                               IN THE SUPREME COURT OF THE STATE OF NEVADA


                       RONALD ERNEST LAKEMAN,                                 No. 64609
                       Appellant,
                       vs.                                                          FILE
                       THE STATE OF NEVADA,
                                                                                     JUN 2 2 2016
                       Respondent.
                                                                                       CIE K DEMar


                                               ORDER OF AFFIRMANCE                             fi
                                   Appeal from a judgment of conviction, pursuant to a jury
                       verdict, of six counts of insurance fraud, four counts of performance of an
                       act in reckless disregard of persons or property resulting in substantial
                       bodily harm, four counts of criminal neglect of patients resulting in
                       substantial bodily harm, one count of theft, and one count of obtaining
                       money under false pretenses. Eighth Judicial District Court, Clark
                       County; Valerie Adair, Judge.
                                   Appellant Ronald Lakeman is a Certified Registered Nurse
                       Anesthetist (CRNA) who worked at the Endoscopy Center of Southern
                       Nevada (hereinafter, the clinic), which was run by co-defendant Dr. Dipak
                       Desai.•This case arises out of an outbreak of hepatitis C that occurred at
                       the clinic in 2007. Lakeman was alleged to have administered propofol, an
                       anesthetic used in colonoscopies, in a manner that allowed patient blood to
                       contaminate vials of propofol, which were subsequently reused on different
                       patients.
                                   Lakeman was convicted of six counts of insurance fraud, four
                       counts of reckless disregard of persons or property resulting in substantial
                       bodily harm (NRS 202.595), four counts of criminal neglect of patients
                       resulting in substantial bodily harm (NRS 200.495), one count of obtaining

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                    money under false pretenses, and one count of theft. The district court
                    imposed a sentence of 8-20 years in prison. Lakeman argues on appeal
                    that the trial venue should have been changed, his Confrontation Clause
                    rights were violated, there was insufficient evidence to convict him under
                    NRS 200.495, the district court erred in allowing a Centers for Disease
                    Control and Prevention (CDC) investigator's testimony into evidence, the
                    State committed prosecutorial misconduct, and NRS 202.595 is the lesser
                    included offense of NRS 200.495. For the following reasons, we disagree
                    and affirm the conviction.
                    Change of venue
                                Lakeman argues that the district court erred in failing to
                    grant a change of venue motion. However, after reviewing the record, we
                    conclude that no change of venue motion was made. Although Dr. Desai's
                    counsel broached the subject, there was never an argument made by any
                    party on the matter, nor a ruling by the district court.
                                "As a general proposition, the failure to follow statutory
                    procedures ... as well as the failure to raise a proper objection below, will
                    preclude appellate review of the disputed evidence."       Wilkins v. State, 96
                    Nev. 367, 372, 609 P.2d 309, 312 (1980). NRS 174.464 requires that an
                    "application for removal . . . be made in open court, and in writing, verified
                    by . .. affidavit . . . ." Lakeman failed to follow the prescribed statutory
                    procedure for challenging venue because he did not make an oral or
                    written motion at district court, and thus he waived this issue on appeal.
                    Wilkins, 96 Nev. at 372, 609 P.2d at 312 (concluding that an appellant's
                    failure to object in the district court constituted a waiver of his Fifth and
                    Sixth Amendment claims); see generally Nat'l Collegiate Athletic Ass'n v.
                    Tarkanian, 113 Nev. 610, 612, 939 P.2d 1049, 1050-51 (1997) (discussing
                    change of venue factors). Additionally, although Lakeman argues on
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                 appeal that venue was inappropriate in Clark County, in many instances
                 the record does not substantiate his claims. Therefore, we will not
                 consider the change of venue argument because Lakeman did not object at
                 district court, he did not follow the proper statutory procedures, and the
                 record is not sufficiently developed on appeal.
                 Confrontation Clause
                             Lakeman argues that his Confrontation Clause rights were
                 violated because the district court allowed a patient-witness's recorded
                 testimony into evidence even though the witness died before Lakeman
                 could cross-examine him. Although an unavailable witness's testimonial
                 statement is inadmissible "unless the defendant had an opportunity to
                 previously cross-examine the witness regarding the witness's statement,"
                 reversal is not warranted unless appellant demonstrates that an error was
                 prejudicial. Vega v. State, 126 Nev. 332, 338, 340 236 P.3d 632, 637, 638
                 (2010) (internal quotations omitted). "Under this standard, reversal is not
                 required if the State could show beyond a reasonable doubt that the error
                 complained of did not contribute to the verdict obtained." Medina v. State,
                 122 Nev. 346, 355, 143 P.3d 471, 477 (2006) (internal quotations omitted).
                 The witness's deposition does not implicate Lakeman's involvement in his
                 treatment. In fact, the jury acquitted Lakeman on the counts that solely
                 involved treatment of the witness. Lakeman also failed to show that the
                 deposition testimony was prejudicial to his conviction on other counts.
                 Therefore, we conclude that the error was harmless. Id.
                 Sufficiency of the evidence under NRS 200.495
                             Lakeman argues that his conduct did not rise to the level of
                 "aggravated, reckless or gross" as required under NRS 200.495. Lakeman
                 points to evidence in the record that he, and other CRNAs, did not


