(8) cumulative error.' Because we conclude that no error occurred in this 

case, we affirm the judgment of conviction. 2 

The district court did not abuse its discretion by denying Howard's pretrial 

motion to sever 

Howard argues that the district court's denial of his motion to 

sever constituted an abuse of discretion. He contends that he should have 

been permitted to sever the charges into separate trials for each victim 

because by admitting evidence that Michele jumped out of a moving 

vehicle, the State's case regarding Marilyn's allegations was bolstered. 

'Howard also contends that the mandatory sentencing structure 

under NRS 200.366 constitutes cruel and unusual punishment and, thus, 

violates his Eighth Amendment right. However, Howard fails to cite any 

legal authority to support his argument that a mandatory sentence for 

sexual assault violates the Eighth Amendment. The United States 

Supreme Court has held that "[t]here can be no serious contention. . . that 

a sentence which is not otherwise cruel and unusual becomes so simply 

because it is 'mandatory." Harmelin v. Michigan, 501 U.S. 957, 995 

(1991). Howard also fails to cite any legal authority to support his 

argument that a life sentence for sexual assault violates the Eighth 

Amendment, especially where, as with Howard, the life sentence allows 

for parole. See Graham v. Florida, U.S. , 130 S. Ct. 2011, 2034 

(2010) ("The [Eighth Amendment] prohibits the imposition of a life 

without parole sentence on a juvenile offender who did not commit 

homicide."). Thus, this argument is without merit. 

Howard further argues that his trial counsel provided ineffective 

assistance in violation of the Sixth Amendment. This argument is 

improperly raised for the first time on appeal, and therefore we will not 

consider it. See Pellegrini v. State, 117 Nev. 860, 882, 34 P.3d 519, 534 

(2001) (holding that "[i]neffective assistance of counsel claims are properly 

raised for the first time in a timely . . . post-conviction petition."). 

2As the parties are familiar with the facts and procedural history of 

this case, we do not recount them further except as necessary for our 

disposition. 

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"Decisions to join or sever are left to the discretion of the trial 

court and will not be reversed absent an abuse of discretion." Tabish v. 

State,119 Nev. 293, 302, 72 P.3d 584, 589-90 (2003). Pursuant to NRS 

173.115, "[t]wo or more offenses may be charged in the same indictment or 

information in a separate count for each offense if the offenses 

charged. . . are . . . [biased on two or more acts or transactions connected 

together or constituting parts of a common scheme or plan." 

Here, the proximity in time and space of the charges against 

Howard demonstrate Howard's common plan to drive around in his car, 

get women to enter the car, and then sexually assault them. Thus, the 

district court did not abuse its discretion by denying Howard's motion to 

sever. 

Howard's Sixth Amendment right to a venire selected from a fair cross 

section of the community was not violated 

Howard asserts that the Washoe County jury selection process 

provided an unconstitutional jury venire because his venire panel 

contained no African-American persons and only two Hispanic persons. 

Howard generally contends that Washoe County's use of voter registration 

information and Department of Motor Vehicle information for purposes of 

pooling prospective jury candidates amounts to an inadequate 

representation of Hispanic and African American jurors, and, thus, he 

should be granted a new trial. 

"The Sixth Amendment does not guarantee a jury or even a 

venire that is a perfect cross section of the community." Williams v. State, 

121 Nev. 934, 939, 125 P.3d 627, 631 (2005). This court has held that "as 

long as the jury selection process is designed to select jurors from a fair 

cross section of the community, then random variations that produce 

venires without a specific class of persons or with an abundance of that 

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class are permissible." Id. at 940, 125 P.3d at 631. To show that his right 

to a fair cross section has been violated, a defendant must demonstrate: 

"(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." 

