Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Desai v. State

Supreme Court of Nevada

July 27, 2017

KUSUM DESAI, AS PERSONAL REPRESENTATIVE FOR DIPAK KANTILAL DESAI, Appellant,
v.
THE STATE OF NEVADA, Respondent.

         Appeal from a judgment and amended judgment of conviction, pursuant to a jury verdict, of nine counts of insurance fraud, seven counts of performance of an act in reckless disregard of persons or property resulting in substantial bodily harm, seven counts of criminal neglect of patients resulting in substantial bodily harm, theft, two counts of obtaining money under false pretenses, and second-degree murder. Eighth Judicial District Court, Clark County; Valerie Adair, Judge. Affirmed in part and reversed in part.

          Franny A. Forsman, Las Vegas; Wright, Stanish & Winckler and Richard A. Wright, Las Vegas, for Appellant.

          Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Michael V. Staudaher and Ryan J. MacDonald, Deputy District Attorneys, Clark County, for Respondent.

         BEFORE THE COURT EN BANC.[1]

          OPINION

          HARDESTY, J.

         A jury convicted appellant Dipak Kantilal Desai of, among other things, seven counts of performance of an act in reckless disregard of persons or property resulting in substantial bodily harm pursuant to NRS 202.595(2), and seven counts of criminal neglect of patients resulting in substantial bodily harm pursuant to NRS 200.495(1), collectively characterized in this opinion as the endangerment crimes. In this appeal, we are asked to determine whether a defendant can aid and abet a negligent or reckless crime, such as the endangerment crimes at issue here. We conclude that a defendant can be convicted of aiding and abetting a negligent or reckless crime upon sufficient proof that the aider and abettor possessed the necessary intent to aid in the act that caused the harm. Because the State presented sufficient evidence to show that Desai acted with awareness of the reckless or negligent conduct and with the intent to promote or further that conduct in the endangerment crimes for which he was convicted, we affirm his convictions for those crimes.

         Desai also challenges the sufficiency of the evidence to convict him of second-degree murder. Because there were intervening causes between Desai's actions and the victim's death, we conclude that the State presented insufficient evidence to convict Desai of second-degree murder. Accordingly, we reverse Desai's second-degree murder conviction.[2]

         FACTS AND PROCEDURAL HISTORY

         Desai was the original founding member and managing partner of the Endoscopy Center of Southern Nevada and other ambulatory surgical centers (collectively, the clinic) in Las Vegas. Desai made all decisions regarding the clinic, including the ordering and use of supplies and scheduling of patients. He was also in charge of the certified registered nurse anesthetists.

         On July 25, 2007, the clinic's first patient of the day informed Desai that he had hepatitis C before his procedure began. Later that day, Michael Washington had a procedure performed at the clinic. Washington was later diagnosed with hepatitis C. On September 21, 2007, the clinic's first patient of the day informed a nurse that he had hepatitis C before his procedure began. Later that day, Sonia Orellana Rivera, Gwendolyn Martin, Patty Aspinwall, Stacy Hutchinson, and Rodolfo Meana had procedures performed at the clinic. All five patients were later diagnosed with hepatitis C. Meana received some treatment following his diagnosis, but failed to adequately complete any treatment and eventually died as a result of the disease.

         After learning that multiple patients contracted hepatitis C at the clinic, the Southern Nevada Health District initiated an investigation. Blood samples of the infected patients were sent to the Centers for Disease Control and Prevention (CDC). The CDC determined that the sources for the strains of hepatitis C contracted by Washington, Orellana Rivera, Martin, Aspinwall, Hutchinson, and Meana were the patient seen first at the clinic on July 25, 2007, and the patient seen first at the clinic on September 21, 2007. The CDC also concluded that the outbreak was the result of the clinic's nurse anesthetists reentering vials of propofol after injecting a patient and then reusing those vials of propofol on a subsequent patient.

         Desai, along with Ronald Lakeman and Keith Mathahs, who were both nurse anesthetists at the clinic, were indicted. Desai and Lakeman were charged with ten counts of insurance fraud, seven counts of performance of an act in reckless disregard of persons or property resulting in substantial bodily harm, seven counts of criminal neglect of patients resulting in substantial bodily harm, theft, two counts of obtaining money under false pretenses, and second-degree murder. Mathahs agreed to testify against Desai and Lakeman after pleading guilty to criminal neglect of patients resulting in death, criminal neglect of patients resulting in substantial bodily harm, obtaining money under false pretenses, insurance fraud, and conspiracy. A jury found Desai guilty of all counts except one omitted count of insurance fraud. Desai now appeals.[3]

         DISCUSSION

         There was sufficient evidence to convict Desai of the endangerment crimes

         On appeal, Desai argues that there is insufficient evidence to convict him of the endangerment crimes because he did not have the required intent for aiding and abetting. To resolve this issue, we must first determine whether one can aid and abet a negligent or reckless crime.

         Aiding and abetting a negligent or reckless crime

         Desai argues that there was insufficient evidence to convict him of the endangerment crimes because he did not possess the intent required to prove that he aided and abetted Lakeman and Mathahs. We disagree.[4] When reviewing a challenge to the sufficiency of the evidence, we must determine "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." McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

         The criminal offenses at issue here are set forth in NRS 202.595 and NRS 200.495. NRS 202.595 prohibits a person from "perform[ing] any act or neglect[ing] any duty imposed by law in willful or wanton disregard of the safety of persons or property, " NRS 200, 495(1) punishes "[a] professional caretaker who fails to provide such service, care or supervision as is reasonable and necessary to maintain the health or safety of a patient." And NRS 195.020 provides that a person who aids and abets in the commission of a crime shall be punished as a principal. However, we have not previously determined whether one can aid and abet a reckless or negligent crime.

         Some jurisdictions have determined that a defendant cannot be convicted of aiding and abetting a reckless or negligent crime because "it is logically impossible to intend to aid" another in acting recklessly or negligently.[5] Audrey Rogers, Accomplice Liability for Unintentional Crimes: Remaining Within the Constraints of Intent, 31 Loy. L.A. L. Rev. 1351, 1383 (1998). These jurisdictions opine that "[a]pplying accomplice liability [to reckless or negligent crimes] raises troubling questions about whether the complicity doctrine is being stretched beyond its proper limits ! merely to find a means of punishing the [secondary actor]." Id. at 1353.

         It appears, however, that courts are moving away from this rule, see id. at 1352 (explaining that "a growing number of courts have found secondary actors responsible for another individual's unintentional crime"), because "giving assistance or encouragement to one it is known will thereby engage in conduct dangerous to life should suffice for accomplice liability." Wayne R. LaFave, Criminal Law ยง 13.2(e) (5th ed. 2010). We are persuaded by the rationale for this approach and thus decline to completely excuse an aider and abettor of a reckless or negligent crime from liability. Although NRS 195, 020 provides that an aider and abettor shall be punished as a principal, the statute "does not specify what mental state is required to be convicted as an aider or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.