VALENTINE (KEANDRE) VS. STATE ( 2019 )


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  •                                    135 Nev., Advance Opinion 62,
    IN THE SUPREME COURT OF THE STATE OF NEVADA
    KEANDRE VALENTINE,                                      No. 74468
    Appellant,
    vs.
    THE STATE OF NEVADA,
    Respondent.
    E;
    CLE
    BY
    DEPUTY
    Appeal from a judgment of conviction, pursuant to a jury
    verdict, of seven counts of robbery with the use of a deadly weapon, three
    counts of burglary while in possession of a deadly weapon, two counts of
    possession of credit or debit card without cardholder's consent, and one
    count each of attempted robbery with the use of a deadly weapon and
    possession of document or personal identifying information for the purpose
    of establishing a false status or identity. Eighth Judicial District Court,
    Clark County; Richard Scotti, Judge.
    Vacated and remanded.
    Darin F. Imlay, Public Defender, and Sharon G. Dickinson, Deputy Public
    Defender, Clark County,
    for Appellant.
    Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District
    Attorney, Krista D. Barrie, Chief Deputy District Attorney, and Michael R.
    Dickerson, Deputy District Attorney, Clark County,
    for Respondent.
    BEFORE HARDESTY, STIGLICH and SILVER, JJ.
    OPINION
    By the Court, STIGLICH, J.:
    A defendant has the right to a jury chosen from a fair cross
    section of the community, as guaranteed by the Sixth and Fourteenth
    Amendments to the United States Constitution. This court has addressed
    the showing a defendant must make to establish a prima facie violation of
    this right. We have said little, however, about when an evidentiary hearing
    may be warranted on a fair-cross-section claim. Faced with that issue in
    this case, we hold that an evidentiary hearing is warranted on a fair-cross-
    section challenge when a defendant makes specific allegations that, if true,
    would be sufficient to establish a prima facie violation of the fair-cross-
    section requirement. Because the defendant in this matter made specific
    factual allegations that could be sufficient to establish a prima facie
    violation of the fair-cross-section requirement and those allegations were
    not disproved, the district court abused its discretion by denying Valentine's
    request for an evidentiary hearing. None of Valentine's other claims
    warrant a new trial. We therefore vacate the judgment of conviction and
    remand for further proceedings as to the fair-cross-section challenge.
    BACKGROUND
    Appellant Keandre Valentine was convicted by a jury of
    multiple crimes stemming from a series of five armed robberies in Las
    Vegas, Nevada. Before trial, Valentine objected to the 45-person venire and
    claimed a violation of his right to a jury selected from a fair cross section of
    the community. He argued that two distinctive groups in the community—
    African Americans and Hispanics—were not fairly and reasonably
    represented in the venire when compared with their representation in the
    community. Valentine asserted that the underrepresentation was caused
    by systematic exclusion, proffering two theories as to how the system used
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    11•11WM=1•1                                               111-1111t1
    in Clark County excludes distinctive groups. His first theory was that the
    system did not enforce jury summonses; his second theory was that the
    system sent out an equal number of summonses to citizens located in each
    postal ZIP code without ascertaining the percentage of the population in
    each ZIP code. Valentine requested an evidentiary hearing, which was
    denied. The district court found that the two groups were distinctive groups
    in the community and that one group—Hispanics—was not fairly and
    reasonably represented in the venire when compared to its representation
    in the community.           However, the district court found that the
    underrepresentation was not due to systematic exclusion, relying on the
    jury commissioner's testimony regarding the jury selection process two
    years earlier in another case and on this court's resolution of fair-cross-
    section claims in various unpublished decisions. The court thus denied the
    constitutional challenge.
    DISCUSSION
    Fair-cross-section challenge warranted an evidentiary hearing
    Valentine claims the district court committed structural error
    by denying his fair-cross-section challenge without conducting an
    evidentiary hearing. We review the district court's denial of Valentine's
    request for an evidentiary hearing for an abuse of discretion. See Berry v.
