                     testimony from a suppression hearing when Officer Heglar was
                     unavailable at trial, (3) the State committed several instances of
                     prosecutorial misconduct throughout the trial, (4) the district court erred
                     by refusing to instruct the jury on credibility and opposing stories based
                     on Crane v. State, 88 Nev. 684, 504 P.2d 12 (1972), and (5) the district
                     court committed judicial misconduct throughout the trial. Also, the State
                     argues in its answering brief that the district court erred in merging the
                     assault and battery charges.
                         The district court did not violate Alway's right to confront witnesses by
                         preventing Alway from asking about Shurtleff's PTSD
                                 Alway argues that the district court denied his constitutional
                     right to confront witnesses by limiting Alway's cross-examination
                     regarding Shurtleff s PTSD. We disagree.
                                 We review a district court's decision to exclude evidence for
                     abuse of discretion. Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106,
                     109 (2008). "However, whether a defendant's Confrontation Clause rights
                     were violated is 'ultimately a question of law that must be reviewed de
                     novo."   Chavez v. State, 125 Nev. 328, 339, 213 P.3d 476, 484 (2009)
                     (quoting United States v. Larson, 495 F.3d 1094, 1102 (9th Cir. 2007)).
                     Also, "district courts have wide discretion to control cross-examination
                     that attacks a witness's general credibility." Lobato v. State, 120 Nev. 512,
                     520, 96 P.3d 765, 771 (2004).
                                 Alway initially filed a motion in hmine to exclude any
                     discussion of Shurtleffs military history or PTSD. However, Alway
                     subsequently argued that if the district court allowed the State to briefly
                     discuss Shurtleffs military history, this opened the door to inquire about
                     Shurtleff s entire military history and his PTSD. The district court ruled
                     that the State could briefly discuss that Shurtleff was previously in the

SUPREME COURT
        OF
     NEVADA
                                                           2
(0) 1907A    11p90
             9
                   military, but declined any extensive discussion about his military history
                   or his PTSD. At trial, Alway again argued that the district court violated
                   his right to confront Shurtleff. The district court stated that it was
                   unfairly prejudicial to question Shurtleff about his PTSD because there
                   was no evidence that Shurtleffs condition or medication prevented him
                   from being able to observe or understand the incident.
                               The Confrontation Clause of the Sixth Amendment guarantees
                   a criminal defendant the right of confrontation through cross-examination
                   of witnesses against him at trial. Delaware v. Van Arsdall, 475 U.S. 673,
                   678 (1986). This right "guarantees an opportunity for effective cross-
                   examination, not cross-examination that is effective in whatever way, and
                   to whatever extent, the defense might wish."           Id. at 679 (emphasis
                   omitted) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)).
                               We conclude that the district court did not abuse its discretion
                   by preventing Alway from cross-examining Shurtleff about his PTSD.
                   There was no evidence that Shurtleff s PTSD or his medication prevented
                   him from properly perceiving or remembering the night. In fact, the
                   evidence showed that Shurtleff understood what happened, but wanted to
                   take time to reflect on the event before providing his statement. We
                   conclude that this is a reasonable reaction. Also, the district court
                   properly allowed the State to briefly establish Shurtleffs work history,
                   which. any witness would be allowed to discuss. Therefore, given the
                   district court's wide discretion regarding cross examination of a witness's
                   credibility, we conclude that the district court did not abuse its discretion.
                       The district court did not violate Alway's right to confront witnesses by
                       allowing the State to read Officer Heglar's testimony from a
                       suppression hearing at trial
                               Alway argues that the district court denied his constitutional
                   right to confront witnesses by allowing the State to read at trial Officer
SUPREME COURT
        OF
     NEVADA
                                                          3
(0) I94Th    aye
                Heglar's prior testimony from a hearing on a motion to suppress. Alway
                argues that the State failed to show that Officer Heglar was unavailable to
                testify under NRS 171.198(7)(b), and that Alway did not have a
                meaningful opportunity to cross-examine Officer Heglar at the
                suppression hearing. We disagree.
                            This court reviews whether "the prosecution exercised
                constitutionally reasonable diligence to procure a witness's attendance[ ]
                [a]s a mixed question of law and fact." Hernandez v. State, 124 Nev. 639,
                647, 188 P.3d 1126, 1132 (2008). As such, this court "will give deference to
                the district court's findings of fact but will independently review whether
                those facts satisfy the legal standard of reasonable diligence." Id.
                            A preliminary hearing transcript may be admitted into
                evidence at trial without violating a defendant's right to confront
                witnesses if three conditions are met: (1) "the defendant must have been
                represented by counsel at the preliminary hearing," (2) "the defendant's
                counsel must have been provided an adequate opportunity to cross-
                examine the witness at the preliminary hearing," and (3) "the witness
                must actually be unavailable at the time of trial." Power v. State, 102 Nev.
                381, 383, 724 P.2d 211, 212 (1986). Transcripts from a suppression
                hearing can also be used as former testimony so long as the second and
                third Power conditions are met and the defense had a similar motive when
                cross-examining the declarant at the suppression hearing.       United States
                v. Duenas, 691 F.3d 1070, 1086 (9th Cir. 2012).