Id. (quoting Evans v. State, 112 Nev. 1172, 1186, 926 P.2d 265, 275 (1996) 

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

Here, Howard fails to cite to any evidence in the record to 

support his allegation that African Americans and Hispanics are 

underrepresented due to systematic exclusion. "Contentions unsupported 

by specific argument or authority should be summarily rejected on 

appeal.' Rhyne v. State, 118 Nev. 1, 13, 38 P.3d 163, 171 (2002) (quoting 

Mazzan v. Warden, 116 Nev. 48, 75, 993 P.2d 25, 42 (2000)). Moreover, 

his argument mainly addresses the small portion of the venire making up 

the prospective jury panel at his own trial, not the entire venire. Because 

we conclude that Howard's argument falls short of demonstrating 

systematic exclusion, Howard has failed to show that his right to a venire 

selected from a fair cross section of the community was violated. 

Howard's convictions were supported by sufficient evidence 

Howard argues that his convictions should be set aside 

because the State failed to present sufficient evidence to sustain each of 

the crimes charged. We disagree. 

"The Due Process Clause of the United States Constitution 

requires that an accused may not be convicted unless each fact necessary 

to constitute the crime with which he is charged has been proven beyond a 

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reasonable doubt." Rose v. State, 123 Nev. 194, 202, 163 P.3d 408, 414 

(2007). In determining if a jury's verdict met due process requirements we 

examine the sufficiency of the evidence. Vega v. State, 126 Nev. „ 

236 P.3d 632, 639 (2010). The evidence is reviewed in the light most 

favorable to the prosecution, and this court determines whether "any 

rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt." Rose, 123 Nev. at 202, 163 P.3d at 414 

(internal quotations omitted). Substantial evidence supporting a jury's 

verdict will not be disturbed on appeal. Vega, 126 Nev. at , 236 P.3d at 

639. 

As to count I, Howard was convicted of sexual assault 

involving Marilyn. "A person who subjects another person to sexual 

penetration. . . against the will of the victim. . . is guilty of sexual 

assault." NRS 200.366(1). Marilyn testified that Howard forced her to 

engage in fellatio against her will while they sat in his car. It is well 

settled that no corroboration is needed to support the testimony of a 

sexual assault victim, and that the victim's testimony alone can be 

sufficient to uphold a sexual assault conviction. See Vega, 126 Nev. at , 

236 P.3d at 639. Viewing Marilyn's testimony in the light most favorable 

to the prosecution, we conclude that a rational trier of fact could have 

found Howard guilty of count I beyond a reasonable doubt. 

As to counts II and IV, Howard was convicted of kidnapping in 

the first degree as to both Marilyn and Michele. "A person who willfully 

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

carries away a person by any means whatsoever with the intent to 

hold. . . the person. . . for the purpose of committing sexual assault . . . is 

guilty of kidnapping in the first degree." NRS 200.310(1). Marilyn 

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testified that Howard forced her into his car against her will, drove her 

from a store parking lot to the alley behind a gas station, and sexually 

assaulted her. 3Michele testified that Howard enticed her into his car, 

refused to follow her directions, refused to allow her to exit the car, began 

making sexually explicit comments to her, and attempted to sexually 

assault her while the car was in motion. Viewing the testimony of both 

women in the light most favorable to the prosecution, we conclude that a 

rational trier of fact could have found Howard guilty of counts II and IV 

beyond a reasonable doubt. 

In count III, Howard was convicted of attempted sexual 

assault involving Michele. "An act done with the intent to commit a crime, 

and tending but failing to accomplish it, is an attempt to commit that 

crime." NRS 193.330(1), see alsoNRS 200.366(1). Michele testified that 

Howard refused to allow her to exit his car, and, while driving the car, 

Howard grabbed her hair and forced her head into his lap after having 

made sexually explicit comments to her. Michele further testified that she 

jumped from his moving vehicle to avoid being sexually assaulted. 

Viewing Michele's testimony in the light most favorable to the prosecution, 

we conclude that a rational trier of fact could have found Howard guilty of 

count III beyond a reasonable doubt. 

As to counts V and VI, Howard was convicted of battery with 

intent to commit sexual assault as to both Marilyn and Michele. "Battery' 

3Although Howard attacked Marilyn's credibility based on her 

recollection of events, the absence of DNA evidence, and the lack of 

injuries to her person, this court has held that weight and credibility 

matters are reserved for the trier of fact to determine. See Ybarra v. 

