already knew that accidental discharges do occur and that the parties had 

stipulated to that fact. We conclude from this record that the district 

court did not abuse its discretion by refusing to admit the video into 

evidence. 

Proposed defense instructions 

Robbins claims that the district court erred by refusing to give 

his proposed instructions on trespass because they supported his theory of 

defense that Christopher Mundy was a trespasser and he used reasonable 

force to remove Mundy from his property. "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). "[A] defendant is 

entitled to a jury instruction on his theory of the case, so long as there is 

evidence to support it, regardless of whether the evidence is weak, 

inconsistent, believable, or incredible." Hoagland v. State, 126 Nev. , 

, 240 P.3d 1043, 1047 (2010). However, a defendant is not entitled to 

instructions that are "misleading, inaccurate or duplicitous." Carter v. 

State, 121 Nev. 759, 765, 121 P.3d 592, 596 (2005). Here, the record 

reveals that the district court heard argument on Robbins' proposed 

trespass instructions and found that they were misleading and inaccurate 

because they emphasized the crime of trespass and improperly suggested 

that if the jury found that the victim had trespassed then it could find that 

Robbins acted in self-defense and that the homicide was justifiable. The 

record further reveals that the jury was instructed on justifiable homicide, 

self-defense, and defense of property. We conclude from this record that 

the district court did not abuse its discretion by rejecting Robbins' 

proposed trespass instructions. 

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Prosecutorial misconduct 

Robbins claims that the prosecutor committed misconduct 

during closing argument by mischaracterizing the evidence and inflaming 

the passions of the jury. In particular, Robbins takes exception to the 

prosecutor's comments that "he came out of his house, guns blazing," he 

"executed the victim," and he "could see the victim's hands" at the time of 

the shooting. However, Robbins did not object to the prosecutor's 

comments and he has not demonstrated plain error because there was no 

error. See Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008) 

(reviewing unpreserved claims of prosecutorial misconduct for plain error); 

Parker v. State, 109 Nev. 383, 392, 849 P.2d 1062, 1068 (1993) 

("Statements by the prosecutor, in argument, indicative of his or her 

opinion, belief, or knowledge as to the guilt of the accused, when made as a 

deduction or a conclusion from evidence introduced in the trial, are 

permissible and unobjectionable." (first alteration, internal quotation 

marks, and brackets omitted)). 

Juror misconduct 

Robbins claims that juror misconduct occurred when victim 

Pablo Flores' mother entered the courtroom bathroom immediately upon 

seeing a juror enter the bathroom. Robbins argues that the district court 

should have initiated an inquiry to determine what, if anything, the 

mother told the juror, and he asserts that the district court's failure to 

conduct such an inquiry constitutes reversible error. However, Robbins' 

claim is belied by the record, which clearly demonstrates that the district 

court inquired as to whether any jurors had had a conversation with a 

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member of the victim's family while in the public restroom and determined 

that no such conversations had occurred. Accordingly, this claim is 

without merit. See generally Meyer v. State, 119 Nev. 554, 563-64, 80 P.3d 

447, 455 (2003) (to prevail on a claim of juror misconduct, a "defendant 

must present admissible evidence sufficient to establish: (1) the occurrence 

of juror misconduct, and (2) a showing that the misconduct was 

prejudicial"). 

NRS 47.080 violation 

Robbins claims that the district court violated NRS 47.080 by 

failing to conduct its hearings on the admissibility of evidence outside the 

hearing of the jury. Robbins asserts that the jury was able to hear 

inadmissible evidence through the courtroom walls and that defense 

counsel was cautioned that the jury might be able to hear him during a 

bench conference. Robbins argues that the jury was prejudiced by hearing 

inadmissible evidence and he was deprived of his constitutional right to a 

fair and impartial jury. However, Robbins did not preserve this issue for 

appeal and he has not demonstrated plain error because there was no 

error, See NRS 47.080 ("[H]earings on preliminary questions of 

admissibility . . . shall to the extent practicable . . . be conducted out of the 

hearing of the jury." (emphasis added)); Gallego v. State, 117 Nev. 348, 

365, 23 P.3d 227, 239 (2001) (reviewing unpreserved claims for plain 

error), abrogated on other grounds by Nunnery v. State, 127 Nev. , 

& n.12, 263 P.3d 235, 253 & n.12 (2011). 

Failure to preserve evidence 

Robbins claims that the State's failure to preserve the vehicle 

driven by Christopher Mundy and the district court's refusal to instruct 

the jury pursuant to Sanborn v. State, 107 Nev. 399, 408, 812 P.2d 1279, 

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1286 (1991) (an adverse instruction informing the jury that the lost 

evidence is irrebuttably presumed to be unfavorable to the State), 

deprived him of a fair trial. 

This court has consistently held that in order to 

establish a due process violation resulting from 

the state's loss or destruction of evidence, a 

defendant must demonstrate either (1) that the 

state lost or destroyed the evidence in bad faith, or 

(2) that the loss unduly prejudiced the defendant's 

case and the evidence possessed an exculpatory 

value that was apparent before the evidence was 

destroyed. 

Klein v. Warden, 118 Nev. 305, 313, 43 P.3d 1029, 1034 (2002) (internal 

quotation marks and brackets omitted). The limited record that Robbins 

provided on this issue does not demonstrate that the State acted in bad 

faith or that he was prejudiced by the loss of the vehicle. Accordingly, we 

conclude that Robbins has not established a due process violation in this 

regard. 

Cruel and unusual punishment 

Robbins claims that his sentence of life imprisonment with the 

possibility of parole for the second-degree murder count constitutes cruel 

and unusual punishment because it is disproportionate to his crime. 

Robbins asserts that he was a hard-working family man; had no prior 

criminal history; and was acting in self-defense, the defense of others, and 

the defense of his property when he killed Christopher Mundy. However, 

Robbins does not claim that the relevant statute is unconstitutional, see 

Blume v. State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996), his sentence 

falls within the parameter of that statute, see NRS 200.030(5)(a), and we 

are not convinced that the sentence is so grossly disproportionate to the 

gravity of the offense as to shock the conscience, see Harmelin v. Michigan, 

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Pickering 

Parraguirre 

J. 

501 U.S. 957, 1000-01 (1991) (plurality opinion); Blume, 112 Nev. at 475, 

915 P.2d at 284. Accordingly, we conclude that Robbins' sentence does not 

violate the constitutional proscriptions against cruel and unusual 

punishment.' 

Cumulative error 

Robbins claims that cumulative error deprived him of a fair 

trial and requires reversal of his conviction. However, Robbins has failed 

to demonstrate any error, and we conclude that he was not deprived of fair 

trial due to cumulative error. 

Having concluded that Robbins is not entitled to relief, we 

ORDER the judgment of conviction AFFIRMED. 2 

'To the extent that Robbins also claims that the district court 

abused its discretion by imposing a greater sentence than the sentence 

recommended by the Division of Parole and Probation, our review of the 

record reveals that the Division recommended a sentence of life 

imprisonment with the possibility of parole for the second-degree murder 

count. 

2We deny Robbins' motion for oral argument. 

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cc: Hon. Robert W. Lane, District Judge 

The Law Office of Dan M. Winder, P.C. 

Nye County District Attorney 

Attorney General/Carson City 

Nye County Clerk 

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