 MAN
                                                                            ctE                CO
                                                                            BY
                                        ORDER OF AFFIRMANCE                             -   rtireyr"


                             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, theft, obtaining money under false pretenses,
                and racketeering. Eighth Judicial District Court, Clark County; David B.
                Barker, Judge.
                             Appellant Jennifer Munoz first argues that the district court
                abused its discretion by denying her motion for a new trial when the
                indictment failed to state with specificity the acts she committed that
                constituted 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 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).
                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 Munoz's substantial rights by
                impairing her ability to prepare a defense. See State v. Jones, 96 Nev. 71,

SUPREME COURT
         OF
      NEVADA


(0) 1.9474
                                                                                        OlLiq
                   76, 605 P.2d 202, 205-06 (1980). The racketeering count identified specific
                   statutory sections under which liability was alleged, the State's theories of
                   racketeering liability and how Munoz and others violated these sections,
                   and specific acts of misconduct by Munoz involving a particular victim and
                   date. Munoz accordingly had sufficient notice of the charges to prepare a
                   defense. 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."). We conclude that Munoz has not shown
                   that the district court abused its discretion. See State v. Carroll, 109 Nev.
                   975, 977, 860 P.2d 179, 180 (1993) (reviewing district court's denial of
                   motion for new trial for abuse of discretion).
                               Second, Munoz argues that the district court abused its
                   discretion in providing an instruction on ignorance of the law that
                   improperly shifted the burden to the defense by not distinguishing
                   between general and specific intent. 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). As Munoz
                   failed to object contemporaneously, review is limited to plain error
                   affecting Munoz's substantial rights. See Tavares v. State, 117 Nev. 725,
                   729, 30 P.3d 1128, 1130-31 (2001), modified on other grounds by Mclellan
                   v. State, 124 Nev. 263, 182 P.3d 106 (2008). Having reviewed the
                   instruction, we note that the instruction is a correct statement of the law
                   and conclude that it did not shift the State's burden regarding the intent
                   elements.   See United States v. McDaniel, 545 F.2d 642, 644 (9th Cir.



SUPREME COURT
      OF
    NEVADA
                                                          2
(0) 1947A citir.
                1976); Sharma v. State, 118 Nev. 648, 655, 56 P.3d 868, 872 (2002). We
                conclude that the district court did not err in giving this instruction.
                            Third, Munoz argues that the district court abused its
                discretion in denying the proposed defense instructions on the failure to
                collect material evidence, witness immunity, and racketeering. An
                instruction to irrebuttably presume that lost or uncollected evidence was
                unfavorable to the State is appropriate when the disputed evidence was
                material and its absence resulted from gross negligence or bad faith.      See

                Daniels v. State, 114 Nev. 261, 267, 956 P.2d 111, 115 (1998); Sanborn v.
                State, 107 Nev. 399, 408, 812 P.2d 1279, 1286 (1991). Having reviewed
                the record, we agree with the district court that the police's failure to
                collect potential video evidence when executing their warrant on Club
                Exclusive ifs premises was negligent but not grossly so and that a
                Sanborn instruction was thus unnecessary. Further, we note that
                codefendant's counsel argued that the absence of this evidence should be
                considered adversely against the State, belying Munoz's contention that
                the district court deprived her of the opportunity to argue that the absence
                of this evidence should weigh against the State's case. As to the denied
                immunity instruction, considering the jury instructions about the
                considerations that witnesses received for testifying and the illegality of
                prostitution in Clark County, we agree with the district court that the
                instructions provided covered the factual circumstances presented by the
                evidence. We also agree that the victim here does not fall within the class
                of informants described in On Lee v. United States, 343 U.S. 747, 757
                (1952). Lastly, we have reviewed the jury instructions provided on
                racketeering and those proposed and find the proposed instructions both
                misleading and incomplete for suggesting that finding a "criminal

SUPREME COURT
     OF

   NEVADA
                                                       3
(0) 1947A Cam
                 enterprise" is prerequisite to liability when no such term of art is found in
                 Nevada's racketeering statute,       see   NRS 207.360-.400, and that
                 racketeering liability may only apply through NRS 207.400(1)(c),
                 neglecting the other modes of liability enumerated in NRS 207.400(1).
                 Accordingly, we conclude that the district court did not abuse its discretion
                 in denying the proposed instructions. See Crawford, 121 Nev. at 748, 121
                 P.3d at 585.
                                Fourth, Munoz argues that the district court abused its
                 discretion in admitting prior-bad-act evidence without previously
                 conducting a hearing outside the presence of the jury. Munoz further
                 argues that it was error for the State to refer to this evidence in closing.
                 To overcome the presumption against the inadmissibility of uncharged
                 prior bad acts, the State must show its propriety at a hearing outside the
                 presence of the jury.    Tavares, 117 Nev. at 731, 30 P.3d at 1131. This
                 requirement may apply to uncharged prior bad acts committed by
                 coconspirators.    See Flores v. State, 116 Nev. 659, 662-63, 5 P.3d 1066,
                 1068 (2000). Munoz failed to object contemporaneously, and we review
                 this contention for plain error affecting her substantial rights.   Mclellan,
                 124 Nev. at 269, 182 P.3d at 110. The State elicited brief testimony
                 regarding a prior book-sale fraudulent scheme to emphasize that the
                 essential purpose of the club was to perpetrate fraud. By failing to
                 conduct a hearing as to the propriety of this evidence, the district court
                 committed error. The State's subsequent reference to the testimony in
                 closing, however, was permissible argument on the evidence presented.
                 See Klein v. State, 105 Nev. 880, 884, 784 P.2d 970, 973 (1989). In light of
                 the overwhelming evidence of the fraudulent reflexology scheme
                 perpetrated at Club Exclusive II and the very brief discussion of the prior

