his children to stay out of the water. That witness testified that he
observed the yellow jet ski slow down as it came into the no wake zone
when Maldonado-Mejia hit the victim at a high rate of speed on the port
side of the yellow jet ski. The witness testified that the victim tried to
turn to the right to avoid the impact but Maldonado-Mejia was going too
fast. A third witness testified that the two jet skis were heading directly
towards each other when he saw the victim's jet ski stop briefly and then
accelerate just before impact.
An officer from the Nevada Department of Wildlife testified
that he arrived on scene shortly after the accident while the victim was
being treated by an off-duty nurse and emergency medical technician and
saw severe bruising on the victim's lower left chest and abdomen. The
victim died a short time later. When the officer spoke with Maldonado-
Mejia, he noticed that Maldonado-Mejia smelled of alcohol and had
bloodshot watery eyes and an unsteady gait. The officer performed six
field sobriety tests for impairment on his boat and Maldonado-Mejia
showed signs of impairment in all six tests. Later, the officer attended the
victim's autopsy and observed that the measurements of the victim's
injuries were consistent with the design of the bow of Maldonado-Mejia's
jet ski. The officer also testified that the watercraft navigation rules
require a vessel which is approaching another vessel's port side to give-
way by stopping or getting out of the way.
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We conclude that a rational juror could infer from these
circumstances that Maldonado-Mejia was operating his jet ski under the
influence of intoxicating liquor and crashed into the victim causing
substantial bodily injury and death because he failed to maintain a proper
lookout, observe the victim on his starboard side and give-way, and/or
maintain the proper speed and distance. See NRS 488.420(1); NRS
488.540(1), (3); NRS 488.580(2)(a); NAC 488.430; Inland Navigational
Rules, Rules 14-15, 33 U.S.C. §§ 2014-2015 (head-on situation and
crossing situation), repealed and recodified as 33 C.F.R. §§ 83.14-15 by
Pub. L. 108-293 (Aug. 9, 2004) (eff. May 17, 2010). The jury's verdict will
not be disturbed on appeal where, as here, substantial evidence supports
the conviction. Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see
also Hernandez v. State, 118 Nev. 513, 531, 50 P.3d 1100, 1112 (2002)
("[C]ircumstantial evidence alone may support a conviction."); 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.").
Second, Maldonado-Mejia contends that the district court
violated the Confrontation Clause by permitting a medical examiner to
testify to the victim's manner of death and the results of a toxicology
report because the medical examiner did not actually perform the autopsy
or the toxicology test. The autopsy report and the toxicology report were
both admitted into evidence. Because Maldonado-Mejia failed to object to
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the medical examiner's testimony, we review for plain error. NRS
178.602; Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003). "In
conducting plain error review, we must examine whether there was 'error,'
whether the error was 'plain' or clear, and whether the error affected the
defendant's substantial rights." Green, 119 Nev. at 545, 80 P.3d at 95.
The Sixth Amendment Confrontation Clause provides that
"[in all criminal prosecutions, the accused shall enjoy the right to . . . be
confronted with the witnesses against him." U.S. Const. amend. VI.
Although the lab technician who concluded that the victim's blood alcohol
content was above the legal limit when he was struck by Maldonado-Mejia
was not subject to cross-examination, we conclude that the medical
examiner's testimony about the lab technician's conclusions did not violate
Maldonado-Mejia's rights under the Confrontation Clause because this
testimony was not "against him." Id. In fact, this evidence supported
Maldonado-Mejia's theory of defense that the victim's actions caused the
accident. Therefore, we conclude that the district court did not commit
plain error by allowing the medical examiner to testify about the result in
the toxicology report.
As to Maldonado-Mejia's contention that the medical
examiner's testimony about the results of an autopsy performed by
another examiner violated the Confrontation Clause, Maldonado-Mejia
fails to identify which statements are testimonial. The medical examiner
testified that her opinion was based upon the autopsy report and the
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photographs taken during the autopsy. We have never held that the
Confrontation Clause prohibits the testimony of an expert witness which
is based upon autopsy photographs. CI Vega v. State, 126 Nev. ,
236 F'.3d 632, 638 (2010) (holding that an independent opinion based on a
video recording does not violate the Confrontation Clause because expert's
judgment, proficiency and methodology are subject to cross-examination).
Because Maldonado-Mejia has not identified the offending testimony with
specificity, we cannot determine whether there was error or whether the
error was clear. Even if the medical examiner's testimony was clear error,
the independent testimony of the officer and other witnesses was sufficient
to establish that Maldonado-Mejia's jet ski caused substantial injury and
death to the victim. Therefore, Maldonado-Mejia cannot show that the
medical examiner's testimony "(1) had a prejudicial impact on the verdict
when viewed in context of the trial as a whole, or (2) seriously affects the
integrity or public reputation of the judicial proceedings." Libby v. State,
109 Nev. 905, 911, 859 P.2d 1050, 1054 (1993), vacated on other grounds,
516 U.S. 1037 (1996). Thus, Maldonado-Mejia is not entitled to relief on
this claim.
