                     limited them to choosing black, white, or Asian, stating that only those
                     three races existed. As a result, several Hispanic venirepersons were told
                     that they could not identify as such and were reclassified as one of the
                     three races specified by the district court. Gardner claims that this
                     required Hispanic venirepersons to violate their oaths to be truthful and
                     "skewed" the racial make-up of the venire to make it appear that there
                     were more African Americans. Primarily, we note that race is a social
                     construct, not a biological one, and that the district court's understanding
                     of race is outdated and inaccurate. See Saint Francis College v. Al-
                     Khazraji, 481 U.S. 604, 610 n.4 (1987); see also Lisa K. Pomeroy,
                     Restructuring Statistical Policy Directive No. 15: Controversy over Race
                     Categorization and the 2000 Census, 32 U. Tol. L. Rev. 67, 69 (2000).
                     Regardless, a fair cross section challenge is not limited to racial
                     classifications. See Williams, 121 Nev. at 940, 125 P.3d at 631; Berghuis
                     v. Smith, 559 U.S. 314„ 130 S. Ct. 1382, 1388, (2010) (noting that a
                     defendant need only show that the group alleged to be excluded is a
                     distinctive group in the community). While we are concerned by the
                     district court's actions in this case, we discern no cognizable error from the
                     record and conclude that no relief is warranted.
                                 Third, Gardner argues that the district court abused its
                     discretion when it denied his request to represent himself. Although a
                     criminal defendant has the right to represent himself, a district court
                     must first "ensure that the defendant is competent and that the waiver of
                     counsel is knowing, voluntary, and intelligent." Hvmon v. State, 121 Nev.
                     200, 212, 111 P.3d 1092, 1101 (2005). We give deference to a district
                     court's determination of whether a defendant fully understands the
                     disadvantages and attendant risks of self-representation. Graves v. State,

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                112 Nev. 118, 124, 912 P.2d 234, 238 (1996) ("Through face-to-face
                interaction in the courtroom, the trial judges are much more competent to
                judge a defendant's understanding than this court."). Considering the
                record as a whole, and giving deference to the findings of the district court,
                we conclude that the district court did not abuse its discretion in denying
                Gardner's request. See Gallego v. State, 117 Nev. 348, 362, 23 P.3d 227,
                236-37 (2001).
                            Fourth, Gardner argues that the district court abused its
                discretion by denying his request for the appointment of new counsel.
                Absent a showing of adequate cause, a defendant is not entitled to reject
                his court-appointed counsel and request substitution of other counsel at
                public expense. Garcia v. State, 121 Nev. 327, 337, 113 P.3d 836, 842
                (2005), holding modified on other grounds by Mendoza v. State, 122 Nev.
                267, 274, 130 P.3d 176, 180 (2006). In this case, the district court inquired
                into Gardner's reasons for wanting to dismiss counsel and determined that
                none had merit. See id. at 337-38, 113 P.3d at 842-433 (an irreconcilable
                conflict or significant breakdown requires more than a client's
                unsubstantiated allegations of inattention or failure to follow the client's
                wishes). Having considered the extent of the alleged conflict between
                Gardner and his counsel, the timeliness of his motion, and the adequacy of
                the district court's inquiry into his complaints, we conclude that the
                district court did not abuse its discretion in denying Gardner's request. Id.
                            Fifth, Gardner claims that the district court violated his right
                to due process by denying his request for a mistrial when a police officer
                testified that Gardner had been arrested before. Gardner notes, and the
                State concedes, that the district court applied the incorrect standard in
                denying his motion for a mistrial. While the district court erroneously

