About that time, Smith approached the driver's side window and put a gun
to the victim's neck, demanded money, and threatened to shoot her.
Meanwhile, the other man rifled through the glove compartment and
console of the victim's car. The victim handed over $400 to Smith. When
the victim's cell phone rang, Smith demanded her phone and car keys.
While attempting to open the car's trunk, Smith accidentally activated the
alarm. Smith and the other man fled. The victim left the area and drove
to a nearby gas station to call the police. During the investigation, the
police retrieved the victim's cell phone from Smith's residence and
discovered his fingerprints on the victim's car. Viewing the evidence in
the light most favorable to the State, we conclude it is sufficient to
establish guilt beyond a reasonable doubt as determined by a rational trier
of fact. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); McNair v. State,
108 Nev. 53, 56, 825 P.2d 571, 573 (1992); see also NRS 193.165; NRS
199.480; NRS 200.380; NRS 202.360. As to the false statements and
inconsistencies in the victim's statements to the police, those matters were
explored during her testimony and therefore were before the jury for its
consideration. See Washington v. State, 112 Nev. 1067, 1073, 922 P.2d
547, 551 (1996) (providing that "where there is conflicting testimony
presented at trial, it is within the province of the jury to determine the
weight and credibility of the testimony"); McNair, 108 Nev. at 56, 825 P.2d
at 573 ("[I] t is the jury's function, not that of the court, to assess the
weight of the evidence and determine the credibility of witnesses.").
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Further, the jury was also aware that no gun was recovered during the
investigation.'
Second, Smith argues that the district court abused its
discretion by allowing a police officer to improperly bolster the victim's
credibility. In her initial statements to the police, the victim related that
at the time of the robbery, she was on her way to meet a friend and pulled
into the liquor store because someone was following her. When police
officers confronted her with evidence that refuted her initial statements,
the victim told the police that she was in the area to buy prescription pain
pills. A detective testified at trial about that confrontation, stating that
the victim gave the police "the correct [version]—well, a different version,
let's put it that way." When asked by the prosecutor whether the victim
was "able to basically, come clean about the circumstances of the
background of coming in contact with the defendant," the detective
responded affirmatively. Smith argues that that exchange constituted
improper bolstering. Because he did not object to the detective's
'Smith argues that the district court abused its discretion by
allowing the victim to testify because her testimony was incredible and
therefore more prejudicial than probative and no weapon was found.
Because he did not object to this testimony, his claim is reviewed for plain
error affecting his substantial rights. Mclellan v. State, 124 Nev. 263, 267,
182 P.3d 106, 109 (2008). Credibility matters associated with the victim's
testimony and the prosecution's inability to produce the weapon allegedly
used in the robbery go to the weight of the evidence not admissibility.
McNair, 108 Nev. at 56, 825 P.2d at 573. We conclude that Smith has
failed to demonstrate plain error.
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testimony, we review for plain error affecting his substantial rights.
Mclellan, 124 Nev. at 267, 182 P.3d at 109. We conclude that Smith has
failed to demonstrate plain error affecting his substantial rights. The
challenged testimony does not concern crucial evidence about the robbery
but rather a lesser matter—why the victim was in the area of the crime.
Moreover, the detective's testimony shows that the victim lied to the
police, which tended to diminish her credibility rather than bolster it. And
the victim admitted during her testimony that she lied to the police.
Third, Smith argues that the district court abused its
discretion by allowing the prosecution to introduce inadmissible hearsay.
During her testimony, the victim related that immediately before the
robbery, she called a friend who advised her that she should not meet with
people she did not know to buy pills. Considering the context in which the
statement was made, we conclude that it was unsolicited by the State and
not offered to prove the truth of the matter asserted and therefore did not
constitute hearsay. See NRS 51.035.
Fourth, Smith argues that the prosecutor committed
misconduct during closing rebuttal argument by commenting on his right
not to testify. Specifically, Smith points to the following comments:
"[Smith] can't explain away why he has his cell phone—her cell phone
because it doesn't make sense that he would have it in some sort of trade."
Because Smith did not object to the challenged argument, we review for
plain error affecting his substantial rights. Mclellan, 124 Nev. at 267, 182
P.3d at 109.
