IN THE SUPREME COURT OF THE STATE OF NEVADA 

KODY W. HARLAN, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No. 80318 

FILED 

.a 

FEB I 7 2022 

ELIZABETH A. BROWN 

CLERK OF SUPREME COURT 

fre 

ORDER OF AFFIRMANCE 

C/EPt ClE f RK 

This is an appeal from a judgment of conviction, pursuant to a 

jury verdict, of first-degree murder with the use of a deadly weapon, robbery 

with the use of a deadly weapon, and accessory to murder with the use of a 

deadly weapon. Eighth Judicial District Court, Clark County; Douglas W. 

Herndon, Judge. Appellant Kody Harlan raises six contentions on appeal. 

First, appellant argues that the district court should have 

severed his trial from his codefendant Jaiden Caruso because the State 

relied on testimony about Caruso's statements planning a robbery and 

acknowledging that he committed a robbery and murder. Severance is 

appropriate "only if there is serious risk that a joint trial would compromise 

a specific trial right of one of the defendants, or prevent the jury from 

making a reliable judgment about guilt or innocence." Marshall v. State, 

118 Nev. 642, 647, 56 P.3d 376, 379 (2002). Contrary to appellant's 

assertion, Caruso's statements implicating him in planning and carrying 

out the robbery and murder would have been admissible in a separate trial. 

See NRS 51.035(3)(e) (providing that "[a] statement by a coconspirator of a 

party during the course and in furtherance of the conspiracy" does not 

constitute hearsay). Both appellant and Caruso were charged with murder 

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and robbery with the use of a deadly weapon under the theories that they 

participated as principals, aided and abetted in the crimes, and conspired 

to commit the crimes. And Caruso's statements indicating that he and 

appellant murdered and robbed someone would have been admissible as 

they were made in appellant's presence and were of such a nature that 

"dissent would have been expected if the communications were incorrect." 

Maginnis v. State, 93 Nev. 173, 175, 561 P.2d 922, 923 (1977) (recognizing 

that both an accusatory statement implicating a defendant and that 

defendant's silence, where not relying on the Fifth Amendment, may be 

offered as an adoptive admission of guilt); see NRS 51.035(3)(b) (providing 

that an adoptive admission of a party does not constitute hearsay). 

Therefore, the district court did not abuse its discretion in denying the 

motion to sever. See Chartier v. State, 124 Nev. 760, 763-64, 191 P.3d 1182, 

1184-85 (2008) (reviewing denial of motion to sever for abuse of discretion). 

Second, appellant argues that, pursuant to Garner v. State, 116 

Nev. 770, 6 P.3d 1013 (2000), overruled on other grounds by Sharma v. 

State, 118 Nev. 648, 56 P.3d 868 (2002), the district court should have sua 

sponte instructed the jury that it needed to find appellant engaged in an 

overt act in furtherance of the conspiracy and that appellant could not be 

found guilty based on his mere presence during the crime. We discern no 

plain error. See Flanagan v. State, 112 Nev. 1409, 1423, 930 P.2d 691, 700 

(1996) ("Failure to object or to request an instruction precludes appellate 

review, unless the error is patently prejudicial and requires the court to act 

sua sponte to protect a defendant's right to a fair trial."); see also Jerernias 

v. State, 134 Nev. 46, 50, 412 P.3d 43, 48 (2018) (providing that plain error 

is shown by demonstrating clear error that affected a defendant's 

substantial rights). Appellant did not demonstrate that the district court 

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erred in not issuing either instruction. The State was not required to prove 

that appellant committed an overt act in furtherance of the conspiracy to 

convict appellant under that theory of liability. Moore v. State, 117 Nev. 

659, 662, 27 P.3d 447, 450 (2001). Additionally, the "mere presence" 

instruction was not supported by the evidence at trial. See Allen v. State, 

97 Nev. 394, 398, 632 P.2d 1153, 1155 (1981) ("The test for the necessity of 

instructing the jury is whether there is any foundation in the record for the 

defense theory."). Testimony showed that appellant discussed a robbery 

with Caruso, transported the victim to the location where he was killed, and 

rifled through the victim's pockets after the shooting. See Garner, 116 Nev. 

at 780, 6 P.3d at 1020 ("Conduct occurring after a crime may be relevant to 

proving the commission of the crime."). Law enforcement also apprehended 

appellant after a high-speed chase ending in a car accident and a foot chase. 

Under these circumstances, appellant has not demonstrated that the 

absence of these instructions was so patently prejudicial that the district 

court was required to give them to protect his right to a fair trial. 

