Winship off him, but as he attempted to get up, she grabbed and pulled on 

his leg before he was able to get away. Franklin testified that he and 

Winship spoke the next day and that she accused him of breaking her arm 

during the altercation. 

Failure to collect evidence 

Franklin argues that all evidence concerning the bicycle 

should have been suppressed because the police officers failed to collect 

and preserve the potentially exculpatory evidence. Franklin failed to 

object at trial, therefore we view for plain error. See Leonard v. State, 117 

Nev. 53, 63, 17 P.3d 397, 403-04 (2001). We conclude that Franklin has 

failed to demonstrate a reasonable probability that, had the bicycle been 

collected and available, the outcome of the trial would have been different. 

See Daniels v. State, 114 Nev. 261, 267, 956 P.2d 111, 115 (1998) 

(providing that defendant must show that evidence police failed to gather 

was material). Franklin's claim that the absence of his fingerprints or 

Winship's blood and hair on the bicycle would tend to establish that he 

never picked it up and that Winship was never hit with it was "'merely a 

hoped-for conclusion." Sheriff v. Warner, 112 Nev. 1234, 1240, 926 P.2d 

775, 778 (1996) (quoting Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107, 

108 (1979)). Furthermore, while the police may have been negligent in 

failing to collect the bicycle, Franklin failed to demonstrate gross 

negligence or bad faith. See Daniels, 114 Nev. at 267, 956 P.2d at 115 

(providing that, where defendant demonstrates evidence was material, 

"the court must determine whether the failure to gather evidence was the 

result of mere negligence, gross negligence, or a bad faith attempt to 

prejudice the defendant's case" and, in the case of mere negligence, 

limiting defendant's remedy to cross-examination regarding investigative 

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deficiencies). On cross-examination, the on-scene officer admitted that it 

was unusual to not photograph a scene or an alleged weapon but that the 

immediate focus was on locating Franklin and, when he was not found, on 

meeting with Winship at the hospital for a follow-up interview. The officer 

stated that Winship's arm had no open cuts and that he felt it was 

unnecessary to fingerprint the bicycle. As Franklin failed to demonstrate 

bad faith or gross negligence, it was not error to admit testimony and 

photographs that were later taken regarding the bicycle.' 

Gruesome photograph 

Franklin argues that the district court erred by admitting a 

photograph of Winship's arm after surgery, claiming that the picture was 

gruesome and more prejudicial than probative. The district court, after 

reviewing post-surgical photographs of Winship's arm with staples, 

admitted one photograph, finding that the probative value of the picture 

was not substantially outweighed by unfair prejudice, but disallowed a 

close-up photograph of the same image. "The admission of photographs of 

victims is within the sound discretion of the trial court and will be 

disturbed only if that discretion is abused." Wesley v. State, 112 Nev. 503, 

512-13, 916 P.2d 793, 800 (1996). The admitted photograph was probative 

to illustrate the victim's injury and disfigurement, which was relevant to 

establish the substantial-bodily-harm element of the offense, see NRS 

'While Franklin argues that he was prejudiced by law enforcement's 

actions and that a showing of prejudice is an alternative to a 

demonstration of bad faith, this standard, as well as the cases cited, 

address a failure to preserve evidence. As the police officers never had 

possession of the bicycle, there could be no failure to preserve it. 

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0.060 (definition of substantial bodily harm), and we conclude that the 

district court did not abuse its discretion. 

Jury instruction 

Franklin claims that the district court erred in giving a 

transition jury instruction, offered by his counsel, and argues that the jury 

was incorrectly instructed that he could be acquitted of battery or battery 

causing substantial bodily harm but not of both. While the failure to 

object to an instruction generally precludes appellate review, we may 

address plain error affecting the defendant's substantial rights. Green v. 

State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003). We discern no error as the 

instruction correctly informed the jury that Franklin could be found not 

guilty of either crime and the district court instructed the jury on the 

presumption of innocence, the standard of reasonable doubt, and the 

State's burden of proving each element beyond a reasonable doubt. 

