                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                STEVEN CHRISTOPHER GAZLAY,                              No. 66105
                Appellant,
                vs.
                THE STATE OF NEVADA,                                        FILED
                Respondent.                                                  MAY 1 2 2016
                                                                            A; ACIE K. L$NDEMAN

                                                                       SY
                                                                                        ERA


                                        ORDER OF AFFIRMANCE
                            This is an appeal from a judgment of conviction, pursuant to a
                jury trial, of burglary while in possession of a firearm, home invasion
                while in possession of a firearm, second-degree kidnapping with use of a
                deadly weapon, coercion, assault with a deadly weapon, battery
                constituting domestic violence-strangulation, and possession of a firearm
                by a felon. Eighth Judicial District Court, Clark County; Jessie Elizabeth
                Walsh, Judge.
                            Appellant Steven Gazlay first argues that the district court
                conducted an insufficient Faretta v.      California, 422 U.S. 806 (1975),
                canvass before granting his motion to represent himself. Gazlay's waiver
                of the right to counsel was valid because the record as a whole shows that
                he understood the risks of self-representation.     See Harris u. State, 113
                Nev. 799, 801, 942 P.2d 151, 153 (1997). The record belies Gazlay's
                arguments that the district court failed to canvass him regarding his lack
                of legal training, his duty to follow all legal rules, or the guidance that he
                who represents himself is said to have an unwise client. The presence or
                absence of specific warnings does not determine the sufficiency of a
                Faretta canvass, see id. at 803, 942 P.2d at 154-55, and the record makes

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                clear Gazlay's understanding of the consequences of the decision to
                proceed to trial without counsel and his insistence on controlling the
                strategic decisions concerning his defense, see Hooks ix State, 124 Nev. 48,
                54, 176 P.3d 1081, 1084 (2008). Thus, we conclude that Gazlay knowingly,
                intelligently, and voluntarily waived the right to counsel and that the
                district court's canvass was sufficient. See id.
                            Second, Gazlay argues that a potential juror tainted the venire
                when he stated during voir dire that he thought he remembered Gazlay's
                name from ten years ago and the district court did not immediately
                admonish the other venire members not to conduct independent research.
                Assuming that the district court must admonish the jury at each
                adjournment as to their duty not to research any matter connected with
                the trial, see generally NRS 175.401, relief is not warranted for a failure to
                admonish absent prejudice, Bollinger v. State, 111 Nev. 1110, 1114, 901
                P.2d 671, 674 (1995). As Gazlay has offered no support for his theory that
                the venire members investigated his past and tainted the venire based on
                merely hearing that another potential juror remembered his name from
                years ago, we conclude that he has failed to show prejudice and that relief
                is not warranted.
                            Third, Gazlay argues that the district court abused its
                discretion in denying his motion for a new trial on the ground of juror
                misconduct based on comments overheard by a defense investigator.
                Gazlay first raised this argument in moving for a new trial more than one
                month after the verdict. The district court found that Gazlay's evidence
                was not newly discovered, see Sanborn v. State, 107 Nev. 399, 406, 812
                P.2d 1279, 1284 (1991) (determining that motion for new trial on new
                evidence requires evidence to be newly discovered and unavailable to

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                 discover and produce during trial with exercise of reasonable diligence),
                 and denied the motion as untimely, see NRS 176.515 (providing that
                 motion for new trial on ground other than newly discovered evidence must
                 be made within 7 days of jury verdict). As Gazlay knew of the
                 investigator's evidence of juror misconduct or could have so discovered
                 with the exercise of reasonable diligence by speaking with the investigator
                 on the trial's final day, we conclude that his motion was untimely and thus
                 that the district court did not abuse its discretion in denying his motion
                 for a new trial. See DePasquale v. State, 106 Nev. 843, 851, 803 P.2d 218,
                 223 (1990) (rejecting argument that district court should have heard
                 motion for new trial filed 8 days after proceedings, missing 7-day
                 deadline).
                              Fourth, Gazlay argues that the State provided inadequate
                 notice of its forensic expert's anticipated testimony and failed to timely
                 produce its expert's report. NRS 174.234(2) requires the State to disclose
                 to the defense, at least 21 days before trial, a copy of an expert's
                 curriculum vitae, a brief statement of the subject matter and substance of
                 the expert's expected testimony, and all reports made by the expert. As
                 Gazlay did not timely object, we review his argument for plain error.   Grey
                 v. State, 124 Nev. 110, 120, 178 P.3d 154, 161 (2008). The State's
                 supplemental notice of expert witnesses sufficiently stated the subject
                 matter and substance of the expected testimony.     See Perez v. State, 129
                 Nev., Adv. Op. 90, 313 P.3d 862, 870 (2013). The State received the
                 expert's report and delivered it to the defense 10 days before trial, thus
                 failing to provide the report at least 21 days before trial. Gazlay cannot
                 assert, however, that his preparation was impeded when he stated that he
                 was ready for trial when the report's delivery was discussed and, two

