Nino argues on appeal that the State did not present sufficient
evidence to prove that he diverted project funds to another purpose. We
agree.
"When determining whether a verdict was based on sufficient
evidence to meet due process requirements, this court 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
elements of the crime beyond a reasonable doubt." Mitchell v. State, 124
Nev. 807, 816, 192 P.3d 721, 727 (2008) (quoting Kozo v. State, 100 Nev.
245, 250, 681 P.2d 44, 47 (1984)). Here, the State did not present any
evidence that Nino diverted the funds to another purpose. The State did
not even present evidence showing that Nino pocketed the funds. Indeed,
Kraft testified that it was possible Nino simply inefficiently spent the
funds on thefl project. The State did not present any bank statements,
receipts, or testimony regarding Nino's spending on the project.
The only evidence purported to show the project's costs
consisted of photographs of the property before and after Nino's
landscaping. From these photographs the jury was asked to conclude that
Nino could not have spent all of the money on the project. Yet the State
does not explain how the jury could have calculated, without financial
evidence or contracting expertise, how much Nino spent on the project. Cf.
Watt v. Nev. Cent. KR. Co., 23 Nev. 154, 174-75, 44 P. 423, 428-29 (1896)
. . . continued
(b) Wrongfully diverts that money to a use
other than that for which it was received.
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("Neither courts nor juries are permitted to assess values on conjecture."
(internal quotation omitted)).
The State also relied on an email in which Nino vaguely
mentions an unidentified addiction. This email does not establish that
Nino diverted the money to his addiction. Evidence of an addiction may be
admissible to show motive for a criminal act, but it does not show that a
criminal act unrelated to illicit narcotics use actually occurred. 2 The issue
in this case is whether Nino diverted the money to another use, not
whether he had a motive to do so.
No rational trier of fact could have concluded beyond a
reasonable doubt that Nino did not use the project payments toward
completion of the project. The State did not present any evidence of his
financial dealings. And no expert or lay testimony informed the jury how
much money Nino spent on the project or how much he allegedly diverted.
We therefore reverse the judgment of conviction. Because we reverse on
sufficiency of the evidence, we do not need to address whether the
2 See,e.g., People v. Cardenas, 647 P.2d 569, 573 (Cal. 1982)
("[I]n cases where the object of the charged offense was to obtain money or
an item other than narcotics, evidence of the accused's narcotics use has
been uniformly found inadmissible." (citations omitted)); People v. Felix,
28 Cal. Rptr. 2d 860, 864 (Ct. App. 1994) (stating that, where there was
evidence that the defendant stole items to purchase drugs, evidence of
drug addiction is admissible to establish motive); People v. Smith, 231
N.E.2d 185, 188 (Ill. 1967); State v. Mazowshi, 766 A.2d 1176, 1183, 1185
(N.J. Super. Ct. App. Div. 2001) (reasoning that motive was not a material
issue in the case and holding that establishing motive did not justify
"admitting such tangentially relevant but overwhelmingly prejudicial
evidence").
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prosecution's arguments at trial improperly shifted the burden of proof.
Accordingly, we
ORDER the judgment of the district court REVERSED.
14 J.
Parraguirre
J.
Douglas
J.
Cherry
cc: Hon. Michelle Leavitt, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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