SUPREME COURT 

OF 

NEVADA 

131 Nev., Advance Opinion 1 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

HAREL ZAHAVI, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No. 59815 

FLED 

FEB 26 2015 

Ibl.ACIE K. LINDEMAN 

CL' "EOF StiBlifeME 

BY 

CHIEF -DEMSTY CLERK 

Appeal from an amended judgment of conviction, plirsuant to 

a jury verdict, of four counts of drawing and passing a check without 

sufficient funds in drawee bank with intent to defraud, presumptions of 

intent to defraud (felony), in violation of NRS 205.130 and NRS 205.132. 

Eighth Judicial District Court, Clark County; Valerie Adair, Judge. 

Affirmed. 

Nguyen & Lay and D. Matthew Lay, Las Vegas, 

for Appellant. 

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, 

District Attorney, Steven S. Owens, Chief Deputy District Attorney, and 

Bernard B. Zadrowski, Deputy District Attorney, Clark County, 

for Respondent. 

BEFORE THE COURT EN BANC. 

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OPINION 

By the Court, HARDESTY, C.J.: 

Appellant Harel Zahavi was convicted of violations of NRS 

205.130, Nevada's so-called bad-check statute, when $384,000 in casino 

markers, payable to four Las Vegas casinos, were returned for insufficient 

funds. 

In this appeal, we must determine whether the district court 

erred when it refused to instruct the jury that a casino's knowledge of 

insufficient funds negates the intent-to-defraud element under NRS 

205.130 or, alternatively, constitutes an affirmative defense. If not, we 

must consider whether NRS 205.130 violates the Nevada Constitution. 

While we conclude that a casino's knowledge of insufficient 

funds may negate the intent to defraud, we find no basis for a separate 

jury instruction, or alternatively, an affirmative defense. Furthermore, we 

conclude that the district court did not commit any additional errors, and 

that NRS 205.130 is constitutional. As such, we affirm Zahavi's 

convictions. 

FACTS AND PROCEDURAL HISTORY 

Beginning in the late 1990s, Zahavi began gambling, obtaining 

lines of credit, and executing markers at various Las Vegas casinos. In 

order to obtain credit and receive markers at a casino, the casino requires 

the patron to complete a credit application. The casino then obtains a 

credit report which shows a past history of the player and his play at other 

casinos, including any amounts owed in markers to other casinos. The 

credit application also requires the patron to provide bank account 

information and the casino often checks directly with the bank to 

determine the balances in those accounts. If the casino determines the 

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patron to be crediOvorthy, it grants a line of credit and the patron may 

obtain markers that can be exchanged on the casino floor for gaming 

chips. Each marker contains language that informs the patron that the 

marker is like a personal check and may be withdrawn at any time from 

the patron's bank account, and it must be signed by the patron before use. 

However, it appears that casinos generally do not immediately deposit the 

markers and often agree, as a courtesy to their customers, to hold gaming 

markers until a designated disposition date, or longer if the patron is 

working with the casino to pay off any remaining balance on the marker. 

Over the years, Zahavi would regularly accumulate large 

amounts of debt to various Las Vegas casinos and then slowly pay back 

the money owed on the markers. Prior to the events that led to Zahavi's 

conviction in this case, no casino had ever deposited one of Zahavi's 

markers and had it returned for insufficient funds. In September 2008, 

Zahavi liquidated many of his available assets and paid approximately 

$700,000 worth of outstanding debt owed on various casino markers. 

At issue in this matter is the execution of 14 casino markers, 

totaling $384,000, that were obtained on existing and new lines of credit 

by Zahavi between October and December 2008 at four Las Vegas casinos. 

In October 2008, Zahavi increased his existing line of credit at the 

Venetian Resort and Casino, and executed nine different markers at the 

Venetian and the Palazzo Hotel and Casino, 1ranging from $2,000 to 

$50,000 each, totaling $184,000. When he signed each marker, Zahavi 

represented that he understood that the credit instrument was identical to 

'The Palazzo and the Venetian are owned by the same corporation, 

and a customer may use the same line of credit at either casino. 

