Although Griffo alleged the State unconstitutionally delayed seeking the 

indictment to penalize him for raising competency concerns, he did not 

claim the State added charges for vindictive reasons. Nor did Griffo's 

motion cite authority relevant to vindictive prosecution. We therefore 

conclude Griffo waived, his vindictive prosecution claim. See NRS 

174.105(2). Regardless, the record on appeal is insufficient for us to 

review this claim. See Wilkins v. State, 96 Nev. 367, 372, 609 P.2d 309, 

312 (1980) (stating this court will not review unpreserved constitutional 

errors if the record is insufficient "to provide an adequate basis for 

review"); see also United States v. Gamez-Orduno, 235 F.3d 453, 462 (9th 

Cir. 2000) ("[V]indictiveness will not be presumed simply from the fact 

that a more severe charge followed on, or even resulted from, the 

defendant's exercise of a right."). 

Second, Griffo contends NRS 178.562(1) requires dismissing 

the indictment because the State violated NRS 178.556(1) and 174.085(7). 

We previously rejected the same argument under NRS 174.085(7). See 

Thompson v. State, 125 Nev. 807, 811-13, 221 P.3d 708, 711-12 (2009). 

Moreover, Griffo waived these "objections based on defects in the 

institution of the prosecution" by failing to raise them prior to trial. NRS 

174.105(1)-(2). Like his other challenges to the indictment, Griffo waived 

this argument by failing to raise it prior to trial. See NRS 174.105(2). 

The district court properly exercised subject matter jurisdiction over the 

aggravated domestic battery charge 

Griffo claims the district court lacked subject matter 

jurisdiction over the aggravated domestic battery charge because the 

prosecutor interfered with the grand jury's deliberations and the grand 

jury only voted to indict Griffo for misdemeanor domestic battery. 

Contrary to Griffo's assertions, the record clearly reflects that 

only the grand jurors were present during deliberations and voting. See 

SUPREME COURT 

OF 

NEVADA 2 

(0) 1947A 
NRS 172.235(2) (stating only grand "jurors may be present while the 

grand jury is deliberating or voting"). After deliberations and voting, the 

prosecutor returned to the room, asked whether the grand jury found the 

aggravated domestic battery as alleged in the proposed indictment, and 

sought "to clarify" the foreperson's statements. In addition, the foreperson 

instructed the prosecutor to prepare an indictment to match the proposed 

indictment, which alleged the aggravated domestic battery, indicating 

that the grand jury voted to indict Griffo for the aggravated domestic 

battery. Given that no grand jurors disputed that they voted to indict 

Griffo for the aggravated domestic battery, we have no reason to doubt the 

foreperson's statement that he merely "misread" the proposed indictment 

when telling the prosecutor that the grand jury found probable cause 

supporting the charges. We therefore conclude the record does not support 

Griffo's assertions that the prosecutor interfered with the grand jury or 

the grand jury only voted to indict Griffo for a misdemeanor battery.' 

As a result, the district court properly exercised subject matter 

jurisdiction over the aggravated domestic battery charge. See NRS 

4.370(3) (stating that justice courts have jurisdiction over misdemeanors). 

The district court did not abuse its discretion in its evidentiary rulings 

Griffo contends the district court abused its discretion in 

several evidentiary rulings. First, Griffo argues the district court 

1Griffo's reliance on State v. Eckel, 60 A.3d 834 (N.J. Super. Ct. Law 

Div. 2013), is misplaced. In Eckel, the court held that dismissing the 

indictment was warranted where the prosecutor improperly attempted "to 

influence the grand jury in its findings" by telling the jurors about the 

defendant's criminal history and opining that the defendant was guilty. 

Id. at 841. Here, the prosecutor simply sought to clarify the grand jury's 

findings and did not comment on the evidence or opine on Griffo's guilt. 

Eckel is therefore inapposite. 