    State, 
    131 Nev. 957
    , 969, 
    363 P.3d 1148
    , 1156 (2015) (reviewing denial of
    request for an evidentiary hearing on a postconviction petition for a writ of
    habeas corpus); accord United States v. Schafer, 
    625 F.3d 629
    , 635 (9th Cir.
    2010) (reviewing denial of request for an evidentiary hearing on a motion to
    dismiss an indictment); United States v. Terry, 
    60 F.3d 1541
    , 1544 n.2 (11th
    Cir. 1995) (reviewing denial of request for an evidentiary hearing on fair-
    cross-section challenge to statute exempting police officers from jury
    service).
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    "Both the Fourteenth and the Sixth Amendments to the United
    States Constitution guarantee a defendant the right to a trial before a jury
    selected from a representative cross-section of the community." Evans v.
    State, 
    112 Nev. 1172
    , 1186, 
    926 P.2d 265
    , 274 (1996). While this right does
    not require that the jury "mirror the community and reflect the various
    distinctive groups in the population," it does require "that the jury wheels,
    pools of names, panels, or venires from which juries are drawn must not
    systematically exclude distinctive groups in the community and thereby fail
    to be reasonably representative thereof." Id. at 1186, 
    926 P.2d at 274-75
    (internal quotation marks omitted). "Thus, as long as the jury selection
    process is designed to select jurors from a fair cross section of the
    community, then random variations that produce venires without a specific
    class of persons or with an abundance of that class are permissible."
    Williams v. State, 
    121 Nev. 934
    , 940, 
    125 P.3d 627
    , 631 (2005).
    A defendant alleging a violation of the right to a jury selected
    from a fair cross section of the community must first establish a prima facie
    violation of the right by showing
    (1) that the group alleged to be excluded is a
    "distinctive" group in the community; (2) that the
    representation of this group in venires from which
    juries are selected is not fair and reasonable in
    relation to the number of such persons in the
    community; and (3) that this underrepresentation
    is due to systematic exclusion of the group in the
    jury-selection process.
    Evans, 112 Nev. at 1186, 
    926 P.2d at 275
     (quoting Duren v. Missouri, 
    439 U.S. 357
    , 364 (1979)). To determine "[w]hether a certain percentage is a
    fair representation of a group," this court uses "the absolute and
    comparative disparity between the actual percentage in the venire and the
    percentage of the group in the community." Williams, 121 Nev. at 940 n.9,
    4
    
    125 P.3d at
    631 n.9. And to determine whether systematic exclusion has
    been shown, we consider if the underrepresentation of a distinctive group is
    "inherent in the particular jury-selection process utilized." Evans, 112 Nev.
    at 1186-87, 
    926 P.2d at 275
     (internal quotation marks omitted). Only after
    a defendant demonstrates a prima facie violation of the right does "the
    burden shift [ 1 to the government to show that the disparity is justified by
    a significant state interest." Id. at 1187, 
    926 P.2d at 275
    .
    Here, Valentine asserted that African Americans and Hispanics
    were not fairly and reasonably represented in the venire. Both African
    Americans and Hispanics are recognized as distinctive groups. See id.; see
    also United States v. Esquivel, 
    88 F.3d 722
    , 726 (9th Cir. 1996). And the
    district court correctly used the absolute and comparative disparity between
    the percentage of each distinct group in the venire and the percentage in
    the community to determine that African Americans were fairly and
    reasonably represented in the venire but that Hispanics were not. See
    Williams, 121 Nev. at 940 n.9, 
    125 P.3d at
    631 n.9 ("Comparative disparities
    over 50% indicate that the representation of [a distinct group] is likely not
    fair and reasonable."). The district court denied Valentine's challenge as to
    Hispanics based on the third prong—systematic exclusion.