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                weeks before trial, he both withdrew his then-outstanding discovery
                motions because he stated that he was ready for trial and rejected a
                continuance because he wanted to proceed without delay. We conclude
                that Gazlay has not shown plain error affecting his substantial rights.'
                            Fifth, Gazlay argues that the charging instrument provided
                inadequate notice of the conduct constituting kidnapping on the ground
                that second-degree kidnapping is not an included offense of first-degree
                kidnapping. A defendant may be found guilty of an offense necessarily
                included in the offense charged. NRS 175.501. Lesser-included offense
                instructions are proper when "all of the elements of the lesser offense are
                included in the elements of the greater offense[, and] an offense is lesser
                included only where the defendant in committing the greater offense has
                also committed the lesser offense." Smith v. State, 120 Nev. 944, 946, 102
                P.3d 569, 571 (2004) (internal quotation marks and citations omitted). All
                acts of first-degree kidnapping involve second-degree kidnapping, i.e.,
                seizing, inveigling, taking, carrying away, or kidnapping another person
                and in any manner holding to service or detaining that person against his
                or her will. See NRS 200.310. We conclude that Gazlay's argument lacks
                merit.
                            Gazlay argues that the charging instrument failed to provide
                notice of the conduct constituting kidnapping. To provide a defendant


                      'We conclude that Gazlay's arguments as to error regarding the
                expert's testimony fail because he raised the matter on cross-examination,
                such that it was within the factual record and proper to address at closing.
                See Barrett v. State, 105 Nev. 356, 359, 776 P.2d 538, 540 (1989); Collier v.
                State, 101 Nev. 473, 478, 705 P.2d 1126, 1129 (1985). Further, we
                conclude that Gazlay's argument that the State failed to produce the
                expert's notes fails, as Gazlay withdrew his discovery motions.

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                     with an opportunity to prepare an adequate defense, a charging
                     instrument must provide adequate notice of the prosecution's theories by
                     stating the essential facts constituting the offense in ordinary and concise
                     language. NRS 173.0750); Viray v. State, 121 Nev. 159, 162, 111 P.3d
                     1079, 1081-82 (2005). Gazlay failed to timely object, and we review his
                     claim for plain error.   Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95
                     (2003). The charging instrument alleged an exact date of commission, a
                     victim, the State's theory of Gazlay's intent to hold or detain with the
                     purpose of killing or inflicting substantial bodily harm, and the use of a
                     firearm. We conclude that Galzay has failed to show plain error.
                                 Gazlay argues that insufficient evidence supported his
                     conviction for second-degree kidnapping because the victim's movement
                     was incidental to the other crimes arising from the same course of conduct.
                     We note that Gazlay forced the victim to move between rooms—which was
                     not necessary to complete the other charged offenses—and created a
                     substantially greater danger to the victim when he compelled her to move
                     upstairs—farther from means of escape—at a point when he was becoming
                     increasingly agitated and immediately before he discharged the firearm
                     and shot himself in the leg. See Mendoza v. State, 122 Nev. 267, 275, 130
                     P.3d 176, 181 (2006). Gazlay has failed to cogently argue how this
                     movement was incidental, and we need not address this argument.          See
                     Maresca v. State, 103 Nev. 669, 673, 748 P.2d 3, 6 (1987).
                                 Eighth, Gazlay argues that cumulative error warrants
                     reversal. We consider whether the issue of guilt was close, the quantity
                     and character of the error, and the gravity of the crimes charged in
                     reviewing for cumulative error. Big Pond v. State, 101 Nev. 1, 3, 692 P.2d
                     1288, 1289 (1985). Gazlay has identified errors related to the district

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                court's delayed admonishment and the delayed disclosure of the expert's
                report. As the record contains overwhelming evidence of his guilt and the
                quantity and character of the error were not substantial, however, we
                conclude that cumulative error does not warrant relief.
                            Having considered Gazlay's contentions and concluded that
                they are without merit, we
                            ORDER the judgment of conviction AFFIRMED.


                                                                          44;         ,J    .




                                                                   t
                                                            HardeLy_


                                                                                       , J.
                                                            Saitta


                                                                                       , J.




                cc:   Hon. Jessie Elizabeth Walsh, District Judge
                      Landis Law Group
                      Attorney General/Carson City
                      Clark County District Attorney
                      Eighth District Court Clerk




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