date of the crimes. The jury found Simmons guilty of all the crimes listed 

in the judgment of conviction. 

Simmons now appeals, arguing that (1) the district court erred 

in overruling his objection to the racial composition of the jury venire, 

where two of sixty-five prospective jurors were African-American; (2) the 

district court violated NRS 175.061(5) and committed reversible error in 

selecting the alternate jurors at the end of trial by means of a lottery 

system; and (3) cumulative error warrants reversal. We conclude that 

cumulative error warrants reversal because Simmons' constitutional right 

to a fair and impartial jury was compromised when the district court gave 

inadequate consideration to Simmons' objection to the jury venire and 

inhibited Simmons' statutory right to assert peremptory challenges. 

Because of the cumulative error, we reverse the judgment of conviction. 1 

1Simmons also contests that (1) the district court erred in providing 

a video playback of testimony and abused its discretion in playing part of 

the witnesses' testimony without admonishing the jury as to how to 

consider it; (2) the district court erred by giving various jury instructions; 

(3) the district court abused its discretion in admitting a DNA report into 

evidence, denying Simmons' motion for a mistrial because of this evidence, 

precluding Simmons from admitting into evidence photographs of his 

genitalia, admitting testimony about him being in foster care, and 

precluding him from cross-examining Smith about a sexually transmitted 

disease; (4) the district court erred in admitting Smith's testimony on 

Simmons' statements about being in a gang and getting away with murder 

and rape; (5) the district court engaged in prejudicial ex parte 

communications with the jury and abused its discretion in denying a 

motion for an evidentiary hearing and a new trial because of these 

communications; (6) the district court erred in allowing a nurse to give her 

opinion that Smith's injuries were consistent with the reported sexual 

assault; (7) the district court erred in violating NRS 193.165(1) by failing 

to state on the record its basis for imposing the additional penalties for 

continued on next page . . . 

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As the parties are familiar with the facts of this case, we do 

not recount them further except as necessary for our disposition. 

Simmons' objection to the racial composition of the jury venire 

Noting that two of the sixty-five prospective jurors were 

African-American, Simmons objected to the venire's racial composition, 

asserting that there was a violation of his Sixth Amendment right to a 

venire that included a fair cross-section of the community. Without asking 

the State for its response or asking Simmons if he could make a showing of 

a constitutional violation, the district court overruled the objection after 

stating that the selection process for the venire was random. As this issue 

implicates a constitutional right to a venire that is selected from a fair 

cross-section of the community, we review the issue de novo. See Grey v. 

State, 124 Nev. 110, 117, 178 P.3d 154, 159 (2008) (providing that de novo 

review applies to constitutional challenges). 

A defendant "is entitled to a venire selected from a fair cross 

section of the community under the Sixth and Fourteenth Amendments of 

the United States Constitution." Williams v. State, 121 Nev. 934, 939, 125 

P.3d 627, 631 (2005). The Constitution mandates that the "'venires from 

. . . continued 

Simmons' use of a deadly weapon; (8) the district court erred in requiring 

Simmons to pay $250 to the indigent defense fund without a hearing on 

his ability to pay that amount; (9) the district court erred in denying 

Simmons' pretrial writ of habeas corpus; and (10) there was insufficient 

evidence for a verdict against him. As discussed later in this order within 

our cumulative error analysis, we conclude that the State presented 

sufficient evidence for the jury's verdict. But, we do not reach the 

remaining issues because we reverse on other grounds. 

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which juries are drawn must not systematically exclude distinctive groups 

in the community and thereby fail to be reasonably representative 

thereof." Id. at 939-40, 125 P.3d at 631 (quoting Evans v. State, 112 Nev. 

1172, 1186, 926 P.2d 265, 274 (1996)). In contesting the venire's 

composition, the defendant has the burden of proof and must show a 

prima facie violation of the fair-cross-section requirement by exhibiting 

(1) that the group alleged to be excluded is a 

"distinctive" group in the community; (2) that the 

representation of this group in venires from which 

juries are selected is not fair and reasonable in 

relation to the number of such persons in the 

community; and (3) that this underrepresentation 

is due to systematic exclusion of the group in the 

jury-selection process. 

Duren v. Missouri, 439 U.S. 357, 364 (1979). 