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a personal check and that it was payable upon demand. The evidence 

introduced during trial shows that at the time the Venetian and Palazzo 

extended Zahavi's line of credit and issued him the $184,000 worth of 

markers, they had Zahavi's credit report from August 2008 on file. The 

evidence showed he had an average of $25,000 to $50,000 in one bank 

account and an average of $50,000 to $75,000 in another. The evidence 

also showed actual amounts in the two accounts ranging from $7,500 to 

$10,000, and $100,000 to $250,000. 2When Zahavi failed to timely pay the 

markers, they were presented for payment from Zahavi's bank accounts 

and returned for insufficient funds. 

Also in October 2008, after completing a credit application and 

establishing a $100,000 credit line at the Hard Rock Hotel and Casino, 

Zahavi executed two $50,000 markers at the Hard Rock. Again, upon 

signing the markers, Zahavi represented that he understood the credit 

instrument was identical to a personal check and that the marker was 

payable upon demand. The Hard Rock obtained information concerning 

Zahavi's bank accounts from the Wynn Hotel and Casino, which reported 

that as of August, he had an average balance of between $40,000 and 

$60,000 in one account, and an actual balance of $7,000 to $9,000. The 

other account had an average balance of between $40,000 to $60,000, and 

an actual balance of $100,000 to $300,000. The Hard Rock also knew he 

had roughly $487,500 in outstanding markers but had no knowledge of his 

recent payments. Two days after issuing him the markers, the Hard Rock 

2When providing information to casinos, the banks often will not 

give specific dollar amounts in the accounts, but rather state the balance 

in more general terms, such as "medium five" or "low six." A Hard Rock 

employee testified that a "medium five" would be $40,000 to $60,000. 

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obtained actual bank statements from Zahavi, indicating a total balance of 

roughly $27,000 between the two accounts. Zahavi failed to timely repay 

his outstanding marker balance, and the Hard Rock presented the two 

markers for payment from Zahavi's bank accounts, both of which were 

returned for insufficient funds. 

In December 2008, Zahavi then drew three additional 

markers, based on an existing line of credit established at Caesars Palace 

Hotel and Casino. In signing the markers, Zahavi made similar 

representations that the markers were payable on demand and he had 

sufficient funds. There was no evidence introduced during the trial that 

Caesars Palace had any knowledge of the present state of Zahavi's 

accounts and that the credit report they had on file for Zahavi dated back 

to 2005. After multiple collection efforts were made, Caesars presented 

the three markers, totaling $100,000, for payment from Zahavi's bank 

accounts, all of which were returned due to insufficient funds. 

Upon receipt of the returned markers, all four casinos sent 

Zahavi a required ten-day demand letter requesting payment. Zahavi 

again failed to pay. Subsequently, all 14 unpaid markers were sent to the 

Clark County District Attorney's Office for criminal prosecution under the 

bad-check statute. The State filed an indictment against Zahavi for 

writing checks with insufficient bank funds with intent to defraud. The 

indictment included four counts, one for each casino from which Zahavi 

had executed the 14 markers: the Venetian, Palazzo, Hard Rock, and 

Caesars. 

At trial, the district court gave jury instruction 18, over 

Zahavi's objection, which stated that "[w]hether a payee chooses to cash a 

check immediately or at a later date does not alter the character of the 

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instrument. The mere fact that a marker is held for a period of time prior 

to deposit does not convert the instrument into a post dated contract." 

Zahavi proposed, and the district court rejected, jury instructions stating 

that a casino's knowledge of insufficient funds negated Zahavi's intent to 

defraud or, alternatively, served as an affirmative defense. The jury found 

Zahavi guilty on all four counts. Zahavi now appeals. 

DISCUSSION 

On appeal, Zahavi argues that: (1) the district court erred in 

instructing the jury that a casino's choice to hold a marker does not alter 

the marker into a post-dated contract; (2) the district court erred in 

refusing to give Zahavi's proposed jury instruction that a casino's 

knowledge of insufficient funds negates the intent-to-defraud element 

under NRS 205.130 or, alternatively, constitutes an affirmative defense; 

and (3) NRS 205.130 violates the Nevada Constitution. 

The district court did not err in instructing the jury that a casino's choice to 

hold markers does not alter the marker into a short-term loan or post-dated 

check 

"[W]hether the jury instruction was an accurate statement of 

the law is a legal question subject to de novo review." Berry v. State, 125 

Nev. 265, 273, 212 P.3d 1085, 1091 (2009), abrogated on other grounds by 

State v. Castaneda, 126 Nev. , 245 P.3d 550 (2010). Zahavi argues that 

jury instruction 18 was a misstatement of the law because gaming 

markers are the equivalent of short-term loans or post-dated checks, and 

thus, are outside the purview of NRS 205.130. 

