Cooper, III (Dennis) v. State ( 2015 )

 beyond a reasonable doubt without additional evidence. Because
appellant has changed his theory for admitting the uncharged offense, we
need not consider this argument on appeal. See Ford v. Warden, 111 Nev.
872, 884, 901 P.2d 123, 130 (1995) (stating that appellant is not permitted
to change theory underlying assignment of error on appeal); McCall v.
State, 97 Nev. 514, 516, 634 P.2d 1210, 1212 (1981) ("Where evidence is
not offered for a particular purpose at trial, an appellate court will not
consider it for that purpose on appeal."). Moreover, the district court
concluded that the evidence was not relevant because the robbery was not
charged, the dismissal of the robbery by the State was not exculpatory,'
and the evidence did not tend to identify another perpetrator. It further
determined that appellant was amply able to pursue his theory regarding
the unreliability of eyewitness testimony through the charged acts. We
conclude the district court did not abuse its discretion by excluding
evidence regarding the uncharged robbery.
Next, appellant claims the State committed prosecutorial
misconduct by arguing facts not introduced into evidence when it argued
in closing that Jameke Fulcher was a passenger in the vehicle appellant
was driving on the day of his arrest. 2 In reviewing claims of prosecutorial
misconduct, we must first determine whether the prosecutor's conduct was
'The State indicated that it dismissed the charge due to witness-
availability problems
2 The record demonstrates that no objection was made at the time of
the comment but that an off-the-record bench conference occurred after
the State concluded its closing remarks; the district court later made a
record of the bench conference outside the presence of the jury.
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improper and, if so, whether the conduct warrants reversal. Valdez v.
State, 124 Nev. 1172, 1188, 196 P.3d 465, 476 (2008). An officer testified
that there were three people in the vehicle, two male and one female, and
a crime scene analyst testified that, while there was no one in the vehicle
when he arrived, there were people around the car who had been in it and
that Fulcher was on the scene when he arrived. We conclude that the
State's conduct was not improper because testimony reasonably suggested
that Fulcher was a passenger in the vehicle appellant was driving on the
day of his arrest. See Klein v. State, 105 Nev. 880, 884, 784 P.2d 970, 973
(1989) (holding that the prosecutor may argue reasonable inferences from
evidence presented at trial).
Having considered appellant's contentions and concluded that
no relief is warranted, we
ORDER the judgment of conviction AFFIRMED.
, C. J.
Parraguirre
J.
Douglas
cc: Hon. Kathleen E. Delaney, District Judge
Carl E. G. Arnold
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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