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                 consciously understand or disregard the risk to patients caused by the
                 unsafe injection practice.
                             However, Dr. Melissa Schafer, a CDC investigator, testified
                 that Lakeman admitted in a phone interview that he understood the risks
                 associated with his injection technique. This court will not reweigh the
                 credibility of Dr. Schafer's testimony against the other CRNAs.           See
                 McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) (quoting
                 Jackson v. Virginia, 443 U.S. 307, 319 (1979)) ("[I]t is the jury's function,
                 not that of the court, to assess the weight of the evidence and determine
                 the credibility of witnesses."). Accordingly, we conclude that there is
                 sufficient evidence because, "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."      Id. (internal
                 quotations omitted).
                 Suppression of the CDC investigator's testimony
                             In Dr. Schafer's phone interview with Lakeman, she identified
                 herself as a CDC investigator, promised not to use his name, and asked
                 him questions about the clinic's practices. Lakeman agreed to talk
                 because of the promised anonymity, but stated that he would deny talking
                 to her if asked. At trial, Lakeman moved to suppress Dr. Schafer's
                 testimony, and the district court denied the motion. Lakeman now argues
                 that if the CDC is allowed to breach its promises of anonymity, other
                 medical professionals will be reluctant to speak with investigators.
                 Lakeman further argues that his statement that he would deny talking to
                 Dr. Schafer if asked must be suppressed pursuant to NRS 48.035(1).
                             Lakeman provides no authority for his position that Dr.
                 Schafer's testimony should be suppressed on public policy grounds. We
                 therefore decline to consider this argument. Browning v. State, 120 Nev.
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                347, 354, 91 P.3d 39, 45 (2004) (IADn appellant must present relevant
                authority and cogent argument; issues not so presented need not be
                addressed by this court." (internal quotations omitted)).
                             Furthermore, NRS 48.035(1) provides: "Although relevant,
                evidence is not admissible if its probative value is substantially
                outweighed by the danger of unfair prejudice, of confusion of the issues or
                of misleading the jury." But "all evidence offered by the prosecutor is
                prejudicial to the defendant; there would be no point in offering it if it
                were not."   Holmes v. State, 129 Nev., Adv. Op. 59, 306 P.3d 415, 420
                (2013) (quoting United States v. Foster, 939 F.2d 445, 456 (7th Cir. 1991)).
                The question is whether the evidence is unfairly prejudicial—whether "it
                encourages the jury to convict the defendant on an improper basis."        Id.
                Lakeman fails to articulate how his statement that he would deny talking
                to Dr. Schafer if asked unfairly prejudiced him at trial, so we conclude
                that the district court did not err in denying the motion in limine.      See
                Browning, 120 Nev. at 354, 91 P.3d at 45.
                Prosecutorial misconduct
                             Lakeman alleges numerous instances of prosecutorial
                misconduct. This court uses a two-step analysis for prosecutorial
                misconduct claims: (1) "whether the prosecutor's conduct was improper,"
                and (2) "if the conduct was improper . . . whether the improper conduct
                warrants reversal."   Valdez v. State, 124 Nev. 1172, 1188, 196 P.3d 465,
                476 (2008). "If the error is of constitutional dimension, then we ... will
                reverse unless the State demonstrates, beyond a reasonable doubt, that
                the error did not contribute to the verdict."   Id. at 1189, 196 P.3d at 476.
                "If the error is not of constitutional dimension, we will reverse only if the
                error substantially affects the jury's verdict."         Id.    Prosecutorial
                misconduct may take on a constitutional dimension "if, in light of the
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                  proceedings as a whole, the misconduct so infected the trial with
                  unfairness as to make the resulting conviction a denial of due process." Id.
                  at 1189, 196 P.3d at 477 (internal quotations omitted).
                        The State telling a witness's lawyer that the witness had breached his
                        proffer
                              Keith Mathahs, who was a CRNA at the clinic and was also
                  charged in the hepatitis C outbreak, accepted a plea deal on the condition
                  that he testify against Lakeman and Dr. Desai. Lakeman argues that the
                  State improperly approached Mathahs' lawyer in the hallway during
                  Mathahs' testimony and threatened to undo his plea because the
                  testimony was not in the State's favor.
                              It is clear that any alleged misconduct does not warrant
                  reversal. Id. at 1188, 196 P.3d at 476. The district court found, and the
                  attorneys agreed, that Mathahs had no knowledge the State considered
                  his testimony to breach the proffer. Discussion between a witness's
                  attorney and a prosecutor regarding whether a witness has violated a
                  proffer clearly does not take on a "constitutional dimension" when the
                  witness is not aware of the discussion. See id. at 1189, 196 P.3d at 476.
                  Therefore, we conclude that because Mathahs' testimony was unchanged
                  as a result of the prosecutor approaching his attorney, "the error [did not]
                  substantially affect[] the jury's verdict." Id.
                        The State eliciting inadmissible evidence of a pending federal
                        indictment
                              Lakeman argues that the State intentionally elicited from a
                  witness that there was a pending federal indictment against Dr. Desai.
                  Lakeman further argues that the jury likely inferred that he was
                  associated with the indictment, prejudicing his case. We conclude that the
                  potential misconduct does not implicate a constitutional dimension, thus

