About that time, Smith approached the driver's side window and put a gun 

to the victim's neck, demanded money, and threatened to shoot her. 

Meanwhile, the other man rifled through the glove compartment and 

console of the victim's car. The victim handed over $400 to Smith. When 

the victim's cell phone rang, Smith demanded her phone and car keys. 

While attempting to open the car's trunk, Smith accidentally activated the 

alarm. Smith and the other man fled. The victim left the area and drove 

to a nearby gas station to call the police. During the investigation, the 

police retrieved the victim's cell phone from Smith's residence and 

discovered his fingerprints on the victim's car. Viewing the evidence in 

the light most favorable to the State, we conclude it is sufficient 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); McNair v. State, 

108 Nev. 53, 56, 825 P.2d 571, 573 (1992); see also NRS 193.165; NRS 

199.480; NRS 200.380; NRS 202.360. As to the false statements and 

inconsistencies in the victim's statements to the police, those matters were 

explored during her testimony and therefore were before the jury for its 

consideration. See Washington v. State, 112 Nev. 1067, 1073, 922 P.2d 

547, 551 (1996) (providing that "where there is conflicting testimony 

presented at trial, it is within the province of the jury to determine the 

weight and credibility of the testimony"); McNair, 108 Nev. at 56, 825 P.2d 

at 573 ("[I] t is the jury's function, not that of the court, to assess the 

weight of the evidence and determine the credibility of witnesses."). 

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Further, the jury was also aware that no gun was recovered during the 

investigation.' 

Second, Smith argues that the district court abused its 

discretion by allowing a police officer to improperly bolster the victim's 

credibility. In her initial statements to the police, the victim related that 

at the time of the robbery, she was on her way to meet a friend and pulled 

into the liquor store because someone was following her. When police 

officers confronted her with evidence that refuted her initial statements, 

the victim told the police that she was in the area to buy prescription pain 

pills. A detective testified at trial about that confrontation, stating that 

the victim gave the police "the correct [version]—well, a different version, 

let's put it that way." When asked by the prosecutor whether the victim 

was "able to basically, come clean about the circumstances of the 

background of coming in contact with the defendant," the detective 

responded affirmatively. Smith argues that that exchange constituted 

improper bolstering. Because he did not object to the detective's 

'Smith argues that the district court abused its discretion by 

allowing the victim to testify because her testimony was incredible and 

therefore more prejudicial than probative and no weapon was found. 

Because he did not object to this testimony, his claim is reviewed for plain 

error affecting his substantial rights. Mclellan v. State, 124 Nev. 263, 267, 

182 P.3d 106, 109 (2008). Credibility matters associated with the victim's 

testimony and the prosecution's inability to produce the weapon allegedly 

used in the robbery go to the weight of the evidence not admissibility. 

McNair, 108 Nev. at 56, 825 P.2d at 573. We conclude that Smith has 

failed to demonstrate plain error. 

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testimony, we review for plain error affecting his substantial rights. 

Mclellan, 124 Nev. at 267, 182 P.3d at 109. We conclude that Smith has 

failed to demonstrate plain error affecting his substantial rights. The 

challenged testimony does not concern crucial evidence about the robbery 

but rather a lesser matter—why the victim was in the area of the crime. 

Moreover, the detective's testimony shows that the victim lied to the 

police, which tended to diminish her credibility rather than bolster it. And 

the victim admitted during her testimony that she lied to the police. 

Third, Smith argues that the district court abused its 

discretion by allowing the prosecution to introduce inadmissible hearsay. 

During her testimony, the victim related that immediately before the 

robbery, she called a friend who advised her that she should not meet with 

people she did not know to buy pills. Considering the context in which the 

statement was made, we conclude that it was unsolicited by the State and 

not offered to prove the truth of the matter asserted and therefore did not 

constitute hearsay. See NRS 51.035. 

Fourth, Smith argues that the prosecutor committed 

misconduct during closing rebuttal argument by commenting on his right 

not to testify. Specifically, Smith points to the following comments: 

"[Smith] can't explain away why he has his cell phone—her cell phone 

because it doesn't make sense that he would have it in some sort of trade." 

Because Smith did not object to the challenged argument, we review for 

plain error affecting his substantial rights. Mclellan, 124 Nev. at 267, 182 

P.3d at 109. 

