                   garbage, one block from the school. Latent fingerprint analysis identified
                   two prints on the gun that were matched to Garcia. Cartridge casings
                   from the scene of the shooting matched the gun to Gamboa's shooting. We
                   conclude that the jury could reasonably infer from the evidence presented
                   that Garcia intentionally killed Victor Gamboa with malice aforethought.
                   See NRS 200.030(2); Walker v. State, 91 Nev. 724, 726, 542 P.2d 438, 439
                   (1975) ("Mt is the function of the jury, not the appellate court, to weigh
                   the evidence and pass upon the credibility of the witness.").
                                Second, Garcia contends that the district court erred in
                   denying his motion to suppress evidence of MG's identification of Garcia at
                   the preliminary hearing on the ground that the identification was not
                   reliable. We review a district court's ruling on a motion to suppress
                   identification testimony for abuse of discretion because it is an evidentiary
                   decision.   See Mclellan v. State, 124 Nev. 263, 269, 182 P.3d 106, 110
                   (2008). An in-court identification must be unnecessarily or impermissibly
                   suggestive, creating a risk of irreparable misidentification, to warrant
                   suppression under Stovall v. Denno, 388 U.S. 293, 301-02(1967), and this
                   risk is less present when an identifying witness is subject to immediate
                   challenge by cross-examination. Baker v. Hocker, 496 F.2d 615, 617 (9th
                   Cir. 1974); see United States v. Domina, 784 F.2d 1361, 1368 (9th Cir.
                   1986) (noting problem with suggestive pretrial identifications is that
                   witness later identifies individual in court on basis of prior suggestive
                   identification, rather than from personal recollection); Baker v. State, 88
                   Nev. 369, 374 n.3, 498 P.2d 1310, 1313 n.3 (1972) (observing that other
                   jurisdictions had reversed where a suggestive identification at preliminary
                   hearing tainted witness's trial identification). MG did not identify Garcia
                   at trial as the perpetrator—rather, she acknowledged that she identified

SUPREME COURT
       OF
    NEVADA
                                                         2
(0) 1947A cletio
                     the shooter at the 2008 preliminary hearing and stated that she did not
                     recognize him at the 2013 trial—and, accordingly, MG's prior
                     identification did not taint her trial testimony. The district court
                     considered the issue of MG's prior identification moot because she did not
                     identify him at trial. MG's identification of Garcia at the preliminary
                     hearing did not constitute a reversible due process violation when MG was
                     subject to immediate and thorough cross-examination at the preliminary
                     hearing and at trial and did not identify Garcia at trial. We conclude that
                     the district court did not abuse its discretion.
                                  Third, Garcia argues that the district court erred in denying
                     his motion to compel a psychological examination of JH, who he argued
                     was rendered incompetent to testify by a brain injury. This court will
                     uphold the district court's finding of competency absent a clear abuse of
                     discretion, Evans v. State, 117 Nev. 609, 624, 28 P.3d 498, 509 (2001), and
                     its decision whether to deny a request for a psychological examination for
                     an abuse of discretion, Abbott v. State, 122 Nev. 715, 723, 138 P.3d 462,
                     467 (2006). The district court should order an examination when a
                     defendant demonstrates a compelling need for an examination, taking into
                     account whether there is little or no corroboration of the offense beyond
                     the challenged testimony and whether reasonable grounds support that
                     the victim's mental state has affected his veracity. Id. at 723-25, 138 P.3d
                     at 468-69. The district court found that JH was able to perceive an event
                     and competently relate it back and that contradictory assertions in his
                     statements were subjects for cross-examination. The district court further
                     ordered disclosure of JH's medical records for examination by Garcia's
                     expert. In his testimony, JH demonstrated an ability to present his
                     personal recollections without becoming confused and did not exhibit