At the time of Zahavi's markers, NRS 205.130(1) (2007) 

provided: 

Except as otherwise provided in this subsection 

and subsections 2 and 3, a person who willfully, 

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with an intent to defraud, draws or passes a check 

or draft to obtain: 

(a) Money; 

(b) Delivery of other valuable property; 

(c) Services; 

(d) The use of property; or 

(e) Credit extended by any licensed gaming 

establishment, 

drawn upon any real or fictitious person, bank, 

firm, partnership, corporation or depositary, when 

the person has insufficient money, property or 

credit with the drawee of the instrument to pay it 

in full upon its presentation, is guilty of a 

misdemeanor. If that instrument, or a series of 

instruments passed in the State during a period of 

90 days, is in the amount of $250 or more, the 

person is guilty of a category D felony and shall be 

punished as provided in NRS 193.130. In addition 

to any other penalty, the court shall order the 

person to pay restitution. 3 

Jury instruction 18 states: "Mlle mere fact that a marker is 

held for a period of time prior to deposit does not convert the instrument 

into a post dated contract." 

In Nguyen v. State, this court considered whether a gaming 

marker was a "check or draft" under NRS 205.130(1) and rejected the 

appellant's contention that "the practice of delaying payment of a marker 

renders the instrument a loan document." 116 Nev. 1171, 1176, 14 P.3d 

515, 518 (2000). Looking to the definitions of "check" and "draft" in the 

3NRS 205.130(1) was amended in 2011 and now states that an 

instrument's amount must be greater than $650, not $250. 2011 Nev. 

Stat., ch. 41, § 11, at 162-63. This change in law is irrelevant to our 

rulings here. 

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Uniform Commercial Code, this court determined that "NRS 205.130 

applies to instruments that are drawn upon a bank, payable on demand, 

signed by the payor, and which instruct the bank to pay a certain amount 

to the payee." Id. at 1175, 14 P.3d at 518. The gaming markers at issue in 

Nguyen satisfied that definition. Id. The court also reasoned that 

lw]hether an obligee chooses to cash a check immediately or at a later 

date does not alter the character of the instrument." Id. at 1176, 14 P.3d 

at 518. This court further "decline[d] to hold. . . that. . . markers [are] 

'pre-dated' checks, that is, checks held by the casinos pursuant to a 

contract of future deposit. . . . The mere fact that markers are held for a 

period of time prior to deposit does not evidence such a contract." Id. at 

1176 n.6, 14 P.3d at 518 n.6. 

Zahavi acknowledges our holding in Nguyen but argues that in 

Nguyen we left open the possibility that a marker may be deemed a short 

term loan if both parties mutually understood and agreed to such terms. 

He points to the following language in Nguyen to support that proposition: 

"[f]urther, there is no evidence that [appellant] and the casinos understood 

the marker to effect a contract for a loan." Id. at 1176, 14 P.3d at 518. We 

disagree with Zahavi's reading of Nguyen and take this opportunity to 

clarify our holding in that case. 

First, we note that the language Zahavi refers to in Nguyen 

was dicta. This court was merely pointing to a flaw in the appellant's 

argument, which was the lack of any evidence to support his claim of an 

agreement to make a short term loan. However, to the extent Nguyen can 

be read as Zahavi urges, we clarify that Nguyen does not stand for the 

proposition that a casino marker bearing the phrase "payable upon 

demand" or similar language may be deemed a post-dated contract if both 

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parties mutually understood and agreed that the marker would be held for 

a period of time prior to deposit. 

The casino markers signed by the appellant in Nguyen, as well 

as the markers in Zahavi's case, all included some form of language 

indicating the marker was "payable upon demand," or was "identical to a 

personal check." Thus, Zahavi's argument—that the course of dealing 

between him and the casinos somehow demonstrates a mitual 

understanding that the markers would not be immediately deposite ails 

in the face of the clear and unambiguous language of the markers. See 

Davis v. Beling, 128 Nev. „ 278 P.3d 501, 515 (2012) (stating that 

language that is "clear and unambiguous . . . will be enforced as written"). 

