Agudo (Antonio) v. State

 permit the trier of fact "to draw an inference that discrimination has
occurred." Johnson v. California, 545 U.S. 162, 170 (2005).
Agudo argues that he raised an inference of racial
discrimination because the State used a peremptory strike to remove the
only apparently Hispanic juror from the venire. Although Agudo is correct
that he did not need to show a pattern of discrimination in order to
establish a prima facie case, where there is no pattern of discrimination,
he had to "provide other evidence sufficient to permit an inference of
discrimination based on membership in the targeted group." Watson, 130
Nev. at , 335 P.3d at 166 (emphasis added). On appeal, Agudo argues
no other evidence that would allow an inference of discrimination. We
therefore conclude that the district court did not err in denying his Batson
challenge.
Second, Agudo contends that the district court abused its
discretion in admitting into evidence the actual firearm he was charged
with possession of because its presence would only inflame the passions of
the jury. We disagree. "We review a district court's decision to admit or
exclude evidence for an abuse of discretion." Mclellan v. State, 124 Nev.
263, 267, 182 P.3d 106, 109 (2008). Agudo offers no authority or cogent
argument as to how the admission of the subject of two of his counts would
improperly inflame the jury's passions. See Maresca v. State, 103 Nev.
669, 673, 748 P.2d 3, 6 (1987). We therefore conclude that the district
court did not abuse its discretion by admitting the firearm.
Third, Agudo contends that the district court abused its
discretion when it allowed in evidence that Agudo had thrown a
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hypodermic needle pulled from his pocket, because possession of such drug
paraphernalia constituted a prior bad act. We disagree. A hypodermic
needle is not "drug paraphernalia," NRS 453.554(2), such that its
possession is not a prior bad act. We therefore conclude that the district
court did not abuse its discretion by allowing the testimony.
Fourth, Agudo contends that the district court abused its
discretion in admitting photographs of Agudo without his shirt, because
they showed him in handcuffs and revealed body tattoos that could make
him appear to be a gang member We disagree. Agudo makes no cogent
argument as to why the jury would believe that his tattoos gave the
impression that he was a gang member. And we review his handcuff
claim for plain error since he did not preserve it below. See 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 asserts on appeal, absent plain or constitutional error).
Because the jury heard testimony and thus already knew that Agudo was
arrested and handcuffed after the police chase, he failed to demonstrate
that the admission of the photographs was error plain from the record.
See Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003) (stating that
the initial inquiry in plain-error review is determining whether there was
error and whether that error was plain). We therefore conclude that the
district court did not err by admitting the photographs.
Fifth, Agudo contends that the district court abused its
discretion in denying his motions in limine regarding the hypodermic
needle and photographs as untimely filed. Because the district court ruled
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on the admission of the pieces of evidence as they were presented at trial,
any error in summarily denying the motions prior to trial was harmless.
See Franklin v. State, 98 Nev. 266, 271, 646 P.2d 543, 546 (1982).
Accordingly, appellant is not entitled to relief on this ground.
Sixth, Agudo contends that the district court infringed on his
right to remain silent, because the "stock" jury instruction given
encouraged the jury to speculate about Agudo's reasons not to testify. We
disagree. We review the district court's decision to give or reject a jury
instruction for abuse of discretion or judicial error. Crawford v. State, 121
Nev. 744, 748, 121 P.3d 582, 585 (2005). The language to which Agudo
objected, "Thus, the decision as to whether he should testify is left to the
defendant on the advice and counsel of his attorney," did not encourage
speculation, especially where it was followed by a sentence admonishing
the jurors not to draw any inference of guilt from his lack of testimony.
See Tanksley v. State, 113 Nev. 844, 849, 944 P.2d 240, 243 (1997) ("[J]ury
instructions taken as a whole may be sufficient to cure an ambiguity in a
challenged instruction."). We therefore conclude that the district court
neither erred nor abused its discretion in giving the stock jury instruction.
Seventh, Agudo contends that the district court abused its
discretion by ignoring juror misconduct. We disagree. Juror misconduct
occurs either when a juror acts contrary to her instructions or oaths or
when a third party attempts to influence the jury process, and we review
the district court's actions for an abuse of discretion. Meyer v. State, 119
Nev. 554, 561, 80 P.3d 447, 453 (2003). Agudo does not allege any third-
party influence. Rather, he contends that a member of the venire panel
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committed misconduct by posting a comment on social media before jury
selection began. The comment was posted before any oath or admonition
was given and was thus not misconduct. We therefore conclude that the
district court did not abuse its discretion when it did not address the
alleged misconduct.
Eighth, Agudo contends that several instances of prosecutorial
misconduct denied him a fair trial. When reviewing allegations of
prosecutorial misconduct, 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). Because Agudo did not object to the comments, we review his
claim to determine "whether there was 'error,' whether the error was
'plain' or clear, and whether the error affected the defendant's substantial
rights." Green, 119 Nev. at 545, 80 P.3d at 95.
Agudo first points to the prosecutor's comment during voir
dire about an "ideal world" and argues that the comment was an improper
expression of his personal belief and shifted the burden of proof to Agudo.
We disagree. The challenged comment was made after discussions with a
potential juror who repeatedly stated his belief that once the State
presented evidence of guilt, the defendant should have to present rebuttal
evidence. After extensive discussion with the potential juror and shortly
before he was dismissed for cause, the prosecutor responded, "In an ideal
world, I guess it would be so." This was not error plain from the record.
Agudo next points to the prosecutor's comment in closing
argument that the gun found in Agudo's girlfriend's purse was "not a
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woman's gun" and argues that the comment was unsupported by the
evidence presented at trial. We agree. The prosecutor's comment was not
supported by evidence and was thus improper. See Rose v. State, 123 Nev.
194, 209, 163 P.3d 408, 418 (2007). However, there was substantial
evidence of guilt of the charges involving the gun such that the verdict
would be the same without the error. See Steese v. State, 114 Nev. 479,
496, 960 P.2d 321, 332 (1998) (stating the standard for determining
whether substantial rights were affected). Agudo inexplicably grabbed his
girlfriend's purse as he fled, threw it on the roof of a residence when the
police officer cornered him, and had bullets in his pocket that matched
those in the gun that was found inside the purse. We therefore conclude
that the error did not affect Agudo's substantial rights.
Agudo then points to the prosecutor's comment in closing
argument that the jury could tell Agudo that his crimes are "not
acceptable in this community" and argues that it was an impermissible
appeal to community standards or moral conscience. The prosecutor did
not exhort the jury to be the "conscience of the community," Schoels v.
State, 114 Nev. 981, 987, 966 P.2d 735, 739 (1998), and we conclude that
this comment was not error plain from the record.
Finally, Agudo contends that cumulative error warrants
reversal of his convictions. In determining whether cumulative errors
warrant relief, the relevant factors we consider are "(1) whether the issue
of guilt is close, (2) the quantity and character of the error, and (3) the
gravity of the crime charged." Valdez, 124 Nev. at 1195, 196 P.3d at 481
(quoting Mulder v. State, 116 Nev. 1, 17, 992 P.2d 845, 854-55 (2000)).
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Here, there was overwhelming evidence of guilt, the crimes were not
grave, and the few errors we have identified were not egregious.
We have reviewed Agudo's claims, and for the foregoing
reasons conclude they are without merit. Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Saitta
J.
cc: Eighth Judicial District Court, Dept. 2
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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