in the information, we conclude that this claim lacks merit. See State v.
Jones, 96 Nev. 71, 73-74, 605 P.2d 202, 204 (1980).
Second, Eggers contends that the district court abused its
discretion by giving an instruction which stated that "Mlle amount of a
controlled substance needed to sustain a conviction for the crime(s)
charged against the Defendant is that amount necessary for identification
•
as a controlled substance by a witness qualified to make such
identification," rather than his proposed instruction. We review a district
court's decision whether to give an instruction for an abuse of discretion,
but review de novo whether an instruction accurately stated the law.
Funderburk v. State, 125 Nev. 260, 263, 212 P.3d 337, 339 (2009). We
conclude that the instruction given accurately stated the law, see NRS
453.570, and Eggers fails to demonstrate that the district court abused its
discretion by giving it rather than his proposed instruction or a version
thereof. Moreover, Eggers had an opportunity to explain the meaning of
the instruction during his closing argument.
Third, Eggers contends that the district court abused its
discretion by excluding evidence which would have demonstrated that the
amount of methamphetamine in his possession had no monetary value
and could not be sold. When Eggers attempted to elicit this information,
the State objected on the grounds that quantity was not an element of the
crime and therefore the testimony was irrelevant and misleading. The
district court agreed and sustained the State's objections. We conclude
that the district court abused its discretion. See Chavez v. State, 125 Nev.
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328, 344, 213 P.3d 476, 487 (2009). Although quantity is not an element of
the crime, the monetary value of the methamphetamine and whether it
could be sold was relevant to whether it was possessed for the purpose of
sale and was not misleading. See NRS 48.015 (defining relevant
evidence). While this error, standing alone, may be considered harmless,
it contributed to the cumulative error in this case.
Fourth, Eggers contends that the prosecutor committed
misconduct during voir dire, opening statement, and closing argument.
When reviewing allegations of prosecutorial misconduct, we first consider
whether the prosecutor's conduct was improper, and then determine
whether the improper conduct warrants reversal. Valdez t). State, 124
Nev. 1172, 1188, 196 P.3d 465, 476 (2008). Because Eggers did not object,
he must demonstrate plain error which affected his substantial rights. Id.
at 1190, 196 P.3d at 477. Having considered the prosecutor's comments in
context, we conclude that they were improper and constitute misconduct.
Although it was appropriate for the prosecutor to argue that the law
prohibits the possession of methamphetamine in any amount, it was
inappropriate to do so by emphasizing the cost of prisons and drug courts,
comparing methamphetamine to anthrax and ricin, and suggesting that
Eggers should have been facing a life sentence. While this misconduct,
standing alone, may not have affected Eggers' substantial rights, it
contributed to the cumulative error in this case.
Having considered the relevant factors, see id. at 1195, 196
P.3d at 481, we conclude that the cumulative effect of the errors in this
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case violated Eggers' right to a fair trial and warrant reversal.
Accordingly, we
ORDER the judgment of conviction REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order. 2
p
J.
Pickering
Parraguirre
, J.
Saitta
cc: Hon. Michael Montero, District Judge
Humboldt County Public Defender
Attorney General/Carson City
Humboldt County District Attorney
Humboldt County Clerk
The fast track response submitted by the State does not comply
2
with NRAP 32(a)(4) because its pages are not consecutively numbered and
the text of the brief is smaller than represented. Counsel for the State is
cautioned that the failure to comply with the briefing requirements in the
future may result in the imposition of sanctions. See NRAP 3C(n).
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