Prosecutorial comment on a defendant's failure to testify is
constitutionally impermissible. Sonner v. State, 112 Nev. 1328, 1342, 930
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P.2d 707, 716 (1996); McGuire v. State, 100 Nev. 153, 157, 677 P.2d 1060,
1063 (1984). An indirect reference is impermissible where "the language
used was manifestly intended to be or was of such a character that the
jury would naturally and necessarily take it to be comment on the
defendant's failure to testify.' Harkness v. State, 107 Nev. 800, 803, 820
P.2d 759, 761 (1991) (quoting United States v. Lyon, 397 F.2d 505, 509
(7th Cir. 1968)). Considering it in context, the prosecutor's comment was
made in response to Smith's argument that because it was unknown how
the cell phone came to be in Smith's home, the State failed to meet its
burden of proof. Under the circumstances, we do not consider the
challenged comment improper. See Bridges v. State, 116 Nev. 752, 764, 6
P.3d 1000, 1009 (2000) (observing that "where the prosecutor's reference
to the defendant's opportunity to testify is a fair response to a claim made
by defendant or his counsel,' there is no constitutional violation" (quoting
United States v. Robinson, 485 U.S. 25, 32 (1988))). Even assuming that
the comment was improper, we conclude that Smith has failed to show
plain error affecting his substantial rights, considering the brevity of the
comment and the evidence supporting his guilt.
Fifth, Smith contends that the district court abused its
discretion by admitting an exhibit referencing the bifurcated felon-in-
possession charge during the trial on the remaining charges. Smith
brought to the district court's attention that the State had introduced an
exhibit indicating that the police had impounded a cell phone related to
the case. The exhibit lists the charges against him, including the entry
"Ex-Felon Poss. of F/A." It appears from the record that the jury was
exposed to the exhibit for only a few seconds. After some discussion, the
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district court designated the exhibit as a court exhibit so that it would not
be given to the jury during its deliberations. Smith requested no
additional remedy. Although error was committed in this instance, see
generally Morales v. State, 122 Nev. 966, 970, 143 P.3d 463, 465-66 (2006)
("As with full severance, bifurcation prevents the State from discussing or
producing proof of prior felony convictions until after the jury has
deliberated on the charges that are unrelated to the defendant's status as
an ex-felon."), given the jury's brief exposure to the exhibit, we conclude
that Smith failed to show prejudice. 2
Sixth, Smith argues that the district court erred by not
dismissing a juror based on the juror's contact with a third party. During
trial, juror 10 notified the district court that Smith's sister approached
him and asked if he knew anything "about the jury selection process and
shouldn't there be a black person on the jury." The juror indicated that
the encounter would not affect his ability to continue his duties. The
remaining jurors were canvassed about any attempted contact with them
or if they observed anyone attempting to contact a juror. One juror
responded that she observed someone talking to a juror but did not hear
2 Smith argues that this error was compounded by the State's use of
a photograph during opening statement that contained his "Scope ID" and
date of arrest. It appears from the record that the jury's exposure to the
photograph was brief and the parties agreed to redact the challenged
information if the photograph was admitted into evidence or otherwise
used at trial. Under those circumstances, even if error was committed,
Smith has not shown prejudice.
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the conversation. At the conclusion of the inquiry, the district court
determined that removing juror 10 was "probably not necessary" but
would accommodate the parties if they agreed to juror 10's dismissal.
After consulting with counsel, Smith declined to seek removal of the juror.
Considering Smith's decision not to challenge juror 10 and the lack of any
indication that the contact prejudiced him, see Meyer v. State, 119 Nev.
554, 563-64, 80 P.3d 447, 455 (2003), we conclude that the district court
did not abuse its discretion in this regard, see Weber v. State, 121 Nev.
554, 580, 119 P.3d 107, 125 (2005).
Having considered Smith's arguments and concluded that no
relief is warranted, we
ORDER the judgment of conviction AFFIRMED. 3
,J.
Hardesty
Parraguirre
3 We reject Smith's claim that the cumulative effect of trial error
requires reversal of his convictions as any errors committed were
immaterial and substantial evidence supports his convictions. See Valdez
v. State, 124 Nev. 1172, 1195, 196 P.3d 465, 481 (2008).
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cc: Hon. Jessie Elizabeth Walsh, District Judge
Langford McLetchie LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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