Gonzales (Yadhir) v. State ( 2015 )

 doubt." Mitchell v. State, 124 Nev. 807, 816, 192 P.3d 721, 727 (2008)
(internal quotations omitted). "This court will not disturb a jury verdict
where there is substantial evidence to support it, and circumstantial
evidence alone may support a conviction." Hernandez v. State, 118 Nev.
513, 531, 50 P.3d 1100, 1112 (2002).
As to the burglary count, Gonzales argues that the State failed
to prove beyond a reasonable doubt that he was involved in the break-in,
because the State's expert "could not testify with one hundred percent
accuracy that the prints found at the crime scene belonged to [Gonzales]."
Gonzales cites no authority for his implicit argument that beyond a
reasonable doubt requires an expert to testify with 100% certainty. See
Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987) ("It is appellant's
responsibility to present relevant authority and cogent argument; issues
not so presented need not be addressed by this court."). Further, Gonzales
misstates the expert's testimony. The State's expert acknowledged that
"[w]e don't testify to a hundred percent," but she testified unequivocally
that fingerprints recovered from the broken window pane were Gonzales's.
Accordingly, any rational trier of fact could have found that Gonzales was
involved with the break-in.
As to the home invasion count, Gonzales argues that the State
failed to prove beyond a reasonable doubt that he entered the dwelling. A
home invasion occurs when a person forcibly enters an inhabited dwelling
without the permission of the owner. See NRS 175.211; NRS 205.067. A
defendant has "entered" a building when any part of his person has
crossed the plane of "an area into which a reasonable person would
believe that a member of the general public could not pass without
authorization." Merlino v. State, 131 Nev., Adv. Op. 65, 357 P.3d 379, 385
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(Nev. Ct. App. 2015) (quoting People v. Valencia, 46 P.3d 920, 926 (Cal.
2002)). A dual-paned window, that had been intact when the homeowner
left was found partially broken upon his return. The exterior, but not the
interior, pane was broken, and Gonzales's fingerprints were found on the
interior side of the broken exterior pane.' The space between panes of an
intact dual-paned window is an area to which a reasonable person would
not believe the general public had access. Thus Gonzales's grasping of the
interior surface of the external window pane constituted an entry into the
dwelling, and any rational trier of fact could have found that Gonzales
entered the dwelling.
Gonzales next contends that several instances of prosecutorial
misconduct during closing arguments "tainted the trial." Where an
appellant preserved a claim at trial, we first consider whether the
prosecutor's conduct was improper and then determine whether any
improper conduct warrants reversal. Valdez v. State, 124 Nev. 1172, 1188,
196 P.3d 465, 476 (2008). Gonzales argues that the State overstated the
strength of the fingerprint evidence when the prosecutor asked,
rhetorically, why the fingerprints were certainly Gonzales's and excluded
everyone else in the world. Gonzales objected below. The State's
argument was a proper comment on the evidence where the State's expert
agreed that the fingerprints "only belong to one person and that one
person would be Yadhir Gonzales." See Miller v. State, 121 Nev. 92, 100,
110 P.3d 53, 59 (2005).
'The screen had been removed from the window prior to the pane
being broken.
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Gonzales failed to preserve the remainder of his prosecutorial-
misconduct claims. Where the claim of prosecutorial misconduct was not
• preserved at trial, we review the claim for plain error, that is that the
error is plain from the record and affected the appellant's substantial
rights. Valdez, 124 Nev. at 1190, 196 P.3d at 477. Gonzales argues that
the State vouched for the credibility of its fingerprint expert when the
prosecutor said (a) such experts are the most independent people in the
courtroom because they are already back at work comparing prints and (b)
such experts do not get a pay raise or increase in their profession if they
are able to match prints. He also argues that the latter comment
referenced facts not in evidence. Such• statements are not vouching as
they do not "place[ ] the prestige of the government behind the witness by
providing personal assurances of [her] veracity." Browning v. State, 120
Nev. 347, 359, 91 P.3d 39, 48 (2004) (internal quotations omitted).
Further, the latter comment was a reasonable inference from the expert's
testimony that she is neither encouraged nor discouraged from identifying
anyone.
Gonzales also argues that the State engaged in misconduct
when it accused the defense of distorting the issues by challenging the
fingerprint evidence. This was error as the State may not disparage the
defense. See Truesdell v. State, 129 Nev., Adv. Op. 20, 304 P.3d 396, 402
(2013). However, Gonzales has not demonstrated that the error affected
his substantial rights where there was overwhelming evidence that the
fingerprints were his.
Gonzales also argues that the State engaged in misconduct
when the prosecutor stated that he took "offense" to a defense argument
regarding the scientific validity of fingerprint evidence. This was error as
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a prosecutor may not inject his personal opinions or beliefs into the
arguments. Aesoph v. State, 102 Nev. 316, 322, 721 P.2d 379, 383 (1986).
However, Gonzales has not demonstrated that the error affected his
substantial rights where the comment was fleeting and the prosecutor
then returned to arguing the evidence.
Finally, Gonzales contends that the cumulative effect of the
errors violated his right to a fair trial. Gonzales neither stated the
cumulative-error test nor applied it and thus failed to provide this court
with cogent argument in support of his claim. We therefore need not
consider this claim. See Maresca, 103 Nev. at 673, 748 P.2d at 6.
For the foregoing reasons, we
ORDER the judgment of conviction AFFIRMED.
J.
Gibbons
, J.
Pickering
cc: Chief Judge, The Eighth Judicial District Court
Hon. Jack B. Ames, Senior Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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