on the Enchanted Valley property and use the rents from that property to
pay the mortgage on the White Fir property. 1
Shortly thereafter, Logan removed the funds from the jointly
held CD and placed the funds in an account solely in her name. After
using a majority of the funds to pay off the mortgage on the Enchanted
Valley property, Logan failed to return the unused funds to an account
jointly held by both she and Walker. Later, while Walker was in the
hospital recovering from his knee replacement and surgery on a broken
ankle, an injury sustained while in the hospital and under heavy
narcotics, Logan was present when Walker deeded his interest in the
White Fir property to Logan. Upon discovery of the transfer of his interest
in the property, Walker reported Logan's actions to the police. At trial,
Walker testified he had no recollection of agreeing to give his interest in
the White Fir property to Logan or signing the deed in the hospital.
Following a four-day jury trial, Logan was found guilty of two
counts of exploitation of an older or vulnerable person. Her convictions
stemmed from the conversion of the CD and Walker's interest in the White
Fir property. Logan now appeals.
'At trial, it was disputed whether Logan had the authority to use
the entire $167,000 balance of the CD. Walker testified that Logan was
only to use $110,000 in order to pay off the Enchanted Valley mortgage.
In contrast, Logan testified that she also obtained Walker's permission to
use additional funds from the CD to make certain repairs on the
Enchanted Valley property.
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The issues on appeal are: (1) whether NRS 200.5092(2) is
unconstitutionally vague because "normal influence" of one family member
over another is not sufficiently defined in the context of "undue influence"
for the purposes of establishing exploitation and (2) if NRS 200.5092(2) is
determined to be constitutional, whether there is sufficient evidence to
sustain the conviction. 2
Constitutionality of NRS 200.5092
As a preliminary matter, although the majority of Logan's
arguments focus on the alleged unconstitutionality of NRS 200.5092(2)(a),
we do not need to reach that issue. "It is well settled . . . that we should
avoid considering the constitutionality of a statute unless it is absolutely
necessary to do so." Sheriff v. Andrews, 128 Nev. , 286 P.3d 262,
263 (2012) (citing Anthony Lee R., A Minor v. State, 113 Nev. 1406, 1417-
18 n.6, 952 P.2d 1, 8 n.6 (1997) (refusing to reach a statute's
constitutionality because principles of statutory construction resolved the
issues)). Furthermore, in a case where multiple theories of guilt are
presented to the jury and one is determined to be improper, we use a
harmless-error analysis and may affirm the conviction if there is a "valid
2 Logan also argues that: (1) the district court erred in permitting the
State to question Logan as to why the other witnesses did not tell the
truth in their testimony; (2) the district court abused its discretion in
precluding Logan from questioning Walker's attorney about the
settlement amount requested in Walker's civil action against Logan; and
(3) cumulative error warrants reversal of the judgment of conviction. We
have reviewed these remaining contentions and conclude that they are
without merit.
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alternative basis upon which to rest a verdict." Cortinas v. State, 124 Nev.
1013, 1025-26, 195 P.3d 315, 323 (2008). "[S]o long as the error at issue
does not categorically `vitiat[e] all the jury's findings,' the error may be
deemed harmless. Hedgpeth v. Pulido, 555 U.S. 57, 61 (2008) (alteration
in original) (quoting Neder v. United States, 527 U.S. 1, 11 (1999)).
In this case, the State presented two theories of guilt for the
jury's consideration. One theory, based on NRS 200.5092(2)(a), is the
basis for Logan's constitutional challenge—that Logan obtained control of
Walker's property through undue influence. The second theory, based on
NRS 200.5092(2)(b), is that Logan simply converted Walker's property. 3
Even if the first theory of liability was unconstitutionally vague, the
second theory of liability, which is not unconstitutionally vague, could be a
valid basis for the jury's verdict convicting Logan pursuant to NRS
200.5092(2). See Cortinas, 124 Nev. at 1025-26, 195 P.3d at 323. Because
3 In her opening brief, Logan argues that the unconstitutional
portions of NRS 200.5092(2) deal with the vagueness of the words "undue
influence" and "normal influence," neither of which are found in
subsection (b). Only after the State submitted its opposition did Logan
then contend that the unconstitutionally vague portions of the statute
included the words "trust and confidence," as they appear prior to the
subsections, which could then be applied to the conversion described in
subsection (b). Because the conversion subsection was raised for the first
time in Logan's reply brief, we conclude that any challenge to the
constitutionality of subsection (b) is waived. See Weaver v. State, Dep't of
Motor Vehicles, 121 Nev. 494, 502, 117 P.3d 193, 198-99 (2005) (stating
that this court need not consider issues raised for the first time in an
appellant's reply brief); NRAP 28(c).