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                applied the manifest necessity standard, we conclude the district court did
                not abuse its discretion in denying the motion. See Rudin v. State, 120
                Nev. 121, 142-43, 86 P.3d 572, 586 (2004). To determine whether a
                reference to prior criminal activity necessitates a mistrial, a court may
                consider "(1) whether the remark was solicited by the prosecution; (2)
                whether the district court immediately admonished the jury; (3) whether
                the statement was clearly and enduringly prejudicial; and (4) whether the
                evidence of guilt was convincing." Geiger v. State, 112 Nev. 938, 942, 920
                P.2d 993, 995-96 (1996). Here, the statement was spontaneously given in
                response to a question from the defense, the defense asked that the
                district court instruct the jury to disregard the statement before
                deliberations, and the statement was not enduringly prejudicial.
                Moreover, there was overwhelming evidence that Gardner entered the bar
                on two occasions with the intent to commit larceny. See Sherman v. State,
                114 Nev. 998, 1008, 965 P.2d 903, 910 (1998); NRS 205.060. The bar area
                of the establishment was obviously closed to the public, and, in order to
                gain access, Gardner had to enter through an employee doorway and crawl
                under the bar. Gardner brought with him an empty duffle bag and
                immediately left on a bicycle positioned directly outside the nearest exit
                but far from any entrance. The thefts were caught on videotape and
                witnessed by security officers. Accordingly, we conclude that Gardner is
                not entitled to relief on this claim.
                             Sixth, Gardner claims that the district court abused its
                discretion by refusing his proposed negatively-phrased jury instruction.
                The district court denied his instruction on the grounds that it was
                cumbersome and that it was substantially covered by other instructions.
                We disagree. "A positive instruction as to the elements of the crime does

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                not justify refusing a properly worded negatively phrased position or
                theory instruction." Brooks v. State, 124 Nev. 203, 211, 180 P.3d 657, 662
                (2008) (internal quotation marks and alternation omitted). "[T]he district
                court is ultimately responsible for not only assuring that the substance of
                the defendant's requested instruction is provided to the jury, but that the
                jury is otherwise fully and correctly instructed." Crawford v. State, 121
                Nev. 744, 754-55, 121 P.3d 582, 589 (2005). Here, Gardner's instruction
                was an accurate statement of the law which clearly informed jurors if they
                were to find that he formed the intent to steal after he entered the bar he
                was not guilty of the crime. Thus, the district court should have given the
                instruction or a version thereof. See id. However, because there was
                overwhelming evidence of his guilt, we conclude that any error in failing to
                give the instruction was harmless beyond a reasonable doubt. See Allred
                v. State, 120 Nev. 410, 415, 92 P.3d 1246, 1250 (2004).
                                             Seventh, Gardner argues that the district court violated his
                right to due process by sentencing him as a habitual offender based on ten
                prior convictions when it was only presented with nine. Because Gardner
                failed to object below, we review for plain error affecting his substantial
                rights. See NRS 178.602; Cordova v. State, 116 Nev. 664, 666, 6 P.3d 481,
                482-83 (2000). Because the district court and defense counsel indicated
                that the correct number of prior convictions were presented at the time of
                sentencing, and Gardner failed to demonstrate otherwise, we conclude
                that the district court did not plainly err. See Patterson v. State, 111 Nev.
                1525, 1530, 907 P.2d 984, 987 (1995) ("An error is plain if the error is so
                unmistakable that it reveals itself by a casual inspection of the record."
                (all quotation marks omitted)). Moreover, even assuming that a prior
                conviction was missing from the packet at the time of sentencing, any

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                   1,-;4,-;:f;62.?'"::' ,7.i:;.. •                      ,                    MCW'gr&O
                      error was harmless because the district court was presented with far more
                      than the requisite number of prior convictions to sentence Gardner as a
                      habitual offender and its comments at sentencing indicate that the
                      sentence would not have been different. See NRS 207.010(1)(a).
                                  Eighth, Gardner argues that cumulative error entitles him to
                      relief. Having considered Gardner's claims, we conclude that no relief is
                      warranted. See Big Pond v. State, 101 Nev. 1, 3, 692 P.2d 1288, 1289
                      (1985) (relevant considerations "include whether the issue of innocence or
                      guilt is close, the quantity and character of the error, and the gravity of
                      the crime charged"). Accordingly, we
                                  ORDER judgment of conviction AFFIRMED.



                                                                                        J.
                                                         Gibbons


                                                                           I   ‘44      J.



                                                                                        J.
                                                         Saitta


                      cc: Hon. Valorie J. Vega, District Judge
                           Clark County Public Defender
                           Attorney General/Carson City
                           Clark County District Attorney
                           Eighth District Court Clerk




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