    We conclude the district court abused its discretion in denying
    Valentine's request for an evidentiary hearing. Although this court has not
    articulated the circumstances in which a district court should hold an
    evidentiary hearing when presented with a fair-cross-section challenge, it
    has done so in other contexts. For example, this court has held that an
    evidentiary hearing is warranted on a postconviction petition for a writ of
    habeas corpus when the petitioner has "assert[ed] claims supported by
    specific factual allegations [that are] not belied by the record [and] that, if
    true, would entitle him to relief." Mann v. State, 
    118 Nev. 351
    , 354, 46 P.3d
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    1228, 1230 (2002); see also Hargrove v. State, 
    100 Nev. 498
    , 502, 
    686 P.2d 222
    , 225 (1984). Most of those circumstances are similarly relevant when
    deciding whether an evidentiary hearing is warranted on a defendant's fair-
    cross-section challenge, given the defendant's burden of demonstrating a
    prima facie violation. In particular, it makes no sense to hold an evidentiary
    hearing if the defendant makes only general allegations that are not
    sufficient to demonstrate a prima facie violation or if the defendant's
    specific allegations are not sufficient to demonstrate a prima facie violation
    as a matter of law. See Terry, 
    60 F.3d at
    1544 n.2 (explaining that no
    evidentiary hearing is warranted on a fair-cross-section challenge if no set
    of facts could be developed that "would be significant legally"). But unlike
    the postconviction context where the claims are case specific, a fair-cross-
    section challenge is focused on systematic exclusion and therefore is not
    case specific. Because of that systematic focus, it makes little sense to
    require an evidentiary hearing on a fair-cross-section challenge that has
    been disproved in another case absent a showing that the record in the prior
    case is not complete or reliable. With these considerations in mind, we hold
    that an evidentiary hearing is warranted on a fair-cross-section challenge
    when a defendant makes specific allegations that, if true, would be
    sufficient to establish a prima facie violation of the fair-cross-section
    requirement.2
    I-For the reasons stated herein, it was error for the district court to
    rely upon the jury commissioner's prior testimony in denying Valentine's
    challenge. That is not to say a district court may never rely upon prior
    testimony when appropriate.
    2We  note that, in order to meet the burden of demonstrating an
    evidentiary hearing is warranted, a defendant may subpoena supporting
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    Applying that standard, we conclude that Valentine was
    entitled to an evidentiary hearing as to his allegation of systematic
    exclusion of Hispanics. Valentine did more than make a general assertion
    of systematic exclusion. In particular, Valentine made specific allegations
    that the system used to select jurors in the Eighth Judicial District Court
    sends an equal number of jury summonses to each postal ZIP code in the
    jurisdiction without ascertaining the percentage of the population in each
    ZIP code. Those allegations, if true, could establish underrepresentation of
    a distinctive group based on systematic exclusion. Cf. Garcia-Dorantes v.
    Warren, 
    801 F.3d 584
    , 591-96 (6th Cir. 2015) (discussing a prima facie case
    of systematic exclusion where a computer used a list to determine the
    percentage of jurors per ZIP code, but because of a glitch, the list included
    a higher number of persons from certain ZIP codes that had smaller
    proportions of African Americans than the community at large). And those
    allegations were not addressed in the jury commissioner's prior testimony
    that the district court referenced.3 Accordingly, the district court could not
    documents and present supporting affidavits. See Hargrove, 100 Nev. at
    502-03, 
    686 P.2d at 225
    .
    3Even  if the jury commissioner's previous testimony addressed
    Valentine's specific allegations of systematic exclusion, reliance on the old
    testimony would have been misplaced. In particular, the prior testimony
    mentioned that the system was ``‘moving towards a new improved jury
    selection process" and legislative amendments regarding the juror selection
    process were implemented close in time to Valentine's trial. See 2017 Nev.
    Stat., ch. 549, §§ 1-5, at 3880-84. While prior testimony relevant to a
    particular fair-cross-section challenge may obviate the need for an
    evidentiary hearing, a district court should be mindful that it not rely upon
    stale evidence in resolving such challenges.
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    rely on the prior testimony to resolve Valentines allegations of systematic
    exclusion.    Having alleged specific facts that could establish the
    underrepresentation of Hispanics as inherent in the jury selection process,
    Valentine was entitled to an evidentiary hearing.4 Accordingly, the district
    court abused its discretion by denying Valentine's request for an evidentiary
    hearing.5 We therefore vacate the judgment of conviction and remand to
    the district court for an evidentiary hearing. Cf. State v. Ruscetta, 
    123 Nev. 299
    , 304-05, 
    163 P.3d 451
    , 455 (2007) (vacating judgment of conviction and
    remanding where district court failed to make factual findings regarding
    motion to suppress and where record was insufficient for appellate review).
