                 requirements of NRS 174.234(2). "The district court has discretion to
                 determine the admissibility of expert testimony, and we review this
                 decision for a clear abuse of discretion." Sampson v. State, 121 Nev. 820,
                 827, 122 P.3d 1255, 1259 (2005). NRS 174.234(2) requires a party offering
                 expert testimony to provide to the opposing party, not less than 21 days
                 prior to trial, written notice containing a copy of the expert's curriculum
                 vitae, a brief statement regarding the subject matter and substance of the
                 expert's testimony, and a copy of all reports made by the expert. If the
                 State fails to provide this notice, the district court "may order the [State]
                 to permit the discovery or inspection of materials not previously disclosed,
                 grant a continuance, or prohibit the [State] from introducing in evidence
                 the material not disclosed, or it may enter such other order as it deems
                 just under the circumstances." NRS 174.295(2);                see also   NRS
                 174.234(3)(b), (6). In fashioning a remedy for a discovery violation, "[t]his
                 court will not find an abuse of discretion. . . unless there is a showing that
                 the State has acted in bad faith, or that the non-disclosure results in
                 substantial prejudice to appellant." Jones v. State, 113 Nev. 454, 471, 937
                 P.2d 55, 66 (1997) (internal quotation marks omitted).
                             Gonzalez claims that the report was not disclosed until eight
                 days before trial and that the State's course of conduct demonstrates bad
                 faith. He further alleges that he was unfairly prejudiced from preparing a
                 proper defense and that the prejudice became evident on cross-
                 examination when the expert lacked knowledge regarding the calibration
                 of the testing instrument used. The State acknowledged that it did not
                 provide the expert's report until eight days before trial but claimed that
                 Itlypically we don't have chemists test the drugs on cases such as this,
                 until we are sure it is going to trial On calendar call we call them up and

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                  say, test it fast and we'll send the report over at that time" The State
                  argues that "the parties were discussing negotiations up until calendar
                  call," and, as soon as Gonzalez indicated that a negotiation was unlikely,
                  the State ordered testing. We conclude that the State's explanation for the
                  untimely notices provides no basis for a finding of bad faith. Further,
                  Gonzalez fails to demonstrate substantial prejudice as he fails to explain
                  how receiving the report eight days instead of twenty-one days prior to
                  trial prevented some action or argument by the defense or how timely
                  disclosure of the expert's report would have prevented the alleged
                  prejudice regarding calibration. 1 Therefore, we conclude that the district
                  court did not abuse its discretion by allowing the testimony of the State's
                  expert witness.
                              Third, Gonzalez contends that the district court abused its
                  discretion when it allowed police officers to testify as experts without
                  proper notice from the State. We review for an abuse of discretion.
                  Mclellan v State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008). Gonzalez
                  claims that the police officers' testimony constituted improper expert
                  testimony because they testified as to their training and experience
                  regarding the identification of controlled substances and to their
                  certification to conduct tests on suspected controlled substances. The
                  district court did not abuse its discretion by admitting this testimony
                  because it was within the police officer's lay experience and did not



                         'Although we conclude that Gonzalez fails to demonstrate
                  substantial prejudice, we caution the State that its practice of delaying
                  testing may create a basis for substantial prejudice in other cases.



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                     constitute expert testimony, thus no notice was required from the State.
                     See NRS 50.265.
                                    Fourth, Gonzalez argues that the district court abused its
                     discretion by allowing a jury instruction on joint possession. "The district
                     court has broad discretion to settle jury instructions, and this court
                     reviews the district court's decision for an abuse of that discretion or
                     judicial error." Crawford v. State, 121 Nev. 744, 748, 121 P.3d 582, 585
                     (2005). Gonzalez claims that the instruction was not relevant, given the
                     State's theory of the case presented to the jury, and was prejudicial.
                     However, the appendix submitted by Gonzalez does not include the jury
                     instructions for this court's review on appeal. See NRAP 30(b) (requiring
                     inclusion in appellant's appendix of matters essential to the decision of
                     issue presented on appeal); Thomas v. State, 120 Nev. 37, 43 & n.4, 83
                     P.3d 818, 822 8i n.4 (2004) (appellant is ultimately responsible for
                     providing this court with portions of the record necessary to resolve his
                     claims on appeal); Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688
                     (1980) ("The burden to make a proper appellate record rests on
                     appellant."). Therefore, Gonzalez fails to demonstrate that the district
                     court erred.
                                    Fifth, Gonzalez contends that the district court erred by
                     refusing his request to instruct the jury regarding the State's failure to
                     gather or preserve evidence. Relying on Daniels v. State, 114 Nev. 261,
                     267-68, 956 P.2d 111, 115 (1998), Gonzalez argues that, while there may
                     not have been bad faith or connivance on the part of the State, he was
                     prejudiced by the loss of the white bag in which the smaller bags of
                     narcotics were contained because the packaging of the narcotics was
                     significant to the charge. He further alleges he was prejudiced by the