The result would be different only if the language of the marker somehow 

expressed that the casino would hold the marker for a period of time prior 

to deposit, thus removing it from the category of "check or draft" as 

defined in Nguyen. 116 Nev. at 1175, 14 P.3d at 517-18. Therefore, we 

conclude that jury instruction 18 is an accurate statement of the law, and 

the district court did not err in giving that instruction. 

The district court did not err in refusing to give Zahavi's proposed jury 

instruction that a casino's knowledge of insufficient funds negates the 

intent-to-defraud element or, alternatively, is an affirmative defense 

"The district court has broad discretion to settle jury 

instructions, and this court reviews the district court's decision for an 

abuse of that discretion or judicial error." Crawford v. State, 121 Nev. 744, 

748, 121 P.3d 582, 585 (2005). "An abuse of discretion occurs if the district 

court's decision is arbitrary or capricious or if it exceeds the bounds of law 

or reason." Jackson v. State, 117 Nev. 116, 120, 17 P.3d 998, 1000 (2001). 

"It is well established that a defendant is entitled to a jury instruction on 

his theory of the case, so long as there is evidence to support it," Hoagland 

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v. State, 126 Nev. „ 240 P.3d 1043, 1047 (2010), and it correctly 

states the law, see Crawford, 121 Nev. at 748, 121 P.3d at 585. This rule, 

however, "does not give the defendant the absolute right to have his own 

instruction given, particularly when the law encompassed in that 

instruction is fully covered by another instruction." Milton v. State, 111 

Nev. 1487, 1492, 908 P.2d 684, 687 (1995) (internal quotations omitted). 

Zahavi contends that the casinos had knowledge of his 

insufficient funds and inability to pay back the 14 gaming markers he 

obtained. Nevada's bad check statute, NRS 205.130(1), prohibits a person 

"with an intent to defraud," from drawing or passing a check or draft to 

obtain credit extended by a licensed gaming establishment (commonly in 

the form of a casino marker). Here, the relevant inquiry is whether the 

district court should have instructed the jury that a casino's knowledge of 

insufficient funds in a casino patron's bank accounts at the time of the 

issuance of a marker negates the intent-to-defraud element of NRS 

205.130(1)(e) or, alternatively, constitutes an affirmative defense. 

Interpreting NRS 205.130 requires this court to first look to 

the "statute's plain meaning." State v. Lucero, 127 Nev. , 249 P.3d 

1226, 1228 (2011). "[W]hen a statute 'is clear on its face, a court can not 

go beyond the statute in determining legislative intent." Id. (quoting 

Robert E. v. Justice Court of Reno Twp., 99 Nev. 443, 445, 664 P.2d 957, 

959 (1983)). When construing various statutory provisions, which are part 

of a "scheme," this court must interpret them "harmoniously" and "in 

accordance with [their] general purpose." Washington v. State, 117 Nev. 

735, 739, 30 P.3d 1134, 1136 (2001). 

NRS 205.130 is silent as to whether a licensed gaming 

establishment's knowledge that a patron had insufficient funds at the time 

10 
he or she executed markers will negate the element of intent to defraud or 

may constitute an affirmative defense. The statutory provisions under 

NRS 205.132 explicitly provide three instances when the element of intent 

to defraud may be presumed under Nevada law: if the check is drawn on 

an account that does not exist; payment is refused by the drawee upon 

presentment of the check; and notice of refusal of payment that is mailed 

to the drawer by registered or certified mail is returned because of 

nondelivery. NRS 205.132(1). However, the statutory provisions under 

NRS 205.130 make no reference to negating the element of intent to 

defraud. 