                      'This condition is not at issue in this appeal.


SUPREME COURT
        OF
     NEVADA
                                                       4
(0) 1947A
                                The State was prepared to present evidence regarding Officer
                                Heglar's unavailability, however, Alway accepted the State's
                                representations
                             The State notified the district court at a pretrial proceeding
                  that Officer Heglar would be unavailable for trial because he had been in
                  an out-of-state motorcycle accident. The State had another officer present
                  to testify regarding Officer Heglar's unavailability. However, Alway
                  stated that he would "take the State's word" regarding Officer Heglar's
                  unavailability. As a result, the district court accepted the State's
                  representations and found that Officer Heglar was unavailable.
                              NRS 51.055(1)(c) provides that a witness is unavailable if the
                  witness is "[u]nable to be present or to testify at the hearing because of
                  death or then existing physical or mental illness or infirmity." "In
                  determining whether the proponent of [former] testimony has met its
                  burden of proving that a witness is constitutionally unavailable, the
                  touchstone of the analysis is the reasonableness of the efforts."
                  Hernandez, 124 Nev. at 651, 188 P.3d at 1134. This court has held that
                  the State's efforts were reasonable when the State made an effort to
                  obtain the witness in question and it was unlikely that additional efforts
                  would have led to securing the witness for trial.   Id. at 651, 188 P.3d at
                  1135; Quillen v. State, 112 Nev. 1369, 1376, 929 P.2d 893, 898 (1996).
                              This court shall consider the totality of the circumstances
                  when determining whether a party made a reasonable effort to procure a
                  witness's attendance.   Hernandez, 124 Nev. at 650-52, 188 P.3d 1134-35
                  (holding that the State did not make a good faith effort when it failed to
                  (1) provide evidence regarding its attempt to obtain the witness's
                  attendance after failing to appear on the morning of trial; (2) make an
                  effort to communicate with an adult in the witness's household; (3) provide
                  information that a family emergency existed, which prevented the witness
SUPREME COURT
      OF
    NEVADA
                                                       5
(0) 1947A (ae49
                from appearing; (4) advise the district court how long the witness would be
                unavailable; and (5) seek a continuance to obtain the witness).
                            We conclude that the district court properly found that Officer
                Heglar was unavailable because he was in a serious motorcycle accident in
                Idaho. NRS 51.055(1)(c). Further, the State presented another officer to
                testify about Officer Heglar's condition. However, Alway stated that he
                would "take the State's word for [it]" regarding Officer Heglar's
                unavailability. Therefore, the district court properly found that Officer
                Heglar was unavailable.
                              Alway did not have a meaningful opportunity to cross-
                              examine Officer Heglar
                            Alway cross-examined Officer Heglar at a suppression hearing
                regarding statements made by Alway prior to his arrest. Throughout the
                cross-examination, Alway questioned Officer Heglar regarding various
                issues, including (1) Officer Heglar's search of Alway, (2) Alway's
                demeanor, (3) whether Officer Heglar advised Alway of his Miranda
                rights, (4) Alway's statement to Officer Heglar that he may have
                overreacted, and (5) Officer Heglar advising Officer Durio about his
                contact with Alway.
                            The Confrontation Clause of the Sixth Amendment guarantees
                a criminal defendant the right of confrontation through cross-examination
                of witnesses against him at trial.     Van Arsdall, 475 U.S. at 678. An
                opportunity to cross-examine a witness at a preliminary hearing can be
                sufficient to avoid a confrontation clause violation.   Chavez, 125 Nev. at
                338, 213 P.3d at 483-84. This court will evaluate "the adequacy of the
                opportunity on a case-by-case basis." Id. at 338, 213 P.3d at 484.
                            The determination of whether to admit former testimony of an
                unavailable witness revolves around whether the party against whom the

