                 An original aggressor has a self-defense right
                               The settling of jury instructions is reviewed for an abuse of
                 discretion, but whether a jury instruction accurately states the law is
                 reviewed de novo. Fu,nderburk v. State, 125 Nev. 260, 263, 212 P.3d 337,
                 339 (2009).
                               In setting forth "sample [jury] instructions" on self-defense,
                 the court in Runion v. State stated the following: "The right of self-defense
                 is not available to an original aggressor, that is a person who has sought a
                 quarrel with the design to force a deadly issue and thus through his fraud,
                 contrivance or fault, to create a real or apparent necessity for making a
                 felonious assault." 116 Nev. 1041, 1051, 13 P.3d 52, 58-59 (2000)
                 (emphasis added). In offering this and other sample jury instructions, the
                 Runion court cautioned district courts that whether the instructions in its
                 opinion "are appropriate in any given case depends upon the testimony
                 and evidence of that case."    Id.   It directed the district courts to "tailor
                 instructions to the facts . . , rather than simply relying on 'stock'
                 instructions." Id. at 1051, 13 P.3d at 59. As is evident from the Runion
                 court's directives, its sample instructions are not a comprehensive
                 articulation of the law that governs original aggressors and self-defense.
                               While the parties dispute the applicability of self-defense
                 caselaw from other jurisdictions, we need not look beyond Nevada law to
                 determine that original aggressors have a right to self-defense. The
                 matter of Culverson v. State, 106 Nev. 484, 797 P.2d 238 (1990), and NRS
                 200.200(2) are particularly instructive.
                               In Culverson, the defendant was convicted of first-degree
                 murder with the use of a deadly weapon. 106 Nev. at 486, 797 P.2d at
                 239. According to the defendant's testimony, he shot another man in self-
                 defense after the other man "pointed a gun at [the defendant]."       Id. The
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                  testimony of witnesses conflicted as to who was the original aggressor: the
                  defendant or the man who died.           See id.   On appeal, the defendant
                  contested a jury instruction that conditioned a self-defense right on a duty
                  to retreat. Id. at 488, 797 P.2d at 240. The Culverson court held that "a
                  person who as a reasonable person believes that he is about to be killed or
                  seriously injured by his assailant does not have a duty to retreat unless he
                  is the original aggressor." Id. at 489, 797 P.2d at 241 (emphasis added).
                  In imposing a duty to retreat on an original aggressor in the context of
                  discussing a right of self-defense,         CuIverson indicates that original
                  aggressors possess such a right that is conditioned on satisfying the duty
                  to retreat. See id.
                              NRS 200.200 also provides for an original aggressor's right of
                  self-defense:
                                  If a person kills another in self-defense, it must
                                  appear that:
                                     1. The danger was so urgent and pressing
                              that, in order to save the person's own life, or to
                              prevent the person from receiving great bodily
                              harm, the killing of the other was absolutely
                              necessary; and
                                        2. The person killed was the assailant, or
                                  that the slayer had really, and in good faith,
                                  endeavored to decline any further struggle before
                                  the mortal blow was given.
                  (Emphasis added.) This language indicates that if the person killed was
                  not the "assailant," or the original aggressor, then the slayer, who was the
                  original aggressor, may have still justifiably killed in self-defense if he or
                  she first made a good-faith effort "to decline any further struggle." NRS
                  200.200(2); see also State v. Hall, 54 Nev. 213, 243, 13 P.2d 624, 633 (1932)
                  ("It is true that a person must be without fault in bringing on an