State,127 Nev. „ 247 P.3d 269, 277 (2011). 

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means any willful and unlawful use of force or violence upon the person of 

another." NRS 200.400(1)(a). Special sentencing provisions exist where 

the battery is committed with the intent to commit sexual assault. NRS 

200.400(4); see also NRS 200.366(1). Both Marilyn and Michele testified 

that Howard pulled their hair to force compliance with his commands to 

perform fellatio. Both also testified that he used physical force to prevent 

them from exiting his car. The intent of Howard to commit sexual assault 

could have been inferred by the jury from the fact that his movements 

forced each woman's face into his pelvic area. Therefore, viewing 

Marilyn's and Michele's testimony in the light most favorable to the 

prosecution, we conclude that a rational trier of fact could have found 

Howard guilty of counts V and VI beyond a reasonable doubt. 

There was no violation of the Double Jeopardy Clause 

Howard asserts that his convictions for count I (sexual 

assault) and count V (battery with intent to commit sexual assault) arose 

from the single act of grabbing Marilyn's hair and putting his penis in her 

mouth. He also asserts that his convictions for count III (attempted 

sexual assault) and count VI (battery with intent to commit sexual 

assault) arose from the single act of grabbing Michele's hair and forcing 

her head into his lap. Thus, Howard argues that his convictions for both 

sexual assault and battery with intent to commit sexual assault are 

redundant and violate the Double Jeopardy Clause's prohibition against 

multiple punishments for the same offense. We disagree. 

"A claim that a conviction violates the Double Jeopardy Clause 

generally is subject to de novo review on appeal." Davidson v. State, 124 

Nev. 892, 896, 192 P.3d 1185, 1189 (2008). 

The Double Jeopardy Clause "protects defendants from 

multiple punishments for the same offense." Williams v. State, 118 Nev. 

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536, 548, 50 P.3d 1116, 1124 (2002). To determine whether multiple 

convictions for the same act violate a defendant's double jeopardy rights, 

we examine the statutory language of each offense. Missouri v. Hunter, 

459 U.S. 359, 366 (1983) ("[T]he Double Jeopardy Clause does no more 

than prevent the sentencing court from prescribing greater punishment 

than the legislature intended."). To facilitate this determination, Nevada 

operates under the test set forth in Blockburger v. United States, 284 U.S. 

299, 304 (1932). See Estes v. State, 122 Nev. 1123, 1143, 146 P.3d 1114, 

1127 (2006). "Under this test, two offenses are separate if each offense 

requires proof of a fact that the other does not." Id. 

Battery with intent to commit sexual assault includes a 

specific intent element and does not include the element of penetration, 

whereas sexual assault does not include the element of intent but does 

include the element of penetration. NRS 200.366; NRS 200.400. The 

statutory language does not reflect that the Legislature has precluded 

punishment for both offenses and each offense includes at least one 

element that the other does not. Thus, we conclude that sexual assault 

and battery with intent to commit sexual assault are not redundant. See 

Jackson v. State, 128 Nev. P.3d , (Adv. Op. No. 55 at 

17, December 6, 2012). See also Estes, 122 Nev. at 1142-43, 146 P.3d at 

1127-28. Therefore, the Double Jeopardy Clause does not prohibit 

convictions for counts V and VI. 

The district court did not abuse its discretion by admitting prior bad act 

evidence 

Howard argues that the district court committed prejudicial 

error by admitting testimony from a woman who was allegedly verbally 

harassed by him in July 2010 while she was walking around Virginia 

Lake. Howard contends that this testimony amounted to prior bad act 

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evidence and insists that the jury's ability to perceive the inconsistencies 

in the statements made by Marilyn and Michele was reduced by the 

admission of this bad act evidence. 

"[T]he trial court's determination to admit or exclude evidence 

is given great deference and will not be reversed absent manifest error." 