SUPREME COURT
      OF
    NEVADA
                                                       4
(0) I94Th FltP
                 book-sale fraud, we conclude that Munoz has failed to show that this error
                 affected her substantial rights.
                             Fifth, Munoz argues that the district court erred in denying
                 her motion for an advisory verdict because insufficient evidence supported
                 her convictions. 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).
                 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).
                             A victim testified that an attendant at the club induced him to
                 purchase admission to the premises on the strong implication that he was
                 paying for sexual services that were never intended to be provided and
                 that his attendant upsold him with multiple subsequent transactions by
                 falsely implying that he was paying for sexual services. The victim paid
                 more than $7000. Receipts produced at trial indicated that the attendant
                 who upsold him was "Jen M." Another attendant who participated in
                 defrauding the victim testified that Munoz was "Jen M" and that Munoz
                 defrauded the victim that night. Munoz, as with the other attendants,
                 was given a script to use in defrauding victims, was instructed on how to
                 dress and perform, attended staff meetings at which the club's business
                 practices of fraud were discussed, and used a signal to inform bouncers to
                 remove from the premises an upset victim who had been defrauded.
                 Munoz was described as one of the Club's most effective attendants at
                 eliciting secondary and tertiary transactions from customers.

SUPREME COURT
        OF
     NEVADA
                                                      5
(0) 1947A    e
                                The jury could reasonably infer from the evidence presented
                    that Munoz knowingly and with fraudulent intent engaged in an act that
                    operated a fraud by falsely representing something Munoz knew to be
                    false, that she intended the victim to rely upon, and that resulted in loss to
                    the victim in at least two transactions, see NRS 205.377(1); that Munoz
                    knowingly obtained property from the victim by a material
                    misrepresentation with the intent to deprive the victim of that property,
                    see NRS 205.0832(1)(c); that Munoz knowingly and intentionally obtained
                    more than $250 from the victim by false pretense with the intent to cheat
                    or defraud the victim, see NRS 205.380(1) (2010); and that Munoz was
                    employed by Club Exclusive II and participated in obtaining money by
                    false pretenses, obtaining property by false pretenses, and taking property
                    from another under circumstances not amounting to robbery through its
                    affairs and that these crimes had similar patterns, see NRS 207.360(9),
                    (26), (33); NRS 207.390; NRS 207.400(1)(c)(2). It is for the jury to
                    determine the weight and credibility to give the evidence, and 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). As such, we conclude that the district court did not abuse its
                    discretion in denying Munoz's motion for an advisory verdict.
                                Sixth, Munoz argues that the district court abused its
                    discretion in denying her motion for a new trial on the ground of
                    conflicting evidence. The district court may grant a• new trial when the
                    evidence was conflicting and the district judge believes that the totality of
                    the evidence fails to prove guilt beyond a reasonable doubt.          State v.
                    Purcell, 110 Nev. 1389, 1394, 887 P.2d 276, 279 (1994). We review the

SUPREME      Cour
        OF
     NEVADA
                                                           6
(0) 1947A    (e,
                 district court's decision on a motion for a new trial for an abuse of
                 discretion. Carroll, 109 Nev. at 977,860 P.2d at 180. Munoz's conflicting-
                 evidence argument amounts to an attack on the credibility of the
                 witnesses against her—determinations of which are the province of the
                 jury that we will not disturb here, see Bolden, 97 Nev. at 73, 624 P.2d at
                 20—and, rather than identifying conflicting evidence, Munoz has noted
                 minor details weighing against witness credibility. We conclude that
                 Munoz has failed to show that the district court abused its discretion.
                             Seventh, Munoz argues that cumulative error warrants
                 reversal. As she has identified only the prior-bad-acts hearing error,
                 which does not warrant reversal, we conclude that this ground does not
                 warrant relief.
                             Having considered Munoz's contentions and concluded that
                 they are without merit, we
                             ORDER the judgment of conviction AFFIRMED.




                                                       --crt-cc

                                                                                           J.
                                                            Pickering



                 cc: Hon. David B. Barker, District Judge
                      Las Vegas Defense Group, LLC
                      Attorney General/Carson City
                      Clark County District Attorney
                      Eighth District Court Clerk


SUPREME COURT
        OF
     NEVADA
                                                       7
(0) 1947A    e