Zahavi asserts that other jurisdictions have held that bad 

check statutes similar to NRS 205.130 provide that an element of intent to 

defraud may be negated by a payee's knowledge of insufficient funds. See 

State v. Zent, 376 P.2d 861, 863 (Ariz. 1962) (explaining that a person's 

disclosure to a payee that he or she does not have sufficient funds to 

satisfy an executed check fails to constitute criminal intent to defraud); 

People v. Poyet, 492 P.2d 1150, 1152 (Cal. 1972) (finding that "with 

disclosure there can be no deception of a present insufficiency of funds" 

(emphasis omitted)). The West Virginia Supreme Court went further, 

holding that where a business has reason to believe there are insufficient 

funds, such belief negates the fraudulent intent. State v. Orth, 359 S.E.2d 

136, 139-40 (W. Va. 1987) (after several checks executed to a dog racing 

track were returned due to insufficient funds, and the track continued to 

accept checks from the patron, the court held that the track "had reason to 

believe the appellant did not have sufficient funds on deposit"), overruled 

on other grounds by State v. Phillips, 520 S.E.2d 670, 678 (W. Va. 1999). 

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The State argues that these cases are not applicable because 

Nevada's law regarding gaming markers is unique, and the cases from 

other states, aside from West Virginia, all involve an affirmative 

disclosure of insufficient funds by the defendant in the context of a 

personal check. Interestingly, the State also highlights the difference 

between personal checks and gaming markers—the payee on a personal 

check has no ability to verify the defendant's credit history with the 

company or verifying funds in the defendant's bank account, whereas 

casinos uniquely rely on other sources to determine these factors. Thus, in 

the case of a personal check, knowledge of insufficient funds can generally 

only be gained if the payee affirmatively discloses it. However, in the 

unique situation of casino gaming markers, the casino may gain this 

knowledge through other means. 

As such, we determine that the element of "intent to defraud" 

under NRS 205.130 may be negated by a showing that the casino had 

knowledge that the person obtaining the marker did not have sufficient 

funds to cover the marker at the time it was executed. The factors in 

determining whether intent may be negated include what the payor 

represented and what information was available to the payee. We decline 

to go as far as the Orth court, which stated the intent to defraud element 

may be negated if the payee had "reason to believe." Merely because the 

casinos have the ability to research a patron's financial status, they are 

under no obligation to do so, and under the Orth standard, the statute 

would be rendered useless as every gambler who failed to pay his markers 

would simply argue that the casino had "reason to believe" he could not 

pay his markers by virtue of information potentially available to the 

casinos. 

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Because we determine that the "intent to defraud" element 

may be negated by a disclosure of insufficient funds to the payee, Zahavi 

was entitled to have the jury so instructed if there was proof in the record 

supporting the instruction, see Hoagland, 126 Nev. at , 240 P.3d at 

1047, and it was not adequately covered in other instructions, Milton, 111 

Nev. at 1492, 908 P.2d at 687. 

Under the first factor, Zahavi did not affirmatively represent 

he had insufficient funds. With the exception of Orth, unlike the cases 

cited above from other jurisdictions where the defendant personally 

informed the payee that he had insufficient funds and would not be able to 

cover the check at that time, here Zahavi failed to affirmatively disclose to 

the casinos that he lacked sufficient funds in either of his accounts. See 

Zent, 376 P.2d at 863; Poyet, 492 P.2d at 1152; see also People v. Jacobson, 

227 N.W. 781, 782 (Mich. 1929) (holding that plaintiffs knowledge that 

defendant did not have funds in the bank negated any fraudulent intent). 

In fact, at the time Zahavi signed the markers, he guaranteed to the 

casinos that there were sufficient funds available, such that the markers 

were payable upon demand and could be executed at any time. 

The second factor (information available to the payee) does not 

weigh in Zahavi's favor. Contrary to Zahavi's argument that the casinos 

had knowledge of his insufficient funds, the evidence indicates that at the 

time the casinos extended the line of credit, their records supported 

Zahavi's affirmative representation that he had sufficient funds. At trial, 

the executive director of cage and credit operations for the Hard Rock 

testified that prior to granting Zahavi credit and allowing him to take out 

$100,000 in markers, the Hard Rock obtained a credit report, as well as 

information from other casinos revealing that Zahavi had a total of 

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$487,500 in outstanding markers. The Hard Rock did not know, however, 

whether Zahavi had made payments on this outstanding balance. Further 

testimony revealed that one month prior to issuance of the markers, the 

Hard Rock also knew that the balances in the two bank accounts provided 

by Zahavi had respective average balances of roughly $7,000 to $9,000, 

and $100,000 to $300,000. 4It was not until two days after Zahavi signed 

the markers representing that he had sufficient funds that the Hard Rock 

learned he only had approximately $27,000 between the two accounts. 