Baltazar-Monterrosa v. State, 122 Nev. 606, 613-14, 137 P.3d 1137, 1142 

(2006). A district court's nonconstitutional error in admitting prior bad 

act evidence is reviewed under a harmless error standard. Tavares v. 

State,117 Nev. 725, 731-32, 30 P.3d 1128, 1132 (2001). 

This court has held that all prior bad act evidence carries a 

presumption of inadmissibility. Ledbetter v. State, 122 Nev. 252, 259, 129 

P.3d 671, 677 (2006) (internal quotations omitted). To overcome this 

presumption, the district court must conduct a hearing outside the 

presence of the jury and determine: (1) if the prior act is relevant to the 

crime charged and sought to be admitted for a purpose other than to prove 

propensity, (2) if the act is proven by clear and convincing evidence, and 

(3) if the danger of unfair prejudice substantially outweighs the evidence's 

probative value. Bigpond v. State,128 Nev. „ 270 P.3d 1244, 1250 

(2012). 

Here, the State filed a pretrial motion to admit the testimony 

of the woman walking around Virginia Lake. At a hearing outside the 

presence of the jury, the district court initially denied the motion, 

reasoning that the prejudicial effect of such testimony outweighed its 

probative value as evidence of a common plan. SeeNRS 48.035(1). 

However, the district court noted that the proposed testimony may be 

admissible as rebuttal evidence under other exceptions "depending 

on. . . what [c]ounsel argues in the cross-examination of the witnesses." 

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During defense counsel's opening statement, she remarked 

that Howard's intention was to have "fun" with Marilyn and Michele, and 

that he believed both women were just having fun as well. In addition, 

defense counsel asserted that Howard met both women in an area with a 

high level of prostitution. During trial, defense counsel questioned 

Detective Zachary Doser as follows: 

Q[:] Is picking up a prostitute in Washoe 

County a crime, or in the city of Reno? 

A[:] Yes. It's against the law. 

Q[1] Okay. So if you were accusing 

somebody of picking up a prostitute, they might 

deny it? 

Based on defense counsel's opening statement and the line of 

questioning posed to Detective Doser, the State renewed its pretrial 

motion outside the presence of the jury, arguing that Howard had opened 

the door for the State to use the proposed testimony to rebut Howard's 

claim that he mistook Marilyn and Michele to be prostitutes. The district 

court concluded that the proposed testimony was admissible as rebuttal 

evidence of Howard's intent or absence of mistake. 

We conclude that the district court properly admitted the 

Virginia Lake witness's testimony as prior bad act evidence pursuant to 

NRS 48.045(2) ("Evidence of other. . . acts. . . may. . . be admissible for 

other purposes, such as . . . intent. . . or absence of mistake."). Although 

Howard did not expressly proffer a defense of mistake, defense counsel's 

opening remarks and questions posed to Detective Doser concerning 

prostitution implied that Howard either intended to solicit a prostitute or 

mistakenly thought Marilyn and Michele were prostitutes. The proposed 

testimony was relevant to rebut the implication that Howard only made 

sexually explicit comments to prostitutes, as the Virginia Lake witness 

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testified that she was visibly pregnant and had her toddler daughter with 

her the day Howard verbally harassed her. 4Thus, as to intent and 

absence of mistake, the "probative value [of the evidence was] not 

substantially outweighed by the danger of unfair prejudice." See 

Ledbetter,122 Nev. at 259, 129 P.3d at 677. 

Moreover, even if the district court erroneously admitted the 

proposed testimony, the admission would amount to harmless error, since 

both Marilyn and Michele provided sufficient credible evidence to support 

Howard's convictions. 

The State did not engage in prosecutorial misconduct 

Howard argues that the prosecutor engaged in misconduct by 

making numerous prejudicial comments during the State's closing 

argument. He also argues that when the district court sustained his 

objections, it failed to issue curative instructions. 

Some of the alleged prosecutorial misconduct that Howard 

challenges on appeal was not objected to at tria1. 5Generally, failure to 

object precludes appellate review unless the error is plain error. Valdez v. 

