error that warrants reversal of the judgment of conviction. We conclude 

that Brown's contentions lack merit, and we affirm the judgment of 

conviction. 

Denial of Brown's request to dismiss jury venire and his Batson challenge 

Brown argues that the district court denied him his right to a 

fair trial by an impartial jury both when it refused to dismiss the entire 

venire and when it denied his challenge under Batson v. Kentucky, 476 

U.S. 79 (1986). Brown contends that the entire venire was "tainted" by 

negative comments made by some prospective jurors. Brown insists that 

although the jurors that expressed a bias were dismissed, the jurors that 

remained were prejudiced by the bias of the dismissed jurors. We 

disagree. 

In reviewing claims of juror bias, deference is given to the trial 

court, and a finding of impartiality will only be overturned for manifest 

error. Skilling v. United States, 561 U.S. , 130 S. Ct. 2896, 2903 

(2010). Thus, this court reviews decisions of jury impartiality using an 

abuse of discretion standard. Blake v. State, 121 Nev. 779, 795-96, 121 

P.3d 567, 578 (2005). 

Although there is a constitutional requirement that a 

defendant receive a panel of impartial, indifferent jurors, it is sufficient if 

the jurors can lay aside their impressions or opinions and render a verdict 

based on the evidence presented at trial. Bishop v. State, 92 Nev. 510, 

515, 554 P.2d 266, 269 (1976); Shilling, 561 U.S. at , 130 S.Ct. at 2925. 

Here, Brown does not allege that any members of the selected jury 

actually expressed bias at any point. Rather, he merely argues that the 

dismissed prospective jurors must have prejudiced the remaining jury 

pool. However, there is no evidence that any of the selected jurors had 

preconceived notions that they were unable to set aside. Moreover, the 

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selected jurors gave the constitutionally required assurances of 

impartiality. Id. Therefore, we conclude that the district court did not 

abuse its discretion in denying Brown's motion to strike the entire venire. 

This court also reviews denials of Batson challenges under an 

abuse of discretion standard. Nunnery v. State, 127 Nev. , 263 P.3d 

235, 258 (2011). To address Brown's argument that the district court 

should have required the prosecutor to give his reasons for both striking 

one African-American juror and making preemptory-challenge decisions 

that kept a second African-American juror off the final panel, we look to 

the United States Supreme Court's three-point test for Batson challenges 

that this court adopted in Doyle v. State, 112 Nev. 879, 887, 921 P.2d 901, 

907-08 (1996), and expanded in Kaczmarck v. State, 120 Nev. 314, 333, 91 

P.3d 16, 29 (2004). Under that test, the opponent of a peremptory 

challenge must first make a prima facie case of racial discrimination. Id. 

To do this, the opponent must demonstrate that the "totality of the 

relevant facts give rise to an inference of discriminatory purpose." Batson, 

476 U.S. at 94. Relevant facts that this court will consider in determining 

the existence of a discriminatory purpose include whether there was a 

pattern of strikes against jurors, the prosecutor's questions and 

statements during voir dire, and how a prosecutor uses his challenges. 

Libby v. State, 113 Nev. 251, 255, 934 P.2d 220, 222-23 (1997). 

Here, Brown did not show any conduct by the State that 

supports an inference of discriminatory purpose. Brown merely points to 

the fact that the preempted juro r was one of three po tential AfricanAmerican jurors and, that by waiving their last two peremptory 

challenges, another African American was dismissed along with the rest of 

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American juror is not sufficient to demonstrate a pattern when the State 

waived its last two peremptory challenges instead of using another to 

excuse the remaining African American from the jury. Therefore, we 

conclude that the district court did not abuse its discretion in denying 

Brown's Batson challenge. 

Inclusion of pictures during opening statement not yet introduced into 

evidence 

Brown argues that the district court erred when it allowed the 

State to use photographs not yet introduced into evidence in its opening 

statement PowerPoint. Moreover, Brown insists that he was prejudiced by 

the existence of these photographs in the opening statement. We disagree. 

A district court has great discretion in evidentiary decisions; 

thus, its decision will not be overturned unless the court abused its 

discretion. Crowley v. State, 120 Nev. 30, 34, 83 P.3d 282, 286 (2004). 

Although it is the duty of counsel while making an opening statement to 

avoid overstating facts, there is not misconduct unless the prosecutor 

makes statements in bad faith. Rice v. State, 113 Nev. 1300, 1312-13, 949 

P.2d 262, 270 (1997), abrogated on other grounds by Rosas v. State, 122 

Nev. 1258, 1265 n.10, 147 P.3d 1101, 1006 n.10 (2006). 

