`
`STANLEY KONS CHOMER, JEFFREY
`ARTHUR HOWCHIN AND BRUCE
`KALOSHI,
`Appellants,
`vs.
`THE STATE OF NEVADA,
`Respondent.
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`No. 37469
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`OM f S 2tO2
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`ORDER OF AFFIRMANCE
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`This is an appeal from a judgment of conviction of conspiracy
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`to cheat at gambling in violation of NRS 465.083 and NRS 465.088(2). On
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`October 17 and 18, 1998, appellants Stanley Chomer, Jeffrey Howchin and
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`Bruce Kaloshi played high-stakes blackjack at the Silver Legacy Hotel and
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`Casino in Reno. After several hours of uneventful play, appellants won
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`approximately $122,000 within a one-half hour time frame. The Silver
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`Legacy refused to redeem appellants' gaming tokens, asserting that the
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`appellants had cheated, and referred the matter to the Nevada Gaming
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`Control Board.
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`Barry Fisher, an agent from the Control Board, undertook an
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`extensive investigation. After viewing surveillance tapes from the Silver
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`Legacy as well as other casinos, Fisher determined that appellants had
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`cheated by bending the corners of certain playing cards, aces.
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`Fisher
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`concluded that, in addition to the incident at the Silver Legacy, appellants
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`had previously cheated in the same manner at other establishments; the
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`Peppermill in Reno, on August 31, 1997,1 and at the Sundowner in Reno,
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`on January 9, 1998.
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`Based upon Fisher's investigation, the Control Board
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`determined that appellants bent the corners of aces and, when "cutting"
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`the deck, would position the ace so that it would be dealt to one of the
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`players. Normally, it would be necessary to bend corners at both ends to
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`ensure detection of the marked card by the player. The Control Board
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`determined that the appellants played only with dealers who always
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`turned and shuffled the cards in the same manner. In this way, the
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`appellants could, by facing the bent corner in a certain direction when
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`returning the ace, ensure that the bent corner would always face the
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`player cutting the cards.
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`A grand jury returned a ten-count indictment charging the
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`appellants with multiple counts of cheating, burglary and conspiracy.
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`After the district court granted a writ of habeas corpus dismissing two
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`burglary counts in the indictment, the State proceeded on the remaining
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`counts.
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`At trial, the State presented testimony from numerous casino
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`employees, including the blackjack dealers involved. Most of the dealers
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`simply testified that the appellants played and that the tables were
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`generally crowded.
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`One Silver Legacy dealer, Sivaporn Hurley, testified that she
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`observed a bent ace during appellants' play.
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`She testified that, upon
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`noticing the bent card, she straightened it. On cross-examination, Hurley
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`'Kaloshi did not take part in the Peppermill incident, only Chomer
`and Howchin.
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`testified that it is not unusual for cards to become bent during normal
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`play.
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`Ismael Calvo, a shift manager at the Peppermill, testified that
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`he noticed on approximately two occasions that appellants placed large
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`bets on the first hand after shuffling and received blackjacks. He ordered
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`a change of decks, and noticed a bent ace of spades in the retired deck. He
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`turned the deck over to Peppermill's security, with no action taken. He
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`did, however, watch a surveillance video and noticed that the ace of spades
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`was frequently dealt to one of the appellants on the first hand after a
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`shuffle.
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`Dennis Chute, a shift boss at the Sundowner Casino, testified
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`to an occasion where appellants were the only players at a table. After the
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`conclusion of play, Chute noticed a bent ace in the deck but took no action.
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`Jennifer Sitts, a Control Board agent, testified to her search of
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`a suitcase left in Kaloshi's hotel room, and that she found a deck of cards
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`with the nine of clubs "bent like you would dog-ear a page."
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`The State called William Zender as an expert witness. Zender
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`contrasted the manner in which card counters play to the manner in
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`which cheaters use marked cards. The appellants' manner of play was
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`similar to Zender's description of cheaters.
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`The State's case depended largely on the testimony of agent
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`Fisher. Fisher explained how he conducted investigations, and that he
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`would arrange for an arrest if he believed he had identified an act
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`constituting cheating. Appellants' counsel objected that Fisher was
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`effectively testifying that he believed the appellants were guilty.