    Thereafter, Valentine's fair-cross-section challenge should proceed in the
    manner outlined in Evans, 112 Nev. at 1186-87, 
    926 P.2d at 275
    . If the
    district court determines that the challenge lacks merit, it may reinstate
    the judgment of conviction, except as provided below.
    Sufficiency of the evidence
    Valentine argues the State presented insufficient evidence to
    support his convictions for robbery with the use of a deadly weapon in
    counts 4 and 9. In considering a claim of insufficient evidence, we "view[
    the evidence in the light most favorable to the prosecution" to determine
    4It is unclear that Valentines allegations regarding the enforcement
    of jury summonses would, if true, tend to establish underrepresentation as
    a result of systematic exclusion. See United States v. Orange, 
    447 F.3d 792
    ,
    800 (10th Cir. 2006) ("Discrepancies resulting from the private choices of
    potential jurors do not represent the kind of constitutional infirmity
    contemplated by Duren."). Accordingly, he was not entitled to an
    evidentiary hearing as to those allegations.
    5We reject Valentine's contention that the district court's failure to
    hold an evidentiary hearing evinced judicial bias resulting in structural
    error.
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    whether "any rational trier of fact could have found the essential elements
    of the crime beyond a reasonable doubt." McNair u. State, 
    108 Nev. 53
    , 56,
    
    825 P.2d 571
    , 573 (1992) (quoting Jackson v. Virginia, 
    443 U.S. 307
    , 319
    (1979)).
    NRS 200.380(1) defines the crime of robbery as
    [T]he unlawful taking of personal property from the
    person of another, or in the person's presence,
    against his or her will, by means of force or violence
    or fear of injury, immediate or future, to his or her
    person or property, or the person or property of a
    member of his or her family, or of anyone in his or
    her company at the time of the robbery.6
    Additionally, we have held that the State must show that the victim had
    possession of or a possessory interest in the property taken. See Phillips v.
    State, 
    99 Nev. 693
    , 695-96, 
    669 P.2d 706
    , 707 (1983).
    The challenged robbery counts stem from a similar fact pattern.
    Beginning with count 4, Valentine was charged with robbing Deborah
    Faulkner of money; Valentine was also charged with robbing Darrell
    Faulkner, Deborah's husband, of money in count 3. Valentine was convicted
    of both counts. However, when viewed in a light most favorable to the
    prosecution, the evidence produced at trial was insufficient to support a
    robbery charge as it related to Deborah. While the evidence established
    that Valentine took $100 that Darrell removed from his own wallet, the
    evidence demonstrated that Valentine demanded Deborah to empty her
    6The Legislature amended NRS 200.380, effective October 1, 2019.
    2019 Nev. Stat., ch. 76, § 1, at 408. While the amendments do not affect our
    analysis in this matter, we have quoted the pre-amendment version of NRS
    200.380 that was in effect at the time of the events underlying this appeal.
    1995 Nev. Stat., ch. 443, § 60, at 1187.
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    =E1111111                                                     ,11111111=11
    purse onto the ground but actually took nothing from it. There was no
    evidence that Deborah had possession of, or a possessory interest in, the
    money from Darrell's wallet.7 Thus, the State presented insufficient
    evidence for count 4, and the conviction for that count cannot be sustained.
    Similarly, in count 9, Valentine was charged with robbing
    Lazaro Bravo-Torres of a wallet and cellular telephone; Valentine was also
    charged with robbing Rosa Vasquez-Ramirez, Lazaro's wife, of a purse,
    wallet, and/or cellular telephone in count 11. Valentine was convicted of
    both counts. Yet viewing the evidence in a light most favorable to the
    prosecution, the evidence did not establish that Valentine robbed Lazaro.
    Specifically, Lazaro testified that he told Valentine he did not have cash or
    a wallet on him and that his phone, located in the center compartment of
    the truck, was not taken but was used by the couple after the incident was
    over. Conversely, Rosa testified that Valentine took her purse along with
    the items in it. The evidence presented by the State did not establish that
    Lazaro had possession of, or a possessory interest in, the items taken,8 and
    thus the conviction for count 9 cannot be sustained.
