                questioned the child regarding whether Colver and James were dating.
                The child, in accordance with Colver's instructions, told Smith that Colver
                and James were not dating.
                            On April 11, 2007, James and the child dropped Colver off at
                work and then went to a recreational facility. While there, the child called
                Smith and told him that she wanted to stay with him for a while because
                she was arguing with her mother. She additionally told Smith that she
                was out with James and that she would call him when she returned to her
                house so that he could pick her up. When she returned home, she packed
                a bag and called Smith to come get her, but never informed her mother or
                James that she was leaving. She provided Smith with the cross streets to
                her housing complex, as she did not want to give him the address because
                of her mother's rule that Smith could not know where they lived.
                            When Smith received the child's call, he did not understand
                why the child was with James and expressed that concern to his girlfriend,
                Stephanie Aragon. Smith then instructed Aragon to drive him to his
                mother's home, where he retrieved a baseball bat, and to his brother's
                home, where he retrieved a gun. Following the directions that the child
                provided, Aragon and Smith located the housing complex. They drove
                around the housing complex until they spotted the child in front of a house
                where a car that Colver had been seen driving was also parked. After the
                child got in the car, Aragon drove one block and stopped at a stop sign.
                Smith then exited the vehicle and returned to the house he believed James
                lived in, where James was in his bedroom watching television. After
                Smith entered the home, a fight ensued between Smith and James. Smith
                then shot James in the chest, killing him.



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                             A grand jury indicted Smith on charges of burglary while in
                possession of a deadly weapon and murder with use of a deadly weapon.
                Under the burglary charge, the State posed three theories of intent: intent
                to commit assault, battery and/or murder. Under the murder charge, the
                state also posed three theories: (1) killing with premeditation and
                deliberation, (2) felony murder, to wit, killing in an attempt to commit a
                burglary, and (3) killing as a result of a challenge to fight.
                             Smith filed a motion to strike felony murder as a theory of
                murder, arguing that the felony murder doctrine cannot apply to a
                burglary where the intent underlying the burglary is murder. In
                response, the State filed a motion to amend the indictment, which the
                district court granted. Instead of removing the felony murder theory of
                murder, the State amended the indictment to remove the intent to murder
                theory of burglary.
                            At trial, Dr. Timothy Dutra testified in place of the medical
                examiner who conducted James' autopsy. Prior to his testimony, Dr.
                Dutra reviewed photographs from the autopsy and the autopsy report. On
                direct examination, Dr. Dutra testified about his conclusions based on the
                photographs and autopsy report. In response to a juror question, Dr.
                Dutra also testified that it was his opinion that the gunshot wound was a
                long distance shot of a foot or more, which was consistent with the original
                medical examiner's opinion.
                            A jury found Smith guilty of burglary while in possession of a
                deadly weapon and murder with use of a deadly weapon.




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                                                     DISCUSSION
                   Amendment to Indictment
                               On appeal, Smith contends that the indictment became
                   defective when, after the grand jury issued its true bill, the State removed
                   the intent to murder theory of burglary. He argues the State does not
                   possess the authority to make such a substantive and prejudicial
                   amendment to the grand jury indictment.' The State asserts that it was
                   authorized to amend the grand jury indictment because Smith was not
                   prejudiced and was put on notice of the charges against him.
                               We review the district court's decision to allow the State to
                   amend its indictment for abuse of discretion.    See Green v. State, 94 Nev.
                   176, 177, 576 P.2d 1123, 1123 (1978). Pursuant to NRS 173.095(1), "Nile
                   court may permit an indictment or information to be amended at any time
                   before verdict or finding if no additional or different offense is charged and
                   if substantial rights of the defendant are not prejudiced."        (Emphasis
                   added).
                               The district court did not abuse its discretion in allowing the
                   indictment to be amended after the true bill was issued because it was
                   amended before the jury verdict was issued.        See id.   Additionally, the
                   State simply removed one theory of intent, without charging an additional
                   or different offense.   See id.   Further, Smith was not prejudiced by the
                   change. See id. The theory of intent removed from the burglary charge in
                   the amended indictment, intent to commit murder, is intent to commit a


                         "Smith contends that the district court should have dismissed the
                   felony murder charge instead of allowing the State to amend its
                   indictment.