Here, it appears the prosecutor had a good faith belief that the 

photographs would be admissible. Indeed, during trial, the three 

surveillance videos from which the prosecutor took the photographs were 

admitted and discussed. In response to the motion for a mistrial, the 

district court held that the prosecutor did not include anything that was 

not allowed, and noted that even if she did, there was no due process 

violation as a result. Therefore, we conclude that the prosecutor used the 

photographs in good faith. 

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Allowance of witness identification 

Brown argues that the district court erred in denying his 

motions to suppress evidence of a photographic lineup and the subsequent 

in-court identification of him by certain witnesses. Brown contends that 

the photographic lineup was unduly suggestive, and thus rendered the 

pretrial and in-court identifications unreliable, because he was the only 

subject in the lineup with a thin face and his complexion was darker than 

that of at least three others in the lineup. We disagree. 

Because this is an evidentiary decision, we will only overturn 

it if the district court abused its discretion. Crowley, 120 Nev. at 34, 83 

P.3d at 286. Pretrial identifications are inadmissible if the procedures 

used are unnecessarily suggestive and if the identification is consequently 

unreliable. Thompson v. State, 125 Nev. 807, 813, 221 P.3d 708, 713 

(2009). This court has held that a district court should set aside a 

photographic lineup "only if the photographic identification procedure was 

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

of irreparable misidentification." Cunningham v. State, 113 Nev. 897, 904, 

944 P.2d 261, 265 (1997) (internal quotations omitted). 

In reviewing the record, we hold that Brown's arguments lack 

merit, as there is no obvious substantial likelihood of misidentification. 

Furthermore, because a reliability analysis under Thompson only needs to 

occur if the identification procedure is impermissibly suggestive, we need 

not analyze further. Thompson, 125 Nev. at 813, 221 P.3d at 713. 

Therefore, we conclude that the district court did not abuse its discretion 

in denying Brown's motions to suppress the lineup and subsequent incourt identification. 

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Introduction of alleged bad act evidence 

Brown argues that the district court erred when it denied his 

motion for a mistrial because a detective's testimony introduced evidence 

of alleged bad acts that were clear ly more prejudicial than probative. 

Brown maintains that the district court improperly allowed Detective 

Penny to testify that (1) Penny identified Brown by his tattoos, which were 

registered in a criminal database, implying that Brown was a gang 

member; and (2) Brown provided Penny with false information about his 

identity, and the false identity Brown elected to provide was for that of a 

registered sex offender. We disagree. 

The decision to determine whether a mistrial is warranted 

rests within the discretion of the district court. Rudin, 120 Nev. at 142, 86 

P.3d at 586. Moreover, we will not overturn the district court's 

evidentiary decisions unless there is an abuse of discretion. Crowley, 120 

Nev. at 34, 83 P.3d at 286. 

Normally, a "[deference to past criminal history is reversible 

error." Walker v. Fogliani, 83 Nev. 154, 157, 425 P.2d 794, 795 (1967). 

The test for deciding whether a statement does elicit an inference of a 

criminal past is "whether the jury could reasonably infer from the 

evidence presented that the accused had engaged in prior criminal 

activity." Witherow v. State, 104 Nev. 721, 724, 765 P.2d 1153, 1155 

(1988). 

Here, Detective Penny merely referenced a database with 

tattoos and never explicitly mentioned any word or phrase that alluded to 

Brown's previous incarcerations or criminal past. Although it is possible 

that an uninformed jury could make the assumption that any database a 

police officer has access to only tracks criminals, such an unsubstantiated 

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possibility is not enough to draw a reasonable inference. Thus, the district 

court's decision to admit Detective Penny's reference to a tattoo database 

was not an abuse of discretion. See Reese v. State, 95 Nev. 419, 422, 596 

P.2d 212, 215 (1979). 

To address Brown's argument that it was improper to allow 

Detective Penny to testify that Brown provided false identifying 

information, this court has held that evidence of uncharged bad acts may 

be admitted for several purposes, including as proof of 'motive, 

opportunity, intent, preparation, plan, knowledge, identity or absence of 

mistake or accident." Tavares v. State, 117 Nev. 725, 730, 30 P.3d 1128, 

1131 (2001) (quoting NRS 48.045(2)). This court has stated that 

"declarations made after the commission of the crime which indicate 

consciousness of guilt, or are inconsistent with innocence, or tend to 

establish intent may be admissible." Bellon v. State, 121 Nev. 436, 444, 

117 P.3d 176, 181 (2005) (internal quotations omitted). However, bad act 

evidence is presumed inadmissible unless "(1) the incident is relevant to 

the crime charged; (2) the act is proven by clear and convincing evidence; 

and (3) the probative value of the evidence is not substantially outweighed 

by the danger of unfair prejudice." Tavares, 117 Nev. at 731, 30 P.3d at 

1131 (internal quotations omitted). 

