                                                      131 Nev., Advance Opinion 5b
                         IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                   TABUTA JOHNSON, AJK/A TABUDAH                       No. 63737
                   EUGENE HUMES,
                   Appellant,
                   vs.
                                                                            FILED
                   THE STATE OF NEVADA,                                      JUL 3 0 2015
                   Respondent.




                              Appeal from a sentence and conviction following a jury trial of
                   one count of conspiracy to commit robbery, two counts of robbery, and one
                   count of battery with intent to commit a crime. Eighth Judicial District
                   Court, Clark County; Kathy Hardcastle, Judge, and Carolyn Ellsworth,
                   Judge."
                              Affirmed.


                   Lambrose Brown and William H. Brown, Las Vegas,
                   for Appellant.

                   Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                   District Attorney, and Steven S. Owens, Chief Deputy District Attorney,
                   Clark County,
                   for Respondent.




                        'Johnson was tried before the Honorable District Judge Kathy
                   Hardcastle and sentenced by the Honorable District Judge Carolyn
                   Ellsworth.

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                   BEFORE GIBBONS, C.J., TAO and SILVER, JJ.


                                                    OPINION

                   By the Court, TAO, J.:
                               Appellant Tabuta Johnson was convicted of various criminal
                   offenses following a trial, during which the jury was permitted to hear
                   testimony regarding an out-of-court "show-up" identification and the
                   victims identified him in court as the perpetrator of the offenses. In the
                   show-up, Johnson was handcuffed, placed in front of a police car, and
                   illuminated with a spotlight to be viewed by witnesses who then identified
                   him as the perpetrator of the crimes. Johnson did not object below but
                   now asks this court to hold that the show-up was improperly conducted in
                   violation of his constitutional due process rights. He also argues for the
                   first time on appeal that he was improperly sentenced as a habitual            •




                   criminal.
                               The Nevada Supreme Court has been presented with few
                   opportunities to reviewS the validity of such show-up identifications; the
                   court last visited this area of the law in Bias v. State, 105 Nev. 869, 871,
                   784 P.2d 963, 964-65 (1989), in which it held that a show-up somewhat
                   factually similar to the one in this case was unnecessarily suggestive and
                   therefore improper. Under the particular facts of this case, we conclude
                   that the trial court did not plainly err by admitting the identification
                   testimony into evidence because the identification procedure used was not
                   unnecessarily suggestive and the identification was reliable.
                               We also conclude that the sentencing court did not plainly err
                   in adjudicating Johnson as a habitual criminal because the record does not
                   demonstrate that the court operated under a misconception of the law

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                   regarding the discretionary nature of a habitual criminal adjudication.
                   Accordingly, we affirm the judgment of convictionS and sentence.
                                   FACTUAL AND PROCEDURAL HISTORY
                               One evening, Christina Raebel and Albert Valdez were
                   walking to a bar in downtown Las Vegas when they noticed two men, later
                   identified as Johnson and his brother, Varian Humes, following them.
                   Raebel viewed the two men directly as they approached for about "a
                   second and a half' while Valdez saw them through his peripheral vision
                   for "[o]ne second." Suspicious, Raebel moved her purse from her hip to the
                   front of her body with both hands.
                               Without warning, Humes punched Valdez in the head, causing
                   him to fall to the ground. At the same time, Johnson grabbed Raebel from
                   behind, covering her mouth with one hand and gesturing with the other to
                   indicate he was carrying a firearm. Johnson removed Raebel's purse from
                   her shoulder and pushed her to the ground. Raebel screamed as she fell
                   and Johnson responded by punching her in the face. While both Raebel
                   and Valdez lay helpless on the sidewalk, Humes demanded that Valdez
                   "give [him] everything" and in response Valdez emptied his pockets,
                   throwing his wallet and cell phone on the sidewalk. Valdez's wallet was
                   unique and easily identifiable because it was constructed entirely out of
                   duct tape. Johnson and Humes then tried to escape by running
                   southbound. Raebel was bruised and Valdez was bleeding from a gash in
                   his forehead. The entire incident lasted "about thirty seconds."
                               Within minutes, police officers from the Las Vegas
                   Metropolitan Police Department (LVMPD) arrived at the scene. Raebel
                   and Valdez told the police they were attacked by two black males about six
                   feet tall, with one slightly taller than the other, and described their