41n addition, the district court properly instructed the jury on the 

limited purpose of the evidence. 

5The unobjected-to comments that Howard now asserts amounted to 

prosecutorial misconduct occurred when the prosecutor: (1) characterized 

the defense as a lie, (2) rendered personal opinions to the jury, (3) reduced 

the burden of proof on the charge of battery with intent to commit sexual 

assault by advising the jury that the element of touching could be slight 

and failing to advise the jury that the sexual assault charge had to involve 

separate contact, (4) asked the jury to put themselves in the place of the 

victim when describing Michele's state of mind prior to meeting Howard, 

and (5) vouched for Marilyn by dismissing her inconsistent behavior on 

the stand as a consequence of her impaired mental health. 

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State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008). Under plain error 

review, reversal is not warranted unless "the defendant demonstrates that 

the error affected his or her substantial rights, by causing actual prejudice 

or a miscarriage of justice. Id. (internal quotations omitted). Howard has 

failed to demonstrate how the unobjected-to comments substantially 

prejudiced him or caused a miscarriage of justice. Since these particular 

comments do not constitute plain error, reversal is not warranted. 

Howard also contests three separate, objected-to comments 

made by the prosecution. Errors properly preserved for appellate review 

are reviewed for harmless error. Id. Valdez states: 

The proper standard of harmless-error review 

depends on whether the prosecutorial misconduct 

is of a constitutional dimension. If the error is of 

constitutional dimension, then we . . . will reverse 

unless the State demonstrates, beyond a 

reasonable doubt, that the error did not contribute 

to the verdict. If the error is not of constitutional 

dimension, we will reverse only if the error 

substantially affects the jury's verdict. 

Id. at 1188-89, 196 P.3d at 476 (footnotes omitted). 

Howard first asserts that the prosecutor improperly 

commented that Marilyn did not like being a witness and telling her story. 

We conclude that this statement was a fair comment on the evidence 

because the prosecutor was pointing out Marilyn's demeanor as a witness, 

rather than asserting a personal belief. A prosecutor is allowed to express 

opinions and beliefs during closing argument so long as the statements 

made are fair comments on the evidence presented to the jury. Domingues 

v. State, 112 Nev. 683, 696, 917 P.2d 1364, 1373 (1996). 

Howard next asserts that the prosecutor improperly vouched 

for Marilyn's testimony when she made the following statement: 

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Now, the idea that Marilyn said, Well, he 

just stood there in the doorway, and Mr. Verma 

said, Well, he was sort of beckoning her and 

saying rude things, Marilyn can't remember a lot 

of what he said. I—I asked her— 

"Vouching may occur in two ways: the prosecution may place the prestige 

of the government behind the witness or may indicate that information 

not presented to the jury supports the witness's testimony." Lisle v. State, 

113 Nev. 540, 553, 937 P.2d 473, 481 (1997) (internal quotations omitted). 

It is unclear from Howard's argument what part of the prosecutor's 

comment he believes amounted to vouching. Assuming he meant to 

concentrate on the phrase "Marilyn can't remember a lot of what he said," 

this is also a fair comment on the evidence and not tantamount to 

vouching. Further, even if it were somehow vouching, in light of the 

overwhelming evidence supporting Howard's conviction, we conclude that 

this statement did not "substantially affect[ ] the jury's verdict." See 

Valdez,124 Nev. at 1189, 196 P.3d at 476. 

Finally, Howard asserts that the prosecutor speculated as to 

facts not in evidence when she commented that he may have cleaned his 

car and showered before his arrest. A prosecutor has the right to comment 

on testimony, to ask a jury to draw inferences from the evidence 

presented, and to state fully his or her views on what the evidence shows. 