SUPREME COURT 

OF 

NEVADA 3 

(0) 1947A e 
improperly admitted evidence that he called and threatened Richardson 

after the shooting. Evidence of other acts is admissible if it is relevant for 

a proper non-propensity purpose, "is proven by clear and convincing 

evidence, and" its probative value "is not substantially outweighed by the 

danger of unfair prejudice," and a district court's decision to admit such 

evidence will not be overturned absent an abuse of discretion. Bigpond v. 

State, 128 Nev., Adv. Op. 10, 270 P.3d 1244, 1250 (2012). Griffo argues 

the threatening phone call was not proven by clear and convincing 

evidence and the danger of unfair prejudice substantially outweighed the 

probative value of the evidence. 

At the evidentiary hearing, Ransom testified she was certain 

Griffo was the caller because she had spoken with Griffo on the phone 50 

or 60 times. Richardson testified Ransom gave her the phone, and the 

caller asked Richardson why she sent "the police to his house" and told her 

"if he goes down, it's over with," which Richardson understood as a threat. 

We cannot conclude this testimony fails to satisfy the clear and convincing 

evidence standard. See Bigpond, 128 Nev., Adv. Op. 10, 270 P.3d at 1250. 

Moreover, this evidence was highly relevant to Griffo's consciousness of 

guilt because Griffo knew the police were looking for him and could not be 

found for nearly two months. In addition, Griffo's statement could be 

interpreted as a threat, but, as Griffo himself argues, the statement could 

also be interpreted as merely expressing displeasure at having the police 

interested in his whereabouts, thus decreasing any potential prejudice. 

Therefore, we conclude the district court did not abuse its discretion by 

finding the probative value of this evidence was not substantially 

outweighed by the danger of unfair prejudice. See id. 

Despite the district court's proper exercise of discretion in 

analyzing the Bigpond factors, we conclude the district court erred by 

SUPREME COURT 

OF 

NEVADA 4 

(0) 1947A 
admitting evidence of the phone call because the State failed to file its 

motion to admit this evidence in a timely fashion. See EDCR 3.20(a); 

EDCR 3.28; Hernandez v. State, 124 Nev. 639, 648-50, 188 P.3d 1126, 

1133-34 (2008) (stating a district court should deny untimely motions in 

limine absent good cause for the delay). This error, however, is harmless. 

See Newman v. State, 129 Nev., Adv. Op. 24, 298 P.3d 1171, 1181 (2013). 

Griffo received an unfiled copy of the State's motion almost two years 

before trial, and his counsel could have investigated the phone call despite 

the State's failure to file the motion. In addition, the evidence of guilt in 

this case is overwhelming, and we cannot conclude the evidence of the 

phone call "had a substantial and injurious effect" on the jury's verdict. 

Id. (internal quotation marks omitted). 

Griffo further argues the district court abused its discretion by 

allowing a police officer to testify that he had no reason to doubt Griffo 

and Ransom were dating. Contrary to Griffo's claim, this was not a legal 

conclusion. Rather, it was fact-based testimony explaining why the officer 

did not further investigate Griffo's relationship with Ransom. The district 

court properly admitted this testimony. See NRS 50.025(1)(a). 

Griffo next claims the district court abused its discretion by 

allowing a police officer to testify that people in the neighborhood would 

probably not cooperate with police due to fear of retaliation. Assuming the 

district court abused its discretion by admitting this testimony, the only 

prejudice Griffo alleges is that this testimony was evidence of other bad 

acts reflecting on Griffo's character. To the contrary, the officer only 

discussed the general reluctance of potential witnesses to talk to the police 

and did not mention Griffo. Thus, if there was error, it was harmless. See 

Lay v. State, 110 Nev. 1189, 1193-94, 886 P.2d 448, 450-51 (1994) (holding 

SUPREME COURT 

OF 

NEVADA 5 

(0) 1947A 
harmless any error in admitting evidence of "the general reluctance of 

witnesses to testify"). 