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                   clothing and the direction in which they fled. Based upon those
                   descriptions, the police issued a radio broadcast to search for two black
                   males about six feet tall wearing dark pants and hoodies who ran
                   southbound from the scene, with the "taller male ... wearing a black
                   hooded sweatshirt and the shorter of the males. . . wearing a brown
                   sweatshirt." The broadcast also alerted officers to look for a stolen purse,
                   wallet, and other property.
                               A few moments later, patrolling officers saw Johnson and his
                   brother emerge from an alley two or three blocks south of the crime scene
                   and jaywalk diagonally across an intersection. The other end of the alley
                   was a dead end blocked by a chain-link fence and shrubbery. According to
                   the officers, Johnson was wearing "a dark black sweatshirt with a hood on
                   it and dark jeans," while his brother was wearing "a black sweatshirt but
                   it was faded so it actually looked brown in the light and he was also
                   wearing jeans."2 Deciding that the duo "match[ed] the description to a tee"
                   and suspicious as to what the two had been doing in a dead-end alley, the
                   officers detained the men for questioning When they looked in the alley,
                   the officers saw Raebel's purse, car keys, some makeup containers, and
                   Valdez's unique duct-tape wallet scattered on the ground. The officers
                   handcuffed the two men and issued Miranda warnings to them. Officers
                   later found Valdez's cell phone in Humes's pocket.
                               Approximately 20 to 30 minutes after the crime, officers
                   informed Raebel and Valdez that they "found people that matched the



                         2At  trial, Raebel testified that Johnson wore a "brownish zip up
                   hoodie" with "a pattern on it" and the "hood up." Valdez testified that he
                   recalled Johnson wearing "a grey jacket with red lining like a grid almost."

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                   description" and asked if they wanted to identify them. After agreeing,
                   Raebel and Valdez were separately transported to where Johnson and his
                   brother were held. On the way there, the police asked Raebel and Valdez
                   to state if they recognized the people that would be shown to them, and
                   instructed that "[a] person is just as innocent as they are guilty" and that
                   it was "just as important to free an innocent man" as it was to identify a
                   guilty one. While Raebel and Valdez took turns sitting inside a police car
                   approximately 30 to 60 feet away, officers brought out Johnson and his
                   brother one at a time in handcuffs and shined spotlights on them as they
                   stood in front of another marked patrol car. Raebel and Valdez were
                   separated from each other during this process to prevent them from
                   influencing each other. Raebel immediately recognized both Johnson and
                   his brother and informed the police that she was 100 percent certain they
                   were the two perpetrators. Valdez felt approximately 90 percent certain
                   about Johnson's identity but did not recognize Johnson's brother at all.
                               Johnson and Humes were charged with one count of
                   conspiracy to commit robbery, two counts of robbery, and one count of
                   battery with intent to commit a crime. Humes would later enter a plea of
                   guilty to various charges, but Johnson chose to proceed to trial.
                               During the trial, the jury was apprised of the out-of-court
                   "show-up" identification during which Johnson was affirmatively
                   identified as one of the perpetrators by both Raebel and Valdez.
                   Additionally, both Raebel and Valdez testified at trial and identified
                   Johnson in court as one of the perpetrators. The jury convicted Johnson
                   on all counts.
                               Following trial, the State sought to have Johnson adjudicated
                   as a habitual criminal and submitted certified copies of six judgments of

