The district court did not err by denying Serafin's motions to suppress 

Serafin argues that the search of his apartment violated his 

Fourth Amendment rights because the police listed the wrong apartment 

number on the consent to search card signed by Serafin. As a result, 

Serafin argues, the knife seized during the search should not have been 

admitted at trial. We disagree. 

...continued 

Alabama ex rel. T.B., 511 U.S. 127, 129 (1994)), the proposed questions 

about self-defense dealt with issues of law to be covered by the jury 

instructions, Hogan v. State,103 Nev. 21, 23, 732 P.2d 422, 423 (1987), 

and the district court asked the potential jurors if they had prejudice or 

any reason that would prevent them from serving impartially. 

Second, the district court did not abuse its discretion by denying 

Serafin's requests for a mistrial for a Bradyviolation after Jesus 

Hernandez testified that Serafin bit him during the fight as this testimony 

was not favorable to Serafin and Hernandez was disclosed as a witness 

prior to trial. See Strickler v. Greene,527 U.S. 263, 281-82 (1999) ("The 

evidence at issue must be favorable to the accused. . . ."); Rippo v. State, 

113 Nev. 1239, 1257, 946 P.2d 1017, 1028 (1997) (stating that "a Brady 

violation does not result if the defendant, exercising reasonable diligence, 

could have obtained the information"). Nor was this testimony prior bad 

acts evidence because the bite was "closely related to [the] act in 

controversy." NRS 48.035(3). Similarly, the district court did not err by 

denying a mistrial or refusing to give a limiting instruction when the 

prosecutor questioned Hernandez about Omar's whereabouts and 

interactions with Serafin as there was no direct reference to Serafin 

engaging in witness intimidation. Meek v. State,112 Nev. 1288, 1295, 930 

P.2d 1104, 1109 (1996). Finally, as to the State's failure to disclose its 

investigator's notes regarding his attempts to locate Omar, Serafin was 

not entitled to disclosure of that report. NRS 174.235(2)(a). 

2As the parties are familiar with the facts and procedural history of 

this case, we do not recount them further except as is necessary for our 

disposition. 

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In reviewing Fourth Amendment challenges, this court 

"review[s] the district court's findings of historical fact for clear error but 

review[s] the legal consequences of those factual findings de novo." Somee 

v. State, 124 Nev. 434, 441, 187 P.3d 152, 157-58 (2008). "While 

warrantless searches are presumptively unreasonable under the Fourth 

Amendment, . . . waiver and consent, freely and intelligently given, 

converts a search and seizure which would otherwise be unlawful into a 

lawful search and seizure." State v. Ruscetta, 123 Nev. 299, 302, 163 P.3d 

451, 453-54 (2007) (internal quotations omitted). Whether consent was 

freely given depends on the totality of the circumstances. Id. at 302-03, 

163 P.3d at 454. 

In this case, the officer who spoke with Serafin before 

searching his apartment testified that notwithstanding the error on the 

consent card, Serafin assured him that it was his apartment, that he lived 

there, and that he said yes when the police asked to search his apartment. 

The officer further testified that after he informed Serafin that the police 

were looking for a weapon, Serafin still said that the police could search 

his apartment. Thus, we determine that Serafin voluntarily consented to 

the search, and, therefore, the knife was not the product of an illegal 

search. Accordingly, we conclude that the district court did not err in 

admitting the evidence at trial. 

The district court did not err by admitting statements Omar made to the 

police 

During trial, the State called Brenda Najarro, an interpreter 

for the Las Vegas Metropolitan Police Department, as a witness. Serafin 

argues it was error for the district court to allow Najarro to testify that 

Omar told her that Serafin stabbed him because this testimony violated 

his constitutional right to confront Omar and was inadmissible hearsay. 

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We review Confrontation Clause challenges de novo. Chavez v. State, 125 

Nev. 328, 339, 213 P.3d 476, 484 (2009). Under the Confrontation Clause, 

"the testimonial hearsay of an unavailable witness requires a prior 

opportunity to cross-examine the witness concerning the statement for it 

to be admissible." Id. at 338, 213 P.3d at 483. Here, Omar testified at the 

preliminary hearing that Serafin stabbed him, and Serafin cross-examined 

Omar at that hearing concerning the stabbing. Because "a preliminary 

hearing can afford a defendant an opportunity for effective crossexamination," see id. at 338, 213 P.3d at 483-84, we conclude that Serafin 

had adequate opportunity to cross-examine Omar. As such, his 

constitutional right to confront Omar was not violated. 3 

Najarro further testified that Omar was moaning, upset, 

excited, and angry at the time that he made the statement to her at the 

scene of the crime. A statement that is otherwise hearsay is admissible if 

the statement relates to a "startling event or condition made while the 

declarant was under the stress of excitement caused by the event or 

condition." NRS 51.095. Despite Serafin's assertion that Omar had a 

chance to calm down after the fight, we conclude that the district court did 

not manifestly err in determining that the statement was admissible 

3Even assuming the statement was admitted in error, the error 

would have been harmless beyond a reasonable doubt because the State 

presented other evidence to sufficiently prove Serafin's guilt and Serafin 

conceded in his opening statement that he stabbed Omar. See Cortinas v. 

State, 124 Nev. 1013, 1028, 195 P.3d 315, 325 (2008) (explaining that "an 

otherwise valid conviction should not be set aside if the reviewing court 

may confidently say, on the whole record, that the constitutional error was 

harmless beyond a reasonable doubt" (internal quotations omitted)). 

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hearsay under the excited utterance exception. See Medina v. State, 122 

Nev. 346, 351, 143 P.3d 471, 474 (2006). 4 

The State did not commit prosecutorial misconduct resulting in reversible 

error 

Serafin argues that the State committed prosecutorial 

misconduct resulting in reversible error because during her closing 

statement the prosecutor (1) improperly commented on Serafin's prearrest silence, and (2) improperly injected personal opinion. 