That Brown lied about his identity and was even willing to 

identify himself a sex offender to hide his identity is very probative to 

consciousness of guilt. The probative value highly outweighs any 

prejudicial harm Brown may have experienced as a result of telling the 

jury that he lied to a police officer. Further, Brown's action of 

misidentifying himself to police was noticed by way of police report in the 

State's Motion to Admit Other Bad Acts and was discussed in a hearing 

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outside the presence of the jury the morning before trial, and the court 

agreed to allow said testimony. See Bigpond v. State, 128 Nev. , 270 

P.3d 1244, 1250 (2012). Thus, the introduction of testimony that Brown 

lied to a police officer was admissible as evidence of consciousness of guilt 

and that the district court did not abuse its discretion in allowing its 

admission. 

Therefore, we conclude that the district court did not abuse its 

discretion in denying Brown's motion for mistrial. 

Denial of Sanborn jury instruction and finding of no prosecutorial 

misconduct 

Brown argues that the district court improperly denied his 

proposed Sanborn jury instruction informing the jury that the police failed 

to collect material evidence, specifically, a message left on a detective's 

answering machine and fingerprint evidence from the improperly secured 

crime scene. Sanborn v. State, 107 Nev. 399, 408, 812 P.2d 1279, 1286 

(1991) (requiring a curative jury instruction in a new trial instructing the 

jury that failure to test a firearm for blood and fingerprints presumes that 

the victim and not the defendant fired the weapon). Further, Brown 

contends that the prosecutor made improper comments in closing 

arguments, which unfairly emphasized his other bad acts and led the jury 

to believe Brown was a sex offender. We disagree with both contentions. 

"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). To establish that a due process violation 

occurred from the loss or destruction of evidence, a defendant must show 

either that the state acted in bad faith or that the loss unduly prejudiced 

the defendant's case and that the evidence possessed an exculpatory value 

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that was apparent before the evidence was destroyed. Sheriff v. Warner, 

112 Nev. 1234, 1239-40, 926 P.2d 775, 778 (1996). To show undue 

prejudice, the defendant must demonstrate that it could be reasonably 

anticipated that the evidence sought would be exculpatory and material to 

the defense. Id. at 1240, 926 P.3d at 778. 

Here, it appears that the loss of answering machine message 

and fingerprint evidence was not an act of bad faith because it would have 

added little value to the police investigation given that the victim of the 

crime had significant interaction with the defendant, took his 

identification, and was able to visually identify him. Furthermore, the 

loss of the evidence was not material or of exculpatory value prior to its 

destruction, and Brown's case was not unduly prejudiced by the loss; the 

police already had video surveillance, an identification card, and a witness 

testify to prove Brown's identity. Because the lost evidence was not 

material, the loss did not unduly prejudice Brown's case. Therefore, we 

conclude that the district court did not abuse its discretion when it denied 

Brown's request for Sanborn jury instructions. 

This court generally only hears issues of prosecutorial 

misconduct if the party raising the issue on appeal objected to the remarks 

at the time they were made. Riley v. State, 107 Nev. 205, 218, 808 P.2d 

551, 559 (1991). When a party failed to raise an issue below, we may elect 

to address that error when it rises to the level of plain error, affecting a 

defendant's substantial rights. Mclellan v. State, 124 Nev. 263, 269, 182 

P.3d 106, 110 (2008). Here, Brown failed to object to the prosecutor's 

closing statement during trial and has failed to show how his substantial 

rights were affected. This claim has no merit. 

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Improper sentencing as a habitual criminal 

Brown argues that his sentence should be vacated both 

because he should have been provided a jury trial for the enhancements 

under NRS 207.010 and 207.012 and because his sentence amounts to 

cruel and unusual punishment. We disagree. 