    Prosecutorial misconduct regarding DNA evidence
    Valentine contends that the State engaged in prosecutorial
    misconduct during closing argument when discussing the deoxyribonucleic
    acid (DNA) evidence. In considering a claim of prosecutorial misconduct,
    7We   are unconvinced by the State's argument that the singular fact
    of Darrell and Deborah being married, without more, demonstrated that the
    money in Darrell's wallet was community property of the marriage such
    that Deborah had a possessory interest in it. See NRS 47.230(3).
    8We  again reject the State's argument that the mere fact that Lazaro
    and Rosa were married demonstrated that Lazaro had a possessory interest
    in Rosa's purse or the items therein. See id.
    10
    we determine whether the conduct was improper and, if so, whether the
    improper conduct merits reversal. Valdez v. State, 
    124 Nev. 1172
    , 1188, 
    196 P.3d 465
    , 476 (2008).
    During the trial, the State presented an expert witness to
    testify about the DNA results from a swab of the firearm found in the
    apartment where Valentine was discovered. The expert testified generally
    about the procedures her laboratory uses for DNA analysis. She explained
    that samples are tested at the same 15 locations, or loci, on the DNA
    molecule and a DNA profile results from the alleles, or numbers, obtained
    from each of the 15 locations.9 When complete information from each of the
    15 locations is obtained, the result is a full DNA profile; anything less
    produces a partial DNA profile. The results of the DNA testing process
    appear as peaks on a graph, and it is those peaks that the expert interprets
    and uses to make her determinations. In considering the information on a
    graph, the expert indicated that her laboratory uses a threshold of 200—
    anything over 200 is usable information, while anything below 200 is not
    used "because it's usually not reproducible dat[a]," meaning if the sample
    was tested again, "ifs so low that [she] might get that same information,
    [she] might not."10 The expert maintained that sometimes DNA
    information is obtained "but it's not good enough for us to make any
    determinations on. So in that case we call it inconclusive."
    9The  expert added that her laboratory also looks at an additional
    location, the amelogenin, in order to determine the gender of the individual
    represented in the sample.
    loThe expert also testified that anything below 40 indicated that there
    was no actual DNA profile. She explained that her laboratory uses the
    thresholds "to make sure that when we say that there is a good, usable DNA
    profile, that it's actually a good, useable DNA profile."
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    As to the results of the swab from the firearm, the expert
    testified that she "did not obtain a useable profile, so there was no
    comparison made." She stated that the laboratory thresholds were not met
    and thus "the profile was inconclusive." The only conclusion the expert was
    able to make was that the partial DNA profile obtained from the firearm
    swab was consistent with a mixture of at least two persons and that at least
    one of the persons was male.
    During the expert's testimony, the State offered three exhibits:
    one was a summary, side-by-side comparative table of the DNA information
    collected from the firearm swab and from Valentine; and two were graphs
    of the specific information collected from the firearm swab and Valentine,
    both graphs showing peaks of information alongside a scale indicating the
    laboratory's threshold limits. Valentine objected to the admission of the
    graphs, arguing that they could be confusing to the jury, that the jurors
    should not be drawing their own conclusions from the graphs, and that he
    did not want the jurors to think they could discern something from the
    graphs that the expert could not. The district court overruled Valentine's
    objection, finding the graphs relevant to the expert's methodology and
    reliability.11
    Regarding the summary, side-by-side table, the expert testified
    that every tested location of the firearm swab, save for the location used to
    nValentine argues the district court abused its discretion in
    admitting the graphs. We cannot say the admission of the graphs to show
    methodology and reliability was an abuse of discretion. But while the
    graphs may have been relevant for such purposes, the manner in which the
    information was used by the State, as discussed below, strongly undermined
    the district court's reasoning for admitting the evidence. See NRS 47.110
    (discussing the limited admissibility of evidence and, upon request, the need
    for an instruction to restrict the jury's consideration to the proper scope).