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`The
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`district court overruled this objection.
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`Fisher prepared numerous charts describing portions of the
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`appellants' play, which the district court admitted as summaries of
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`voluminous evidence. A critical column in Fisher's charts was titled "Did
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`player position ace?" By "position," Fisher was attempting to make some
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`reference to turning the card so that it would it would face the player
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`when the cards were next cut. Yet, it became evident during Fisher's
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`testimony that he did not have a specific definition of the term and did not
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`utilize a consistent standard in determining whether the appellants
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`"positioned" a card.
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`The charts also contained columns titled "Amounts Bet
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`(Estimates)," or other words to that effect. Because it was difficult to
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`determine the amounts bet from the tapes, Fisher estimated the bets to
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`within one or two chips. On cross-examination, Fisher admitted that
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`many of his estimates exceeded the table limit by as much as $1,000. The
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`appellants often played with $500 chips at tables with game limits of
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`$3,000.
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`In addition to discussing the charts, Fisher also testified
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`concerning the condition of the playing cards from the appellants' game at
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`the Silver Legacy. The district court excluded the cards as evidence,
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`because the State could not establish a chain of custody. Specifically, once
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`the shift bosses took the cards to the security station, the cards were
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`spread out on a table where various unidentified people handled them
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`over the next two days. The State conceded that many unknown people
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`handled the cards before Fisher received them.
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`The defense presented no evidence. The jury found appellants
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`guilty of one count of conspiracy to cheat at gambling and acquitted them
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`on the remaining counts. Appellants appeal.
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`We conclude that substantial evidence supports affirming the
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`conviction of appellants.
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`Summary of voluminous evidence
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`The district court admitted several charts prepared by Fisher,
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`which described the surveillance tapes, as summaries of voluminous
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`evidence.
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`The district court has considerable discretion in admitting or
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`excluding evidence.2 NRS 52.275 provides:
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`1. The contents of voluminous writings,
`cannot
`which
`photographs
`or
`recordings
`conveniently be examined in court may be
`presented in the form of a chart, summary or
`calculation.
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`2. The originals shall be made available for
`examination or copying, or both, by other parties
`at a reasonable time and place. The judge may
`order that the originals be produced in court.
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`While NRS 52.275 allows admission of summaries of voluminous writings,
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`recordings or photographs, it does not define or restrict the term
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`"summary." Yet, extensive authority exists interpreting Rule 1006 of the
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`Federal Rules of Evidence, on which NRS 52.275 is based. It is widely
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`recognized that an F.R.E. 1006 summary must accurately reflect the
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`contents of the original voluminous evidence without including extraneous
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`2See Matter of Parental Rights as to N.J., 116 Nev. 790, 804, 8 P.3d
`126, 135 (2000); Collins v. Murphy, 113 Nev. 1380, 1383, 951 P.2d 598, 600
`(1997).
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`information, such as inferences drawn by the person preparing the
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`summary.3
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`The State, while acknowledging that the charts contained the
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`expert's conclusions, argues for admissibility on the ground that the tapes
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`support those conclusions. We are not persuaded. First, the surveillance
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`tapes were equivocal and the charts did not simply reflect what was
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`depicted on the videotapes. Secondly, although an expert may show the
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`jury pedagogical charts explaining his opinions, these charts are
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`inadmissible as evidence, and the court must instruct the jury that the
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`charts are merely illustrations and not to be considered as evidence.4
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`Here, in contrast, the district court admitted the conclusions in Fisher's
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`charts as evidence supporting those same conclusions. Accordingly, the
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`district court erred in admitting Fisher's charts into evidence.
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`We conclude that this error is harmless and does not require
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`reversal. An error is harmless when it is clear beyond a reasonable doubt
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`that the jury would have found the defendant guilty without the error.5
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`Fisher, testifying as an expert witness, could have displayed these charts
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`3See U.S. v. Drougas, 748 F.2d 8, 25 (1st Cir. 1984); see also 6 Jack
`B. Weinstein et al., Weinstein's Federal Evidence § 1006.07[2] (Joseph M.
`McLaughlin, ed., 2d ed. 2002) (summaries are inadmissible if they contain
`assumptions drawn from the preparer's knowledge or
`"facts
`or
`experience").
