                            Camacho-Moreno was charged with two counts of sexual
                assault of a child, one count of attempted sexual assault of a child, two
                counts of lewdness with a child, and two counts of indecent exposure. He
                was acquitted of one count of sexual assault and convicted of the
                remaining six counts. Camacho-Moreno's primary assertion of error on
                appeal is that the district court erred in making comments in the jury's
                presence that were overly prejudicial. We conclude that the district
                court's comments were improper and a new trial is warranted. As the
                parties are familiar with the facts, we do not recount them further except
                as necessary to our disposition.
                The district court's statements, made in the jury's presence, were overly
                prejudicial
                            Camacho-Moreno contends that the district court made
                inappropriate comments to the jury venire and during A.M.'s testimony.
                Specifically, he argues that the jury perceived an appearance of partiality
                and prejudice—in effect, denying him of his right to a fair and impartial
                trial. In response, the State points to the fact that all of the comments
                made by the district court were either passing comments or taken out of
                context. It also notes that the statements made during A.M.'s testimony
                were made within the context of instructing the jury on certain procedural
                issues.
                            Generally, when judicial misconduct occurs, in order to
                preserve the issue for appellate review, a party must move for a mistrial.
                Holderer v. Aetna Cas. and Sur. Co. 114 Nev. 845, 850, 963 P.2d 459, 463
                (1998). If, however, "judicial deportment is of an inappropriate but non-
                egregious and repetitive nature," this court may review the misconduct.
                Parodi v. Washoe Medical Ctr., 111 Nev. 365, 370, 892 P.2d 588, 591

SUPREME COURT
        OF
     NEVADA
                                                     2
(0) 1947A
                (1995). As such, judicial misconduct is reviewed for plain error.       Id. at
                368, 892 P.2d at 590. In cases where the "evidence [of guilt] is quite
                apparent, misconduct may so interfere with the right to a fair trial as to
                constitute grounds for reversal."   Kinna v. State, 84 Nev. 642, 647, 447
                P.2d 32, 35 (1968).
                            The line between a needed instruction and inappropriate
                remarks by a trial judge is not always clear. The United States Supreme
                Court has explained that a trial judge may explain and comment upon
                evidence, draw a jury's attention to certain facts, and express his or her
                opinion on the facts, but he or she must instruct the jury that it is the
                jury's responsibility to ultimately decide the matters before it.   Quercia v.
                United States, 289 U.S. 466, 469 (1933). Further, comments relating to
                bias and racial prejudices are never appropriate and only serve to inflame
                passion and emotion. See Rush v. Smith, 56 F.3d 918, 922 (8th Cir. 1995).
                            Because of the respect a juror has for a judge, the judge's
                commentary can mold the juror's opinion.     Holderer, 114 Nev. at 851, 963
                P.2d at 463. As stated in Parodi,
                            "[t]he average juror is a layman; the average
                            layman looks with most profound respect to the
                            presiding judge; and the jury is, as a rule, alert to
                            any remark that will indicate favor or disfavor on
                            the part of the trial judge. Human opinion is
                            ofttimes formed upon circumstances meager and
                            insignificant in their outward appearance; and the
                            words and utterances of a trial judge, sitting with
                            a jury in attendance, are liable, however
                            unintentional, to mold the opinion of the members
                            of the jury . . . ."
                111 Nev. at 367-68, 892 P.2d at 589-90 (quoting Ginnis v. Mapes Hotel
                Corp., 86 Nev. 408, 416-17, 470 P.2d 135, 140 (1970)).

SUPREME COURT
        OF
     NEVADA
                                                      3
(0) 1947A
                                We now turn to the specific statements made by the district
                    court judge, which Camacho-Moreno contends were prejudicial.
                          Statement regarding rape statistics
                                The first statement made by the district court to the jury
                    venire concerned a statistic that one-quarter of women had been subject to
                    unwanted sexual advances. Specifically, the district court stated that it
                    had
                                learned that there's credible statistics that maybe
                                25 percent, or better, of all women have received
                                unwanted sexual advances, many of them at a
                                time before they reach the age of majority, or 18.
                                So statistics hold true one quarter of the women in
                                this room may have been victimized by someone at
                                some time. And I'm not here to embarrass
                                anybody.


                                      . . . [I]f any of you have been victims at any
                                time during your lives, and if one of two things
                                have gone on -- one, the case likely to conjure up
                                the past for you, and you might bring that frame
                                of mind or those colored glasses to this proceeding,
                                this case history; also, if you're looking for an
                                opportunity to vindicate something that remains
                                unvindicated in your life, this is not the case for
                                you.
                                Camacho-Moreno contends that the statements created a
                    presumption in the jurors' minds that there was a high probability that
                    A.M. was indeed sexually abused. The statements, however, were taken
                    out of context. Although a statistic offered by the district court as
                    evidence is inappropriate, a district court's use of a statistic to determine
                    the fitness of a juror does not rise to the level of admitting unsupported
                    evidence into the record. See Quercia, 289 U.S. at 470. More importantly,