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                   conviction reflecting prior felonies. 3 At sentencing, the district court
                   voiced concern about the violence of the crime, the randomness of the
                   victims, and the "escalation of [Johnson's] willingness to go from non-
                   violent crimes to violent crimes." The court adjudicated Johnson a
                   habitual criminal and sentenced him to four sentences of a maximum of 25
                   years with minimum parole eligibility of 10 years, with two of those
                   sentences to run consecutively.
                                                     ANALYSIS
                               On appeal, Johnson contends that the show-up identification
                   was conducted in an unnecessarily suggestive and therefore
                   unconstitutional manner, and the trial court should not have admitted
                   either testimony describing the show-up identification or the victims' in-
                   court identification of him during the trial. Johnson also argues that the
                   sentencing court plainly erred in adjudicating him as a habitual criminal.
                               At trial, Johnson did not object to either the show-up
                   identification or the trial testimony relating to it, nor did he object to his
                   sentence when it was rendered. Consequently, the scope of our review is
                   narrowly limited to determining whether plain error occurred.        See NRS
                   178.602. In particular, we examine (1) whether there was error, (2)
                   whether the error was plain or clear, and (3) whether the error affected
                   the defendant's substantial rights. Green v. State, 119 Nev. 542, 545, 80
                   P.3d 93, 95 (2003). "An error is plain if [it] is so unmistakable that it
                   reveals itself by a casual inspection of the record. At a minimum, the
                   error must be clear under current law, and, normally, the defendant must


                         3 Johnson'scriminal history mainly consisted of fraud and controlled
                   substances violations.

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                   show that an error was prejudicial in order to establish that it affected
                   substantial rights." Saletta v. State, 127 Nev. „ 254 P.3d 111, 114
                   (2011) (internal quotation marks and citations omitted).
                                Under the particular facts of this case, we conclude that
                   neither the trial court nor the sentencing court committed plain error
                   warranting reversal.
                   The validity of show-up identification procedures
                                When a witness testifies that he knows a particular suspect
                   committed a crime because he personally saw the crime as it occurred and
                   then at a different time and place recognized the suspect to be the same
                   person he previously saw, he is said to have performed an "identification"
                   of the suspect. Witnesses can be asked to identify a suspect either outside
                   of the courtroom prior to the trial during the initial police investigation of
                   the crime, or later during the trial itself (or both). Both in-court and out-
                   of-court identifications can be challenged by the defendant.
                                Out-of-court pretrial identifications are typically conducted
                   through a number of common methods, including asking the witness if the
                   perpetrator is one of several people lined up together in the same room
                   (commonly called a "physical line-up"); showing the witness an array of
                   facial photographs and asking if the perpetrator is among them (commonly
                   called a "photographic line-up"); or, as in this case, by presenting a single
                   suspect (or a very small group of potential suspects) to the victim soon
                   after a crime is committed and inquiring if that person is the perpetrator
                   (commonly known as a one-on-one "show-up" identification, a
                   "confrontation," or a "field identification").




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                               Whichever method is used, the Due Process Clause of the
                   United States and Nevada Constitutions 4 forbids a criminal prosecution to
                   be based upon any witness's identification that was procured under
                   circumstances that were unnecessarily suggestive and likely to have
                   resulted in a mistake that cannot be repaired.      See Gehrke v. State, 96
                   Nev. 581, 583-84, 613 P.2d 1028, 1029 (1980); Baker v. State, 88 Nev. 369,
                   372, 498 P.2d 1310, 1312 (1972). The Constitution prohibits these
                   suggestive and mistaken identifications whether they occurred outside of
                   the courtroom before trial or during a criminal trial itself when a witness
                   identifies the defendant from the witness stand.            See Manson v.
                   Brat hwaite, 432 U.S. 98, 104-07 (1977). Indeed, in some instances, when a
                   witness participated in a pretrial• identification procedure that was
                   extremely unreliable, courts have concluded that the witness's memory
                   may have been so contaminated that a later in-court identification of the
                   same suspect may also be precluded.        See generally United States v.
                   Bagley,   772 F.2d 482, 492 (9th Cir. 1985) ("Suggestive pretrial
                   identification procedures may be so impermissibly suggestive as to taint
                   subsequent in-court identifications and thereby deny a defendant due
                   process of law."). Thus, an in-court identification of the defendant during
                   trial can be challenged in two ways, either because the in-court