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the second theory of liability is valid, we decline to reach the
constitutionality of NRS 200.5092(2). See Andrews, 128 Nev. at , 286
P.3d at 263.
Sufficiency of the evidence
Logan contends that we should apply the rule of lenity and
interpret NRS 200.5092(2) to require a defendant to use "criminal
means[,] such as obtaining money under false pretenses, coercion, forgery,
stalking or the like," in order to be convicted of exploitation under NRS
200.5092(2) (emphasis omitted). 4 She then states that because there was
no evidence of the required criminal activity, the State did not prove each
element of the crime and therefore the conviction cannot stand. The State
responds by arguing that such an interpretation is unreasonable because
the Legislature would not have enacted a new statute to criminalize
actions that were already prohibited.
Standard of review
In order to determine "whether a verdict was based on
sufficient evidence to meet due process requirements, [we] will inquire
'whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
4The rule of lenity requires that "'ambiguities in criminal statutes be
liberally interpreted in the accused's favor." State v. Lucero, 127 Nev.
, 249 P.3d 1226, 1230 (2011) (quoting Moore v. State, 122 Nev. 27,
32, 126 P.3d 508, 511 (2006)). This rule, however, only applies to statutes
‘'when other statutory interpretation methods, including the plain
language, legislative history, reason, and public policy, have failed to
resolve a penal statute's ambiguity." Id. NRS 200.5092(2) can be fully
interpreted by considering its plain meaning. Therefore, we need not
apply the rule of lenity in this case.
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elements of the crime beyond a reasonable doubt." Mitchell v. State, 124
Nev. 807, 816, 192 P.3d 721, 727 (2008) (alteration in original) (quoting
Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984)); see also Jackson
v. Virginia, 443 U.S. 307, 319 (1979). We will not "reweigh the evidence or
evaluate the credibility of witnesses because that is the responsibility of
the trier of fact." Mitchell, 124 Nev. at 816, 192 P.3d at 727.
There was sufficient evidence to support Logan's conviction
The interpretation that Logan proposes that this court adopt
is unreasonable and would create an absurd result. See Sheriff v.
Burcham, 124 Nev. 1247, 1253, 198 P.3d 326, 329 (2008) (noting that an
absurd result should always be avoided). Logan contends that in order to
satisfy the elements of the crime of exploitation, as defined in NRS
200.5092(2), the defendant must first be shown to have committed a
separate crime. That is to say, Logan contends it is not enough for the
state to show that the defendant has acted in a way to "[o]btain control,
through deception, intimidation or undue influence . . . or . . . [to] [c]onvert
money, assets or property of the older person or vulnerable person with
the intention of permanently depriving [them] of the ownership, use,
benefit or possession of his or her money, assets or property." NRS
200.5092(2).
Logan's interpretation, requiring that a defendant be first
found guilty of some other theft crime before being able to be convicted of
exploitation, ignores the plain language of the statute and creates an
absurd result. See Burcham, 124 Nev. at 1253, 198 P.3d at 329. Further,
it is presumed that by enacting a new statute, the Legislature seeks to
substantially change the law. Cf. State v. Weddell, 118 Nev. 206, 213, 43
P.3d 987, 991 (2002) ("When a statute is repealed, [the court] presume[s]
6
that the legislature intended a substantial change in the law."). At the
time that the Legislature enacted NRS 200.5092(2) to prevent elder abuse,
theft crimes were already in effect. Thus, by giving the statute Logan's
interpretation, no new conduct would be prohibited and, as a result, no
substantial change to the law would have occurred. We therefore review
Logan's verdict to determine whether substantial evidence supported the
State's second theory of guilt.