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`4See U.S. v. Bray, 139 F.3d 1104, 1112 (6th Cir. 1998) (citing 1
`Edward J. Devitt et al., Federal Jury Practice And Instructions § 14.02
`(4th ed. 1992); 1 Leonard B. Sand et al., Modern Federal Jury Instructions
`(Criminal) ¶ 5.05, p. 5-34 (1997)); U.S. v. Smyth, 556 F.2d 1179, 1184 (5th
`Cir. 1977).
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`5Wegner v. State, 116 Nev. 1149, 1155, 14 P.3d 25, 30 (2000).
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`to the jury to help explain his testimony. Although these charts should
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`not have been presented to the jury as evidence, the jury would still have
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`viewed their contents.
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`Opinion testimony concerning guilt
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`As noted, Fisher also gave testimony concerning the
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`investigatory process. Over objection, Fisher explained that, if he
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`determined no criminal conduct had occurred, he would submit a report to
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`his agency and the case would be closed. Alternatively, if Fisher
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`determined that a crime had occurred, he would seek an arrest warrant.
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`Appellants contend that this was the equivalent of stating an opinion that
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`the appellants were guilty. Although Fisher gave no express opinion, the
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`inference is clear that, because the case was not closed and the appellants
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`were arrested, Fisher had determined that appellants committed a
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`violation of Nevada's gaming laws.
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`A witness may not offer an opinion that a defendant is guilty.6
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`This rule has particular importance where, as here, the witness offers
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`credentials as a veteran law enforcement officer.? The State responds that
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`the appellants opened the door to this testimony by suggesting in their
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`opening statement that the Silver Legacy caused-the prosecution in order
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`to avoid paying the appellants their winnings.
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`When a defendant introduces inadmissible evidence, the
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`district court has discretion to permit the prosecution to admit related
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`evidence to correct any false statements.8 Here, the probative value of this
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`6See Winiarz v. State, 104 Nev. 43, 50, 752 P.2d 761, 766 (1988).
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`7See Cordova v. State, 116 Nev. 664, 669, 6 P.3d 481, 485 (2000).
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`8McKenna v. State, 114 Nev. 1044, 1056, 968 P.2d 739, 747 (1998).
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`aspect of Fisher's testimony was to demonstrate that a gaming
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`establishment could not itself administratively commence such a criminal
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`prosecution. Yet, the prosecutor went further, inquiring about the
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`investigatory process, and inquired as to what Fisher would do upon
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`determining that a crime had occurred. The district court erred in
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`allowing this line of questioning.
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`We conclude, however, that any error in this connection was
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`limited in scope. Fisher's testimony merely established that he made a
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`determination that the appellants had committed some crime. Naturally,
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`any criminal prosecution involves a strong likelihood that someone in an
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`official capacity has determined that the person charged is guilty of
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`criminal misconduct. Fisher did not discuss any specific crimes, or state
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`the basis of his opinion. We conclude that this error is harmless and does
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`not require reversal.
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`Testimony describing inadmissible real evidence
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`The State sought to introduce into evidence several decks of
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`Silver Legacy cards containing bent aces. Fisher retrieved these cards
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`from the Silver Legacy two days after the conclusion of appellants' play.
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`Prior to Fisher's acquisition of the playing cards, a casino employee placed
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`them on a table, bagged them, and numerous unnamed persons handled
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`them. The State, therefore, could not establish that the cards offered into
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`evidence were in the same condition when impounded as when they were
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`last used. Accordingly, the district court excluded the decks for lack of
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`foundation, due to failure to properly establish their chain of custody.
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`Nevertheless, the district court allowed Fisher to testify, over
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`objection, to the physical appearance of the decks. The appellants argue
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`that this was an abuse of discretion. Proposed evidence is not admissible
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`unless logically and legally relevant.9 A party seeking to introduce
`evidence must lay a foundation establishing its relevance.10 A chain of
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`custody is necessary in order to lay a foundation.11 Fisher did not see the
`cards until after the chain of custody had been broken. Accordingly,
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`Fisher's testimony described excluded evidence and the district court
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`abused its discretion in admitting it.