                         4Nevada's  Due Process Clause is textually identical to the federal
                   clause in relevant respects, see Nev. Const. art. 1, § 8(5), and the Nevada
                   Supreme Court reads the state clause as coextensive with the federal
                   clause. See generally Wyman v. State, 125 Nev. 592, 600, 217 P.3d 572,
                   578 (2009). "Nevada has historically followed the United States Supreme
                   Court on most, if not all, of its interpretations and applications of the law
                   governing searches and seizures." State v. Lloyd, 129 Nev. „ 312
                   P.3d 467, 471 (2013) (internal quotation marks omitted).
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                   identification is itself improper, or because it was contaminated by an
                   improper out-of-court identification that occurred before trial.
                                In the instant case, Raebel and Valdez identified Johnson as
                   the perpetrator in a pretrial show-up. During the trial, Raebel and Valdez
                   described the pretrial show-up and also identified Johnson again in court
                   as the perpetrator. Johnson challenges both the in-court and out-of-court
                   identifications, but only contends that the in-court identification was
                   improper because it was tainted by the prior show-up identification.
                   Therefore, our focus is upon the validity of the out-of-court show-up.
                                Historically, "[ti he practice of showing suspects singly to
                   persons for the purpose of identification, and not as part of a lineup, [was]
                   widely condemned" and viewed by courts with deep suspicion.         Stovall v.
                   Denno, 388 U.S. 293, 302 (1967). The Nevada Supreme Court has held
                   that show-ups are "inherently suggestive because it is apparent that law
                   enforcement officials believe they have caught the offender."        Jones v.
                   State, 95 Nev. 613, 617, 600 P.2d 247, 250 (1979).
                                Though frowned upon, such show-up identifications are
                   nonetheless permissible when the "totality of the circumstances"
                   surrounding the identification demonstrate that they are reliable. Stovall,
                   388 U.S. at 302 ("[A] claimed violation of due process of law in the conduct
                   of a confrontation depends on the totality of the circumstances
                   surrounding it"); see also Jones, 95 Nev. at 617, 600 P.2d at 250; Banks v.
                   State, 94 Nev. 90, 94-96, 575 P.2d 592, 595-96 (1978). The question is
                   whether the confrontation was so unnecessarily suggestive and conducive
                   to irreparable mistaken identification that due process was denied to the
                   defendant.   Stovall, 388 U.S. at 302; Jones, 95 Nev. at 617, 600 P.2d at
                   250. If it was not, the witness's identification is admissible during a

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                    criminal trial and the jury may examine its credibility and reliability.
                    Gehrke, 96 Nev. at 584, 613 P.2d at 1030.
                                Even though the Due Process Clause may theoretically bar an
                    overly suggestive identification whether it occurred before trial or during
                    trial, courts review, the validity of identifications under different legal
                    standards depending upon when and how they occurred. Because the
                    show-up identification of Johnson in this case occurred outside of court
                    and preceded the filing of any formal charges, our inquiry involves two
                    questions: (1) whether the show-up procedure was unnecessarily
                    suggestive, and (2) whether the identification was nonetheless reliable in
                    spite of any unnecessary suggestiveness in the identification procedure.
                    Banks, 94 Nev. at 94, 575 P.2d at 595 (citing Manson, 432 U.S. at 98).
                                We base our answer to both questions upon a review of the
                    totality of the circumstances.       Id.    Those circumstances include
                    examination of any countervailing policy considerations that might justify
                    an otherwise problematic identification, including such factors as the
                    presence or absence of any exigent circumstances, the need to quickly
                    clear any incorrectly detained suspects so that police can continue
                    searching for the true culprit, the freshness of the witness's recollection,
                    and the possibility that memories might start to fade if other procedures
                    were to be employed. See Bias, 105 Nev. at 872, 784 P.2d at 965 (holding
                    that show-up was unnecessarily suggestive when no countervailing policy
                    considerations or any exigency existed); Jones, 95 Nev. at 617, 600 P.2d at
                    250 (holding that policy considerations justified on-scene show-up when,
                    under the circumstances, the witness's memory was fresher immediately
                    after the crime and an immediate identification might have exonerated an
                    innocent suspect and freed authorities to continue the investigation). A