Substantial bodily harm 

Franklin challenges the finding of substantial bodily harm, 

specifically whether sufficient evidence was presented to establish that 

Winship suffered substantial bodily harm and that Franklin was the cause 

of the harm. Our review of the record, however, reveals sufficient 

evidence to establish guilt beyond a reasonable doubt as determined by a 

rational trier of fact. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); 

Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998). 

With regard to Franklin's claim that Winship did not suffer 

substantial bodily harm, the jury heard testimony from Winship and her 

mother that nothing was wrong with Winshp's arm prior to the incident. 

Winship testified that immediately after the incident she was in pain and 

could not lift her arm and that she subsequently required surgery and a 

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titanium plate to repair the injury. Winship testified that she continued 

to experience numbness and weakness in her arm. To the extent that 

Franklin argues that the evidence presented was based on hearsay, or the 

doctor's statements to Winship that her arm was broken, we conclude 

that, while it may have been error to introduce the doctor's diagnosis, 2 

Winship was able to testify as to her pain and subsequent surgery, as she 

had direct knowledge of these facts, see NRS 50.025, and from the 

evidence presented, the jury could reasonably infer that she suffered 

substantial bodily harm. See NRS 0.060. 

With regard to Franklin's claim that there was no evidence 

that his conduct was the cause of the harm, Winship and her mother 

testified that he threw a bicycle onto Winship. The on-scene officer 

relayed Winship's statement that she tried to block the bicycle with her 

arm and felt it break right away. Paramedics took Winship from the scene 

to the hospital, and she testified that as a result of the bicycle being 

thrown on her, she required surgery to mend her arm. We conclude that a 

reasonable juror could infer from the evidence presented that Franklin 

was the cause of Winship's substantial bodily harm. It is for the jury to 

determine the weight and credibility to give to conflicting testimony, and 

the jury's verdict will not be disturbed on appeal where, as here, 

substantial evidence supports the verdict. Bolden v. State, 97 Nev. 71, 73, 

624 P.2d 20, 20 (1981); see also McNair v. State, 108 Nev. 53, 56, 825 P.2d 

571, 573 (1992). 

2Franklin fails to demonstrate prejudice by the State's decision not 

to call Winship's doctor to testify. 

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Perjury 

Franklin contends that his conviction must be set aside 

because Winship committed perjury, as evidenced by inconsistencies 

between her testimony at the preliminary hearing and at trial. Franklin 

failed to object to the admission of these statements, therefore we review 

for plain error. See Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402 

(1992). Franklin's counsel cross-examined Winship on her account of the 

incident, drawing out inconsistencies as to her memory of Franklin 

throwing the bicycle on her, and Winship acknowledged the 

inconsistencies and explained that she had been nervous and scared at the 

preliminary hearing. We conclude that Franklin has failed to demonstrate 

that Winship committed perjury. See NRS 199.120 (defining perjury). 

Any inconsistencies or improbabilities in her testimony went to the weight 

of the testimony and not the admissibility of the testimony; it was for the 

jury to determine the weight and credibility of the witnesses and 

testimony presented. See Bolden, 97 Nev. at 73, 624 P.2d at 20. 

Therefore, we conclude that there was no error in the admission of 

Winship's testimony. 

Prosecutorial misconduct 

Franklin claims that the prosecutor's comments during 

rebuttal argument, that Franklin's testimony was riddled with lies and 

inconsistencies and that Franklin's story about throwing Winship's supply 

of pills down the sink was absurd, warrant reversal. While the failure to 

object generally precludes appellate review, "we will consider prosecutorial 

misconduct, under plain error review, if the error either: (1) had a 

prejudicial impact on the verdict when viewed in context of the trial as a 

whole, or (2) seriously affects the integrity or public reputation of the 

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judicial proceedings." Rose v. State, 123 Nev. 194, 208-09, 163 P.3d 408, 

418 (2007) (internal quotation marks omitted). 