In order to prove Logan guilty under its conversion theory, the
State was required to prove the six elements of the crime, as listed in Jury
Instruction No. 25:
1. That Harold Walker was, at the time of the
offense, an older person or a vulnerable
person;
2. that Yvonne Logan did obtain the trust and
confidence of Harold Walker;
3. that Yvonne Logan did any . . . act to
convert[ ]
4. Harold Walker's money, assets or property
5. with the intention of permanently depriving
Harold Walker of the ownership, use, benefit
or possession of his money, assets or
property[ ]
6. in Washoe County, Nevada.
Clearly, a rational trier of fact could have easily found beyond
a reasonable doubt that the State had proved that: (1) Walker was an
older person, as anyone 60 years of age or older is considered an "[o]lder
person," NRS 200.5092(5); (2) Logan had Walker's trust and confidence, as
both Logan and Walker testified that they had a very close and loving
relationship up until the time that Walker went to live with his son; (3)
the property illegally obtained by Logan from Walker was in Washoe
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County, as the two properties are in Reno, and the CD was held in a Reno
branch of Umpqua Bank; and (4) the White Fir property and the CD were
money, assets, or property that originally belonged to Walker.
The only two elements that are at issue are (1) whether Logan
"did any act to obtain control, through deception, intimidation or undue
influence AND/OR did any act to convert" and (2) whether she did so "with
the intention of permanently depriving Harold Walker of the ownership,
use, benefit or possession of his money, assets or property."
First, as to conversion, the jury heard evidence that Walker's
entire interest in the White Fir property was transferred to Logan, such
that Walker retained no control over an asset that was originally his.
Further, the evidence demonstrated that Logan withdrew the entire
$167,000 balance of Walker's CD, spent the majority of it on the
Enchanted Valley property, and then deposited the remaining amount into
an account bearing only her name. Thus, Walker also lost all control of
the CD's remaining funds. This evidence is sufficient to support the
element of conversion.
Turning now to the final element—the intent to permanently
deprive. As to the White Fir property, the jury could have rationally found
that the fact the deed transferred all of Walker's interest to Logan was
circumstantial evidence of Logan's intent to permanently deprive Walker
of his interest in the property. See Bolden v. State, 121 Nev. 908, 912, 124
P.3d 191, 194 (2005) (concluding that a conviction may be rendered on
solely circumstantial evidence), overruled on other grounds by Cortinas,
124 Nev. 1013, 195 P.3d 315. The intent element of proving permanent
deprivation was demonstrated by evidence that Logan sought Walker's
cooperation with the property interest transfer while Walker was on heavy
8
narcotic pain medication that likely caused him to be temporarily unable
to make significant legal decisions. Additionally, evidence was presented
that Logan was good friends with the loan officer—implying that it was
possible that the loan officer assisted Logan in her plan to convert
Walker's interest in the White Fir property. It was within the purview of
the jury to weigh the evidence in a way that favored Walker. See Estes v.
State, 122 Nev. 1123, 1144, 146 P.3d 1114, 1128 (2006) (it is within the
province of the jury to weigh the evidence and make credibility
determinations).
Similarly, Logan's decision to place the remainder of the CD,
after paying off the Enchanted Valley property, into a bank account
bearing only her name could also be circumstantial evidence of her intent
to deprive Walker of those assets because there were still several available
accounts bearing both Walker and Logan's names into which she could
have deposited the remaining funds. See Bolden, 121 Nev. at 912, 124
P.3d at 194. Further, if the jury weighed Walker's testimony higher than
Logan's and found that Walker never intended that Logan use more than
$110,000 to pay off the Enchanted Valley property, her use of excess
amounts exhibits an intent to permanently deprive Walker of his money.
Thus, weighing the evidence in a light most favorable to the prosecution,
there was sufficient evidence presented that would allow a jury to find
Logan guilty. See Mitchell, 124 Nev. at 816, 192 P.3d at 727.
Independently, Logan's actions may not have risen to the level
of criminal conduct but, looking at all of the transactions as a whole, a
rational trier of fact could have found the essential elements of the crime
9
beyond a reasonable doubt. Consequently, we conclude that there was
sufficient evidence to support the verdict.
We therefore,
ORDER the judgment of the district court AFFIRMED. 5
C.J.
Pickering
J.
Gibbons
/ , J.
Hardesty
Parraguirre
J.
Douglas
C1 \.1iLf'1 J.
J.
Saitta
5 We have reviewed Logan's remaining contentions and determine
that they are without merit.
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cc: Second Judicial District Court Dept. 8
Richard F. Cornell
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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