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                   more serious offense than assault or battery, theories of intent that
                   remained in the amended indictment. Smith fails to demonstrate how the
                   State's decision to proceed on less serious theories of intent was prejudicial
                   to him. Therefore, the amendment to the indictment was not prejudicial,
                   and the district court did not abuse its discretion in allowing it.
                   Testimony of Substitute Medical Examiner
                                  Smith contends that the district court erred by allowing Dr.
                   Dutra to testify in place of the original medical examiner in violation of his
                   right to confront and cross examine witnesses against hirn. 2 He further
                   contends that because the State used Dr. Dutra's testimony regarding the
                   absence of soot and stippling 3 on James' clothes to argue that the killing
                   was committed from a distance and therefore premeditated, he was
                   prejudiced by his inability to controvert the soot and stippling evidence
                   through cross examination of the original examiner. The State argues
                   that Dr. Dutra's testimony was admissible because it was not offered to
                   prove the truth of the original examiner's reports, but to show the bases of
                   Dr. Dutra's opinion.
                                  We generally review claims of evidentiary error for an abuse of
                   discretion.     Holmes v. State, 129 Nev., Adv. Op. 59, 306 P.3d 415, 418
                   (2013) (internal citation omitted). However, this court has determined
                   that, where a       Crawford violation occurs, harmless error review is



                         2 Dr.   Dutra did not conduct a separate autopsy.

                         3 Soot
                              and stippling are substances that result from the firing of a
                   gun and they do not pass through clothing. They are caught on clothing
                   when the gun is fired at close range.



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                 appropriate. 4 Polk v. State, 126 Nev. Adv. Op. 19, 233 P.3d 357, 359
                 (2010). A doctor's testimony regarding his or her independent opinions
                 based on a report generated by another doctor does not violate the
                 confrontation clause because the testifying doctor's "judgment, proficiency,
                 and methodology [are] subject to cross-examination."      Vega v. State, 126
                 Nev. 332, 340, 236 P.3d 632, 638, (2010) (holding that testimony relating
                 to the content of such reports may violate the confrontation clause, but
                 testimony regarding the testifier's independent opinions does not).
                 Because Dr. Dutra's testimony related to his own opinions, for which he
                 was available for cross examination, Smith's confrontation right was not
                 violated. See id. To the extent that testimony regarding the content of the
                 autopsy report was admitted, we hold such error to be harmless.    See id.
                 Sufficiency of Evidence
                             Smith contends that the State failed to prove the mens rea
                 elements of both felony murder and burglary. In reviewing a claim of
                 insufficient evidence, "[t]he relevant inquiry is whether, after viewing the
                 evidence in the light most favorable to the prosecution, any rational trier
                 of fact could have found the essential elements of the crime beyond a
                 reasonable doubt."   Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d
                 1378, 1380 (1998) (internal quotation omitted). "Since the assaultor's



                       4"Under Crawford, the testimonial statement of an otherwise
                 unavailable witness is inadmissible "unless the defendant had an
                 opportunity to previously cross-examine the witness regarding the
                 witness's statement." Polk v. State, 126 Nev., Adv. Op. 19, 233 P.3d 357,
                 359 (2010) (internal quotations omitted).




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                state of mind is a subjective matter, the trier of the fact must resort to
                inferences from attendant circumstances to ascertain intent."     Wilson v.
                State, 85 Nev. 88, 90, 450 P.2d 360, 361-62 (1969).
                            Testimony supported the fact that Smith went to his mother's
                home to retrieve a bat and to his brother's home to retrieve a gun before
                proceeding to James' home and beating and shooting him to death. This,
                among other evidence of guilt, was sufficient to establish that Smith
                "enter[edr with the intent to commit an assault or battery, and therefore,
                a "rational trier of fact" could have found burglary.   See NRS 205.060(1);
                Origel-Candidoe, 114 Nev. at 381, 956 P.2d at 1380. Further, the burglary
                charge, which resulted in James' death, is then sufficient to establish
                felony murder. See Contreras v. State, 118 Nev. 332, 337, 46 P.3d 661, 664
                (2002) (holding that burglary is sufficient to uphold a separate felony-
                murder charge). Therefore, there was sufficient evidence to convict Smith
                of burglary while in possession of a deadly weapon and first degree
                murder with use of a deadly weapon. 5




                      5 Smith raises two additional issues on appeal. Smith first contends
                that the presumption of innocence jury instruction violated his right to
                due process because, although the instruction provided that the
                prosecution must prove every material element, the instruction failed to
                identify the material elements. This claim is meritless. See Nunnery v.
                State, 127 Nev., Adv. Op. 69, 263 P.3d 235, 259 (2011) ("This court has
                repeatedly upheld such language."). Smith's final contention is that
                cumulative error warrants reversal. Because the district court did not err,
                there is no cumulative error. See Rose v. State, 123 Nev. 194, 211, 163
                P.3d 408, 419 (2007) (discussing standard for cumulative error).




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                            Based on the foregoing, we ORDER the judgment of the
                district court AFFIRMED.




                                                  PaiTaguirre



                                                  Douglas


                                                     ci
                                                  Cherry
                                                                        J.




                cc:   Hon. Valerie Adair, District Judge
                      Special Public Defender
                      Attorney General/Carson City
                      Clark County District Attorney
                      Eighth District Court Clerk




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