SUPREME COURT
                former testimony is offered had an opportunity and similar motive to
        OF
     NEVADA
                                                      6
(0) 1947A
                  examine the witness at the prior hearing.      Duenas, 691 F.3d at 1086-90
                  (holding that the defendant did not have the same motive to question an
                  officer at a suppression hearing regarding the defendant's statements
                  because he did not get to ask about the substance of the statement and did
                  not have an opportunity to cast doubt on the officer's reliability and
                  completeness of the defendant's statements).
                              We conclude that the district court erred by admitting Officer
                  Heglar's suppression hearing testimony at trial because Alway's motive for
                  questioning Officer Heglar at the• suppression hearing was not
                  substantially similar to what his motive would have been at trial. At the
                  suppression hearing, the primary issue was whether Alway was in custody
                  when he made statements to the officers. However, similar to the analysis
                  in Duenas, Alway's motive at trial would have been to question Officer
                  Heglar more extensively about the substance and details of those
                  statements, and attempt to "cast doubt" on Officer Heglar's "credibility
                  and on the reliability and completeness of his version of [Alway's]
                  statement[s]."    Duenas, 691 F.3d at 1090. Thus, we conclude that the
                  district court erred in admitting Officer Heglar's testimony from the
                  suppression hearing.
                                   Even though Alway did not have a meaningful opportunity
                                   to cross-examine Officer Helgar, this error was harmless
                              The State presented Officer Durio as one of its witnesses at
                  trial. He testified about his involvement in the investigation and the
                  statements Alway made to him on the night of the incident, such as,
                  "[Alway] told me that he may have jumped the gun and that he
                  overreacted." Officer Durio further testified about the knife Alway used
                  and authenticated it based on his first-hand knowledge of the knife.
                  Alway cross-examined Officer Durio and asked numerous questions

SUPREME COURT
                  regarding the circumstances surrounding Alway's statement.
        OF
     NEVADA
                                                        7
(0) 1947A    ce
                            When "considering whether a Confrontation Clause violation
                is harmless, this court looks to 'the importance of the witnessis] testimony
                in the prosecution's case, whether the testimony was cumulative, the
                presence or absence of evidence corroborating or contradicting the
                testimony of the witness on material points, . . . and, of course, the overall
                strength of the prosecutor's case."    Hernandez, 124 Nev. at 652-53, 188
                P.3d at 1135-36 (alterations in original) (quoting Power v. State, 102 Nev.
                381, 384, 724 P.2d 211, 213 (1986)). The error will be harmless if this
                court determines, "beyond a reasonable doubt, that the erroneous
                admission of the prior testimony did not contribute to the defendant's
                conviction." Id. at 653, 188 P.3d at 1136.
                            We conclude that the error was harmless because (1) Officer
                Durio testified regarding Alway's statement to him, which was almost
                identical to the statement Alway made to Officer Heglar, and Alway had
                the opportunity to cross-examine Officer Durio regarding the statement;
                (2) Officer Durio testified about the knife and any information that Alway
                wanted regarding the knife could have been elicited from Officer Durio;
                and (3) even without Officer Heglar's testimony, Alway admitted to having
                the knife and using it against Shurtleff, thus the ultimate question turned
                on whether the jury believed Alway's theory of self-defense. Therefore, we
                conclude that the error was harmless and did not affect the jury's decision
                to convict Alway.
                    The State did not commit prosecutorial misconduct
                            Alway argues that the State committed prosecutorial
                misconduct by improperly (1) vouching for a witness; (2) giving a personal
                opinion about Alway's testimony; (3) "denigrat[ing] both Mr. Alway and
                his counsel throughout the trial';•(4) commenting on Alway's silence; (5)
                falsely stating to the jury that defense counsel had been admonished for
SUPREME COURT
        OF
     NEVADA
                                                       8
(0) I947A
                misbehavior; (6) misleading the jury throughout the trial; (7) shifting the
                burden to Alway; and (8) eliciting and commenting on the opinion of lay
                witnesses, specifically regarding the issue of self-defense.
                            If a claim for prosecutorial misconduct was not properly
                preserved at trial, this court will review it for plain error.   Valdez v. State,
                124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008) (stating that reversal is
                only warranted when "the defendant demonstrates that the error affected
                his or her substantial rights, by causing 'actual prejudice or a miscarriage
                of justice" (quoting Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95
                (2003))). When the claim is preserved at trial, this court will apply
                harmless-error review.        Id.    If prosecutorial misconduct is of a
                constitutional dimension, this court "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. However, if the misconduct
                is not of a constitutional dimension, "[this court] will reverse only if the
                error substantially affects the jury's verdict." Id.
                             The State commented on one of its witnesses during closing
                arguments and stated that she is probably "our best sort of unbiased
                witness" because she was not a victim and had no interest in the outcome.
                Also, during the State's cross-examination of Alway at trial, the State
                questioned him about the inconsistency between his current testimony
                and his statement to the police on the night of the incident. Further,
                during closing arguments, the State discussed Alway's testimony, stating
                that Alway's "story just really doesn't make sense" and that Alway's
                testimony of the events was "not credible."
                             We conclude that the State was not vouching for a witness,
                but merely explaining to the jury that the witness did not have any
                apparent reason for bias. The jury could consider this argument and
SUPREME COURT
        OF
     NEVADA
                                                        9
(0) I947A
                    determine whether it affected the witness's credibility. Further, the State
                    did not give a personal opinion about Alway's testimony, but pointed out
                    that Alway's testimony of the events was inconsistent with the testimony
                    given by the other witnesses. It was also inconsistent with the statement
                    Alway gave to the police on the night of the incident. Also, the State never
                    commented on Alway's silence, but instead emphasized inconsistencies
                    between his testimony at trial and his statement to the police on the night
                    of the incident. Alway also failed to object to any of these statements at
                    trial. Even if we did consider one of these acts to be misconduct, it would
                    not be plain error because Alway has not shown that any of these
                    instances prejudiced him or affected his substantial rights. Therefore, we
                    conclude that the State did not commit prosecutorial misconduct. 2
                        The district court did not err by rejecting a theory of the case jury
                        instruction for Alway
                                Alway, citing Crane v. State, 88 Nev. 684, 504 P.2d 12 (1972),
                    requested that the jury be instructed on how to handle two reasonable
                    interpretations of an incident. Alway argues that the district court's
                    failure to give Alway's theory of case jury instruction violated Alway's
                    right to due process and a fair trial. We disagree.
                                The district court has broad discretion to settle jury
                    instructions.   Cortinas v. State, 124 Nev. 1013, 1019, 195 P.3d 315, 319