Third, appellant argues that the prosecutor argued facts not in 

evidence when he attributed a codefendant's words to appellant. See 

Williams v. State, 103 Nev. 106, 110, 734 P.2d 700, 703 (1987) (A prosecutor 

may not argue facts or inferences not supported by the evidence."). We 

disagree because the challenged comments are supported by the 

examination of the witness to whom they were attributed. Therefore, the 

district court's failure to address the comments did not amount to plain 

error. See eferemias, 134 Nev. at 50, 412 P.3d at 48. 

Fourth, appellant argues that the district court erred in 

permitting improper hearsay. We discern no abuse of discretion. See Fields 

v. State, 125 Nev. 785, 795, 220 P.3d 709, 716 (2009) (reviewing district 

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court's hearsay determination for abuse of discretion). Appellant's and 

Caruso's statements contemplating robbery constituted statements against 

interest under NRS 51.345 and statements of a party opponent under NRS 

51.035(3)(a), and therefore were not inadmissible hearsay. Although the 

witness heard about Caruso and appellant's conversation from another 

individual who did not testify at trial, her testimony indicated that she also 

personally overheard the conversation. 

Fifth, appellant argues that the district court erred in denying 

a defense motion for a mistrial based on a witness mentioning the 

defendants involvement in uncharged conduct (being in possession of a 

stolen car). We disagree. The prosecution did not elicit the witness's brief 

mention that the defendants drove a stolen car,' and after a brief discussion 

with counsel, the district court admonished the jury to disregard any 

allegation that the car was stolen. See Carter v. State, 121 Nev, 759, 770, 

121 P.3d 592, 599 (2005) ("A witness's spontaneous or inadvertent 

references to inadmissible material, not solicited by the prosecution, can be 

cured by an immediate admonishment directing the jury to disregard the 

statement." (internal quotation marks omitted)); see also Glover v. Dist. Ct., 

125 Nev. 691, 727, 220 P.3d 684, 708 (2009) (Cherry, J., dissenting) 

(Curative instructions present a particularly strong alternative to a 

mistrial given that, as this court has stated numerous times, we presume 

that a jury will follow jury instructions."). We therefore conclude the district 

court did not abuse its discretion in denying the motion for a mistrial. See 

'During Detective Wayne Nichols' cross-examination about why 

forensic examiners did not analyze the victim's wallet, Nichols stated that 

further analysis was not considered crucial because the wallet had been 

found "in the stolen Mercedes in the back seat." 

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McKenna v. State, 114 Nev. 1044, 1055, 968 P.2d 739, 746 (1998) (reviewing 

the denial of a motion for a mistrial for an abuse of discretion). 

Sixth, appellant argues that the district court erred in denying 

the motion for a new trial based on juror misconduct in considering the 

testimony about uncharged conduct involving the stolen car. "A jury's 

failure to follow a district court's instruction is intrinsic juror misconduct," 

Valdez v. State, 124 Nev. 1172, 1186, 196 P.3d 465, 475 (2008), which, "only 

in extreme circumstances[j will . . . justify a new trial," Meyer v. State, 119 

Nev. 554, 565, 80 P.3d 447, 456 (2003). Testimony by a juror about the 

effect of anything on the jury's deliberative process is generally not 

admissible to impeach a verdict. NRS 50.065(2). Nevertheless, the district 

court held an evidentiary hearing to determine the extent to which the jury 

followed the district court's instructions regarding the uncharged conduct 

testimony. The testimony in that hearing established that any discussion 

of the stolen vehicle during deliberations was brief because the foreperson 

immediately admonished the jurors that they could not consider whether 

the car was stolen, per the court's instructions. See Summers v. State, 122 

Nev. 1326, 1333, 148 P.3d 778, 783 (2006) (presuming that the jurors follow 

the district court's instructions). Accordingly, the district court did not 

abuse its discretion in denying the motion. See Meyer, 119 Nev. at 561, 80 

P.3d at 453 (reviewing the denial of a motion for a new trial based on juror 

misconduct for an abuse of discretion). 

Seventh, appellant argues that cumulative error warrants 

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

(providing the relevant factors to consider for a claim of cumulative error). 

Appellant has not demonstrated the existence of any error. Thus, there is 

nothing to cumulate. See Lipsitz v. State, 135 Nev. 131, 139 n.2, 442 P.3d 

5 
Parraguirre 

1 , J. 

Hardesty 

138, 145 n.2 (2019) (concluding that errors did not cumulate as there was 

only one error). Accordingly, we 

ORDER the judgment of conviction AFFIRMED. 

cc: Chief Judge, Eighth Judicial District Court 

Department 3, Eighth Judicial District Court 

Jean J. Schwartzer 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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