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                     encounter before he can justify a killing on the ground of self-defense, or
                     else must have endeavored in good faith to decline any further struggle
                     before the mortal blow was given." (emphasis added)). These
                     circumstances that justify a homicide also justify the "infliction . . . of
                     bodily injury." NRS 200.275.
                           The district court abused its discretion by giving the disputed jury
                           instruction but did not abuse its discretion by refusing to give
                           Tagubansa's proposed jury instruction
                                 Here, the district court's original-aggressor jury instruction
                     conveyed that original aggressors lack a self-defense right. As is apparent
                     from the law above, this instruction was incorrect and incomplete.       See
                     NRS 200.200(2); NRS 200.275; Culverson, 106 Nev. at 489, 797 P.2d at
                     241. Since this abuse of discretion concerned Tagubansa's theory of the
                     case, it was an error of constitutional dimension.     See United States v.
                     Sayetsitty, 107 F.3d 1405, 1414 (9th Cir. 1997).
                                 Although Tagubansa offered a jury instruction about an
                     original aggressor's self-defense right in mutual combat, it was
                     incomplete. The proposed instruction stated, in relevant part, that "Ulf a
                     victim engaged in a mutual combat escalates the level of force with the use
                     or attempted use of a deadly weapon, the original aggressor may use
                     deadly force in necessary self-defense." This instruction failed to account
                     for the original aggressor's duty to retreat, Culverson, 106 Nev. at 489, 797
                     P.2d at 241, and to "decline any further struggle." NRS 200.200(2); see
                     also NRS 200.275; State v. Forsha, 8 Nev. 137, 140 (1872) (providing that
                     where a person engages in mutual combat and kills the other in so doing,
                     the killing is justifiable upon showing that the surviving killer attempted
                     to decline any further struggle). Thus, the district court did not abuse its
                     discretion in rejecting Tagubansa's proffered instruction.

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                          The district court's improper jury instruction was harmless error
                                Since the district court abused its discretion by proffering an
                    incorrect jury instruction, we now review whether this error was proven
                    harmless beyond a reasonable doubt.       Cortinas v. State, 124 Nev. 1013,
                    1027, 195 P.3d 315, 324 (2008). An erroneous instruction is harmless
                    beyond a reasonable doubt if a rational jury would have come to the same
                    verdict if properly instructed. Id. at 1029, 195 P.3d at 325.
                                Tagubansa testified that he fought and used his knife against
                    Miguel Gonzalez after challenging Gonzalez to box and in response to
                    Gonzalez grabbing a gun. In addition, there was testimony that
                    Tagubansa started the violent altercation by attacking Gonzalez. Since
                    the undisputed evidence demonstrated that Tagubansa was the initial
                    aggressor, he needed to retreat or to decline any further struggle to regain
                    the right to self-defense. Culverson, 106 Nev. at 489, 797 P.2d at 241; see
                    also NRS 200.200. However, there was no evidence presented that
                    Tagubansa made any attempt to retreat or to decline any further struggle.
                    Therefore, even if properly instructed about Tagubansa's right to self-
                    defense, a rational jury could not have found that Tagubansa acted in self-
                    defense. As a result, the district court's erroneous instruction was
                    harmless beyond a reasonable doubt and does not warrant reversal of
                    Tagubansa's conviction.
                    The prosecutorial misconduct
                                A prosecutor may not "disparage legitimate defense tactics."
                    Butler v. State, 120 Nev. 879, 898, 102 P.3d 71, 84 (2004). A criminal
                    conviction, however, is not easily overturned solely on a prosecutor's
                    comments. United States v. Young, 470 U.S. 1, 11 (1985).
                                If a defendant does not object to an error, then the error is
                    unpreserved and reviewed for plain error.     See Valdez v. State,   124 Nev.
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                      1172, 1190, 196 P.3d 465, 477 (2008) (reviewing unpreserved claims of
                      prosecutorial misconduct for plain error); Riddle v. State, 96 Nev. 589, 591,
                      613 P.2d 1031, 1033 (1980) (providing that one must make a
                      "contemporaneous objection" in order to preserve an issue for appeal). To
                      amount to plain error, "the defendant [must] demonstrate[ ] that the error
                      affected his or her substantial rights, by causing 'actual prejudice or a
                      miscarriage of justice."     Valdez, 124 Nev. at 1190, 196 P.3d at 477
                      (quoting Green v. State, 119 Nev. 542, 545, 80 P.3d 93,95 (2003)).
                                    The State made the following remarks about Tagubansa's
                      defense: (1) "[T]he defense conveniently leaves out lots of the facts . . . .
                      They want to find little issues and say, oh, this is a problem . . . . Mhey're
                      saying, look over here, look over here"; and (2) "Don't let this sleight of
                      hand, this smoke and mirrors, look over here, look over here, distract you
                      from the facts." The record does not indicate that Tagubansa's counsel
                      engaged in illegitimate defense tactics. Thus, these remarks were
                      improper.     See Rose v. State,   123 Nev. 194, 210-11, 163 P.3d 408, 419
                      (2007) (providing that it is improper to disparage the defendant's defense
                      by calling it smoke and mirrors); Butler, 120 Nev. at 898, 102 P.3d at 84
                      (providing that it is improper for a prosecutor to "disparage legitimate
                      defense tactics"). We, however, do not conclude that the State's remarks—
                      to which there was no contemporaneous objection—affected Tagubansa's
                      substantial rights. The remarks were therefore not plain error.
                      Nevertheless, we remind the State that such remarks are prosecutorial
                      misconduct.
                      Conclusion
                                    Because the facts presented at trial do not demonstrate that
                      Tagubansa acted in self-defense under Nevada law, the district court's

