agreed. Accordingly, appellant waived his request and had no objection to
the witness testifying in his prison clothing, and we review for plain error.
See Leonard v. State, 117 Nev. 53, 63, 17 P.3d 397, 403-04 (2001). We
discern no plain error by the district court in allowing the witness to
testify in prison clothing as counsel for appellant agreed that it was
content-neutral and appellant cannot demonstrate prejudice resulting
from the witness testifying in content-neutral clothing. See Green v. State,
119 Nev. 542, 545, 80 P.3d 93, 95 (2003) (outlining the three
considerations for plain error review and placing the burden on the
defendant to show actual prejudice or miscarriage of justice).
Second, appellant claims that the district court erred by
allowing the State to elicit testimony regarding appellant's actions during
the one-on-one identification and subsequent arrest, arguing that such
evidence was inadmissible as an uncharged bad act and that the district
court should have conducted a hearing outside the presence of the jury
pursuant to the requirements of Petrocelli v. State, 101 Nev. 46, 51-52, 692
P.2d 503, 507-08 (1985), modified on other grounds by Sonner v. State, 114
Nev. 321, 326-27, 955 P.2d 673, 677 (1998). The district court's decision to
admit or exclude evidence is reviewed for an abuse of discretion and is not
to be reversed absent clear error. Braunstein v. State, 118 Nev. 68, 72, 40
P.3d 413, 416 (2002). We conclude that there was no error in allowing
testimony that appellant attempted to flee the officers' presence
immediately after he had been identified by an eyewitness and that he
struggled against the officers' attempts to place him under arrest as it was
admitted and used to show consciousness of guilt, it was proven by clear
and convincing evidence, and its probative value was not substantially
outweighed by the danger of unfair prejudice. See Rhymes v. State, 121
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Nev. 17, 22, 107 P.3d 1278, 1281 (2005) (providing that failure to hold
Petrocelli hearing is harmless where record sufficient to determine the
admissibility of the uncharged acts); Tinch v. State, 113 Nev. 1170, 1176,
946 P.2d 1061, 1064-65 (1997) (providing that evidence of uncharged acts
are admissible if relevant, proven by clear and convincing evidence, and
probative value not outweighed by prejudicial effect), as modified by
Bigpond v. State, 128 Nev. „ 270 P.3d 1244, 1249-50 (2012); see also
Bellon v. State, 121 Nev. 436, 443-44, 117 Nev. P.3d 176, 180 (2005)
(providing that evidence of uncharged acts admissible to show
consciousness of guilt).
Appellant further argues that the district court erred by
failing to give a limiting instruction on the use of the uncharged bad act
evidence. If prior bad act evidence is to be admitted, "the trial court
should give the jury a specific instruction explaining the purposes for
which the evidence is admitted immediately prior to its admission and
should give a general instruction at the end of trial." Tavares v. State, 117
Nev. 725, 733, 30 P.3d 1128, 1133 (2001), modified by Mclellan v. State,
124 Nev. 263, 270, 182 P.3d 106, 111 (2008). However, "we consider the
failure to give such a limiting instruction to be harmless if the error did
not have a substantial and injurious effect or influence the jury's verdict."
Rhymes, 121 Nev. at 24, 107 P.3d at 1282. Here, the district court failed
to give a limiting instruction before admitting the prior bad act evidence
and at the end of trial. However, in light of the evidence against
appellant, we conclude that the failure to give a limiting instruction did
not have a "substantial and injurious effect or influence the jury's verdict."
Id.
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Ku
Third, appellant contends that the evidence presented at trial
was insufficient to support the jury's findings of guilt. Our review of the
record on appeal, however, reveals sufficient evidence 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), Origel-Candido v. State, 114
Nev. 378, 381, 956 P.2d 1378, 1380 (1998).
The jury heard testimony from the owner of the residence that
when he left his home, the kitchen window was not broken and the house
was not in disarray but that when he returned later, his kitchen window
was broken, drawers had been emptied, and the house looked as if it had
been ransacked. Furthermore, the owner testified that he did not know
appellant nor did appellant have permission to enter his home. A
neighbor testified that she saw an individual attempt to gain entry into
the residence through a side window then move to the back of the house.
That neighbor identified appellant at a one-on-one show-up on the same
day of the incident and indicated she was absolutely positive of the
identification. A witness on the street saw an individual exit the residence
and identified appellant as that individual from a photo lineup. A
sweatshirt was found in the vicinity of the residence with appellant's DNA
and matched the description given by numerous witnesses of the
perpetrator's clothing. Lastly, the jury heard testimony from an officer
who, after chasing the individual exiting the residence, was 90 percent
positive that the individual was appellant.
The jury could reasonably infer from the evidence presented
that appellant committed the crimes of home invasion and burglary. See
NRS 205.067(1); NRS 205.060(1). It is for the jury to determine the
weight and credibility to give conflicting testimony, and the jury's verdict
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,
will not be disturbed on appeal where, as here, substantial evidence
supports the verdict. See Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20
(1981); see also McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992).
Fourth, appellant claims that the district court abused its
discretion in sentencing appellant as a habitual criminal because of the
staleness and non-violent nature of his previous convictions. The district
court has broad discretion to dismiss a count of habitual criminality. See
NRS 207.010(2); O'Neill v. State, 123 Nev. 9, 12, 153 P.3d 38, 40 (2007).
Our review of the record reveals that the district court understood its
sentencing authority and considered the appropriate factors prior to
making its determination not to dismiss the count. See Hughes v. State,
116 Nev. 327, 333, 996 P.2d 890, 893 (2000) ("Nevada law requires a
sentencing court to exercise its discretion and weigh the appropriate
factors for and against the habitual criminal statute before adjudicating a
person as a habitual criminal."); see also Arajakis v. State, 108 Nev. 976,
983, 843 P.2d 800, 805 (1992) ("NRS 207.010 makes no special allowance
for non-violent crimes or for the remoteness of convictions."). We conclude
that the district court did not abuse its discretion by adjudicating
appellant as a habitual criminal.'
"To the extent that appellant argues that he was doubly punished
for his prior convictions as he was previously adjudicated a habitual
criminal, we have rejected a similar claim, see Carr v. State, 96 Nev. 936,
940, 620 P.2d 869, 871 (1980) (concluding that twice adjudicating
defendant habitual criminal based on same prior convictions does not
violate double jeopardy principles), and conclude this claim is without
merit.
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Fifth, appellant argues that cumulative error warrants
reversal of his convictions. This court will not reverse a conviction based
on cumulative error unless a defendant's constitutional right to a fair trial
was violated as a result. Rose v. State, 123 Nev. 194, 211, 163 P.3d 408,
419 (2007). In examining whether cumulative error warrants reversal,
this court considers: "(1) whether the issue of guilt is close, (2) the
quantity and character of the error, and (3) the gravity of the crime
charged." Id. (internal quotations omitted). While the crimes charged are
of a serious nature, we conclude that the State presented ample evidence
of appellant's guilt and any error that may have occurred in this case was
insignificant. Therefore, we reject appellant's cumulative error claim.
Accordingly, we
ORDER the judgment of conviction AFFIRMED.
J.
Hardesty
h
Parraguirre
cc: Hon. David B. Barker, District Judge
Jonathan E. MacArthur
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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