Simmons objected to the venire's racial composition, which 

implicated his Sixth Amendment rights. Rather than giving due 

consideration to the objection, the district court was inattentive to the 

possibility of a constitutional right being violated. The district court did 

not ask Simmons if he could make a prima facie showing of a violation of 

the Constitution's fair-cross-section requirement, nor did it seek a 

response from the State. It noted the objection, stated that the selection of 

the jury venire was random, and moved on without developing a record 

that would permit this court to address the constitutional issue. As a 

result, the district court denied Simmons an opportunity for a meaningful 

review of whether his constitutional rights were violated. We do not 

address whether the district court's err was reversible error on its own 

because we conclude that it contributed to the cumulative error that 

requires reversal, as discussed below. 

4 
Simmons' right to use a peremptory challenge under NRS 175.061(5) 

The district court decided that the alternate jurors would be 

selected by a lottery system at the conclusion of closing arguments. 

Simmons objected, arguing that the lottery system prevented him from 

knowing the alternates' identities in advance, thereby hindering his right 

to use a peremptory challenge against them under NRS 175.061(5). 

Relying on Moore v. State, 122 Nev. 27, 126 P.3d 508 (2006), the district 

court determined that the jury selection process did not affect Simmons' 

substantial rights and overruled the objection. 

On appeal, Simmons argues that the district court abused its 

discretion and committed reversible error in using a lottery system to 

select alternate jurors at the end of trial. He asserts that the system 

prevented him from knowing the identity of the alternate jurors in time to 

use the peremptory challenge that NRS 175.061(5) provides for such 

j urors . 2 

We review the use of the lottery system for abuse of discretion. 

See United States v. Springfield, 829 F.2d 860, 863-64 (9th Cir. 1987) 

(reviewing a district court's process for the selection of jurors and the use 

of peremptory challenges for abuse of discretion). Yet, our review of the 

statutes that govern juror selection is de novo. See State v. Lucero, 127 

2Simmons, in passing and without pertinent authority, concludes 

that this abuse of discretion was a violation of his Fourteenth Amendment 

due process rights. We do not address this constitutional argument 

because Simmons does not cogently argue the purported constitutional 

violation of NRS 175.061(5), see Maresca v. State, 103 Nev. 669, 673, 748 

P.2d 3, 6 (1987) (providing that this court need not address arguments 

that have not been cogently made), and because we consider the violation 

of NRS 175.061(5) as part of the cumulative error that requires reversal. 

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Nev. 249 P.3d 1226, 1228 (2011) ("[W]e review questions of 

statutory interpretation de novo."). In interpreting a statute, we 

effectuate the Legislature's intent, which is first ascertained from the 

statute's plain meaning. Id. In so doing, we do not go beyond the statute's 

language when it is clear and unambiguous. Id. 

NRS 175.061(5) clearly provides for a peremptory challenge 

against an alternate juror and limits the use of that challenge to removing 

an alternate juror. It states that "[e]ach side is entitled to one peremptory 

challenge in addition to those otherwise allowed by law if one or two 

alternate jurors are to be impaneled." Id. It further states that this 

"additional peremptory challenge[ ] may be used against an alternate juror 

only." Id. (emphasis added). 

In Moore, the district court violated NRS 175.061(5) when it 

used a blind-alternate system for selecting alternate jurors that left the 

alternate jurors' identities unknown until jury selection ended. 122 Nev. 

at 36, 126 P.3d at 514. Without knowledge of the alternates' identities, 

the defendant's right to use a peremptory challenge under NRS 175.061(5) 

was inhibited. Id. But because the defendant did not object, the Moore 

court reviewed the statutory violation for plain error and concluded that 

the blind-alternate system did not violate any of the defendant's 

substantial rights. Id. at 37, 126 P.3d at 514. 

Here, much like the blind-alternate system in Moore, the 

lottery system impaired Simmons' right to use a peremptory challenge 

against an alternate juror under NRS 175.061(5). But, unlike the 

defendant in Moore, Simmons objected. The district court's demand that 

Simmons state a substantial right that was being harmed likely arose 

from its misapprehension as to why the Moore court focused on 

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substantial rights in its disposition—plain error review applied to the 

issue because of the absence of an objection. See id. at 36-37, 126 P.3d at 

514. Moreover, the district court overlooked the Moore court's conclusion 

that the use of blind alternates violated NRS 175.061(5). See id. at 37, 126 

P.3d at 514. Hence, the district court's decision here to use its lottery 

system, despite knowing that it violated NRS 175.061(5), was an abuse of 

discretion. We do not address whether this abuse of discretion was 

reversible error on its own because we conclude that it contributed to the 

cumulative error requiring reversal, as addressed below. 

