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grounds by Griffith v. Kentucky, 479 U.S. 314, 326 (1987))). Appellant 

must demonstrate that the procedure was unnecessarily suggestive and 

that the resulting identification was unreliable. See Banks v. State, 94 

Nev. 90, 94, 575 P.2d 592, 595 (1978); see also Manson v. Brathwaite, 432 

U.S. 98, 114 (1977) (explaining that "reliability is the linchpin"). 

A one-on-one show-up confrontation between eyewitness and 

suspect, such as occurred here, is inherently suggestive because it is 

obvious to the eyewitness that law enforcement officials believe they have 

apprehended the criminal; however, the confrontation may be justified 

based on countervailing policy considerations. Jones, 95 Nev. at 617, 600 

P.2d at 250. While such considerations were present, we conclude that the 

one-on-one show-up in this case was unnecessarily suggestive. 

Despite the unnecessarily suggestive procedure, we conclude 

that the identification was reliable. See Gehrke v. State, 96 Nev. 581, 584, 

613 P.2d 1028, 1030 (1980) (discussing the factors that weigh against the 

corrupting effect of the suggestive procedure). In this instance, the 

eyewitness had the opportunity to clearly see the robber's face in a well-lit 

restaurant for an ample amount of time. She also exonerated two other 

potential suspects shown to her by the police before identifying the 

appellant and was absolutely certain of her identification just one day 

after the incident. The reliability of the identification outweighs any 

possible corrupting effect of the suggestive procedure, and the district 

court did not err by refusing to suppress the show-up identification and 

subsequent in-court identifications. 

With regard to the photo lineup, we consider the totality of the 

circumstances to determine whether the procedure was "so unduly 

prejudicial as to fatally taint [the defendant's] conviction." Cunningham v. 

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State, 113 Nev. 897, 904, 944 P.2d 261, 265 (1997) (alteration in original) 

(quoting Simmons v. United States, 390 U.S. 377, 383 (1968)). We have 

examined the way in which the police performed the photo lineup as well 

as the photos used and conclude that the procedure was not "so 

impermissibly suggestive as to give rise to a very substantial likelihood of 

irreparable misidentification!" See id. (quoting Simmons, 390 U.S. at 

384). The district court did not err by refusing to suppress the photo 

lineup identifications and subsequent in-court identifications. 

Second, appellant claims that the district court erred in 

several respects regarding his habitual felon adjudication. Because his 

two prior felonies, which were filed in the same information, were of 

similar character and part of a common scheme or plan and because he 

pleaded to and was sentenced on both charges at the same time, appellant 

argues that he cannot be a habitual felon under NRS 207.012. We have 

held "that where two or more convictions grow out of the same act, 

transaction or occurrence, and are prosecuted in the same indictment or 

information, those several convictions may be utilized only as a single 

prior conviction for purposes of applying the habitual criminal statute." 

Rezin v. State, 95 Nev. 461, 462, 596 P.2d 226, 227 (1979) (internal 

quotation marks omitted). As appellant was convicted of two separate 

robberies that occurred two months apart at two different locations, we 

are not convinced that his crimes were part of the same act, transaction, 

or occurrence and conclude that the district court did not err by 

adjudicating appellant a habitual felon under NRS 207.012. 

Appellant further argues that the district court violated his 

statutory and due process rights by failing to conduct a hearing and 

render findings pursuant to NRS 207.016, which requires the court to 

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ceL.-Aii=i1 
11' ' "Ty;-1,17,-T '1136fivANWSEWaelf,4".: I 

conduct a hearing when a defendant denies any previous conviction 

charged. NRS 207.016(3). Because appellant did not deny the previous 

convictions, we conclude a hearing was not necessary and the district 

court did not err. 

Appellant also claims that, under Apprendi v. New Jersey, 530 

U.S. 466 (2000), he was entitled to a jury trial on the habitual offender 

allegations. We have held that our habitual offender statutes do not 

violate App rendi, as the court performs no additional fact-finding but, at 

most, exercises discretion in choosing to adjudicate a defendant a habitual 

criminal. See O'Neill v. State, 123 Nev. 9, 15-17, 153 P.3d 38, 42-43 

(2007). We note that NRS 207.012, the habitual felon statute under which 

appellant was adjudicated, offers no discretion but mandates the 

imposition of a sentence within the prescribed range if two qualifying 

felonies are proven. A jury trial on the habitual offender allegation was 

not warranted; accordingly the district court did not err. 

Third, appellant alleges that the district court erred by 

refusing to proffer the "two reasonable interpretations" jury instruction.' 

When a jury has been properly instructed on reasonable doubt, it is not 

error to refuse to give an additional instruction on the issue. Hall v. State, 

89 Nev. 366, 371, 513 P.2d 1244, 1247-48 (1973); Holland v. United States, 

348 U.S. 121, 139-40 (1954). We conclude that the jury was properly 

'Appellant's proposed jury instruction stated that "[i]f the evidence 

in this case is susceptible to two constructions or interpretations, each of 

which appears to you to be reasonable, and one of which points to the guilt 

of the defendant, and the other to his innocence, it is your duty, under the 

law, to adopt that interpretation which will admit of the defendant's 

innocence, and reject that which points to his guilt." 

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instructed on reasonable doubt and that the district court did not commit 

error in refusing to give the proposed instruction. 

Lastly, appellant argues that cumulative error warrants 

reversal of his conviction. Because there was no error by the district court, 

there is no error to cumulate. Accordingly, we 

ORDER the judgment of conviction AFFIRMED. 

1 

. _ 

Gibbon s 

t,,c0( 

Douglas 

Saitta 

cc: Hon. Elissa F. Cadish, District Judge 

Clark County Public Defender 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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