Additionally, the executive director of casino credit and 

director of collections at the Venetian and Palazzo testified that they had 

records dating from August 2008 that indicated Zahavi had actual 

balances in his accounts of $7,500 to $10,000 and $100,000 to $300,000. 

They further testified that the balances in Zahavi's accounts would have 

been enough to cover the $184,000 in markers that they extended to him. 

Further, employees of Caesars Palace testified that they had 

no knowledge of his present accounts, with the most recent credit report in 

their possession dating back to 2005. Because Zahavi failed to make an 

affirmative disclosure to the casinos and the casinos had no present 

knowledge of his insufficiency of funds at the time the markers were 

executed, we conclude that there was no evidence to negate the intent-todefraud element, and therefore the district court did not abuse its 

discretion by refusing the instruction. 

Additionally, the district court did not abuse its discretion in 

rejecting Zahavi's proposed supplemental instruction on the intent to 

4The Hard Rock obtained Zahavi's bank information from the Wynn 

Las Vegas. The Wynn informed the Hard Rock that the bank account 

amounts had last been verified in August 2008. 

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defraud because it was adequately addressed by the other instructions. In 

pertinent part, jury instruction 17 informed the jury: 

To act with the "intent to defraud" means to act 

knowingly and with the specific intent to deceive 

or cheat someone, ordinarily for the purpose of 

causing some financial loss to another or bringing 

about some financial gain to oneself or another to 

the detriment of a third party. 

Zahavi was permitted to argue his theory regarding the casino's 

knowledge of his insufficient funds and the jury instructions given 

adequately addressed this theory. 

We further decline to hold that Zahavi was entitled to an 

instruction on an affirmative defense. None of the cases cited by Zahavi 

characterize the payee's knowledge of insufficient funds as establishing an 

affirmative defense, and therefore, we reject this argument as an 

inaccurate statement of the law. See Zent, 376 P.2d at 863; Poyet, 492 

P.2d at 1152; Jacobson, 227 N.W. at 782. Thus, we conclude that the 

district court did not abuse its discretion in failing to instruct the jury on 

negating the intent-to-defraud element or, alternatively, in refusing to 

instruct the jury that it was an affirmative defense. 

NRS 205.130 is constitutional 

A de novo standard of review is applied to issues of 

constitutionality. State v. Colosimo, 122 Nev. 950, 954, 142 P.3d 352, 355 

(2006). This court presumes "that statutes are constitutional," and "the 

party challenging a statute has the burden of making a clear showing of 

invalidity." State v. Castaneda, 126 Nev. , 245 P.3d 550, 552 

(2010) (internal quotations omitted). Zahavi challenges the 

constitutionality of NRS 205.130, arguing that it violates the provision in 

the Nevada Constitution that prohibits imprisonment for failing to pay a 

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debt, except in cases of fraud. He bases his argument on the fact that 

NRS 205.130 only requires the "intent to defraud" and not the other 

elements of common law fraud, such as reliance. The State, however, 

argues that the statute is constitutional because it punishes a fraudulent 

act as encapsulated in the first element, not the mere accumulation of 

debt, and that this court has already determined that "intent to defraud" 

is sufficient to pass constitutional muster. We agree. 

The Nevada Constitution states that "there shall be no 

imprisonment for debt, except in cases of fraud." Nev. Const. art. 1, § 14. 

NRS 205.130(1)(e) provides that "a person who willfully, with an intent to 

defraud, draws or passes a check or draft to obtain . . . [c]redit extended by 

any licensed gaming establishment" above a certain amount "is guilty of 

a. . . felony." 5"The elements of the crime of issuing a check against 

5Records of the 1863 Constitutional Convention suggest this section 

of the Nevada Constitution has its origins in article 1, section 22 of the 

Indiana Constitution. The language referring to imprisonment for debt is 

identical, compare Nev. Const. art. 1, § 14, with Ind. Const. art. 1, § 22, 

and was proposed at the convention by James Corey, an individual with 

roots in Indiana. See Andrew J. Marsh, Samuel L. Clemen4I Amos 

Bowman, Reports of the 1863 Constitutional Convention of the Territory of 

Nevada, 171, 470 n.36 (William C. Miller et al. eds., 1972). As such, we 

find cases interpreting this section of the Indiana Constitution 

informative. Although Indiana's backcheck statute is distinct from that of 

Nevada, the Indiana Supreme Court has interpreted statutes containing 

the "intent to defraud" language present in NRS 205.130 as constitutional. 

