                merely surplusage that, in light of the significant evidence that the victim
                did not succumb to his wounds, did not amount to plain error that
                prejudiced Roberts' substantial rights. Third, although the instruction
                permitted the jury to presume intent to kill from the use of a deadly
                weapon, it did not mandate that the jury do so.          See NRS 47.230(2), (3)
                (providing that a "judge shall not direct the jury to find a presumed fact
                against the accused" but the judge may instruct "that the jury may regard
                the basic facts as sufficient evidence of the presumed fact"); see also Ricci
                v. State, 91 Nev. 373, 381, 536 P.2d 79, 83-84 (1975) (rejecting argument
                that similar instruction directed jury to find an intent or indicated that
                certain facts were established).
                            Second, Roberts argues that his conviction for battery with the
                use of a deadly weapon should be reversed because it is a lesser included
                offense of attempted murder. We have held, however, that the Legislature
                has authorized conviction and punishment for attempted murder and
                battery resulting in substantial bodily harm and that neither offense is a
                lesser included offense of the other.'       Jackson v. State, 128 Nev. Adv. Op.
                55, 291 P.3d 1274, 1279-82 (2012).
                            Third, Roberts argues that the jury failed to follow the jury
                instructions when it found him guilty of both attempted murder and

                      'The district court instructed the jury that battery with a deadly
                weapon is a lesser included offense of attempted murder. As the
                instruction misstated the law, we are not convinced that the instruction's
                omission of the "substantial bodily harm" aspect of the battery charge
                entitles appellant to any relief from the judgment of conviction. In
                particular, we note that "substantial bodily harm" was included in the
                instruction that set forth the elements of the battery charge and the
                parties apparently stipulated that the victim suffered substantial bodily
                harm.


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                   battery with the use of a deadly weapon and that this evidences jury
                   misconduct that warrants reversal of the judgment of conviction.          See
                   Valdez v. State, 124 Nev. 1172, 1186, 196 P.3d 465, 475 (2008) ("A jury's
                   failure to follow a district court's instruction is intrinsic juror
                   misconduct."). Because the relevant instruction did not clearly prohibit
                   convictions for both offenses, we conclude that the district court did not
                   abuse its discretion in concluding that the jury did not engage in
                   misconduct.    See Valdez, 124 Nev. at 1186, 196 P.3d at 475 (reviewing
                   motion for mistrial based on juror misconduct for abuse of discretion).
                                 Fourth, Roberts argues that the cumulative effect of errors
                   denied him a fair trial. As we have found no errors, there is nothing to
                   cumulate.
                                 Having considered Roberts' contentions and concluded that
                   they lack merit, we
                                 ORDER the judgment of conviction AFFIRMED.



                                                                        , J.
                                            Parraguirre


                    )ct) 0-61 P--5
                   Douglas                                     Cherry


                   cc:   Hon. Lidia Stiglich, District Judge
                         Edward T. Reed
                         Attorney General/Carson City
                         Washoe County District Attorney
                         Washoe District Court Clerk




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