   SUPREME COURT
          OF
       NEVADA
                                                          4
  (0) 1947A     s



P7.7
                the district court made this statement in an attempt to make the jury
                panel more fair by attempting to dismiss any juror who had been subjected
                to unwanted sexual advances and, as a result, could not remain fair and
                impartial. As such, these comments were not error and did not prejudice
                Camacho-Moreno.
                      Statement regarding Hispanic jurors
                            Next, during voir dire, the district court, in commenting on the
                number of Hispanic jurors that had been excused, stated:
                                   In particular, if you want to know the truth,
                            I'd like to have some Hispanic jurors on the case
                            who may have a cultural understanding, because
                            the defendant appears to me to have an Hispanic
                            background, but I also know that there are -- how
                            do I say this? Let me say it this way: Believe it or
                            not, there are -- some of you may or may not know
                            this, but there are some places in Mexico where
                            this kind of thing is more common than in other
                            places.
                The district court went on to state that
                            [w]hatever stories you may have heard about
                            whomever, this man is innocent as he sits here; do
                            you understand that?


                                  . . . You'd have to say he's innocent because
                            there's no evidence. Do you see what I mean?
                            There's none, zero evidence. She has to put on the
                            evidence that convinces you, the DA does; do you
                            understand that?
                            Although the district court qualified its statements by
                instructing the jury that there was no evidence of guilt yet presented, the
                statement as a whole carries with it a danger of molding the opinion of the
                potential jurors. Parodi, 111 Nev. at 368, 892 P.2d at 590-91. The

SUPREME COURT
        OF
     NEVADA


(0) 1947A
                comment regarding the possibility that rape is more common in Mexico or
                in Mexican communities is clearly inappropriate commentary on
                Camacho-Moreno's race, which is always prejudicial. Rush, 56 F.3d at
                922-23 (stating that the district court's statement that "races have a
                tendency to stick together" was error). These comments, also, tend to
                ‘`remain firmly lodged in the memory of the jury and to excite a prejudice
                which would preclude a fair and dispassionate consideration of the
                evidence." Quercia, 289 U.S. at 472. We, therefore, conclude that this
                statement alone necessitates reversal of the judgment.
                      Statement regarding A.M. being "pretty"
                            Camacho-Moreno's third issue with the district court's
                statements came during the State's direct examination of A.M. The State
                attempted to admit into evidence a collage of A.M.'s school photos in order
                to assist it in setting a timeline of events. After Camacho-Moreno's
                objection, and subsequent overruling, the district court stated:
                                  I'm going to allow, over objection, these
                            pictures -- it's a collage of evidence -- because
                            there are issues over the dates and times of the
                            events that were alleged in this case. But the
                            mere fact that she's a very pretty young lady at
                            those ages is not relevant, and you're so
                            instructed.
                            At first blush, this comment seems innocuous. However, the
                district court's commentary on the victim's appearance is wholly irrelevant
                and therefore inappropriate to the district court's admission of the
                proffered evidence. The comment does nothing more than to impassion
                the jury and show the district court's favoritism for the young female
                victim. Quercia, 289 U.S. at 469; see also Parodi, 111 Nev. at 367-68, 892



SUPREME COURT
        OF
     NEVADA
                                                      6
(0) 1947A

                                                                                              :141 z1s"
                P.2d at 589-90. Consequently, this statement, on its own, necessitates
                reversal.
                        Statement regarding the time that passed between the preliminary
                        hearing and the trial
                             The final statement that Camacho-Moreno takes issue with
                occurred during A.M.'s cross-examination. When the State asked A.M. if
                she had reviewed the transcripts from other conversations she had with
                the police and the State, A.M. stated that she had reviewed a transcript
                from the preliminary hearing two years prior. At that point, the district
                court
                             instruct[ed] the jury that the statement that she
                             went to court two years ago should, in your mind,
                             signify nothing. A case arrives here by a process
                             and you're to place no emphasis or consideration
                             on the fact that there may have been another
                             hearing or a preliminary hearing in this case.
                             Camacho-Moreno contends that the district court's statement
                limited his ability to fully cross-examine the witness. This argument is
                disingenuous. The district court's comments were simply an attempt to
                explain to the jury that it does not matter that there was a significant
                amount of time that passed between the preliminary hearing and the trial.
                There was no attempt on the part of the district court to limit Camacho-
                Moreno's ability to show A.M.'s prior inconsistent statements. It is not
                clear from the record that the district court was trying to improperly
                comment on the weight of the evidence or credibility of the witness.
                             However, in light of the two prejudicial statements made by
                the district court, we must conclude that the misconduct 'so infected the
                trial with unfairness as to make the resulting conviction a denial of due



SUPREME COURT
        OF
     NEVADA

                                                     7
(0) 1947A
process." Valdez v. State. 124 Nev. 1172, 1189, 196 P.3d 465, 477 (2008)
(quoting Darden v. Wainwright, 477 U.S. 168, 181 (1986)).
            We therefore
            ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for a new trial."




                                            P,ae              ,   C.J.
                                   Pickering




                                   Saitta




cc:   Chief Judge, The Second Judicial District Court
      Hon. Charles M. McGee, Senior Judge
      Richard F. Cornell
      Attorney General/Carson City
      Washoe County District Attorney
      Washoe District Court Clerk




      'Because we are reversing the judgment based on the district court's
improper comments during jury selection, we decline to address the other
issues raised on appeal.




                                     8
