At a hearing on Banark's motion in limine, the district court found the 

evidence about his conduct with the knife to be relevant and ruled it 

admissible. The State argues that this evidence was admissible for a 

relevant non-propensity purpose—that is, to show that Banark was 

intoxicated because a sober person would not have pulled out a knife and 

threatened the bartender under the circumstances. 

In order for relevant evidence to be admissible, either the 

probative value of the evidence must not be substantially outweighed by 

the danger of unfair prejudice, NRS 48.035(1), or the evidence must be so 

closely related to the charged offense that a witness could not have 

described the act in controversy without referring to the evidence, NRS 

48.035(3). The district court made no specific findings as to the prejudicial 

and probative weight of the evidence or as to its admissibility under NRS 

48.035(3)'s res gestae doctrine, and the legal basis for the ruling of 

admissibility is not clear from the record. Nevertheless, we conclude that 

any error in admitting the evidence was harmless given the overwhelming 

evidence of Banark's guilt for DUI. See Belton v. State, 121 Nev. 436, 445, 

117 P.3d 176, 181 (2005). The bartender testified that Banark parked his 

truck crookedly over three parking spaces, had an unsteady gait, slurred 

his words, and had bloodshot eyes. A police officer testified that Banark 

was speeding and swerving into an adjacent lane, smelled of alcohol and 

admitted to consuming "too much" beer, and failed the field sobriety tests. 

Second, Banark argues that the district court erred in 

instructing the jury on the duties imposed by law on drivers of motor 

vehicles. He claims that this instruction conflicted with the instruction on 

the elements of DUI and allowed the jury to find that he was incapable of 

"safely driving" merely because he committed minor traffic violations. We 

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disagree. The jury was properly instructed on the elements of DUI 

namely, driving a vehicle on a highway while under the influence of 

intoxicating liquor—and that the element of being "under the influence" 

means "to any degree which rendered him incapable of safely driving." At 

the request of the State, the district court provided an instruction on the 

duties of drivers, including the duties to maintain a travel lane and to 

drive at a reasonable and proper speed, to assist the jury as to what 

constitutes safe driving. We conclude that, while this instruction on the 

duties of drivers was not necessary, it did not conflict with the instruction 

on the elements of DUI and did not alter the State's burden to prove each 

element of the offense. Therefore, the district court did not abuse its 

discretion or commit judicial error in this regard. See Crawford v. State, 

121 Nev. 744, 748, 121 P.3d 582, 585 (2005). 

Third, Banark argues that the district court abused its 

discretion in allowing a police officer to give expert testimony without 

being noticed as an expert witness. Banark contends that the officer 

testified as an expert when he testified about his training and experience 

in detecting drivers under the influence and in conducting field sobriety 

tests. We agree that some of the officer's testimony qualified as expert 

testimony that was not noticed pursuant to NRS 174.234(2). However, we 

conclude that any error in this regard does not warrant reversal because 

Banark has not alleged, nor does the record demonstrate, that the lack of 

endorsement was made in bad faith such that the district court was 

required to exclude the testimony, NRS 174.234(3), or that Banark was 

prejudiced by the lack of notice, see Jones v. State, 113 Nev. 454, 473, 937 

P.2d 55, 67 (1997). 

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Fourth, Banark argues that the district court abused its 

discretion and violated his due process rights by denying his motion to 

admit medical records showing that he had cataract surgery on one eye 

and might need cataract surgery on the other eye two years after he 

committed the DUI. Banark contends that this evidence tended to prove 

his theory that his poor performance on the field sobriety tests was due to 

his physical disabilities rather than being under the influence of alcohol. 2 

We conclude that the exclusion of the medical records was not an abuse of 

discretion or a violation of Banark's due process right to present evidence 

tending to prove his theory of the case. See Thomas v. State, 122 Nev. 

1361, 1370, 148 P.3d 727, 734 (2006); Vipperman v. State, 96 Nev. 592, 

596, 614 P.2d 532, 534 (1980). The fact that Banark had cataracts two 

years after he was arrested for driving under the influence did not mean 

that Banark had cataracts at the time that he was arrested or that the 

cataracts prevented him from passing the field sobriety tests. Thus, the 

district court properly excluded this evidence as irrelevant. See NRS 

48.025(2). Further, any marginal relevance this evidence may have had 

was substantially outweighed by its risk of confusing the jury, given the 

absence of evidence of Banark's vision at the time of the DUI and evidence 

showing a link between cataracts and performance on field sobriety tests. 

See NRS 48.035(1). 

Finally, Banark contends that the cumulative effect of errors 

warrant reversal of his conviction. We disagree, as the errors discussed 

2Banark also refers to a broken femur and a possible hip 

replacement surgery, but this evidence was not contained in the medical 

records. 

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J. 

above, even when considered cumulatively, did not deprive him of a fair 

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

Having reviewed Banark's claims and concluded they do not 

warrant relief, we 

ORDER the judgment of conviction AFFIRMED. 3 

Saitta 

Gibbons 

J. 

J. 

Pickering 

cc: Hon. Michael Villani, District Judge 

Eric G. Jorgenson 

Attorney GenerallCarson City 

Clark County District Attorney 

Eighth District Court Clerk 

3Banark's fast track statement does not comply with the provisions 

of NRAP 32(a)(5) because the footnotes are not in the same size font as the 

body of the brief. We caution Banark's counsel, Eric G. Jorgenson, that 

future failure to comply with formatting requirements when filing briefs 

with this court may result in the imposition of sanctions. NRAP 32(e). 

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