See Clark v. State, 84 N.E. 984, 985 (Ind. 1908) (finding that a statute 

prohibiting an individual from obtaining food or lodging with the intent to 

defraud an innkeeper did not violate the state constitution.); Lower v. 

Wallick, 25 Ind. 68, 73 (1865) ("If it had been the intention of the 

convention to abolish imprisonment for every moneyed liability, in 

criminal as well as civil cases, other terms and phrases would have been 

used."). 

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insufficient funds are (1) intent to defraud, (2) the making or passing of a 

check for the payment of money, and (3) without sufficient funds in the 

drawee institution to cover said check in full upon its presentation." 

Garnick v. First Judicial Dist. Court, 81 Nev. 531, 536, 407 P.2d 163, 165 

(1965). 

This court has previously held that a criminal statute allowing 

a defendant to be arrested for removing or disposing of his property with 

the intent to defraud his creditors did not conflict with Nevada 

Constitution airticle 1, section 14's provision against imprisonment for 

-- 

debt, except in cases of fraud. Ex parte Bergman, 18 Nev. 331, 341-42, 4 P. 

209, 216 (1884). 6Further, the court expressed that "the immunity 

contemplated by the second clause would be confined to debts or liabilities 

growing out of contracts, and not to liabilities resulting from crimes or 

torts." Id. at 342, 4 P. at 216 (quoting McCoo/ v. State, 23 Ind. 127, 131 

(1864) (referencing its own state constitution's prohibition against 

"imprisonment for debt, except in case of fraud")). 

Other jurisdictions have also reviewed the constitutionality of 

convicting a defendant under a bad-check statute under state 

constitutions that maintain similar language to Nevada Constitution 

„article 1, section 14, and have held that including only the intent-todefraud element of fraud in a criminal statute did not violate a 

constitutional prohibition against imprisonment for debt. See State v. 

Meeks, 247 P. 1099, 1101 (Ariz. 1926) ("Because one who gives a check 

6Similar to NRS 205.130, the statute at issue in Bergman included 

only "intent to defraud," and did not reference reliance or other common 

law elements. See I Nev. Compiled Laws, § 73 (1873) (current version 

codified as NRS 31.480). 

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with the intent to defraud, knowing he has no funds to meet it when 

presented, may be punished, does not mean that he may be imprisoned for 

debt, but rather for committing an offense based upon fraud."); Ennis v. 

State, 95 So. 2d 20, 23-25 (Fla. 1957) (holding that a state statute 

criminalizing the act of drawing a check from a bank account when 

insufficient funds exist and requiring the element of intent to defraud did 

not violate state constitutional provision against imprisonment for debt); 

State v. Laude, 654 P.2d 1223, 1228 (Wyo. 1982) (holding that "criminal 

intent to deceitfully issue an insufficient funds check [was] an essential 

element of the crime" of committing fraud by check and that a statute 

prohibiting such offense was not a violation of the state's constitutional 

ban "against imprisonment for debt"). Based on our prior decisions, and 

persuasive authority from other jurisdictions with similar constitutional 

prohibitions, we conclude that NRS 205.130 does not violate article 1, 

03- 

section 14 of the Nevada Constitution because Zahavi's conviction is based 

on committing a fraudulent act and not on incurring a debt. 7 

7Zahavi also argues that NRS 205.130 violates the United States 

Constitution. U.S. Const. amend. XIII, § 1 ("Neither slavery nor 

involuntary servitude, except as a punishment for crime whereof the party 

shall have been duly convicted, shall exist within the United States, or 

any place subject to their jurisdiction."). However, he offers no further 

analysis or authority for this argument, instead focusing on the argument 

under the Nevada Constitution. We thus decline to address this 

argument. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 

n.38, 130 P.3d 1280, 1288 n.38 (2006) (declining to consider arguments not 

supported by relevant authority and cogent argument). 

SUPREME COURT 

OF 

NEVADA 18 

(0) 1947A 
, C.J. 

Hardesty 

We concur: 

Parraguirre 

J. 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 

19 

Accordingly, we affirm Zahavi's judgment of conviction.