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    determine gender, resulted in either an "NR," meaning no DNA profile was
    obtained from that particular location, or an asterisk, indicating
    information was present but "it was so low that [she was] not even going to
    do any comparisons or say anything."
    Regarding the graphs, the State went through the tested
    locations of the firearm swab and, while continuously commenting that the
    results were below the laboratory's 200 threshold, asked the expert to
    identify the alleles for which there were peaks of information. In going
    through the peaks of information from the firearm swab, the State also
    intermittently mentioned the corresponding locations and, ostensibly
    matching, alleles found in Valentine's DNA profile. During cross-
    examination, the expert repeated the 200 threshold and explained that she
    does not look at information below that threshold, even if it is close, because
    it could be incorrect. Valentine asked the expert if she had anything she
    wanted to add in response to the States line of questioning regarding each
    of the locations tested, and the expert reiterated the following:
    [T]he profile [from the firearm swab] was
    inconclusive, and we call it inconclusive because
    there wasn't enough DNA. . . [A]nd we call that
    inconclusive . . . because if I re-ran that exact same
    sample, I don't know what kind of results I would
    come up with. It may be the same, it may be
    different. So that's why we're not saying that the
    DNA profile definitely came from the defendant,
    because it's inconclusive to me.
    [The thresholds] exist for a reason.
    Because we don't want to present information
    that may not be correct or overemphasize
    something, you know, saying yes, this person is
    there, when it may not be true because our data is
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    not supporting that it's a strong DNA profile. So
    we want to be sure when we say theres a match,
    that it is, in fact, a match.
    We don't want to make the wrong conclusions on
    the item that we're looking at.
    Despite the expert's testimony, the State pointed to the two
    graphs and argued that the jurors could assess for themselves whether
    Valentines DNA profile matched the DNA profile from the firearm swap.
    During closing argument, the State made the following comments:
    You heard about the DNA evidence in this
    case. Now, the scientist came in. She told you she
    could not make any results. The results that she
    had for the swab of the gun were below the
    threshold. But we went through every single one.
    And that's something you need to also take a look at
    when you go back there, just to see what you think
    for yourself. When we went through and looked at
    the items below the 200 threshold, but above the 40
    threshold this is what we found. We found that the
    swab of the handgun revealed a 12 and a 13 allele.
    Mr. Valentine, a 12 and a 13 allele. The swab also
    [had] a 28 allele on the next [location]. A 28 allele
    on that same [location] for Mr. Valentine.
    (Emphases added.) Valentine objected and argued that the States own
    expert said that such a comparison was improper. The district court
    overruled the objection, finding the prosecutor was merely arguing that
    some weight should be given to the evidence and stating it was up to the
    jury to decide the weight to give the evidence. The State continued:
    [I]t's worth takhig into consideration. You are here
    for two weeks. Look at all the evidence. This is
    part of the evidence. You heard that under each
    [location] there is a number of alleles. And here,
    though, yeah, maybe the threshold is under 200,
    14
    there's something here. But just consider for
    yourself.
    Next, we have the [location] on the swab of
    the handgun, 15 and 16. Mr. Valentine also at 15
    and 16. Next [location] at 7; Mr. Valentine also at
    7. Next [location] at 12 and 13; Mr. Valentine also
    at 12 and 13. So on and so forth, matching.
    Ladies and gentlemen, ifs just worth
    considering. Take a look at it. See what you think.
    Make your own determination.12
    (Emphases added.)
    Without reservation, we conclude the prosecutor's closing
    argument was improper. "[A] prosecutor may argue inferences from the
    evidence and offer conclusions on contested issuee during closing
    argument, but "[a] prosecutor may not argue facts or inferences not
    supported by the evidence." Miller v. State, 
    121 Nev. 92
    , 100, 
    110 P.3d 53
    ,
    59 (2005) (internal quotation marks omitted). Here, the State presented an
    12In  his closing argument, Valentine attempted to rebut the State's
    presentation of the evidence:
    The DNA analysis, she seemed to really know
    her stuff. States expert. They put her on. What
    did she testify to? Well, she testified to a lot with
    the State and she looked extremely uncomfortable,
    which was clarified on cross that, a lot of this, well,
    the peaks, theres a little bit of peak that sort of
    matches him. She was very uncomfortable about
    that because as she said on cross, thafs not how it
    works. It's not reliable under a certain level. They
    can't say inside—for scientific certainty that ifs
    even possible. Ifs even plausible, because they
    might get totally different results if they run it
    again. That's why she was uncomfortable testifying
    to that.