SUPREME COURT
        OF
     NEVADA
                                                            3
(0) 19474    (evi)
                difficulties when Garcia's counsel attempted to confuse him during cross-
                examination, such that no compelling need for a psychological
                examination was evident. Having considered the record, we conclude that
                the district court did not abuse its discretion in denying Garcia's motion
                for a psychological examination.
                            Fourth, Garcia argues that his due process rights were
                violated when EC testified in shackles pursuant to a material witness
                warrant because this bolstered EC's credibility. Courts should not compel
                an incarcerated witness to appear in prisoner attire absent unusual
                circumstances.   Hightower v. State, 123 Nev. 55, 59, 154 P.3d 639, 642
                (2007). The defendant bears the burden to timely request that an
                incarcerated witness not appear in prisoner attire.   Id. Garcia failed to
                timely object to EC's appearance or request that he appear without
                shackles. We therefore review his allegations of error for plain error.
                Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001), abrogated on
                other grounds by Nunnery v. State, 127 Nev. Adv. Op. 69, 263 P.3d 235
                (2011). Garcia offers no support for his argument that the jury would give
                EC greater credibility because he appeared in shackles.     See Hightower,
                123 Nev. at 58, 154 P.3d at 641 (noting this court's prior observation that
                courts have almost uniformly recognized that appearing in prison clothing
                may undermine the witness's credibility). Further, Garcia's counsel drew
                attention to EC's detention in beginning cross-examination and his
                handcuffs during closing argument. We conclude that Garcia has not
                demonstrated plain error.
                           Fifth, Garcia argues that the State committed prosecutorial
                misconduct by presenting prejudicial evidence in support of a gang
                enhancement when the trial evidence did not meet the statutory criteria

SUPREME COURT
         OF
      NEVADA
                                                     4
(0) 1.947A
                  for a criminal gang. We review claims of prosecutorial misconduct for
                  improper conduct and then for whether reversal is warranted.        Valdez v.
                  State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008). A group of persons
                  may constitute a criminal gang when it has (1) a common name or
                  identifying symbol; (2) particular conduct, status, and customs; and (3)
                  felonious activities as one of its common activities.' NRS 193.168(8). The
                  record shows that the discovery supported the State's decision to initially
                  charge Garcia with a gang enhancement: (1) in separate recorded
                  statements, EC, JH, and ML stated that Garcia was in their gang named
                  "Puros Locos" or "PL," and several purported members had "Puros Locos"
                  tattoos; (2) JH testified that he would participate in fights and spray paint
                       on walls as part of the gang; and (3) JH testified in an earlier trial
                  that he and ML had committed the felonious acts of giving away controlled
                  substances to other gang members who were under the age of 18, and
                  further that another gang member ordered him to kill someone. The State
                  promptly amended the indictment to remove the gang enhancement when
                  the district court concluded that trial testimony did not support the gang
                  enhancement and prevented the State's gang expert from testifying. We
                  conclude that the State's conduct was not improper because discovery
                  reasonably suggested that the evidence supported a gang enhancement, cf.
                  Williams v. State, 103 Nev. 106, 110, 734 P.2d 700, 703 (1987) (holding
                  that a prosecutor may not argue facts or inferences not supported by the
                  evidence), and the State withdrew the enhancement when it could no
                  longer reasonably argue that the evidence satisfied NRS 193.168(8).


                        'Garcia's argument that the evidence did not show the felony
                  convictions necessary to establish a gang misstates the law, which
                  requires felonious acts, not convictions. NRS 193.168(8)(c).

SUPREME COURT
        OF
     NEVADA
                                                        5
(0) 1947A    ez
                             Having considered Garcia's contentions and concluded that
                 they are without merit, we
                             ORDER the judgment of conviction AFFIRMED.




                                         Pairaguirre




                 Douglas


                 CC:   Eighth Judicial District Court Dept. 15
                       Goodman Law Group
                       Attorney General/Carson City
                       Clark County District Attorney
                       Eighth District Court Clerk




SUPREME COURT
        OF
     NEVADA
                                                       6
(0) 1947A    e