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`The State presented testimony from witnesses who saw bent
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`aces in various decks used in the games in question. Thus, Fisher's
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`testimony was partially cumulative of other evidence. Yet, the properly
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`admitted evidence indicated only a single bent ace at the Silver Legacy,
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`while Fisher testified to numerous bent aces in several of the retrieved
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`decks. Therefore, this evidence caused a degree of unfair prejudice. We
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`conclude that this error is harmless and does not require reversal.
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`Substantial evidence
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`Although all three of appellants' alleged errors are harmless,12
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`we must determine whether there was substantial evidence to support
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`9See Matter of Estate of Garrett , 111 Nev. 1397, 1398-99, 906 P.2d
`(error to admit rebuttal evidence where risk of unfair
`254, 255 (1995)
`prejudice heavily outweighed probative value).
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`10See State v. Smith, 941 P.2d 725, 726 (Wash. Ct. App. 1997).
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`"See Hughes v. State, 116 Nev. 975, 981, 12 P.3d 948, 952 (2000).
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`12The appellants allege other errors, but we find no merit in those
`arguments. William Zender's expert testimony explained how the
`appellants' play was itself an act of cheating. This was not testimony that
`the appellants matched a criminal profile. Additionally, the indictment
`The appellants could reasonably
`was not unconstitutionally vague.
`understand that their alleged conduct of marking aces to influence the
`odds of the game was proscribed. See U.S. v. Harriss, 347 U.S. 612, 617
`continued on next page ...
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`their conviction.13 This court will review a sufficiency of the evidence
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`claim by looking at the facts in "the light most favorable to the State."14
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`This court must also consider "whether there is substantial evidence in the
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`record to support the jury's verdict, and whether any rational trier of fact
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`could have found the essential elements of the crime beyond a reasonable
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`doubt." 15 The State charged the appellants with multiple felony counts,
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`and the appellants were convicted of conspiracy to cheat at gambling, a
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`category B felony.
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`The totality of testimonial and documentary evidence
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`submitted at trial supports the jury's finding of guilt as to the conspiracy
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`charge. The fact that the appellants played together in a similar manner
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`on multiple occasions is sufficient circumstantial evidence to prove a
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`conspiracy.16 In addition, appellants are professional gamblers who use
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`false names and alter their appearances to gain entry into casinos
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`including Reno's Silver Legacy, Sundowner, and Peppermill. In this case,
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`they dominated a table with a dealer who only played with a single deck
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`... continued
`(1954). We will also not consider the appellants' hearsay argument first
`raised in their reply brief. See NRAP 28(c).
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`13See Collman v. State, 116 Nev. 687, 711, 7 P.3d 426, 441 (2000).
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`14Grant v. State, 117 Nev. 427, 435, 24 P.3d 761, 766 (2001) (citing
`Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984)).
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`15Id. at 435, 24 P.3d at 766 (citing Koza v. State, 100 Nev. 245, 250-
`51, 681 P.2d 44, 47 (1984) (citing Jackson v. Virginia, 443 U.S. 307 (1979)).
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`16See McNair v. State, 108 Nev. 53, 61, 825 P.2d 571, 576 (1992)
`("Circumstantial evidence alone may sustain a conviction.").
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`and who showed the cards to be cut in a particular way. Multiple bent
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`aces appeared in the deck.
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`Barry Fisher, the agent assigned to the case from the Control
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`Board, introduced summaries, charts, and other expert opinion detailing
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`the methods and means used by appellants to cheat. Ismael Calvo, a shift
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`manager at the Peppermill testified to noticing on two occasions,
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`appellants placing large bets on the first hand after shuffling and
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`receiving blackjacks. Upon ordering a change of decks, Mr. Calvo noticed
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`a bent ace of spades in the retired deck. A surveillance tape later
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`confirmed that the ace of spades was frequently dealt to one of the
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`appellants on the first hand after a shuffle.
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`We conclude that there is substantial evidence to support the
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`conviction of appellants. Accordingly, we
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`ORDER the judgment of the district court AFFIRMED.
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`Maupin
`
`Becker
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`C. J.
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`J.
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`J.
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`cc:
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`Hon. Steven R. Kosach, District Judge
`Ohlson & Springgate
`JoNell Thomas
`Attorney General/Carson City
`Washoe County District Attorney
`Washoe District Court Clerk
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