                of burglary."). Moreover, even assuming that Houtz's proposed instruction
                was a correct statement of the law, any error in failing to give the
                instruction was harmless beyond a reasonable doubt as the evidence was
                overwhelming that Houtz entered a residence that was not his own with
                the intent to commit a felony therein. See id.; Estes v. State, 122 Nev.
                1123, 1138, 146 P.3d 1114, 1124 (2006). Houtz's name was not on the
                lease, he did not have a key, he did not pay rent, and he lived in another
                apartment in the same complex. Any prior permission that Houtz had to
                enter the residence was clearly revoked when the victim left Houtz at a
                store and refused to let him in when he returned to her apartment and
                began angrily knocking on her locked door. Houtz then broke down the
                door and immediately attacked the victim. We conclude that Houtz is not
                entitled to relief on this claim.
                             Second, Houtz argues that the prosecutor inappropriately
                commented on Houtz's right to remain silent when he twice asked in
                closing argument why Houtz never said he lived at the residence in
                question. Because Houtz did not object to the statements, we review them
                for plain error affecting his substantial rights. See Dieudonne v. State,
                127 Nev. „ 245 P.3d 1202, 1204-05 (2011). The prosecutor's first
                statement referenced a notable omission during Houtz's conversation with
                police while he was not in custody and thus did not reference his right to
                remain silent. See State v. Taylor, 114 Nev. 1071, 1081-83, 968 P.2d 315,
                322-24 (1998) (non-custodial statements are admissible); Murray v. State,
                113 Nev. 11, 17 n.1, 930 P.2d 121, 125 n.1 (1997) (comments on pre-arrest
                silence are not improper). The prosecutor's second statement referenced a
                recorded conversation where Houtz referred to the apartment as the
                victim's and thus did not directly or indirectly comment on Houtz's

SUPREME COURT
        OF
     NEVADA

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(0) 1947A


                                      '             -   .
decision not to testify at trial. See Harkness v. State, 107 Nev. 800, 803,
820 P.2d 759, 761 (1991). We conclude that Houtz fails to demonstrate
plain error.
               Having considered Houtz's contentions and concluded that
they lack merit, we
               ORDER the judgment of conviction AFFIRMED.




                                   Gibbons


                                                                   J.



                                                                   J.
                                   Saitta


cc: Hon. Janet J. Berry, District Judge
     Washoe County Public Defender
     Attorney General/Carson City
     Washoe County District Attorney
     Washoe District Court Clerk




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