While it is improper to characterize a witness as a liar or a 

witness's testimony as a lie, to represent to the jury that testimony might 

be incredible or to demonstrate through inferences that a witness's 

testimony is palpably untrue is within the confines of proper argument. 

Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104, 1106 (1990); see also 

Rowland v. State, 118 Nev. 31, 40, 39 P.3d 114, 119 (2002) ("A prosecutor's 

use of the words 'lying' or 'truth' should not automatically mean that 

prosecutorial misconduct has occurred."). Here, the prosecutor detailed 

specific inconsistencies between Franklin's version of the incident and 

evidence presented at trial and argued that Franklin's story was palpably 

untrue. While the final observation by the prosecutor, that Franklin's 

story was riddled with lies, was a violation of our prior admonitions to 

refrain from characterizing testimony as a lie, see Witherow v. State, 104 

Nev. 721, 724, 765 P.2d 1153, 1155 (1988), we conclude that this comment 

does not warrant reversal of Franklin's conviction. 3 

3To the extent that Franklin argues, for the first time in his reply 

brief, that the prosecutor vouched for Winship's story by referencing her 

medical records, which were never introduced into evidence, the argument 

is improperly raised. A reply brief is limited to answering any new matter 

in the opposing brief, NRAP 28(c), and therefore we need not address it, 

City of Elko v. Zillich, 100 Nev. 366, 371, 683 P.2d 5, 8 (1984). 

Nevertheless, we conclude that Franklin's claim is without merit as the 

comments were a fair response to Franklin's argument regarding 

Winship's injuries and the absence of the medical records. 

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Habitual criminal 

Franklin challenges his adjudication as a habitual criminal 

pursuant to NRS 207.010(1)(b) on multiple grounds. First, Franklin 

claims that the district court erred in adjudicating him as a habitual felon 

under NRS 207.010(1)(b) in that the sentencing judge failed to make a 

finding that the requisite number of prior convictions existed and failed to 

exercise discretion in determining whether to dismiss the allegation. The 

district court admitted into evidence certified copies of Franklin's prior 

convictions, see NRS 207.016(5). In reviewing the record as a whole, we 

conclude that the district court understood its sentencing discretion, 

considered the appropriate factors in determining whether to adjudicate 

Franklin as a habitual criminal, see Hughes v. State, 116 Nev. 327, 332-33, 

996 P.2d 890, 893-94 (2000) (holding that there is no requirement that the 

district court "utter specific phrases or make 'particularized findings' that 

it is 'just and proper' to adjudicate a defendant as a habitual criminal"), 

and exercised its discretion. Accordingly, we discern no error in this 

regard. 4 

Second, Franklin contends that the State failed to prove three 

valid prior felony convictions to support a determination of habitual 

criminality. Specifically, Franklin argues that the State failed to prove he 

4We are unconvinced by Franklin's argument that the district court 

found facts, other than the existence of prior convictions, that would 

increase the penalty for his crime beyond the statutory maximum, in 

violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). Rather, the 

record reveals that the district court outlined its consideration of the 

appropriate factors and exercised its discretion in determining whether to 

dismiss the allegation. See O'Neill v. State, 123 Nev. 9, 16, 153 P.3d 38, 43 

(2007). 

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is the individual convicted of stop-required-on-signal-of-police-officer, that 

the State failed to affirmatively show that he had counsel in connection 

with the robbery conviction, that some of the prior convictions were 

duplicitous, that the attempted unauthorized use of a vehicle was a 

misdemeanor, and that the submitted convictions contained documents 

wholly unrelated to Franklin or Franklin's criminal history. Franklin 

made no objection at the sentencing hearing; rather, his counsel stated 

that she had reviewed the prior convictions and that there was no issue in 

terms of their constitutionality. "[A]n unexcused failure to object in the 

trial court to the State's failure to make an affirmative showing of the 

validity of the prior convictions relied upon to enhance a penalty under 

NRS 207.010 precluded the raising of this objection for the first time on 

appeal." Baymon v. State, 94 Nev. 370, 372, 580 P.2d 943, 944 (1978). In 

his reply brief, Franklin attempts to explain his failure to object by 

alleging ineffective assistance of counsel. This court has repeatedly 

declined to address claims of ineffective assistance of counsel on direct 

appeal unless an evidentiary hearing has been held or would be 

unnecessary. See Pellegrini v. State, 117 Nev. 860, 883, 34 P.3d 519, 534 

(2001). Neither of these exceptions exists here; therefore, we decline to 

address this claim. 