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                failure to gather photographic evidence of the narcotics hi the vehicle
                because the officers could not remember the precise location.
                            We conduct a two-part test to determine what remedy, if any,
                a defendant is entitled to if the State fails to gather evidence. Id. at 267,
                956 P.2d at 115. The district court must first determine that the evidence
                is material, or "that there is a reasonable probability that, had the
                evidence been available to the defense, the result of the proceedings would
                have been different." Id. If the evidence is found to be material, then the
                district court must determine whether the failure to recover the evidence
                was a result of negligence, gross negligence, or bad faith.     Id. (outlining
                the remedies available depending on the district court's determination).
                When there is an allegation that the State failed to preserve evidence, a
                defendant "must show either bad faith or connivance on the part of the
                government or that he was prejudiced by the loss of the evidence." Boggs
                v. State, 95 Nev. 911, 912, 604 P.2d 107, 108 (1979). We conclude that
                Gonzalez fails to demonstrate that the photographic evidence was
                material, that the failure to gather photographs or preserve the white bag
                was due to gross negligence or bad faith, or that he was prejudiced by the
                loss of the white bag. Therefore, we conclude that the district court did
                not err in refusing to give a jury instruction pursuant to Daniels.
                            Sixth, Gonzalez argues that the district court abused its
                discretion by allowing testimony that the vehicle was stolen. We review
                the district court's decision to admit evidence for an abuse of discretion.
                Mclellan, 124 Nev. at 267, 182 P.3d at 109. Prior to trial, the State agreed
                not to elicit testimony about the stolen vehicle unless Gonzalez opened the




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                    door. 2 On cross-examination of an officer,. Gonzalez elicited testimony that
                    the driver of the vehicle was taken into custody, handcuffed, and placed on
                    the pavement. The district court determined that the line of questioning
                    opened the door for the State to clarify why the driver was arrested,
                    including testimony that the car was reported stolen. We conclude that
                    the district court did not abuse its discretion in allowing testimony that
                    explained the reason for the driver's arrest.
                                 Seventh, Gonzalez contends that the State committed
                    prosecutorial misconduct during rebuttal argument by making him the
                    object of ridicule. "[A] criminal conviction is not to be lightly overturned
                    on the basis of a prosecutor's comments standing alone, for the statements
                    or conduct must be viewed in context; only by doing so can it be
                    determined whether the prosecutor's conduct affected the fairness of the
                    trial."' Evans v. State, 112 Nev. 1172, 1204-05, 926 P.2d 265, 286 (1996)
                    (alteration in original) (quoting United States v. Young, 470 U.S. 1, 11
                    (1985)). "We will not order a new trial on the grounds of prosecutorial
                    misconduct unless the misconduct is clearly demonstrated to be
                    substantial and prejudicial." Miller v. State, 121 Nev. 92, 99, 110 P.3d 53,
                    58 (2005) (internal quotation marks omitted). Here, the challenged
                    comments were made in response to an argument by the defense in its


                          2 To the extent Gonzalez argues that the State failed to file a pretrial
                    motion pursuant to Petrocelli v. State, 101 Nev. 46, 692 P.2d 503 (1985), he
                    failed to raise this claim below and fails to demonstrate plain error. See
                    NRS 178.602; Mclellan, 124 Nev. at 269, 182 P.3d at 110 (providing that
                    we will review for plain error when a defendant fails to raise an issue
                    below and will only reverse when clear error affects the defendant's
                    substantial rights).



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                    closing argument and were proper. See Greene v. State, 113 Nev. 157, 178,
                    931 P.2d 54, 67 (1997), receded from on other grounds by Byford v. State,
                    116 Nev. 215, 235, 994 P.2d 700, 713 (2000).
                                Eighth, Gonzalez argues that cumulative error warrants
                    reversal of his conviction. Because we have found no error, there is
                    nothing to cumulate. Accordingly, we
                                ORDER the judgment of conviction AFFIRMED. 3



                                                                                          J.



                                                                                          J.



                    CHERRY, J., dissenting:

                          The State's unofficial policy of delaying the testing of evidence, and
                    therefore the results of such testing, clearly demonstrates bad faith. By
                    waiting to test until after the completion of negotiations, the State ensures
                    that timely notice of an expert's report will rarely, if ever, occur. This type
                    of discovery violation would not be tolerated in the civil justice system and
                    should not be accepted in the criminal justice system. A report that is
                    material in the case against a criminal defendant should be disclosed, at a
                    minimum, by the discovery deadline set by statute. Therefore, I conclude

                          'We have reviewed all documents that Gonzalez has submitted in
                    proper person to the clerk of this court in this matter, and we conclude
                    that no relief based upon those submissions is warranted.



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                that the State's notice of the expert's report was untimely, and Gonzalez
                demonstrated that the State acted in bad faith by deliberately waiting
                until after the completion of negotiations to order testing.    CI Jones v
                State, 113 Nev. 454, 471, 937 P.2d 55, 66 (1997) (finding that the State did
                not act in bad faith when it used all reasonable efforts to obtain results
                before the discovery deadline, sent the results prior to the deadline, and
                the delay in receiving the results was not attributable to the State).
                Accordingly, I would reverse Gonzalez's conviction and remand for a new
                trial.




                cc: Hon. Douglas W. Herndon, District Judge
                     Legal Resource Group
                     Attorney General/Carson City
                     Clark County District Attorney
                     Eighth District Court Clerk




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