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                      show-up is more likely to be deemed unnecessarily suggestive, and
                      therefore invalid, when countervailing policy considerations are absent.
                      Jones, 95 Nev. at 617, 600 P.2d at 250.
                      The show-up in this case was not unnecessarily suggestive
                                   Johnson alleges that the show-up procedures utilized in this
                      case were unnecessarily suggestive, and that no countervailing policy
                      considerations exist to justify the procedures the police chose to employ.
                      Specifically, Johnson contends that because he was wearing handcuffs and
                      spotlighted in front of a marked police car during the show-up, the
                      circumstances strongly implied to Raebel and Valdez that the police had
                      already arrested the perpetrators of the crime based on other evidence,
                      and Raebel and Valdez were therefore implicitly pressured to corroborate
                      the police work already done. Johnson did not object below and raises
                      these arguments for the first time on appeal.
                                   In seeking reversal of his conviction, Johnson relies principally
                      upon Bias, 105 Nev. at 871-72, 784 P.2d at 964-65, in which the Nevada
                      Supreme Court held that a show-up was unnecessarily suggestive where
                      the defendant was handcuffed, placed in front of a police car, and
                      illuminated with a spotlight to be viewed by witnesses who then identified
                      him as the perpetrator of the crimes. The show-up was conducted four
                      hours after the crime, under conditions in which no exigency existed. Id.
                      at 872, 784 P.2d at 965. The Nevada Supreme Court concluded "that this
                      show-up procedure was unnecessarily suggestive because there were no
                      countervailing policy considerations to justify it."        Id.    The court
                      nonetheless affirmed the conviction because the identification was deemed
                      "sufficiently reliable." Id.



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                               In Gehrke, approximately 45 minutes after the incident,
                   eyewitnesses were escorted by an officer to the defendant's home where
                   they were told the police had a suspect in mind. 96 Nev. at 584, 613 P.2d
                   at 1030. The police placed the defendant in front of the headlights of a
                   police car. Id. The two eyewitnesses "were seated together in the back
                   seat of the police car, where their initial reaction, whether correct or not,
                   could be reinforced."       Id. at 586, 613 P.2d at 1031 (Mowbray, C.J.,
                   concurring) The Nevada Supreme Court concluded that due to the lack of
                   exigent circumstances, the identification procedure was unnecessary.       Id.
                   at 584, 613 P.2d at 1030.
                               Determining whether a particular show-up was unnecessarily
                   suggestive turns not on general principles, but rather upon the particular
                   circumstances surrounding the identification. In this case, even though
                   Johnson was handcuffed and spotlighted, several other circumstances
                   demonstrate that the show-up was not unduly suggestive when considered
                   as a whole, and therefore the show-up in this case was unlike those in
                   Bias and Gehrke.      In this case, Raebel and Valdez were specifically
                   cautioned that it was just as important for the show-up to exonerate
                   innocent people as it was to implicate guilty ones. Additionally, during
                   the show-up, Raebel and Valdez were separated and not allowed to talk to
                   each other while they each independently viewed Johnson and his brother.
                   Neither of these circumstances occurred in Bias or Gehrke. In Gehrke, the
                   two eyewitnesses were seated together in thefl back seat of the car, "where
                   their initial reaction, whether correct or not, could be reinforced." 96 Nev.
                   at 586, 613 P.2d at 1031 (Mowbray, C.J., concurring). Moreover, the
                   witnesses in Bias and Gehrke were never directed that an important
                   purpose of the show-up was to free the innocent and not merely to blindly

