admit res gestae evidence absent manifest error). Moreover, the State 

stipulated at trial that appellant was not charged with battery against the 

employee or Richard's brother, and the jury was instructed regarding the 

limited purpose for which the evidence could be used. See Summers v. 

State, 122 Nev. 1326, 1333, 148 P.3d 778, 783 (2006) ("[T]his court 

generally presumes that juries follow district court orders and 

instructions."). 

Second, appellant contends that insufficient evidence supports 

the elder enhancement. See NRS 193.167(1). We disagree. Richard's 

testimony that he was 68 years old at the time of the incident is sufficient 

to establish the elder enhancement beyond a reasonable doubt as 

determined by a rational trier of fact. See Jackson v. Virginia, 443 U.S. 

307, 319 (1979); Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727 

(2008); Walker v. State, 91 Nev. 724, 726, 542 P.2d 438, 439 (1975) ("Mt is 

the function of the jury, not the appellate court, to weigh the evidence and 

pass upon the credibility of the witness."). 

Third, appellant contends that the State violated Brady v. 

Maryland, 373 U.S. 83 (1963), by failing to disclose that Richard and his 

brother admitted to law enforcement that they possessed weapons during 

the incident. "[T]here are three components to a Brady violation: the 

evidence at issue is favorable to the accused; the evidence was withheld by 

the state, either intentionally or inadvertently; and prejudice ensued, i.e., 

the evidence was material." Mazzan v. Warden, 116 Nev. 48, 67, 993 P.2d 

25, 37 (2000). Here, appellant knew that Richard and his brother 

possessed weapons as it formed the basis of his self-defense claim and he 

fails to explain how their admissions to the same were material. 

Appellant also fails to demonstrate that the evidence was withheld 

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because the parties stipulated at trial that Richard and his brother told 

law enforcement about the weapons. Even assuming that appellant only 

learned of the admissions during trial, he fails to explain how he was 

prejudiced by the mid-trial disclosure because he had the opportunity to 

cross-examine the witnesses regarding their admissions. See Rippo v. 

State, 113 Nev. 1239, 1258, 946 P.2d 1017, 1029 (1997). We conclude that 

no relief is warranted on this claim. 

Fourth, appellant asserts that the State violated Brady by 

turning over other statements one week prior to the date originally set for 

trial. Appellant also contends that the district court erred by failing to 

determine whether he was prejudiced and by punishing him for the State's 

violation. Appellant fails to demonstrate that Brady was violated because 

the statements were provided prior to the originally scheduled trial date 

and well in advance of the actual trial date. Although appellant asserts 

that it was unfair for the district court to remedy the tardy disclosure by 

moving the trial date rather than suppressing the evidence, we note that 

he did not move to suppress the evidence, and it appears that the evidence 

was favorable to the defense. To the extent appellant asserts that another 

remedy was warranted, he offers no cogent argument in support of his 

assertion and fails to demonstrate that the district court erred.' See 

generally Rudin v. State, 120 Nev. 121, 139, 86 P.3d 572, 584 (2004) 

(concluding that a Brady violation was harmless where the district court 

provided the defendant with various remedies). 

3-We reject the assertion that the district court's ruling constitutes 

judicial misconduct. 

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Fifth, appellant contends that "the district court erred by 

refusing to seat another jury panel that included African Americans." We 

disagree. During voir dire, appellant asserted that the number of African 

Americans in the venire was not proportionate to that in the community. 

Appellant did not demonstrate or attempt to demonstrate that this 

disproportion was the result of systematic discrimination in the jury 

selection process, see Williams v. State, 121 Nev. 934, 940, 125 P.3d 627, 

631 (2005); Duren v. Missouri, 439 U.S. 357, 366 (1979), rather, he merely 

asked for the venire to be excused and replaced with one containing more 

African Americans. We conclude that no relief is warranted on this claim. 

Sixth, appellant contends that the prosecutor committed 

misconduct during closing argument by asserting that Richard acted in 

self-defense after appellant pushed him. When reviewing allegations of 

prosecutorial misconduct, we first consider whether the prosecutor's 

conduct was improper, and then determine whether any improper conduct 

warrants reversal. See Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465, 

476 (2008). We conclude that the prosecutor merely argued the State's 

theory of the case and did not commit misconduct. 

Seventh, appellant contends that the district court abused its 

discretion by rejecting his jury instruction and giving an instruction 

offered by the State. We review a district court's decision to give a jury 

instruction for an abuse of discretion and whether the instruction was an 

accurate statement of the law de novo. Funderburk v. State, 125 Nev. 260, 

263, 212 P.3d 337, 339 (2009). Appellant contends that the State's 

instruction suggested that the elder enhancement was a lesser-includedoffense of battery causing substantial bodily harm and his instruction 

clarified the issue. Although the State's instruction was confusing when 

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Douglas 

read in isolation, we conclude that this claim lacks merit because, when 

read together, the instructions given correctly stated the law. See Rose v. 

State, 86 Nev. 555, 558, 471 P.2d 262, 264 (1970). Moreover, appellant's 

instruction was incomplete, and even assuming that it was more clear 

than the State's, no relief is warranted because "we are convinced beyond 

a reasonable doubt that the jury's verdict was not attributable to the error 

and that the error was harmless under the facts and circumstances of this 

case." Crawford v. State, 121 Nev. 744, 756, 121 P.3d 582, 590 (2005). 

Eighth, appellant contends that the district court abused its 

discretion by denying his motion for bail. This claim lacks merit. 

Appellant concedes that he never filed such a motion. 

Ninth, appellant contends that cumulative error entitles him 

to relief. Having considered the appropriate factors, see Valdez, 124 Nev. 

at 1195, 196 P.3d at 481, we conclude that no relief is warranted. 

Accordingly, we 

ORDER the judgment of conviction AFFIRMED. 

Hardesty 

cc: Hon. Douglas Smith, District Judge 

Legal Resource Group 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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