Prosecutorial comment on a defendant's failure to testify is 

constitutionally impermissible. Sonner v. State, 112 Nev. 1328, 1342, 930 

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P.2d 707, 716 (1996); McGuire v. State, 100 Nev. 153, 157, 677 P.2d 1060, 

1063 (1984). An indirect reference is impermissible where "the language 

used was manifestly intended to be or was of such a character that the 

jury would naturally and necessarily take it to be comment on the 

defendant's failure to testify.' Harkness v. State, 107 Nev. 800, 803, 820 

P.2d 759, 761 (1991) (quoting United States v. Lyon, 397 F.2d 505, 509 

(7th Cir. 1968)). Considering it in context, the prosecutor's comment was 

made in response to Smith's argument that because it was unknown how 

the cell phone came to be in Smith's home, the State failed to meet its 

burden of proof. Under the circumstances, we do not consider the 

challenged comment improper. See Bridges v. State, 116 Nev. 752, 764, 6 

P.3d 1000, 1009 (2000) (observing that "where the prosecutor's reference 

to the defendant's opportunity to testify is a fair response to a claim made 

by defendant or his counsel,' there is no constitutional violation" (quoting 

United States v. Robinson, 485 U.S. 25, 32 (1988))). Even assuming that 

the comment was improper, we conclude that Smith has failed to show 

plain error affecting his substantial rights, considering the brevity of the 

comment and the evidence supporting his guilt. 

Fifth, Smith contends that the district court abused its 

discretion by admitting an exhibit referencing the bifurcated felon-inpossession charge during the trial on the remaining charges. Smith 

brought to the district court's attention that the State had introduced an 

exhibit indicating that the police had impounded a cell phone related to 

the case. The exhibit lists the charges against him, including the entry 

"Ex-Felon Poss. of F/A." It appears from the record that the jury was 

exposed to the exhibit for only a few seconds. After some discussion, the 

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district court designated the exhibit as a court exhibit so that it would not 

be given to the jury during its deliberations. Smith requested no 

additional remedy. Although error was committed in this instance, see 

generally Morales v. State, 122 Nev. 966, 970, 143 P.3d 463, 465-66 (2006) 

("As with full severance, bifurcation prevents the State from discussing or 

producing proof of prior felony convictions until after the jury has 

deliberated on the charges that are unrelated to the defendant's status as 

an ex-felon."), given the jury's brief exposure to the exhibit, we conclude 

that Smith failed to show prejudice. 2 

Sixth, Smith argues that the district court erred by not 

dismissing a juror based on the juror's contact with a third party. During 

trial, juror 10 notified the district court that Smith's sister approached 

him and asked if he knew anything "about the jury selection process and 

shouldn't there be a black person on the jury." The juror indicated that 

the encounter would not affect his ability to continue his duties. The 

remaining jurors were canvassed about any attempted contact with them 

or if they observed anyone attempting to contact a juror. One juror 

responded that she observed someone talking to a juror but did not hear 

2Smith argues that this error was compounded by the State's use of 

a photograph during opening statement that contained his "Scope ID" and 

date of arrest. It appears from the record that the jury's exposure to the 

photograph was brief and the parties agreed to redact the challenged 

information if the photograph was admitted into evidence or otherwise 

used at trial. Under those circumstances, even if error was committed, 

Smith has not shown prejudice. 

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Hardesty 

Parraguirre 

,J. 

the conversation. At the conclusion of the inquiry, the district court 

determined that removing juror 10 was "probably not necessary" but 

would accommodate the parties if they agreed to juror 10's dismissal. 

After consulting with counsel, Smith declined to seek removal of the juror. 

Considering Smith's decision not to challenge juror 10 and the lack of any 

indication that the contact prejudiced him, see Meyer v. State, 119 Nev. 

554, 563-64, 80 P.3d 447, 455 (2003), we conclude that the district court 

did not abuse its discretion in this regard, see Weber v. State, 121 Nev. 

554, 580, 119 P.3d 107, 125 (2005). 

Having considered Smith's arguments and concluded that no 

relief is warranted, we 

ORDER the judgment of conviction AFFIRMED. 3 

3We reject Smith's claim that the cumulative effect of trial error 

requires reversal of his convictions as any errors committed were 

immaterial and substantial evidence supports his convictions. See Valdez 

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

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cc: Hon. Jessie Elizabeth Walsh, District Judge 

Langford McLetchie LLC 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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