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                   confirm the suspicions of the police whether true or not. Quite to the
                   contrary, in Gehrke, the witness was merely told that the police "had a
                   suspect in mind," and no other instructions were given. 96 Nev. at 584,
                   613 P.2d at 1030. In Bias, the witness was simply asked "if the black guy
                   was the one." 105 Nev. at 870, 784 P.2d at 964. In contrast, the
                   circumstances of the instant case reflect that the police took substantial
                   steps to ensure that Raebel and Valdez were not unduly pressured into a
                   false or mistaken identification. 5
                               Even if the show-up contained elements of suggestiveness,
                   strong countervailing policy considerations existed in this case that
                   justified the officers' decision to attempt a show-up rather than another
                   form of identification. The show-up was conducted within half an hour of
                   the crime, while the victims' memories were still fresh. The crime was
                   violent and occurred in the open on the streets of Las Vegas; had the police
                   mistakenly detained the wrong people and employed a more time-
                   consuming method of identification before clearing the suspects and
                   resuming their search, the true criminals could have committed additional




                         5Various federal cases have held that show-up identification
                   procedures similar to the one employed in this case were not improper.
                   See United States v. Drake, 543 F.3d 1080, 1088-89 (9th Cir. 2008)
                   (holding that show-up was not unnecessarily suggestive, although the
                   robbery occurred in less than one minute, the police officers informed the
                   victim "that they had captured the suspect," and the defendant was
                   handcuffed and surrounded by officers); United States v. Bagley, 772 F.2d
                   482, 492-93 (9th Cir. 1985) (holding that show-up was not unnecessarily
                   suggestive, although the witness viewed the defendant seated in a police
                   car, handcuffed, and surrounded by officers); United States v. Kessler, 692
                   F.2d 584, 586 (9th Cir. 1982) (explaining that "Mlle use of handcuffs or
                   other indicia of custody" does not automatically invalidate a show-up).

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                   violent offenses against other unsuspecting victims in the meantime or
                   escaped apprehension entirely. Furthermore, Johnson suggested he had a
                   firearm during the robbery. While no firearm was ultimately recovered,
                   his claim to have had one on him underscored the need to find him quickly
                   before he could endanger other victims. Thus, the decision to employ a
                   show-up rather than another more onerous method of identification was
                   warranted under the exigencies that existed in this case.
                               Therefore, we conclude that the confrontation in this case was
                   not unnecessarily suggestive, and any suggestiveness that might have
                   existed was counterbalanced by important policy considerations justifying
                   the show-up.
                   The identification was reliable
                               Even if the procedures employed here could be said to have
                   been suggestive, suggestiveness by itself does not necessarily preclude the
                   use of identification testimony at trial if the identification was otherwise
                   reliable. Bias, 105 Nev. at 872, 784 P.2d at 965. In fact, when assessing
                   admissibility, reliability rather than suggestiveness is the main concern.
                   Jones, 95 Nev. at 617, 600 P.2d at 250. Reliability is measured by: (1) the
                   opportunity of the witness to view the suspect at the time of the crime,
                   (2) the degree of attention paid by the witness, (3) the accuracy of the
                   witness's prior description, (4) the level of the witness's certainty
                   demonstrated at the confrontation, and (5) the length of time between the
                   crime and confrontation.    Canada v. State, 104 Nev. 288, 294, 756 P.2d
                   552, 555 (1988) (quoting Manson, 432 U.S. at 114).
                               Here, Raebel testified that she had a clear opportunity to view
                   the two suspects for about a second-and-a-half as they approached her
                   prior to the crime, and paid special attention because she sensed danger.

