Batin v. State
38 P.3d 880 (2002)
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Rule of Law:
For the crime of embezzlement, the element of entrustment requires proof that the defendant had lawful possession of the property, either actual or constructive, which is defined as the power and intention to exercise dominion or control; mere access to the property, especially when explicitly forbidden from handling it, is insufficient to establish constructive possession.
Facts:
- Marlon Javar Batin worked as a slot mechanic for John Ascuaga’s Nugget Hotel and Casino.
- Batin was given an 'SDS' card that allowed him to access the inside of slot machines to perform repairs on coin mechanisms.
- Batin's job duties did not involve handling the paper currency stored in the machines' bill validators; both he and his supervisor testified he was prohibited from touching this money.
- Any task requiring the handling of cash from a bill validator, such as a customer refund, required a supervisor's presence and authorization.
- The casino discovered shortages totaling approximately $40,000 from four different slot machines over several months.
- An internal audit revealed a pattern where, prior to a shortage being detected, Batin had used his SDS card to open a machine, turn off its power, and then close the door.
- A Nevada Gaming Control Board investigation found that Batin gambled regularly and had lost tens of thousands of dollars.
Procedural Posture:
- The State of Nevada charged Marlon Javar Batin in a state trial court with three counts of embezzlement.
- Following a trial, a jury found Batin guilty on all three counts.
- Batin appealed his conviction to a three-justice panel of the Supreme Court of Nevada, arguing the evidence was insufficient.
- The three-justice panel affirmed the conviction.
- Batin's subsequent petition for rehearing was denied.
- Batin then filed a petition for en banc reconsideration, asking the full court to review the case, which the Supreme Court of Nevada granted.
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Issue:
Does an employee have constructive possession of property for the purposes of an embezzlement charge when they have access to the property's location but are expressly prohibited from exercising any dominion or control over it?
Opinions:
Majority - Leavitt, J.
No. An employee does not have constructive possession of property when they have mere access but are prohibited from exercising control over it. The distinguishing element of embezzlement is entrustment, which requires that the defendant have lawful possession of the property prior to its conversion. Constructive possession is defined as 'both the power and the intention at a given time to exercise dominion or control over a thing.' A showing of mere access is insufficient, particularly when, as here, Batin and his supervisor testified that he had no duties involving the currency and that it 'wasn’t to be touched.' Because the State failed to prove Batin was ever entrusted with the money, an essential element of the crime of embezzlement is missing, and the conviction cannot be sustained.
Dissenting - Maupin, C. J.
Yes. There was sufficient evidence for a jury to find that the employee had constructive possession. Viewing the evidence in the light most favorable to the State, Batin was entrusted with an SDS card that allowed him access to the currency. Furthermore, his job included safeguarding the funds inside the bill validator when he made repairs or supervised non-employee repairmen. This duty to safeguard the currency constituted sufficient dominion and control to support the jury's finding of constructive possession, and therefore the conviction for embezzlement should be affirmed.
Analysis:
This decision sharpens the distinction between embezzlement and larceny by narrowly defining the 'entrustment' element of embezzlement. It establishes a precedent in Nevada that mere access to property is not synonymous with the lawful possession required for an embezzlement charge. This forces prosecutors to be more precise in their charging decisions, requiring them to pursue larceny charges in cases where an employee has access but no authority or control over the stolen goods. The case underscores the principle that the prosecution must prove every specific element of a charged crime beyond a reasonable doubt, and a failure on even one element is fatal to the conviction.
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