Pre-arrest silence 

During her closing statement, the prosecutor made several 

references to the fact that Serafin failed to call the police and failed to wait 

for the police to arrive. The prosecutor noted that if she was defending 

herself, she would have called the police immediately. Serafin argues that 

this was an impermissible reference to Serafin's pre-arrest silence 

constituting reversible error. We disagree. 

Pre-arrest silence is generally categorized as a response to 

question or interrogation. State v. Lewis, 927 P.2d 235, 237 (Wash. 1996) 

("[A] defendant's pre-arrest silence, in answer to the inquiries of a police 

officer, may not be used by the State in its case in chief as substantive 

evidence of defendant's guilt." (Emphasis added)); Grier v. State, 718 A.2d 

211, 217 (Md. 1998) (holding that there is no pre-arrest silence when there 

is no "accusation to deny"). Thus, a defendant's "failure to come forward 

and tell the police his or her version of events" is not pre-arrest silence. 

4We also reject Serafin's argument that the district court erred by 

allowing another witness to give his opinion that Serafin was dishonest 

because Serafin opened the door to the prosecutor's line of questioning. 

Pearson v. Pearson, 110 Nev. 293, 297, 871 P.2d 343, 345-46 (1994). 

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Grier,718 A.2d at 217. Therefore, we concluded that the prosecutor's 

comments in this instance did not constitute reversible error. 

Personal opinion 

During her closing statement, the prosecutor commented that 

she would have called the police immediately if she was defending herself, 

and that she would not hide a weapon if she had used it to defend herself 

against someone. Serafin argues that these comments were prosecutorial 

misconduct. However, Serafin failed to object or request a corrective 

instruction at the time the comments were made. "[F]ailure to object 

precludes appellate review of the matter unless it rises to the level of plain 

error." Anderson v. State, 121 Nev. 511, 516, 118 P.3d 184, 187 (2005) 

(further explaining that this court must determine "whether there was 

error, whether the error was plain or clear, and whether the error affected 

the defendant's substantial rights," and stating that the defendant bears 

the burden of proof (internal quotations omitted)); Parker v. State,109 

Nev. 383, 391, 849 P.2d 1062, 1067 (1993) ("[il() preserve the issue of 

prosecutorial misconduct for appeal, the defendant must raise timely 

objections and seek corrective instructions."). 

Nonetheless, while we agree that the prosecutor's comments 

were improper, see Collier v. State,101 Nev. 473, 480, 705 P.2d 1126, 

1130 (1985), this error was harmless and does not warrant reversal. "A 

prosecutor's comments should be considered in context, and 'a criminal 

conviction is not to be lightly overturned on the basis of a prosecutor's 

comments standing alone." Leonard v. State, 117 Nev. 53, 81, 17 P.3d 

397, 414 (2001) (quoting United States v. Young, 470 U.S. 1, 11 (1985)). 

Aside from the prosecutor's statements, the record reflects that the State 

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presented the other evidence of Serafin's guilt, and Serafin has not shown 

how this error affected his substantial rights. 5 

Sufficient evidence supported Serafin's conviction 

When analyzing the sufficiency of the evidence in a criminal 

case, this court considers "whether, after viewing the evidence in the light 

most favorable to the prosecution, anyrational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt." 

Nolan v. State,122 Nev. 363, 377, 132 P.3d 564, 573 (2006) (internal 

quotations omitted). "Additionally, it is the jury's function, not that of the 

court, to assess the weight of the evidence and determine the credibility of 

witnesses." Id. (internal quotations omitted). 

Serafin argues that the prosecution presented insufficient 

evidence to disprove his self-defense theory; however, the State presented 

testimony from two witnesses that it was Serafin who stabbed Omar, and 

that Omar was not armed. Based on the evidence in the record, and 

viewing that evidence in the light most favorable to the prosecution, we 

conclude that there is sufficient evidence from which a reasonable jury 

could reject Serafin's theory of self-defense and find him guilty beyond a 

reasonable doubt. 6 

5Serafin further contends that the prosecutor committed 

prosecutorial misconduct by referencing a toxicology report that was not 

admitted into evidence. Even if admission of this testimony was in error, 

Serafin's argument lacks merit because the reference was invited by 

Serafin's prior questions to the same witness about alcohol being present 

at the scene of the crime. See Pearson,110 Nev. at 297, 871 P.2d at 345- 

46. 

6As to Serafin's remaining arguments concerning the jury 

instructions, we conclude that they lack merit. We have previously upheld 

a jury instruction identical to the one given by the district court on 

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Cumulative error 

Serafin 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). 

Despite the serious nature of the crimes charged, the State 

presented ample evidence of Serafin's guilt, and any errors were harmless. 

As a result, we conclude that Serafin's cumulative error challenge is 

unavailing. 

Having considered Serafin's contentions and concluded that 

they do not warrant reversal, we 

...continued 

determining Serafin's guilt or innocence. See Guy v. State, 108 Nev. 770, 

778, 839 P.2d 578, 583 (1992). In addition, Serafin's reverse flight 

instruction misstates the law, and thus, he was not entitled to it. Nay v. 

State, 123 Nev. 326, 330, 167 P.3d 430, 433 (2007). 

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C.J. 

Saitta 

J. 

CLAA 

Parraguirre 

ks 

Douglas 

ORDER the judgment of the district court AFFIRMED. 

J. 

Gibbons 

At.t. 

Hardesty 

cc: Eighth Judicial District Court Dept. 14 

Clark County Public Defender 

Cofer & Geller 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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