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                  erroneous jury instruction was harmless error. Furthermore, the State's
                  improper comments did not rise to the level of plain error. Accordingly, we
                              ORDER the judgment of the district court AFFIRMED.




                                                           /---LtA   Anti         , C.J.
                                                     Hardesty


                                                                                     J.
                                                     Parraguirre




                                                     Gibbons


                                                                                     J.




                  cc:   Hon. Patrick Flanagan, District Judge
                        Fahrendorf, Viloria, Oliphant & Oster, LLP
                        Attorney General/Carson City
                        Washoe County District Attorney
                        Washoe District Court Clerk




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                 SAITTA, J., with whom CHERRY, J., agrees, dissenting:
                             The majority concludes that because Tagubansa presented
                 facts at trial that could not establish that he had the right to self-defense
                 under Nevada law, the district court did not commit reversible error by
                 giving the erroneous jury instruction. Although I agree with most of the
                 majority's conclusions, I respectfully disagree with the majority's holding
                 that an original aggressor's right to self-defense is predicated on the
                 aggressor retreating or declining any further struggle and that the district
                 court's error in giving the erroneous jury instruction was harmless.
                 Therefore, I respectfully dissent.
                             Rather than maintaining this absolute rule, I would adopt the
                 well-reasoned rule employed in California that recognizes the distinction
                 between simple assault and deadly assault. In California, "if a victim of a
                 simple assault engages in a sudden and deadly counterassault, the
                 original aggressor need not attempt to withdraw, and may reasonably use
                 necessary force in self-defense." People v. Trevino, 246 Cal. Rptr. 357, 360
                 (Ct. App. 1988); see also People v. Gleghorn, 238 Cal. Rptr. 82, 85 (Ct. App.
                 1987) (holding that "when the victim of simple assault responds in a
                 sudden and deadly counter assault the original aggressor need not
                 attempt to withdraw and may use reasonably necessary force in self-
                 defense"). This rule recognizes the reality that simple assault and deadly
                 assault are different and provides that a defendant should not be required
                 to unreasonably attempt to retreat from deadly force because he instigated
                 an altercation involving non-deadly force.     See People v. Quach, 10 Cal.
                 Rptr. 3d 196, 201-02 (Ct. App. 2004) (holding that the victim of a simple
                 assault has no right to use deadly or excessive force against the original



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                 aggressor, and "[i]f the victim uses such force, the aggressor's right of self-
                 defense arises" (internal quotations omitted)).
                             While the facts presented by Tagubansa at trial do not
                 establish that he attempted to retreat or decline further struggle, this is
                 not necessary under the California rule in order for an original aggressor
                 to regain the right to self-defense. Therefore, I would reverse Tagubansa's
                 conviction and remand this case for a new trial.




                                                                                       J.
                                                      Saitta


                 I concur:




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