Nevada's statutory definition of "dating relationship" is not 

unconstitutionally vague 

"[Diating relationship' means frequent, intimate associations 

primarily characterized by the expectation of affectional or sexual 

involvement. The term does not include a casual relationship or an 

ordinary association between persons in a business or social context." 

NRS 33.018(2). Griffo contends this definition is unconstitutionally vague. 

We disagree. 

Griffo first argues NRS 33.018(2) is vague because its 

individual words are vague, but he fails to account for the meaning of the 

words in the context of the entire statute. Because "words are known by—

acquire meaning from—the company they keep," Ford v. State, 127 Nev., 

Adv. Op. 55, 262 P.3d 1123, 1132 n.8 (2011), this argument lacks merit. 

Griffo further contends NRS 33.018(2) is unconstitutionally 

vague because other jurisdictions have defined "dating relationship" 

differently. The decisions made in other jurisdictions are irrelevant to 

whether the definition enacted by our Legislature (1) "fails to provide a 

person of ordinary intelligence fair notice of what is prohibited," or (2) "is 

so standardless that it authorizes or encourages seriously discriminatory 

enforcement." State v. Castaneda, 126 Nev., Adv. Op. 45, 245 P.3d 550, 

553 (2010). (quoting Holder v. Humanitarian Law Project, 561 U.S. 

, 130 S. Ct. 2705, 2718 (2010)). Accordingly, this argument has no 

merit. 

Next, Griffo claims NRS 33.018(2) is unconstitutionally vague 

because it lacks an intent element. Grillo cites no authority for this 

proposition and fails to recognize that absent a dating relationship, 

battery itself is a crime that requires intent. NRS 200.481(1)(a); see also 

SUPREME COURT 

OF 

NEVADA 6 

(0)1947A aken 
Sheriff, Washoe Cnty. v. Burdg, 118 Nev. 853, 857, 59 P.3d 484, 487 (2002) 

(stating a criminal statute may be unconstitutionally vague where it 

"contains no intent element" and "imposes criminal sanctions on what is 

otherwise non-criminal activity"). We therefore reject this argument. 

Finally, Griffo contends NRS 33.018(2) might be broad enough 

to include young children within its sweep. Assuming this to be true, this 

example does not render NRS 33.018(2) unconstitutional because a statute 

need only be clear "in most applications" to withstand scrutiny. Flamingo 

Paradise Gaming, LLC v. Chanos, 125 Nev. 502, 513, 217 P.3d 546, 554 

(2009) (emphasis added). 

Griffo has failed to overcome the presumption that NRS 

33.018(2) is constitutional. 2 See id. at 509, 217 P.3d at 551. 

Substantial evidence supports the convictions of aggravated domestic 

battery and carrying a concealed weapon, but does not support the 

conviction of discharging a firearm in a structure in a designated 

populated area 

Griffo next argues the State failed to present sufficient 

evidence to support his convictions. We will not reverse a conviction that 

is supported by substantial evidence. Thompson, 125 Nev. at 816, 221 

P.3d at 715. 

We reject Griffo's claim that the State presented insufficient 

evidence Griffo was in a dating relationship with Ransom. Ransom 

testified she and Griffo spoke on the phone and exchanged text messages 

daily for several weeks and saw each other seven times in the three weeks 

preceding the shooting. Ransom further testified she and Griffo talked 

about their relationship, "were boyfriend and girlfriend," held hands, 

2As a result, we also reject Griffo's argument that the district court 

abused its discretion by providing the jury the statutory definition of 

"dating relationship." 

SUPREME COURT 

Of 

NEVADA 7 

(0) 1947A 
kissed, and tried to engage in sexual activities. Thus, the State presented 

substantial evidence that Griffo's relationship with Ransom involved 

"frequent, intimate associations primarily characterized by the 

expectation of affectional or sexual involvement." NRS 33.018(2); see also 

Thompson, 125 Nev. at 816, 221 P.3d at 715. Moreover, although this 

relationship was brief, Ransom's testimony was sufficient to support 

finding the relationship neither casual nor platonic. See NRS 33.018(2). 