Cumulative error 

The cumulative effect of errors, which alone could be 

harmless, "may violate a defendant's constitutional right to a fair trial." 

Hernandez v. State, 118 Nev. 513, 535, 50 P.3d 1100, 1115 (2002). In 

evaluating cumulative error, we consider "(1) whether the issue of guilt is 

close, (2) the quantity and character of the error, and (3) the gravity of the 

crime charged." Mulder v. State, 116 Nev. 1, 17, 992 P.2d 845, 854-55 

(2000). 

The issue of guilt 

In determining whether the issue of guilt is close, we start by 

resolving whether there was sufficient evidence for the jury's verdict. To 

assess the sufficiency of the evidence, we ask "whether, after viewing the 

evidence in the light most favorable to the prosecution, any rational 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) (alteration in original) (internal quotations omitted). 

Battery and battery with the intent to commit sexual assault 

Under both the battery statute and the battery with the intent 

to commit sexual assault statute, battery is defined as "any willful and 

7 

 
unlawful use of force or violence upon the person of another." NRS 

200.400(1)(a); NRS 200.481(1)(a). 3The term "use" is singular, thereby 

signifying that each single use of force or violence is subject to punishment 

as a battery; the term "any" modifies the word "use," thereby expanding 

the types of force and violence that are punishable as a battery. See NRS 

200.400(1)(a); NRS 200.481(1)(a). Hence, the battery statutes' language 

permits the separate punishment for each unlawful use of force or violence 

that occurs during a criminal episode. 

Smith's and Bolt's testimonies identify two separate acts of 

battery—one at the crib and one on the bed. Smith and Bolt each testified 

that Simmons put his hand around Smith's throat and forcibly held her 

against the crib. This was an unlawful use of force. Thus, Smith's and 

Bolt's testimonies provided sufficient evidence to support Simmons' 

conviction of battery. According to Smith's testimony, Bolt broke up this 

violent altercation, after which the second battery occurred on the bed. 

Smith testified that after Bolt ended the first altercation, he showered, 

during which time Simmons forced Smith onto the bed, wrapped his hands 

around Smith's neck, made her undress, and sexually assaulted her. 

Thus, after a temporal break that followed the first battery, Simmons 

committed another unlawful use of force on the bed, which was followed by 

the sexual assault. Thus, there was sufficient evidence to sustain 

Simmons' conviction of battery with the intent to commit sexual assault. 

3The 2013 Legislature amended NRS 200.481. 2013 Nev. Stat., ch. 

343, § 137, at 80. While the amended language does not appear to change 

the court's analysis, the appeal is governed by the pre-amendment version 

of NRS 200.481. See NRS 200.481 (2012). 

8 
Sexual assault with the use of a deadly weapon and firstdegree kidnapping with the use of a deadly weapon 

One commits sexual assault with the use of a deadly weapon if 

he or she "subjects another person to sexual penetration, or. . . forces 

another person to make a sexual penetration on himself or 

herself. . . against the will of the victim," NRS 200.366(1), and does so by 

using a deadly weapon. NRS 193.165(1), (5). One commits first-degree 

kidnapping with the use of a deadly weapon if he or she "willfully seizes, 

confines, inveigles, entices, decoys, abducts, conceals, kidnaps or carries 

away a person by any means whatsoever with the intent to hold or detain, 

or who holds or detains, the person. . . for the purpose of committing 

sexual assault," NRS 200.310, and does so by using a deadly weapon. 

NRS 193.165(1), (5). A deadly weapon is an instrument that is "readily 

capable of causing substantial bodily harm." NRS 193.165(6)(b). Using a 

deadly weapon includes "conduct which produces a fear of harm or force by 

means or display of a deadly weapon." Carr v. Sheriff, Clark Cnty., 95 

Nev. 688, 690, 601 P.2d 422, 424 (1979). 

As to sexual assault with a deadly weapon, Smith testified 

that Simmons threw her on the bed and threatened to kill her. She 

further testified that Simmons waived a knife to her face while 

threatening to use it against her and that she saw Simmons bend over the 

bed with the knife and resurface without it—thus appearing to have 

placed the knife under the mattress. The knife was six to eight inches 

long and was deeply serrated. According to Smith's testimony, despite her 

not consenting, Simmons sexually penetrated her with his penis. Smith's 

testimony provided sufficient evidence for the jury to conclude that 

Simmons displayed a knife to Smith just prior to the nonconsensual sex, 

thereby using a knife to overcome her will as part of the sexual assault. 
Thus, there was sufficient evidence for Simmons' conviction of sexual 

assault with a deadly weapon. 

