of burglary."). Moreover, even assuming that Houtz's proposed instruction
was a correct statement of the law, any error in failing to give the
instruction was harmless beyond a reasonable doubt as the evidence was
overwhelming that Houtz entered a residence that was not his own with
the intent to commit a felony therein. See id.; Estes v. State, 122 Nev.
1123, 1138, 146 P.3d 1114, 1124 (2006). Houtz's name was not on the
lease, he did not have a key, he did not pay rent, and he lived in another
apartment in the same complex. Any prior permission that Houtz had to
enter the residence was clearly revoked when the victim left Houtz at a
store and refused to let him in when he returned to her apartment and
began angrily knocking on her locked door. Houtz then broke down the
door and immediately attacked the victim. We conclude that Houtz is not
entitled to relief on this claim.
Second, Houtz argues that the prosecutor inappropriately
commented on Houtz's right to remain silent when he twice asked in
closing argument why Houtz never said he lived at the residence in
question. Because Houtz did not object to the statements, we review them
for plain error affecting his substantial rights. See Dieudonne v. State,
127 Nev. „ 245 P.3d 1202, 1204-05 (2011). The prosecutor's first
statement referenced a notable omission during Houtz's conversation with
police while he was not in custody and thus did not reference his right to
remain silent. See State v. Taylor, 114 Nev. 1071, 1081-83, 968 P.2d 315,
322-24 (1998) (non-custodial statements are admissible); Murray v. State,
113 Nev. 11, 17 n.1, 930 P.2d 121, 125 n.1 (1997) (comments on pre-arrest
silence are not improper). The prosecutor's second statement referenced a
recorded conversation where Houtz referred to the apartment as the
victim's and thus did not directly or indirectly comment on Houtz's
SUPREME COURT
OF
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decision not to testify at trial. See Harkness v. State, 107 Nev. 800, 803,
820 P.2d 759, 761 (1991). We conclude that Houtz fails to demonstrate
plain error.
Having considered Houtz's contentions and concluded that
they lack merit, we
ORDER the judgment of conviction AFFIRMED.
Gibbons
J.
J.
Saitta
cc: Hon. Janet J. Berry, District Judge
Washoe County Public Defender
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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