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United 

States Supreme Court held that any fact that increases a penalty for a 

crime must be submitted to a jury and proved beyond a reasonable doubt, 

unless that fact is a prior conviction. Id. at 490. With regards to NRS 

207.010, this court has held that statute constitutional so long as the 

district court only uses prior convictions as a factor in its determination 

and considers any other evidence for the sole purpose of deciding whether 

to use its discretion to dismiss the count. O'Neill v. State, 123 Nev. 9, 15, 

153 P.3d 38, 42 (2007). Similarly, NRS 207.012 leaves no discretion 

whatsoever to either the prosecution or the district court, and there is no 

opportunity for the district court to weigh any fact other than the 

existence of a conviction.' 

Because the only evidence to support habituality presented by 

State were the six Nevada judgments of conviction for felonies, Brown did 

not have a right to a jury trial for a habitual criminal enhancement, 

under either NRS 207.010 or NRS 207.012. Therefore, we conclude that 

the district court's determination to add a habitual criminal enhancement 

"Brown asks this court to revisit and overturn O'Neill given recent 

United States Supreme Court decisions distinguishing Apprendi. We 

decline to do so as Brown has provided no case law suggesting that 

Apprendi has been overruled. 

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to Brown's sentence did not violate Brown's right to a jury trial under the 

Sixth Amendment of the United States Constitution. 

To address Brown's argument that the enhancement of his 

sentence under NRS 207.012 amounts to cruel and unusual punishment, 

this court reviews sentencing using an abuse of discretion standard. 

Chavez v. State, 125 Nev. 328, 348, 213 P.3d 476, 490 (2009). "The Eighth 

Amendment of the United States Constitution ,does not require strict 

proportionality between the crime and sentence but forbids only an 

extreme sentence that is grossly disproportionate to the crime." Id. at 

347-48, 213 P.3d at 489. Consequently, "[r] egardless of its severity, a 

sentence that is within the statutory limits is not cruel and unusual 

punishment unless the statute fixing punishment is unconstitutional or 

the sentence is so unreasonably disproportionate to the offense as to shock 

the conscience." Id. at 348, 213 P.3d at 489 (internal quotations omitted). 

Here, Brown's sentence is within the statutory limits of NRS 

207.012. See NRS 207.012. Moreover, Brown's punishment of concurrent 

life sentences without the possibility of parole is not disproportionate to 

his offenses, as he was convicted of three counts of burglary, three counts 

of robbery, and had been convicted of similar charges six times in the past. 

Therefore, the district court's punishment does not constitute cruel and 

unusual punishment under the Eighth Amendment of the United States 

Constitution. 

Indigent Defense Fund payment 

Brown argues that the district court erred by ordering him to 

pay $250 to the Indigent Defense Fund without making findings as to his 

ability to pay. We disagree. 

Brown failed to raise this issue at district court. When a party 

fails to object below, appellate review is precluded unless it rises to the 

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level of plain error. Mclellan, 124 Nev. at 269, 182 P.3d at 110. Plain 

error exists when the error was clear and it affects a defendant's 

substantial rights. Id. 

A district court may order the defendant to pay all or part of 

the state's expenses; however, it must consider the defendant's financial 

resources. Truesdell v. State, 129 Nev. „ P.3d , (Adv. 

Op. No. 20, Apr. 4, 2013) (citing NRS 178.3975(1)). Even where a district 

court does not make specific findings when ordering a defendant to pay 

the Indigent Defense Fund, a defendant must demonstrate how the 

payment affects his or her substantial rights. Id. 

Here, Brown has failed to show how his substantial rights 

were affected. Therefore, we conclude that the district court did not 

commit plain error by requiring Brown to pay $250 to the Indigent 

Defense Fund. 

Cumulative error 

Finally, Brown argues that if individual error is not enough to 

reverse, the cumulative effect of all the errors warrants reversal. We 

disagree. "Relevant factors to consider in evaluating a claim of cumulative 

error are (1) whether the issue of guilt is close, (2) the quantity and 

character of the error, and (3) the gravity of the crime charged." Mulder v. 

State, 116 Nev. 1, 17, 992 P.2d 845, 854-55 (2000). Here, the issue of guilt 

was not close on the offenses, some of which were violent, and there are no 

erros to cumulate. Therefore, we conclude that this claim of cumulative 

error has no merit. 

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Having considered all of Brown's arguments, we conclude that 

they lack merit as set forth above. Accordingly, we 

ORDER the judgment of the district court AFFIRMED. 

Gibbons 

Saitta 

cc: Hon. David B. Barker, District Judge 

Clark County Public Defender 

Attorney General/Carson City 

Clark County District Attorney 

Eighth District Court Clerk 

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