Camacho-Moreno was charged with two counts of sexual 

assault of a child, one count of attempted sexual assault of a child, two 

counts of lewdness with a child, and two counts of indecent exposure. He 

was acquitted of one count of sexual assault and convicted of the 

remaining six counts. Camacho-Moreno's primary assertion of error on 

appeal is that the district court erred in making comments in the jury's 

presence that were overly prejudicial. We conclude that the district 

court's comments were improper and a new trial is warranted. As the 

parties are familiar with the facts, we do not recount them further except 

as necessary to our disposition. 

The district court's statements, made in the jury's presence, were overly 

prejudicial 

Camacho-Moreno contends that the district court made 

inappropriate comments to the jury venire and during A.M.'s testimony. 

Specifically, he argues that the jury perceived an appearance of partiality 

and prejudice—in effect, denying him of his right to a fair and impartial 

trial. In response, the State points to the fact that all of the comments 

made by the district court were either passing comments or taken out of 

context. It also notes that the statements made during A.M.'s testimony 

were made within the context of instructing the jury on certain procedural 

issues. 

Generally, when judicial misconduct occurs, in order to 

preserve the issue for appellate review, a party must move for a mistrial. 

Holderer v. Aetna Cas. and Sur. Co. 114 Nev. 845, 850, 963 P.2d 459, 463 

(1998). If, however, "judicial deportment is of an inappropriate but nonegregious and repetitive nature," this court may review the misconduct. 

Parodi v. Washoe Medical Ctr., 111 Nev. 365, 370, 892 P.2d 588, 591 

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(1995). As such, judicial misconduct is reviewed for plain error. Id. at 

368, 892 P.2d at 590. In cases where the "evidence [of guilt] is quite 

apparent, misconduct may so interfere with the right to a fair trial as to 

constitute grounds for reversal." Kinna v. State,84 Nev. 642, 647, 447 

P.2d 32, 35 (1968). 

The line between a needed instruction and inappropriate 

remarks by a trial judge is not always clear. The United States Supreme 

Court has explained that a trial judge may explain and comment upon 

evidence, draw a jury's attention to certain facts, and express his or her 

opinion on the facts, but he or she must instruct the jury that it is the 

jury's responsibility to ultimately decide the matters before it. Quercia v. 

United States,289 U.S. 466, 469 (1933). Further, comments relating to 

bias and racial prejudices are never appropriate and only serve to inflame 

passion and emotion. See Rush v. Smith,56 F.3d 918, 922 (8th Cir. 1995). 

Because of the respect a juror has for a judge, the judge's 

commentary can mold the juror's opinion. Holderer,114 Nev. at 851, 963 

P.2d at 463. As stated in Parodi, 

"[t]he average juror is a layman; the average 

layman looks with most profound respect to the 

presiding judge; and the jury is, as a rule, alert to 

any remark that will indicate favor or disfavor on 

the part of the trial judge. Human opinion is 

ofttimes formed upon circumstances meager and 

insignificant in their outward appearance; and the 

words and utterances of a trial judge, sitting with 

a jury in attendance, are liable, however 

unintentional, to mold the opinion of the members 

of the jury . . . ." 

111 Nev. at 367-68, 892 P.2d at 589-90 (quoting Ginnis v. Mapes Hotel 

Corp.,86 Nev. 408, 416-17, 470 P.2d 135, 140 (1970)). 

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We now turn to the specific statements made by the district 

court judge, which Camacho-Moreno contends were prejudicial. 

Statement regarding rape statistics 

The first statement made by the district court to the jury 

venire concerned a statistic that one-quarter of women had been subject to 

unwanted sexual advances. Specifically, the district court stated that it 

had 

learned that there's credible statistics that maybe 

25 percent, or better, of all women have received 

unwanted sexual advances, many of them at a 

time before they reach the age of majority, or 18. 

So statistics hold true one quarter of the women in 

this room may have been victimized by someone at 

some time. And I'm not here to embarrass 

anybody. 

. . . [I]f any of you have been victims at any 

time during your lives, and if one of two things 

have gone on -- one, the case likely to conjure up 

the past for you, and you might bring that frame 

of mind or those colored glasses to this proceeding, 

this case history; also, if you're looking for an 

opportunity to vindicate something that remains 

unvindicated in your life, this is not the case for 

you. 

Camacho-Moreno contends that the statements created a 

presumption in the jurors' minds that there was a high probability that 

A.M. was indeed sexually abused. The statements, however, were taken 

out of context. Although a statistic offered by the district court as 

evidence is inappropriate, a district court's use of a statistic to determine 

the fitness of a juror does not rise to the level of admitting unsupported 

evidence into the record. See Quercia, 289 U.S. at 470. More importantly, 

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the district court made this statement in an attempt to make the jury 

panel more fair by attempting to dismiss any juror who had been subjected 

to unwanted sexual advances and, as a result, could not remain fair and 

impartial. As such, these comments were not error and did not prejudice 

Camacho-Moreno. 