We also conclude the State presented sufficient evidence Griffo 

intended to shoot Ransom. Ransom testified that after Richardson 

separated Ransom from Griffo, Griffo pulled out the gun, pointed it at her, 

and pulled the trigger. Despite Griffo's subsequently looking confused and 

putting the gun to his head, this evidence was sufficient to prove Griffo 

intentionally shot Ransom. See Thompson, 125 Nev. at 816, 221 P.3d at 

715; see also NRS 193.200 ("Intention is manifested by the circumstances 

connected with the perpetration of the offense . . . ."). 

We similarly reject Griffo's argument the State presented 

insufficient evidence that Griffo concealed the gun on his person. Both 

Ransom and Richardson testified they did not see the gun, and Ransom 

testified she could not see where the gun came from but saw Griffo pull 

the gun out. This evidence was more than sufficient for the jury to 

conclude the gun was not "discernible by ordinary observation." NRS 

202.350(8)(a); see also Thompson, 125 Nev. at 816, 221 P.3d at 715. 

We conclude, however, the State presented insufficient 

evidence to support Griffo's conviction of discharging a firearm in a 

structure in a designated populated area. NRS 202.287(1)(b) prohibits 

discharging a firearm in a structure "within an area designated by city or 

county ordinance as a populated area for the purpose of prohibiting the 

discharge of weapons." Although evidence of the apartment's address and 

SUPREME COURT 

OF 

NEVADA 8 

(0) 1947A elp 
occupied status was admitted, no evidence indicating an ordinance 

designated the area as populated was offered, admitted, or judicially 

noticed. Therefore, the evidence was insufficient to support Griffo's 

conviction of discharging a firearm in a structure in a designated 

populated area, and we reverse Griffo's conviction of this offense. 3 

The district court properly instructed the jury 

Last, Griffo contends the district court improperly instructed 

the jury. We disagree. 

Griffo argues the district court abused its discretion by 

refusing to include misdemeanor battery on the verdict form. Griffo 

claims he was entitled to this lesser-included-offense alternative because 

some evidence suggested he pushed Ransom. Griffo was accused only of 

shooting Ransom, not pushing her, so the jury could not properly find 

Griffo guilty of any battery for pushing Ransom. See Alford v. State, 111 

Nev. 1409, 1415, 906 P.2d 714, 718 (1995) (noting due process requires a 

defendant "receive adequate notice of the charges" against him). Griffo 

further argues the district court should have included misdemeanor 

battery on the verdict form because some evidence suggested Griffo shot 

Ransom accidentally. "Battery' means any willful and unlawful use of 

force or violence upon the person of another," NRS 200.481(1)(a) (emphasis 

added), and a person cannot be guilty of a crime if he committed the act 

"through misfortune or by accident," NRS 194.010(6). Thus, the jury could 

not convict Griffo of any form of battery for the shooting if it found he shot 

Ransom accidentally. See id.; NRS 200.481(1)(a). As a result, the district 

court properly refused to include misdemeanor battery on the verdict form. 

3Given this conclusion, we need not consider Griffo's other 

arguments regarding this offense. See Hollis v. State, 96 Nev. 207, 210, 

606 P.2d 534, 536 (1980). 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A 
See Cortinas v. State, 124 Nev. 1013, 1019, 195 P.3d 315, 319 (2008) 

(reviewing "de novo whether a particular [jury] instruction. . . comprises a 

correct statement of the law"). 