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                   She then remained in close physical proximity to her assailants for
                   another 30 seconds as the assault took place. Valdez testified that, prior
                   to the crime, he only viewed the suspects for a second through his
                   peripheral vision, but had more opportunity to see them as they assaulted
                   him over the next 30 seconds. Raebel and Valdez were in close proximity
                   to their attackers and were asked to conduct the show-up within about 30
                   minutes after the crime while the incident was still fresh in their minds.
                   At the show-up, Raebel immediately recognized both suspects with 100
                   percent certainty. Valdez immediately recognized Johnson with 90
                   percent certainty.
                               Moreover, prior to the show-up, Raebel and Valdez accurately
                   described the race, gender, and height of the suspects they later positively
                   identified, and provided descriptions of the color of their clothing accurate
                   enough that, within minutes, the police found suspects who fit the
                   description "to a tee." 6 Raebel and Valdez informed officers that the two



                          GJohnson notes that the victims' clothing descriptions appeared to
                   change and became more detailed only after they participated in the show-
                   up. At the scene, the victims told police that the perpetrators wore dark
                   pants and hoodies, one black and the other brown. At trial, Raebel
                   recalled that Johnson wore a "brownish zip up hoodie" with "a pattern on
                   it" and the "hood up." Valdez testified that he recalled Johnson wearing "a
                   grey jacket with red lining like a grid almost." While it is certainly true
                   that notable discrepancies existed, on balance these discrepancies are
                   insufficient to render the identification unreliable when weighed against
                   all of the other facts present in this case. See Kessler, 692 F.2d at 586
                   (explaining that subsequent descriptions that became more "detailed and
                   accurate cannot be used to show impermissible suggestiveness" because
                   "one of the central and legitimate purposes of a show-up is to sharpen the
                   recollections of eyewitnesses and to enable them to focus attention on
                   details they may have otherwise overlooked"). See also United States v.
                   Brown, 636 F. Supp. 2d 1116, 1127 (D. Nev. 2009) (holding that
                                                                       continued on next page...
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                   perpetrators fled south on foot, and police found Johnson and Humes
                   minutes later on foot two or three blocks immediately south of the crime
                   scene disposing of the victims' property. Additionally, Valdez's cell phone
                   was discovered in Humes's pocket.
                               Under these circumstances, we conclude that the
                   identification of Johnson, both in court and during the pretrial show-up,
                   was reliable and not mistaken. See Bias, 105 Nev. at 872, 784 P.2d at 965
                   (holding that show-up not inadmissible when the victim was certain that
                   the defendant was the assailant and recognized the defendant's features
                   and clothing, as well as the weapon found at the scene of the show-up); see
                   also United States v. Gregory, 891 F.2d 732, 734-35 (9th Cir. 1989)
                   (holding that identification was reliable when the witnesses viewed the
                   robber for approximately 30 seconds and described the assailant to police
                   officers soon after the robbery); United States v. Barrett, 703 F.2d 1076,
                   1085 (9th Cir. 1983) (explaining that the witness's "degree of attention
                   was undoubtedly high" because she was the victim of the robbery).
                   Consequently, we conclude that the district court did not commit plain
                   error when it permitted the jury to hear testimony regarding the victims'
                   identification of Johnson both before and during trial.




                   ...continued
                   identification was reliable, although the witness held a mistaken belief
                   about the color of the assailant's sweatshirt and jeans); Drake, 543 F.3d at
                   1088-89 (holding that identification was reliable, although the victim
                   "significantly underestimated" the defendant's height and the robbery
                   occurred in less than a minute).


