                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                  ELVIS WELLS, JR.,                                     No. 68242
                  Appellant,
                  vs.
                  THE STATE OF NEVADA,                                       FILED
                  Respondent.
                                                                              MAY 0 9 2016


                                          ORDER OF AFFIRMANCE
                              This is an appeal from a judgment of conviction, pursuant to a
                  jury verdict, of conspiracy to commit robbery, conspiracy to commit
                  burglary, burglary while in possession of a firearm, assault with a deadly
                  weapon, and attempted robbery with use of a deadly weapon. Eighth
                  Judicial District Court, Clark County; Jessie Elizabeth Walsh, Judge.
                              Appellant contends that the district court erred when it
                  admitted into evidence a still photograph taken from a surveillance video
                  after the court had previously excluded the surveillance video because of
                  its late disclosure. Appellant specifically argues that the statement made
                  by his codefendant's counsel in her opening statement could not open the
                  door to the inadmissible evidence because opening statements are not
                  evidence. Because the opening statement may have cast doubt as to
                  whether a gun was pointed in a victim's face, the district court did not
                  abuse its discretion in admitting a still photograph from the surveillance
                  video that demonstrated a gun was pointed in the victim's face.            See

                  Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008) ("We review
                  a district court's decision to admit or exclude evidence for an abuse of
                  discretion."); see also Cordova v. State, 116 Nev. 664, 670, 6 P.3d 481, 485
                  (2000) (explaining that a defendant may open the door, permitting the
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                                                                                                   (Tit
                    State to introduce evidence that it could not otherwise offer); .Bergeron v.
                    State, 913 So. 2d 997, 1002 (Miss. Ct. App. 2005) (providing that "the
                    defendant may 'open the door' by mentioning during opening statements
                    the evidence which they are seeking to be excluded from the prosecution's
                    case-in-chief, thus giving the prosecution the opportunity to incorporate
                    the evidence into its case-in-chief').
                                 Appellant also argues that the district court abused its
                    discretion by giving the jury a flight instruction over his objection because
                    there was insufficient evidence of flight. "[A] district court may properly
                    give a flight instruction if the State presents evidence of flight and the
                    record supports the conclusion that the defendant fled with consciousness
                    of guilt and to evade arrest." Bosky v. State, 121 Nev. 184, 199, 111 P.3d
                    690, 699-700 (2005). While we review the district court's decision to issue
                    a jury instruction for an abuse of discretion, Ouanbengboune v. State, 125
                    Nev. 763, 774, 220 P.3d 1122, 1129 (2009), "[b]ecause of the possibility of
                    undue influence by [a flight] instruction, this court carefully scrutinizes
                    the record to determine if the evidence actually warranted the
                    instruction," Weber v. State, 121 Nev. 554, 582, 119 P.3d 107, 126 (2005).
                                 The record demonstrates that there was evidence sufficient to
                    support at least an inference that appellant fled. Evidence was admitted
                    that appellant drove away from the area where the crime had occurred
                    without turning on his headlights. The officer who pulled appellant over
                    testified that he had to prompt appellant to pull over using his
                    loudspeaker multiple times before appellant complied, and that while
                    appellant had opportunities to pull over he took a longer-than-normal time
                    to do so. Additionally, appellant's codefendant was riding in the backseat,
                    which had access to the trunk that could not be opened from the outside,

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                and evidence of the crime, including the gun, was located in the trunk of
                the car. Therefore, the district court did not abuse its discretion by issuing
                the flight instruction to the jury.   Ouanbengboune, 125 Nev. at 774, 220
                P.3d at 1129. Accordingly, we
                            ORDER the judgment of conviction AFFIRMED.


                                                                Ritn Satt                   J.
                                                             Hardesty..



                                                             Saitta
                                                                      i)   a.
                                                                                            J.




                cc: Hon. Jessie Elizabeth Walsh, District Judge
                     Law Office of Benjamin Nadig, Chtd.
                     Nguyen & Lay
                     Attorney General/Carson City
                     Clark County District Attorney
                     Eighth District Court Clerk




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