The Nevada Supreme Court on Wednesday overturned the conviction of a Sparks slot machine mechanic on grounds the state failed technically to prove embezzlement.
Marlon Javar Batin was convicted of three counts of embezzlement for stealing money from John Ascuaga's Nugget while working on the casino's slot machines.
Batin had access to the inside of slot machines to repair their mechanisms but was not authorized to do anything with the paper money counter or currency collected inside each machine. In 1999, more than $40,000 disappeared from four slot machines Batin had worked on.
In the investigation that followed, Nevada Gaming Control agent James Carlisle discovered that Batin had gambled regularly at three different casinos and lost tens of thousands of dollars. He testified that Batin couldn't or wouldn't explain how he could gamble that much on a slot mechanic's salary.
He was charged and convicted of embezzlement.
But he appealed on grounds that embezzlement specifically requires he have "constructive possession" of or be "entrusted with" the cash.
The high court, in a split decision, agreed, ruling technically Batin could not be guilty of embezzlement because he was specifically not entrusted with the cash inside the machines.
The majority opinion written by Justice Myron Leavitt did say that if Batin had been charged under the Omnibus Theft Crime Statute, "the evidence presented at trial would have supported a conviction under that statute because there was sufficient evidence to support a finding that Batin was guilty of larceny."
The problem is, according to the opinion, that's not what he was charged with.
"In proving constructive possession, a showing that a defendant was given mere access to the property converted is insufficient," the opinion signed by justices Leavitt, Miriam Shearing, Deborah Agosti and visiting district judges Michael Cherry and Bill Maddox states.
The opinion says they are compelled to reverse the conviction because the state failed to prove "every element" of the crime of embezzlement beyond a reasonable doubt.
"To do otherwise would imperil our system of justice by undermining the presumption that those charged with crimes are innocent until proven guilty beyond a reasonable doubt," the opinion concludes.
Chief Justice Bill Maupin and Justice Nancy Becker dissented, arguing the Nugget "entrusted" Batin with the money by giving him the electronic access card which allowed him to open up and work on the slot machines. In addition, they pointed out that Batin's job included safeguarding the funds inside any machine he was working on.
Deputy Washoe District Attorney Joe Plater said he is still reviewing the opinion to determine whether to retry Batin on larceny, theft or other charges or whether a new trial would amount to double jeopardy.