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                    The district court did not plainly err in adjudicating Johnson a habitual
                    criminal
                                Johnson argues that the sentencing court improperly
                    adjudicated him as a habitual criminal based only on his perceived
                    escalating violence. Although Johnson did not object when the sentence
                    was rendered, he contends this constituted plain error because the
                    sentencing court impermissibly based its sentence upon only a single
                    consideration rather than the multiplicity of factors on which a proper
                    sentence should be based. Thus, Johnson avers that the district court
                    believed that it was required to apply the habitual sentencing statutes.
                                Under NRS 207.010, a defendant who has been convicted of at
                    least three felonies qualifies as a habitual criminal. The Nevada Supreme
                    Court has held that a district court has the discretion to sentence a
                    defendant as a habitual offender merely because the defendant was
                    convicted of at least three separate prior felonies. LaChance v. State, 130
                    Nev. „ 321 P.3d 919, 930 (2014). Nevertheless, a district court may
                    exercise discretion to "dismiss a count under NRS 207.010 when the prior
                    offenses are stale or trivial, or in other circumstances where an
                    adjudication of habitual criminality would not serve the purposes of the
                    statute or the interests of justice." French v. State, 98 Nev. 235, 237, 645
                    P.2d 440, 441 (1982); see Clark v. State, 109 Nev. 426, 428, 851 P.2d 426,
                    427 (1993) (explaining that "Wile decision to adjudicate a person as a
                    habitual criminal is not an automatic one"). The purpose of the habitual
                    criminality statute is to allow the criminal justice system to deal
                    determinedly with career criminals who seriously threaten public safety.
                    Sessions v. State, 106 Nev. 186, 191, 789 P.2d 1242, 1245 (1990).
                                Adjudication under the habitual criminal statutes entails "the
                    broadest kind of judicial discretion," Tanksley v. State, 113 Nev. 997, 1004,
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                   946 P.2d 148, 152 (1997) (internal quotation marks omitted), and the
                   statutes do not include any express limitations on the judge's discretion.
                   French, 98 Nev. at 237, 645 P.2d at 441. In reviewing a district court's
                   decision to sentence a defendant under these statutes, we consider the
                   record as a whole and evaluate whether the sentencing court, in fact,
                   exercised its discretion. O'Neill v. State, 123 Nev. 9, 16, 153 P.3d 38, 43
                   (2007). In doing so, no requirement exists that "the sentencing court must
                   utter specific phrases or make particularized findings that it is just and
                   proper to adjudicate a defendant as a habitual criminal." Hughes v. State,
                   116 Nev. 327, 333, 966 P.2d 890, 893 (2000) (internal quotation marks
                   omitted). Moreover, the habitual criminal statute "makes no special
                   allowance for non-violent crimes or for the remoteness of convictions" but
                   rather regards these as "considerations within the discretion of the district
                   court." Arajakis v. State, 108 Nev. 976, 983, 843 P.2d 800, 805 (1992).
                   The sentencing court acts properly as long as it does not operate "under a
                   misconception of the law regarding the discretionary nature of a habitual
                   criminal adjudication." Hughes, 116 Nev. at 333, 996 P.2d at 893-94.
                               Here, we conclude that the district court properly exercised its
                   discretion to sentence Johnson as a habitual criminal. The record does not
                   demonstrate that the district court was unaware of the discretion
                   statutorily entrusted to it. While the sentencing court expressed concern
                   over the "escalation of [Johnson's] willingness to go from non-violent
                   crimes to violent crimes," the court never characterized this as the sole
                   basis for adjudicating Johnson as a habitual criminal, nor did the court
                   indicate any belief that habitual criminal adjudication was mandatory or




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                   automatic. The court was not required to utter specific phrases or findings
                   to justify its decision. Taken as a whole, the record does not demonstrate
                   that the district court operated under a misconception of the law regarding
                   the discretionary nature of a habitual criminal adjudication. Thus, the
                   sentencing court did not plainly err in adjudicating Johnson as a habitual
                   criminal.
                                                 CONCLUSION
                                For the reasons discussed above, we conclude that the trial
                   court did not plainly err in admitting testimony relating to the show-up
                   identification, nor did the sentencing court plainly err in adjudicating
                   Johnson as a habitual criminal. Accordingly, we affirm the judgment of
                   conviction and sentence.




                                                       Tao
                                                             .   7   Akre-         , J.




                   We concur:



                                                  CA.




                      1/4-1-Zeica)                J.
                   Silver




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