                          2The State incorrectly lodged an objection regarding defense counsel,
                    stating that he had "been repeatedly admonished not to make these smart
                    aleck comments." Defense counsel responded that he had "never been
                    admonished by this Court." We find that even though the State
                    incorrectly stated that defense counsel had been admonished, it is
                    harmless error because Alway has not demonstrated how the misconduct
                    substantially affected the jury verdict.


SUPREME      Coma
        OF
     NEVADA
                                                          10
(0) 1947A
                 (2008). This court reviews a district court's decision to approve or reject
                 an instruction for an abuse of discretion or judicial error.   Id. However,
                 this court will review de novo whether a particular instruction is a correct
                 statement of law. Id.
                             The district court refused to offer an instruction explaining
                 that if there were two reasonable interpretations, one showing guilt and
                 one showing innocence, then the jury should acquit. However, the district
                 court did give four instructions regarding the burden of proof and four
                 instructions on self-defense.
                             We have held that a jury instruction on evidence that has two
                 interpretations is not necessary so long as the jury is properly instructed
                 regarding reasonable doubt. Mason v. State, 118 Nev. 554, 559, 51 P.3d
                 521, 524 (2002). However, "the defense has the right to have the jury
                 instructed on its theory of the case as disclosed by the evidence, no matter
                 how weak or incredible that evidence may be." Margetts v. State, 107 Nev.
                 616, 619, 818 P.2d 392, 394 (1991).
                             We conclude that the district court did not err by refusing to
                 give Alway's instruction because, like in Mason, the district court properly
                 instructed the jury regarding the burden of proof. Thus, it was not an
                 error for the district court to exclude Alway's proposed instruction.
                 Further, Alway's theory of his case was self-defense and the district court
                 properly informed the jury with several instructions regarding Alway's
                 self-defense theory. Therefore, we conclude that the district court did not
                 abuse its discretion by denying Alway's jury instruction.
                      The district court did not commit judicial misconduct
                              Alway argues that the district court failed to act impartially
                 because it: (1) incorrectly instructed the jury prior to voir dire about the
                 burden of proof, (2) stated in front of the jury that Alway's line of
SUPREME COURT
        OF
     NEVADA
                                                       11
(0) 1941A    e
                  questioning "did not really matter," and (3) prevented him from objecting
                  during the State's closing.
                                Generally, when judicial misconduct occurs a party must
                  object or move for a mistrial in order to preserve the issue for appellate
                  review.     Oade v. State, 114 Nev. 619, 621-22, 960 P.2d 336, 338 (1998).
                  However, this court will review judicial misconduct for plain error.   Id. at