Statement regarding Hispanic jurors 

Next, during voir dire, the district court, in commenting on the 

number of Hispanic jurors that had been excused, stated: 

In particular, if you want to know the truth, 

I'd like to have some Hispanic jurors on the case 

who may have a cultural understanding, because 

the defendant appears to me to have an Hispanic 

background, but I also know that there are -- how 

do I say this? Let me say it this way: Believe it or 

not, there are -- some of you may or may not know 

this, but there are some places in Mexico where 

this kind of thing is more common than in other 

places. 

The district court went on to state that 

[w]hatever stories you may have heard about 

whomever, this man is innocent as he sits here; do 

you understand that? 

. . . You'd have to say he's innocent because 

there's no evidence. Do you see what I mean? 

There's none, zero evidence. She has to put on the 

evidence that convinces you, the DA does; do you 

understand that? 

Although the district court qualified its statements by 

instructing the jury that there was no evidence of guilt yet presented, the 

statement as a whole carries with it a danger of molding the opinion of the 

potential jurors. Parodi, 111 Nev. at 368, 892 P.2d at 590-91. The 

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comment regarding the possibility that rape is more common in Mexico or 

in Mexican communities is clearly inappropriate commentary on 

Camacho-Moreno's race, which is always prejudicial. Rush, 56 F.3d at 

922-23 (stating that the district court's statement that "races have a 

tendency to stick together" was error). These comments, also, tend to 

‘`remain firmly lodged in the memory of the jury and to excite a prejudice 

which would preclude a fair and dispassionate consideration of the 

evidence." Quercia, 289 U.S. at 472. We, therefore, conclude that this 

statement alone necessitates reversal of the judgment. 

Statement regarding A.M. being "pretty" 

Camacho-Moreno's third issue with the district court's 

statements came during the State's direct examination of A.M. The State 

attempted to admit into evidence a collage of A.M.'s school photos in order 

to assist it in setting a timeline of events. After Camacho-Moreno's 

objection, and subsequent overruling, the district court stated: 

I'm going to allow, over objection, these 

pictures -- it's a collage of evidence -- because 

there are issues over the dates and times of the 

events that were alleged in this case. But the 

mere fact that she's a very pretty young lady at 

those ages is not relevant, and you're so 

instructed. 

At first blush, this comment seems innocuous. However, the 

district court's commentary on the victim's appearance is wholly irrelevant 

and therefore inappropriate to the district court's admission of the 

proffered evidence. The comment does nothing more than to impassion 

the jury and show the district court's favoritism for the young female 

victim. Quercia, 289 U.S. at 469; see also Parodi, 111 Nev. at 367-68, 892 

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:141 z1s" 
P.2d at 589-90. Consequently, this statement, on its own, necessitates 

reversal. 

Statement regarding the time that passed between the preliminary 

hearing and the trial 

The final statement that Camacho-Moreno takes issue with 

occurred during A.M.'s cross-examination. When the State asked A.M. if 

she had reviewed the transcripts from other conversations she had with 

the police and the State, A.M. stated that she had reviewed a transcript 

from the preliminary hearing two years prior. At that point, the district 

court 

instruct[ed] the jury that the statement that she 

went to court two years ago should, in your mind, 

signify nothing. A case arrives here by a process 

and you're to place no emphasis or consideration 

on the fact that there may have been another 

hearing or a preliminary hearing in this case. 

Camacho-Moreno contends that the district court's statement 

limited his ability to fully cross-examine the witness. This argument is 

disingenuous. The district court's comments were simply an attempt to 

explain to the jury that it does not matter that there was a significant 

amount of time that passed between the preliminary hearing and the trial. 

There was no attempt on the part of the district court to limit CamachoMoreno's ability to show A.M.'s prior inconsistent statements. It is not 

clear from the record that the district court was trying to improperly 

comment on the weight of the evidence or credibility of the witness. 

However, in light of the two prejudicial statements made by 

the district court, we must conclude that the misconduct 'so infected the 

trial with unfairness as to make the resulting conviction a denial of due 

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P,ae , C.J. 

Pickering 

process." Valdez v. State. 124 Nev. 1172, 1189, 196 P.3d 465, 477 (2008) 

(quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)). 

We therefore 

ORDER the judgment of the district court REVERSED AND 

REMAND this matter to the district court for a new trial." 

Saitta 

cc: Chief Judge, The Second Judicial District Court 

Hon. Charles M. McGee, Senior Judge 

Richard F. Cornell 

Attorney General/Carson City 

Washoe County District Attorney 

Washoe District Court Clerk 

'Because we are reversing the judgment based on the district court's 

improper comments during jury selection, we decline to address the other 

issues raised on appeal. 

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