Notable Unpublished Supreme Court Decisions

Edward Manuel Thompson Jr. v. State of Nevada (order reversing and remanding)

  • Monique Bork's newborn son was diagnosed with shaken baby syndrome in 2006.  Bork's son died in 2011 and the death was deemed a homicide as a result of non-accidental head trauma the child sustained in 2006.  Thompson was charged with first degree felony murder by child abuse.
  • The Court held that the trial court committed reversible error because it gave the incorrect jury instruction defining child abuse as applied to felony murder theory.
  • Child abuse as used to support felony murder is "physical injury of non-accidental nature to a child under the age of 18 years."  NRS 200.030(6)(b).  The trial court incorrectly used the definition of child abuse in NRS 200.508(4)(a) which improperly included the theories of maltreatment.

The next five cases are orders affirming several co-defendants' convictions that stem from the same case facts.  This case revolved around Club Exclusive II, an 'enterprise' where woman employees were trained to entice customers to pay for promised sexual services.  The customers would pay thousands of dollars on false promise of sexual acts, when in fact, the defendants provided no sexual services, but merely danced around a pole briefly, or massaged the customers' feet, before leaving after less than an hour.  The defendants were charged with participating in transactions involving act in the course of an enterprise with the knowing intent to defraud by means of false representation known to be false and with the intent to induce reliance causing a loss great than $250; racketeering; theft; attempting to obtain money under false pretenses; and fraud.

Brittani Lampkin v. State of Nevada (affirming jury verdict)

  • Appellant argued there was insufficient evidence to support her jury conviction.  The Court found that her mere-presence argument was belied by the record.  Lampkin attended staff meetings, knew that the club was a 'hustle,' and elicited payments from an officer.

Nicole Seaton v. State of Nevada (affirming jury verdict)

  • On appeal, Seaton argued she did not have adequate notice on the indictment of the racketeering charge.  The Court found Seaton had practical notice.
  • Court found there was sufficient evidence to support the jury verdict as Seaton was an employee who was instructed on how to get the customers' money.

Gia Buford aka Jacqueline Buford v. State of Nevada (affirming jury verdict)

  • Buford argued that legislature intended to repeal the statute codifying the common law offense of obtaining money by false pretenses when it enacted the comprehensive theft statute and requested that the Supreme Court find the former repealed by implication.  The Court examined both statutes, found subtle distinctions based upon intent element, and declined to hold NRS 205.380 (obtaining money by false pretenses) repealed by implication.
  • Buford also argued that a conviction for obtaining money under false pretenses and theft arising out of the same transaction violate double jeopardy.  The Court did not address because Buford failed to provide a "cogent argument."
  • Court found there was sufficient evidence to support convictions as she hired, supervised, and instructed the attendants who interacted with the victims.  That oversight/supervision supported Buford's conviction as a principal.

Jennifer Munoz v. State of Nevada (order affirming conviction)

  • Munoz argued that district court abused its discretion in denying defense instructions on the failure to collect material evidence, witness immunity, and racketeering.  Court found no error.

James Balgas v. State of Nevada (order affirming conviction)

  • Balgas was found guilty of racketeering but acquitted on charges of robbery, theft, coercion, and multiple transactions involving fraud or deceit in the course of an enterprise or occupation.  The Court held that a defendant's acquittal for a predicate offense does not invalidate a racketeering conviction that alleged commission of that predicate offense in order to allege a sufficient number of predicate offenses. 
  • The Court found there was sufficient evidence to support conviction.  Balgas was the bouncer at Club Exclusive II who monitored the club's fraudulent practices by video feed and intervened to remove protesting victim from the premises.

David Colvin v. State of Nevada (order dismissing appeal)

  • Colvin appealed district courts order denying a pre-sentence motion to disqualify a judge.
  • Court noted that there is no statute or court rule that provides for an appeal from an order denying a motion to disqualify a judge.

 

 

 

 

 

Evan Eugene Moore v. State of Nevada (order vacating judgment and remanding)

  • Moore is currently serving two consecutive sentences of 20 years to life for murder with the use of a firearm.  After direct appeal, he filed a pro per post-conviction writ of habeas corpus in district court.  The state filed an opposition and Moore filed a reply.
  • The district court did nothing for 4 years.  Moore filed a motion to expedite the decision in 2014.  There were no responses or orders pertaining to these motions.
  • A year later, in 2015, the State filed a motion to dismiss Moore's habeas corpus petition arguing is should be dismissed under NRCP 41(e) rule which permits the dismissal of a civil action for failure to bring the case to trial after 5 years had passed.  The district court dismissed pursuant to NRCP 41(e).
  • The Court held that NRCP 41(e) cannot apply to post-conviction proceedings as "habeas corpus proceedings are unique - neither civil nor criminal for all purposes." (quoting Means v. State, 120 Nev. 1001 (2004).  Remanded for further proceedings.

Bobby Richards v. 8th Judicial District and the State of Nevada (order granting petition)

  • District court manifestly abused its discretion when it granted State's discovery request for correspondence between defense counsel and an expert witness.
  • The Court found correspondence was squarely a "memorandum that [was] prepared by...the defendant's attorney in connection with the investigation or defense of the case," NRS 174.245(2)(a) and therefore not subject to discovery or inspection.

 

Larry Edward Adams v. State of Nevada (order affirming in part, reversing in part and remanding)

  • Adams was convicted in 1986 of two counts 1st degree murder and burglary for shooting his wife and three year-old daughter.  He was sentenced to death for each murder.
  • Adams filed his third post-conviction petition approximately twenty years after remmitur.  The petition was procedural barred absent a demonstration of good cause and prejudice.
  • The Court remanded for district court to hold an evidentiary hearing and determine whether Adams' claim that the State withheld impeachment evidence concerning a key witness' true identity and criminal history constitutes good cause to overcome the procedural bar
  • Adams also makes several claims that he was factually innocent of first degree murder, burglary, and there were not enough aggravators to support the death penalty.  The Court rejected those arguments. 

Steven Fondo v. State of Nevada (order affirming conviction)

  • Fondo was convicted of burglary, robbery, first-degree kidnapping and unlawful taking of a motor vehicle.  He pretended to have a gun and stole a cab.
  • Fondo argued he should have been allowed to introduce records of his prescription medication because the records went to his anticipated defense of voluntary intoxication (voluntary intoxication my negate specific intent).  The Court found that there was insufficient foundation as defendant's grandmother was not aware if defendant took the prescribed medication on that day.
  • The Court also found that statements made by Fondo during the robbery where he told the cabdriver that he had killed someone yesterday were admissible as evidence of threat/force element of robbery.  Taped phone calls from jail where Fondo stated he was "broke" and "getting desperate" was admissible to show motive and intent. 
  • The Court also rejected Fondo's claim that his statements to police were not voluntary and rejected numerous arguments regarding defense proposed jury instructions.