abeyance a count for which the defendant cannot be convicted or 

sentenced. See NRS 176.105(2). We conclude that the district court 

abused its discretion, and on remand the district court must dismiss the 

mayhem count and enter an amended judgment of conviction. 

Second, Davis argues that the district court abused its 

discretion by denying his request for a hearing regarding the 

voluntariness of his statement to law enforcement. See Jackson v. Denno, 

378 U.S. 368, 380 (1964). We disagree. Although Davis asked for a 

hearing, he agreed with the district court that due to the nature of his 

claim it was appropriate to rule based on a review of the transcript 

without taking testimony from witnesses. See Carter v. State, 121 Nev. 

759, 769, 121 P.3d 592, 599 (2005) (a defendant cannot object to an error 

he participated in). And Davis did not provide this court with a transcript 

of his statement. See Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 

(1980) ("The burden to make a proper appellate record rests on 

appellant."). We conclude that Davis failed to demonstrate that the 

district court abused its discretion. 

Third, Davis argues that the district court erred by failing to 

dismiss the entire venire panel because it did not accurately represent the 

diversity of the community. Because Davis failed to establish that the 

method of selecting jurors from the community systematically excluded 

members of minority groups, we conclude that he is not entitled to relief 

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on this claim. See Williams v. State, 121 Nev. 934, 939-40, 125 P.3d 627, 

631 (2005). 

Fourth, Davis argues that the district court abused its 

discretion by failing to grant his request for a mistrial after a police officer 

stated that he spoke with Davis after "rebooking" him, which Davis 

asserts implied that he was already in custody on a prior offense. A 

request for a mistrial may be granted where "prejudice occurs that 

prevents the defendant from receiving a fair trial," and we review a 

district court's determination of whether a mistrial is warranted for an 

abuse of discretion. Rudin v. State, 120 Nev. 121, 142, 144, 86 P.3d 572, 

586, 587 (2004). We conclude that the district court did not abuse its 

discretion by denying Davis' request for a mistrial because the police 

officer's comment did not imply that Davis engaged in prior criminal 

activity, see Manning v. Warden, 99 Nev. 82, 86, 659 P.2d 847, 850 (1983), 

and even assuming the comment was improper, any error was harmless, 

see Hardison v. State, 104 Nev. 530, 533, 763 P.2d 52, 54 (1988). 

Fifth, Davis claims that the prosecutor inappropriately 

vouched for the victim's credibility by referring to him as "our tiny Tony." 

Because Davis did not object to the statement, we review for plain error. 

See Rowland v. State, 118 Nev. 31, 38, 39 P.3d 114, 118 (2002). The record 

reveals that the prosecutor in this case was not using a term of 

endearment to vouch for the victim's credibility but rather was comparing 

the size of the victim to the defendant. We conclude that the prosecutor 

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did not commit misconduct. See id. at 39-40, 39 P.3d at 119 (discussing 

the distinction between inappropriate vouching and appropriate 

argument). 

Having considered Davis' contentions, we conclude that he is 

only entitled to the relief granted herein, and we 

ORDER the judgment of conviction AFFIRMED IN PART 

AND REVERSED IN PART AND REMAND this matter to the district 

court for proceedings consistent with this order. 

,J. 

eJtit 

Parraguirre 

Hardesty 

cc: Hon. Jerome T. Tao, District Judge 

Law Office of Betsy Allen 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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