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                  the conviction should only be reversed "if the error substantially affect[ed]
                  the jury's verdict."      Id.   The witness only mentioned Dr. Desai, not
                  Lakeman, while discussing the federal indictment. Additionally, a
                  curative jury instruction was promptly given. See Rose v. State, 123 Nev.
                  194, 209, 163 P.3d 408, 418 (2007) (concluding that "the district court's
                  admonishment was sufficient to cure any prejudice caused by the
                  prosecutor's comment"). Finally, there were several comments earlier in
                  the trial regarding federal charges stemming from the clinic's activities—
                  the jury was likely already aware of the indictment. We conclude that the
                  witness's testimony about the indictment did not affect the jury's verdict
                  against Lakeman, and therefore, the error was harmless.
                        The State asking jurors to place themselves in a victim's shoes
                                 In the State's closing argument, the prosecutor said: "[A
                  victim] was infected. You saw him. Who among you would want to have a
                  liver transplant regardless of how much money you got?" Lakeman argues
                  that it was prosecutorial misconduct for the State to ask the jury to stand
                  in the victim's shoes—the so called golden rule argument.
                                 We conclude that this was not misconduct. It simply "painted
                  a vivid picture for the jury, and any reference to 'you' appears to be merely
                  rhetorical."    Witter v. State, 112 Nev. 908, 928, 921 P.2d 886, 900 (1996)
                  abrogated on other grounds by Nunnery v. State, 127 Nev. 749, 776-77, 263
                  P.3d 235, 254 (2011). 1


                        lAdditionally, Lakeman argues that other statements made during
                  the State's opening argument also constitute prosecutorial misconduct.
                  However, Lakeman fails to provide either arguments or authorities for
                  why these statements are prosecutorial misconduct. This court will not
                  consider claims that are not cogently argued or supported by relevant
                  authority. Browning v. State, 120 Nev. 347, 354, 91 P.3d 39, 45 (2004)


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                Double jeopardy
                             Lakeman argues that reckless disregard of persons or property
                resulting in substantial bodily harm (NRS 202.595) is a lesser included
                offense of criminal neglect of patients resulting in substantial bodily harm
                (NRS 200.495). This argument was not raised at district court; however,
                double jeopardy may be reviewed on appeal, even if not raised at district
                court.   See LaChance v. State, 130 Nev., Adv. Op. 29, 321 P.3d 919, 926
                (2014); see also United States v. Davenport, 519 F.3d 940, 947-48 (9th Cir.
                2008) (stating that "because the prohibition against double jeopardy is a
                cornerstone of our system of constitutional criminal procedure" reviewing
                under a plain error standard is appropriate). Because double jeopardy
                protection is provided under the Fifth Amendment to the United States
                Constitution, we will consider Lakeman's argument.
                             To determine whether NRS 202.595 is a lesser included
                offense of NRS 200.495, this court considers "whether each provision
                requires proof of a fact which the other does not."   Talancon v. State, 102
                Nev. 294, 298, 721 P.2d 764, 766 (1986) (quoting Blockburger v. United
                States, 284 U.S. 299, 304 (1932)). NRS 200.495 requires proof of facts not
                required by NRS 202.595. For example, NRS 200.495 requires
                foreseeability, but MRS 202.595 does not. Additionally, NRS 202.595
                requires "willful or wanton disregard," whereas NRS 200.495 requires the
                act be "aggravated, reckless or gross." Willful or wanton conduct is
                different than reckless conduct. See Wanton, Black's Law Dictionary (10th
                ed. 2014) (defining wanton as "[u]nreasonably or maliciously risking harm
                while being utterly indifferent to the consequences" and explaining that
                "[i]n criminal law, wanton usu[ally] connotes malice . . . while reckless does
                not"). Accordingly, we conclude that NRS 202.595 is not a lesser included
                offense of NRS 200.495.
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                 Cumulative error
                             Lakeman argues that because of the pervasive misconduct
                 throughout the trial, reversal is appropriate. "The cumulative effect of
                 errors may violate a defendant's constitutional right to a fair trial even
                 though errors are harmless individually." Rose, 123 Nev. at 211, 163 P.3d
                 at 419 (internal quotations omitted). After considering "(1) whether the
                 issue of guilt is close, (2) the quantity and character of the error, and (3)
                 the gravity of the crime charged," we conclude that the cumulative effect
                 of errors was minimal and reversal is not warranted.            Id. (internal
                 quotations omitted).
                             Accordingly, we
                             ORDER the judgment of conviction AFFIRMED.




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                                                     Hardest
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                                                                        12-1,     ,   J.




                                                                                  ,   J.
                                                     Saitta




                                                     Pickering




                 cc:   Hon. Valerie Adair, District Judge
                       Santacroce Law Offices, Ltd.
                       Attorney General/Carson City
                       Clark County District Attorney
                       Eighth Judicial District Court Clerk

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