In addition, Griffo contends the district court gave confusing 

instructions on dating and domestic relationships. Because Griffo failed to 

object to these instructions, we review for plain error. Green v. State, 119 

Nev. 542, 545, 80 P.3d 93, 95 (2003). The district court gave the jury the 

statutory definition of "dating relationship" and instructed that a domestic 

battery "occurs when an individual commits a battery upon his spouse, 

former spouse .. . , [or] a person with who[m] he has had or is having a 

dating relationship." The district court then instructed the jury to 

"determine whether a 'domestic relationship' existed between" Griffo and 

Ransom. Griffo contends these instructions were confusing because some 

used the phrase "dating relationship" and others used "domestic 

relationship." Although consistently using "dating relationship" 

throughout the jury instructions may have been clearer, "domestic 

relationship" obviously referred to the list of relationships that support a 

domestic battery conviction, and its use did not affect Griffo's substantial 

rights. Accordingly, any error was harmless and Griffo is not entitled to 

relief. See Green, 119 Nev. at 545, 80 P.3d at 95. 

Griffo next contends the district court committed plain error 

by failing to instruct the jury on the statutory definition of "concealed." 

See NRS 202.350(8)(a). Because NRS 202.350(8)(a) uses "concealed" in its 

"commonly understood" and "ordinary sense," "no further defining 

instructions" were necessary. Dawes v. State, 110 Nev. 1141, 1146, 881 

P.2d 670, 673 (1994). Regardless, Griffo fails to demonstrate any impact 

on his substantial rights, and thus any error was harmless. See Green, 

119 Nev. at 545, 80 P.3d at 95. 

SUPREME COURT 

OF 

NEVADA 10 

(0) 1947A e 
In addition, Griffo argues the district court erred by replacing 

"a person" in NRS 202.350(1) with "[e]very person," thereby eliminating 

from the jury's consideration the possibility that any exceptions existed. 

"[A] person" does not indicate the existence of any exceptions. Therefore, 

using "[e]very person" did not limit the applicability of any exceptions, and 

any error was harmless. See Green, 119 Nev. at 545, 80 P.3d at 95. 

Finally, Griffo claims the district court erred by instructing 

the jury it could consider evidence of flight as evidence of Griffo's 

consciousness of guilt. A police officer testified he contacted Griffo's 

parents and associates and visited five different residences at which Griffo 

might have been staying, but could not find Griffo for approximately two 

months. Combined with the evidence of the phone call, this evidence 

suggested Griffo knew the police were looking for him and avoided his 

parents, friends, and the places he normally stayed. Therefore, the 

district court did not commit any error, let alone plain error, by 

instructing the jury on flight. See Potter v. State, 96 Nev. 875, 876, 619 

P.2d 1222, 1222 (1980) ("[Flight] embodies the idea of going away with a 

consciousness of guilt and for the purpose of avoiding arrest"); see also 

Green, 119 Nev. at 545, 80 P.3d at 95. We also decline Griffo's invitation 

to conclude that flight instructions improperly comment on evidence. 4 Cf. 

Renner v. State, 397 S.E.2d 683, 685-86 (Ga. 1990) (holding that flight 

instructions constitute improper comments on evidence). 

4Given thefl overwhelming evidence of Griffo's guilt, we conclude 

cumulative error does not warrant reversal of the remaining convictions. 

See Valdez v. State, 124 Nev. 1172, 1195-96, 196 P.3d 465, 481 (2008). 

SUPREME COURT 

OF 

NEVADA 11 

(0) 1947A 
Haxdesty 

J. 

Parraguirre 

(---Dizzti—et )41-S 

Dou ' 

, J. 

Accordingly, we 

ORDER the judgment of the district court AFFIRMED IN 

PART AND REVERSED IN PART AND REMAND this matter to the 

district court for proceedings consistent with this order. 

cc: Hon. James M. Bixler, District Judge 

Clark County Public Defender 

Attorney General/Carson City 

Clark County District Attorney 

Eighth Judicial District Court Clerk 

SUPREME COURT 

OF 

NEVADA 12 

(0) 1.947A 440.