Third, Maldonado-Mejia contends that the district court erred
by instructing the jury that "[title contributory negligence of another does
not exonerate the defendant unless the other's negligence was the sole
cause of injury." Maldonado-Mejia argues that this part of the proximate
cause jury instruction shifted the burden of proof by requiring him to
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prove that he bore no fault for the accident. Maldonado-Mejia is mistaken.
When read within the context of the jury instruction as a whole, this
sentence merely explains to the jury that, if they find that Maldonado-
Mejia was the proximate cause of the victim's injury, the contributing
fault of the victim does not necessarily negate that finding. See Williams
v. State, 118 Nev. 536, 550, 50 P.3d 1116, 1125 (2002) (approving the same
proximate cause instruction because "an intervening cause must be a
superseding cause or the sole cause in order to completely excuse the prior
act" (internal quotation marks omitted)); Taylor v. Silva, 96 Nev. 738, 741,
615 P.2d 970, 971 (1980) (explaining that contributing fault of the injured
party does not negate a finding that defendant's negligence was a
proximate cause of her injuries); see also 1 Charles E. Torcia, Wharton's
Criminal Law § 47 (15th ed. 2012) (collecting cases). Therefore, the
district court did not err by giving this instruction.
Fourth, Maldonado-Mejia contends that the district court
erred by permitting two officers to testify to their conclusions about who
was at fault for the accident because this testimony invaded the province
of the jury. Maldonado-Mejia is mistaken. See David H. Kaye, David E.
Bernstein, & Jennifer L. Mnookin, The New Wigmore: Expert Evidence §
2.2.1 (2d ed. 2013) (explaining why leading evidence scholars disagree). In
Nevada, "[t] estimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate issue to be
decided by the trier of fact." NRS 50.295. To the extent Maldonado-Mejia
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relies on this court's opinion in Frias v. Valle, 101 Nev. 219, 221, 698 P.2d
875, 876 (1985), a personal injury case, his case is distinguishable. In
Valle, we held that an officer's opinion, as contained in his admitted
accident report, was unreliable because it was based upon a cursory
inspection of the scene. Id. Here, the officers' opinion was based on a
thorough investigation conducted over a period of two weeks, including an
examination of the damage to the vessel, the angle of impact, transfer
marks, and a reconstruction of the accident. We conclude that the district
court did not err by admitting the testimony of the officers.
Fifth, Maldonado-Mejia contends that the district court erred
by failing to exclude the results of two blood tests taken more than two
hours after the accident indicating that his blood alcohol level was .112
two hours and fifteen minutes after the accident and .095 an hour and two
minutes later. Maldonado-Mejia failed to object to the admission of these
results and we review for plain error. See Green, 119 Nev. at 545, 80 P.3d
at 95. When asked on direct examination if she could form an opinion
about Maldonado-Mejia's blood alcohol level at the time of the accident
based on the test results, the forensic scientist testified that she could not
form an opinion because there were too many variables. In light of this
testimony, we agree with Maldonado-Mejia that the probative value of this
evidence may have been outweighed by the danger of unfair prejudice. See
State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. „ 267
P.3d 777, 781-82 (2011). However, Maldonado-Mejia has not met his
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burden of showing that this testimony affected his substantial rights.
The forensic scientist repeatedly stated on direct and cross-examination
that she could not draw any conclusions from these results about
Maldonado-Mejia's blood alcohol content at the time of the accident
thereby diminishing the possibility that the jury might have declared him
guilty based solely on a reaction to his blood alcohol level several hours
later. See id. Moreover, an officer testified that Maldonado-Mejia showed
signs of impairment in all six of the field sobriety tests which were
performed immediately after the accident. This independent evidence
strongly supported the conclusion that Maldonado-Mejia was "under the
influence of intoxicating liquor." NRS 488.420(1)(a). Therefore, we
conclude that Maldonado-Mejia has not established plain error and is not
entitled to relief on this claim.
Sixth, Maldonado-Mejia contends that his due process rights
were violated because the officer did not conduct the field sobriety tests in
Spanish. Maldonado-Mejia failed to object to this testimony and we
review for plain error. See Green, 119 Nev. at 545, 80 P.3d at 95.
Maldonado-Mejia admits that he could not find any case law on point but
asks this court to consider this issue despite his failure to make any
attempt to analogize his case to any other due process case. We conclude
that Maldonado-Mejia has failed to demonstrate plain error.
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Seventh, Maldonado-Mejia contends that cumulative error
warrants reversal of his convictions. "One error is not cumulative error."
U.S. v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000).
Having considered Maldonado-Mejia's contentions and
concluded that they lack merit, we
ORDER the judgment of conviction AFFIRMED.
Saitta
cc: Hon. James M. Bixler, District Judge
Christopher R. Oram
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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