As to first-degree kidnapping with the use of a deadly weapon, 

Smith testified that before Simmons' first act of battery, she attempted to 

leave the studio, but Simmons grabbed her arm and stopped her. She 

tried numerous times to leave, but Simmons continued to physically 

prevent her from doing so. Bolt testified that just before the first act of 

battery, she overheard Simmons threaten to use the knife on Smith. She 

also testified that the knife was in plain sight because it was on a table. 

Smith's and Bolt's testimonies provided enough evidence for the jury to 

conclude that Simmons threatened Smith with a knife that was visible to 

Smith while Simmons physically kept Smith inside the studio, so as to 

sexually assault her. Hence, Smith's and Bolt's testimonies provided 

sufficient evidence to support Simmons' conviction of first-degree 

kidnapping with the use of a deadly weapon. 

The evidence was not overwhelming 

Although the evidence of guilt was sufficient for the jury's 

verdict, it was not overwhelming. Smith's testimony provided much of the 

evidence of Simmons' guilt. Yet, with respect to how long Smith stayed in 

Bolt's studio, the people who stayed there, Smith's relationship with 

Simmons, and the timing and order of events, Smith's testimony conflicted 

with the testimonies of other witnesses. Of particular significance, while 

Smith denied using methamphetamines when at the studio, Bolt and 

others testified that Smith used methamphetamines on numerous 

occasions during that span of time. This use of drugs may account for why 

there were contradictions between Smith's testimony and the testimony of 

others. For the purpose of assessing the sufficiency of the evidence for the 

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verdict, we do not weigh the inconsistencies and credibility of Smith's 

testimony, as that was the province of the jury. See Nolan, 122 Nev. at 

377, 132 P.3d at 573. But, in concluding that the evidence of guilt was not 

overwhelming, we acknowledge these inconsistencies and the possibility 

that Smith's ability to recall the events may have been inhibited by the 

use of methamphetamines while at the studio. 

The quantity and character of the errors and the gravity of the crimes 

A criminal defendant has a constitutional right to be tried by a 

fair and impartial jury. U.S. Const. amend. VI; U.S. Const. amend. XIV, § 

1; Nev. Const. art. 1, § 3. Hence, the errors below that affected the process 

for empaneling a fair and impartial jury are concerning. 

Peremptory challenges are a "means to the constitutional end 

of an impartial jury and a fair trial." Georgia v. McCollum, 505 U.S. 42, 

57 (1992). Here, the district court's lottery process clearly violated the law 

that governs the use of peremptory challenges against prospective 

alternate jurors. See NRS 175.061(5). The district court denied Simmons 

his statutory right to use a peremptory challenge against alternate jurors 

and, incidentally, affected his ability to make informed peremptory 

challenges. See id. Thus, the process for empaneling a fair and impartial 

jury was compromised. 

The United States Constitution provides for a defendant's 

right to a "venire selected from a fair cross section of the community." 

Williams v. State, 121 Nev. 934, 939, 125 P.3d 627, 631 (2005). In this 

matter, the district court gave inadequate consideration to this 

constitutional right when Simmons objected to the jury venire's racial 

composition. This dismissive attitude toward Simmons' objection resulted 

in a poorly developed record, which precluded a meaningful review of an 

issue regarding Simmons' constitutional right. We refuse to ignore the 

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possibility that Simmons' objection had merit and, if the district court had 

given him the opportunity, that Simmons could have shown such merit on 

the record. 

Although the crimes charged against Nelson were grave, the 

evidence was not overwhelming, and the errors that compromised the 

process for selecting a fair and impartial jury were cumulatively 

substantial. Because Simmons' right and ability to use his peremptory 

challenges were compromised, and due to the poorly developed record that 

prevents us from concluding that the selection of the jury venire did not 

violate Simmons' constitutional rights, we cannot state with confidence 

"that the verdict would have been the same in the absence of [these] 

error[s]." Big Pond v. State, 101 Nev. 1, 3, 692 P.2d 1288, 1289 (1985). 

Thus, we conclude that the cumulative effect of the error requires a 

reversal of the conviction and warrants a new trial. 

For the foregoing reasons, we 

ORDER the judgment of the district court REVERSED AND 

REMAND this matter to the district court for proceedings consistent with 

this order. 

Gibbons 

-- . Douglas 

Saitta 

12 

J. 

J. 
cc: Hon. Doug Smith, District Judge 

Clark County Public Defender 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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