Third, Franklin argues that the district court was prejudiced 

by the State's submission of a packet of convictions which contained the 

errors mentioned above. As Franklin failed to object at the sentencing 

hearing, we review for plain error. Davidson v. State, 124 Nev. 892, 899, 

192 P.3d 1185, 1190-91 (2008). "Under plain error review, this court has 

the discretion to address an error if it was plain and affected the 

defendant's substantial rights." Id. at 899-900, 192 P.3d at 1191 (internal 

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quotation marks omitted). "Normally, the defendant must show that an 

error was prejudicial in order to establish that it affected substantial 

rights." Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001), 

abrogated on other grounds by Nunnery v. State, 127 Nev. , 263 P.3d 

235 (2011), cert. denied, U.S. , 132 S. Ct. 2774 (2012). Franklin has 

failed to demonstrate that the requisite number of prior convictions under 

NRS 207.010(1)(b) was not proven to the district court and that he was 

prejudiced by the district court's review of the packet of convictions. 

Fourth, Franklin argues that the district court abused its 

discretion when it adjudicated him a habitual criminal because his prior 

convictions were stale and trivial. The age of the convictions does not 

eliminate them from potential consideration; rather, the statute leaves the 

matter to the district court's discretion. Arajakis v. State, 108 Nev. 976, 

983, 843 P.2d 800, 805 (1992) ("NRS 207.010 makes no special allowance 

for non-violent crimes or for the remoteness of convictions; instead, these 

are considerations within the discretion of the district court"); see also 

NRS 207.010(2). Besides the prior felony convictions, the district court 

considered Franklin's presentence investigation report, outlining his 

criminal activity in its entirety, and his institutional behavior. We 

conclude that the district court did not abuse its discretion by declining to 

dismiss the habitual criminal count. 

Fifth, Franklin contends that NRS 207.010 is unconstitutional 

as applied because his sentence of life without the possibility of parole 

constitutes cruel or unusual punishment in violation of the United States 

and Nevada Constitutions. We review the constitutionality of a statute de 

novo. Silvar v. Eighth Judicial Dist. Court, 122 Nev. 289, 292, 129 P.3d 

682, 684 (2006). "Statutes are presumed to be valid, and the challenger 

10 
J. 

J. 

bears the burden of showing that a statute is unconstitutional. In order to 

meet that burden, the challenger must make a clear showing of 

invalidity." Id. (footnote omitted). Because Franklin has not 

demonstrated that the habitual-criminal-punishment statute is 

unconstitutional, his sentence falls within the parameters of that statute, 

and we are not convinced that the sentence is so grossly disproportionate 

to the gravity of the offense and Franklin's history of recidivism as to 

shock the conscience, we conclude that the sentence does not violate the 

constitutional proscriptions against cruel and unusual punishment. 

Ewing v. California, 538 U.S. 11, 29 (2003) (plurality opinion); Harmelin v. 

Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion); Blume v. State, 

112 Nev. 472, 475, 915 P.2d 282, 284 (1996); see also Arajakis, 108 Nev. at 

983, 843 P.2d at 805. 

Having considered Franklin's contentions and determined that 

they are without merit, we 

ORDER the judgment of conviction AFFIRMED. 

Douglas 

Saitta 

11 
cc: Hon. Brent T. Adams, District Judge 

Janet S. Bessemer 

Attorney General/Carson City 

Washoe County District Attorney 

Washoe District Court Clerk 

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