    15
    expert witness to testify as to the DNA results obtained from the swab of
    the firearm. See United States v. McCluskey, 
    954 F. Supp. 2d 1224
    , 1253
    (D.N.M. 2013) ("[J]urors can understand and evaluate many types of
    evidence, but DNA evidence is different and a prerequisite to its admission
    is technical testimony from experts to show that correct scientific
    procedures were followed." (internal quotation marks omitted)). The
    purpose of expert testimony "is to provide the trier of fact [with] a resource
    for ascertaining truth in relevant areas outside the ken of ordinary laity."
    Townsend v. State, 
    103 Nev. 113
    , 117, 734 R2d 705, 708 (1987); see also
    NRS 50.275 ("If scientific, technical or other specialized knowledge will
    assist the trier of fact to understand the evidence or to determine a fact in
    issue, a witness qualified as an expert . . . may testify to matters within the
    scope of such knowledge."). But after presenting its expert to testify about
    a subject outside the ordinary range of knowledge for jurors, the State
    disregarded that testimony and invited the jury to make inferences that the
    expert testified were not supported by the DNA evidence. The State asked
    the jury to consider evidence about which the expert was emphatic she could
    make no conclusions, save for her overall conclusion that the evidence was
    consistent with a mixture of at least two persons, at least one of whom was
    male. The State then asked the jury to compare the unusable profile to
    Valentines DNA profile. This is precisely what the expert said she could
    not do because it would be unreliable. See Hallmark v. Eldridge, 
    124 Nev. 492
    , 500, 
    189 P.3d 646
    , 651 (2008) (holding that expert witness "testimony
    will assist the trier of fact only when it is relevant and the product of reliable
    methodolog? (footnote omitted)). No evidence was introduced, statistical
    or otherwise, regarding the significance or meaning of the data that fell
    below the 200 threshold. To the contrary, the only evidence presented was
    that such information produced an unusable profile and was not considered
    16
    by the expert. It is hard to imagine what weight could be ascribed to
    evidence that was described only as inconclusive, unusable, and
    incomparable. Rather, the States use of the expert's testimony can better
    be viewed as taking advantage of the "great emphasis" or the "status of
    mythic infallibility" that juries place on DNA evidence. People v. Marks,
    
    374 P.3d 518
    , 525 (Colo. App. 2015) (internal quotation marks omitted).
    Simply put, the prosecution argued facts not in evidence and inferences not
    supported by the evidence. This was improper.
    We nevertheless conclude that the improper argument would
    not warrant reversal of Valentines convictions because it did not
    substantially affect the jury's verdict. See Valdez, 124 Nev. at 1188-89, 
    196 P.3d at 476
    . There was evidence presented that Valentine handled the gun
    and multiple victims identified Valentine as the perpetrator. Thus, the
    error was harmless, and Valentine is not entitled to a new trial based on
    the prosecutorial misconduct. 13
    CONCLUSION
    The district court abused its discretion in denying Valentines
    request for an evidentiary hearing on his fair-cross-section challenge. We
    therefore vacate the judgment of conviction and remand for the district
    court to conduct an evidentiary hearing and resolve the fair-cross-section
    challenge. None of Valentines other arguments require a new trial.
    Accordingly, if the district court determines on remand that the fair-cross-
    section challenge lacks merit, it may reinstate the judgment of conviction
    13We have considered Valentines remaining contentions of error and
    conclude no additional relief is warranted.
    17
    except as to the convictions for counts 4 and 9, which were not supported by
    sufficient evidence.14
    J.
    Stiglich
    We concur:
    Hardesty
    J.
    Silver
    '4This opinion constitutes our final disposition of this appeal. Any
    future appeal following remand shall be docketed as a new matter.
    18