Richard (Cris) v. State ( 2014 )

 and Richard exchange a handshake. When the codefendant returned to
the officer, he provided him with two plastic baggies containing marijuana
in exchange for $20. Shortly after this exchange, police apprehended
Richard and discovered four individually packaged baggies of marijuana,
five individually packaged baggies containing cocaine, wadded US
currency, and a firearm on Richard's person. We conclude that a rational
juror could infer from these circumstances that Richard committed the
crimes charged. See NRS 202.350(1)(d)(3); NRS 453.321(1)(a); NRS
453.337(1); NRS 453.401(1); Doyle v. State, 112 Nev. 879, 894, 921 P.2d
901, 911 (1996) (holding that "a conspiracy conviction may be supported by
a coordinated series of acts," in furtherance of the criminal purpose,
"sufficient to infer the existence of an agreement") (internal quotation
marks omitted), overruled on other grounds by Kaczmarek v. State, 120
Nev. 314, 91 P.3d 16 (2004).
Second, Richard claims that the district court erred by •
allowing police officers to testify as experts without having been noticed as
experts or qualified to provide expert opinion testimony when officers
testified as to their training and experience regarding the sale of narcotics.
Richard did not properly preserve this argument, and he has failed to
demonstrate plain error. See Green v. State, 119 Nev. 542, 545, 80 P.3d
93, 95 (2003) ("In conducting plain error review, we must examine
whether there was error, whether the error was plain or clear, and
whether the error affected the defendant's substantial rights." (internal
quotation marks omitted)); see also Grey v. State, 124 Nev. 110, 120, 178
P.3d 154, 161 (2008) (recognizing that, in order to properly preserve an
objection, a defendant must object at trial on the same ground he or she
asserts on appeal, absent plain or constitutional error). The officers'
SUPREME COURT
OF
NEVADA
2
(0) I94Th
testimony consisted of their observations and personal knowledge as lay
witnesses. See Crowe v. State, 84 Nev. 358, 362, 441 P.2d 90, 92 (1968)
("Lay witnesses . . . who are sufficiently trained and experienced, may
testify at the discretion of the trial court relative to the use and influence
of narcotics."), modified on other grounds by Tellis v. State, 84 Nev. 587,
590, 445 P.2d 938, 940 (1968). Therefore, we conclude that the district
court did not err by allowing the testimony.
Third, Richard contends that the State committed
prosecutorial misconduct during closing argument by misstating the
State's burden of proof, making a veiled comment on Richard's right to
remain silent, and injecting personal beliefs as to the strength of the case
and Richard's guilt. Richard did not object to the prosecutor's comments
at trial, therefore we review for plain error. Valdez v. State, 124 Nev.
1172, 1190, 196 P.3d 465, 477 (2008). The State properly commented on
the evidence presented and asked the jury to draw inferences from that
evidence. See State v. Green, 81 Nev. 173, 176, 400 P.2d 766, 767 (1965)
("The prosecutor ha[s] a right to comment upon the testimony and to ask
the jury to draw inferences from the evidence, and has the right to state
fully his views as to what the evidence shows."). In response to Richard's
opening statement, in which he claimed that he was in the wrong place at
the wrong time, the prosecutor pointed out that there was no evidence to
support that theory but that there was direct evidence to the contrary.
See Evans v. State, 117 Nev. 609, 631, 28 P.3d 498, 513 (2001) (holding
that a prosecutor may "properly argue that the defense failed to
substantiate its theory with supporting evidence"). We conclude that
Richard fails to demonstrate plain error.
SUPREME COURT
OF
NEVADA
3
(0) 1947A
Fourth, Richard contends that the prosecutor committed
misconduct during closing argument by claiming that the firearm
discovered was a "dangerous weapon capable of firing [a] .22 round" when
no evidence had been introduced to support this claim. Richard objected,
and the district court overruled the objection, finding that it was argument
and that the jury could decide, based on the evidence presented, whether
the statement was accurate. When considering allegations of
prosecutorial misconduct, we first determine whether the prosecutor's
conduct was improper and then whether any improper conduct warrants
reversal. See Valdez, 124 Nev. at 1188, 196 P.3d at 476. Even assuming
that the argument about the functionality of the firearm constituted
prosecutorial misconduct, we conclude that it was harmless error. Id. at
1188-89, 196 P.3d at 476-77.
Having considered Richard's claims and concluded that no
relief is warranted, we
ORDER the judgment of conviction AFFIRMED.
C.J.
Gibboris
J. J.
Pickering Saitta
cc: Hon. Jerome T. Tao, District Judge
Law Office of Scott P. Eichhorn, LLC
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
4
(0) 1947A