State v. Green,81 Nev. 173, 176, 400 P.2d 766, 767 (1965). At trial, 

testimony was elicited from police officers that Howard was arrested later 

in the evening as opposed to right after the attacks on Marilyn and 

Michele. There exists then a reasonable inference that the defendant had 

enough time to clean up, and therefore, the prosecutor was drawing 

reasonable inferences for the jury. Nonetheless, even if this were not fair 

comment, it would amount to harmless error because the district court 

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issued a curative instruction to the jury following Howard's objection to 

the comment. See Leonard v. State, 117 Nev. 53, 66, 17 P.3d 397, 405 

(2001) CA jury is presumed to follow its instructions." (quoting Weeks v. 

Angelone, 528 U.S. 225, 234 (2000))). 

Therefore, because none of the prosecutor's objected-to 

comments were improper or amounted to harmful error that substantially 

affected the jury's verdict, we conclude that reversal is not warranted on 

this issue. 

The district court properly instructed the jury 

Howard argues that the district court erred by: (1) failing to 

properly instruct the jury on the lesser-included offense of false 

imprisonment along with the kidnapping instruction, and (2) failing to 

properly instruct the jury on the specific intent element of attempted 

sexual assault. We disagree. 

"The district court has broad discretion to settle jury 

instructions, and this court reviews the district court's decision for an 

abuse of that discretion or judicial error." Crawford v. State, 121 Nev. 

744, 748, 121 P.3d 582, 585 (2005). When not requested by either party, a 

jury the instruction is mandatory "if there is evidence which would absolve 

the defendant from guilt of the greater offense . . . but would support a 

finding of guilt of the lesser offense." Rosas v. State, 122 Nev. 1258, 1264- 

65 11.9, 147 P.3d 1101, 1106 n.9 (2006) (alteration in original) (internal 

quotations omitted). 

Regarding the kidnapping instruction, Howard fails to cite to 

any evidence in the record that would trigger the district court's 

mandatory instruction duty under Rosas. Rather, he simply argues that 

the evidence presented at trial supported the lesser-included offense of 

false imprisonment because the kidnapping was incidental to the sexual 

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assault and attempted sexual assault. Thus, we conclude that the district 

court did not err by failing to instruct the jury on the lesser-included 

offense of false imprisonment. 

Concerning the attempted sexual assault instructions, Howard 

did not object to the proffered attempted sexual assault instruction, nor 

did he request a separate instruction. "Generally, the failure to clearly 

object on the record to a jury instruction precludes appellate review. 

However, this court has the discretion to address an error if it was plain 

and affected the defendant's substantial rights." Green v. State, 119 Nev. 

542, 545, 80 P.3d 93, 95 (2003) (internal quotations omitted). Here, the 

record reflects that the attempted sexual assault instruction properly 

instructed the jury on the correct statement of law. Furthermore, not only 

did Howard fail to object to the instruction, but he also failed to object 

during the State's closing argument when it explained the intent element 

to the jury. Therefore, we perceive no error and we reject Howard's 

argument on this issue. 

Accordingly, because the district court did not abuse its 

discretion or commit judicial error when settling jury instructions, we 

conclude that reversal is not warranted. 

Cumulative error 

Howard argues that cumulative error warrants reversal of his 

convictions. This court will not reverse a conviction based on cumulative 

error unless a defendant's constitutional right to a fair trial was violated. 

Rose v. State, 123 Nev. 194, 211, 163 P.3d 408, 419 (2007). In examining 

whether cumulative error warrants reversal, this court considers: "(1) 

whether the issue of guilt is close, (2) the quantity and character of the 

error, and (3) the gravity of the crime charged." Id. (internal quotations 

omitted). Though certainly the defendant's convictions are for serious 

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C.J. 

crimes, we do not believe this to be a close case where a finding of not 

guilty was likely absent the few errors Howard claims. Thus, we conclude 

there were no errors to cumulate and no relief is warranted. 

Having considered Howard's contentions and concluded that 

they do not warrant reversal, we 

ORDER the judgment of the district court AFFIRMED. 

J. 

Hardesty 

Saitta 

cc: Hon. Connie J. Steinheimer, District Judge 

Karla K. Butko 

Attorney General/Carson City 

Washoe County District Attorney 

Washoe District Court Clerk 

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