                  622, 960 P.2d at 338. "In conducting plain error review, [this court] must
                  examine whether there was error, whether the error was plain or clear,
                  and whether the error affected the defendant's substantial rights."    Green

                  v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003) (internal quotations
                  omitted).
                                Prior to jury voir dire, the district court instructed the
                  potential jurors that they should presume Alway not guilty until the State
                  successfully proved beyond a reasonable doubt that Alway committed an
                  offense. Further, during Alway's cross-examination of a witness, the
                  district court indicated that Alway's line of questioning did not "really
                  much matter." Also, in response to Alway's objection during the State's
                  closing, the district court instructed Alway to "not interrupt her
                  argument." Alway continued to object throughout the remainder of the
                  State's closing argument.
                                 The 'trial judge must not only be totally indifferent as
                  between the parties, but he must also give the appearance of being so."
                  McNair v. State, 108 Nev. 53, 62, 825 P.2d 571, 577 (1992) (quoting Kinna
                  v. State, 84 Nev. 643, 647, 447 P.2d 32, 35 (1968)). However, it is unlikely
                  that a trial will be free from errors. Id. The question on appeal becomes
                  whether the judicial errors were of such a "pervasive" nature that it
                  created an unfair trial for the defendant. Id.


SUPREME COURT
       OF
     NEVADA
                                                        12
(0) 1947A   ce.
                                We conclude that the district court did not err when it
                    explained that Alway was presumed not guilty until the State proved
                    otherwise beyond a reasonable doubt. Further, the district court's
                    statement regarding defense counsel's line of questioning does not
                    constitute judicial misconduct because the district court was simply
                    stating that this issue had already been covered and was not relevant to
                    issues at trial. However, we take this opportunity to caution judges that
                    their role of remaining "impartial" and "totally indifferent" must be
                    carefully maintained. Kinna, 84 Nev. at 647, 447 P.2d at 35. Lastly, the
                    district court did not prevent defense counsel from objecting during the
                    State's closing argument. Even so, it is not entirely clear what the district
                    court instructed the defense to do. It appears that the district court either
                    asked the defense not to interrupt the State as she was attempting to
                    respond to the objection or not to object during the State's closing.
                    Regardless, Alway was in no way restricted by the district court from
                    objecting throughout the remainder of the State's closing. Therefore, the
                    district court did not commit judicial misconduct.
                        The State cannot raise the merger issue on appeal
                                 The State argues that the district court erred by merging
                    assault with a deadly weapon into battery with a deadly weapon and
                    requests that we remand the case for sentencing on assault with a deadly
                    weapon.
                                 However, the State has no right to appeal from a judgment of
                    conviction in a criminal case. In re Halverson, 123 Nev. 493, 520, 169 P.3d
                    1161, 1179 (2007). A respondent is entitled to make a defense in its
                    answer based on "an alternative legal ground that is manifest in the
                    record."   Neverson v. Farquharson, 366 F.3d 32, 39 (1st Cir. 2004) (also
                    stating that "a party may not use his opponent's appeal as a vehicle for
SUPREME COURT
       OF
    NEVADA
                                                          13
(0) 19474 4416104
                   attacking a final judgment in an effort to diminish the appealing party's
                   rights thereunder" (internal quotations omitted)).
                                We decline to consider this issue because the State does not
                   have the right to appeal it. Alway did not raise the issue on appeal and
                   the State cannot use Alway's appeal to bring the issue before this court.
                   Therefore, we do not address the State's merger argument.
                                Accordingly, we ORDER the judgment of the district court
                   AFFIRMED. 3



                                                                                    J.
                                                      Pickering



                                                      Parraguirre



                                                       Saitta




                   cc:   Second Judicial District Court Dept. 10
                         Washoe County Public Defender
                         Attorney GenerallCarson City
                         Washoe County District Attorney
                         Washoe District Court Clerk




                         3 We have considered the parties' remaining arguments and conclude
                   that they are without merit.


SUPREME COURT
       OF
    NEVADA
                                                        14
(0) 1947A 44:Jr4
