                     digitally penetrated her vagina, put his mouth on her vagina, and digitally
                     penetrated her anus slightly. The victim offered the man food and a can of
                     soda to discourage him from taking her upstairs to her bedroom. When
                     the police arrived they discovered pry marks on the sliding glass door and
                     dusted the soda can for fingerprints. The fingerprints lifted from the soda
                     can matched Percy's fingerprints. The victim testified that she had never
                     met the perpetrator before. After a search warrant was executed at
                     Percy's home, law enforcement found a lug wrench and a black jacket with
                     red trim containing Percy's DNA in his bedroom. At trial, the victim
                     testified that Percy looked like the man who sexually assaulted her.
                                 We conclude that a rational juror could infer from these
                     circumstances that Percy forcibly entered the victim's home with the
                     intent to commit a felony and committed three separate acts of sexual
                     assault on a victim 60 years of age or older.' See NRS 193.167(1)(g); NRS
                     200.366(1); NRS 205.067(1); NRS 205.060(1); see also NRS 200.364(5)
                     (defining "sexual penetration" as "cunniling -us, fellatio, or any intrusion,
                     however slight, of any part of a person's body or any object manipulated or
                     inserted by a person into the genital or anal openings of the body of
                     another"). "[lit is the jury's function, not that of the court, to assess the
                     weight of the evidence and determine the credibility of witnesses."
                     McNair, 108 Nev. at 56, 825 P.2d at 573. The verdict will not be disturbed
                     on appeal, where, as here, substantial evidence supports Percy's
                     convictions. Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see


                           1 Because this is not a fingerprint-only case, we need not decide
                     whether the analysis conducted in Mikes v. Borg, 947 F.2d 353, 356-57
                     (9th Cir. 1991), should inform this court's sufficiency of the evidence
                     review in cases where the only evidence of identity is fingerprints.


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                also Buchanan v. State, 119 Nev. 201, 217, 69 P.3d 694, 705 (2003)
                (circumstantial evidence alone may sustain a conviction).
                            Second, Percy contends that his three counts for sexual
                assault should merge because they were part of one continuous and
                uninterrupted action. See Townsend v. State, 103 Nev. 113, 121, 734 P.2d
                705, 710 (1987). We disagree. Percy digitally assaulted the victim's
                vagina, poured water on her vagina and orally assaulted the victim,
                instructed thefl victim to turn over onto her hands and knees before anally
                assaulting her, and then instructed the victim to turn back over before
                digitally assaulting the victim's vagina a second time. There is no merger
                because the three acts were separate and distinct acts of sexual assault.
                See Peck v. State, 116 Nev. 840, 848-49, 7 P.3d 470, 475 (2000), overruled
                on other grounds by Rosas v. State, 122 Nev. 1258, 147 P.3d 1101 (2006);
                see also Deeds v. State, 97 Nev. 216, 217, 626 P.2d 271, 272 (1981) ("The
                great weight of authority supports the proposition that separate and
                distinct acts of sexual assault committed as a part of a single criminal
                encounter may be charged as separate counts and convictions entered
                thereon."). These separate acts cannot be considered a "hypertechnical
                division of what was . . . a single act."   Townsend, 103 Nev. at 121, 734
                P.2d at 710. Therefore, this claim lacks merit.
                            Third, Percy contends that the district court erred by
                admitting hearsay. Percy objected to the admissibility of a 911 recording
                in which the victim's friend, who was not present during the assault, spent
                seventeen minutes relaying the details of what happened during the home
                invasion and assault to the 911 operator. The State argued that the 911
                recording was admissible under the business records exception to the
                hearsay rule. Percy pointed out that the 911 recording contained third-

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                 party hearsay where the victim's friend related the victim's out-of-court
                 statements to the 911 operator. The district court overruled the objection
                 and admitted the evidence.
                             Hearsay is an out-of-court statement "offered in evidence to
                 proveS the truth of the matter asserted" and is generally inadmissible.
                 NRS 51.035; NRS 51.065(1). In this case there were multiple layers of
                 hearsay: the 911 recording itself and the victim's statement to her friend.
                 The business records exception to the hearsay rule applies to "fal
                 memorandum, report, record or compilation of data, in any form, . . .
                 unless the source of information or the method or circumstances of
                 preparation indicate a lack of trustworthiness." NRS 51.135. Even if we
                 assume that the methods or circumstances used to prepare the 911
                 recording were trustworthy, the victim's out-of-court statements that were
                 relayed to the 911 operator by the caller were not admissible unless they
                 were covered by a separate hearsay exception. The State failed to
                 establish during trial or on appeal any reliable basis for applying a
                 hearsay exception to the caller's statements. Therefore, the entire 911
                 recording was inadmissible and the district court erred by admitting it.
                 However, we agree with the State that its admission was harmless
                 because the recording was almost entirely cumulative of the victim's
                 testimony during trial. See Mejia v. State, 122 Nev. 487, 493 n.15, 134
                 P.3d 722, 725 n.15 (2006) (explaining that the victim's testimony alone is
                 sufficient to support a sexual assault conviction). Although the 911 caller
                 did disclose that Percy told the victim he was in jail for four days for traffic
                 tickets, in light of the substantial evidence presented here, we cannot
                 conclude that this information or any other part of the recording
                 substantially affected the jury's verdict.     See Valdez v. State,    124 Nev.

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                1172, 1189-90, 196 P.3d 465, 476-77 (2008). Therefore, Percy is not
                entitled to relief on this claim.
                             Fourth, Percy contends that the district court admitted bad
                acts evidence in violation of NRS 48.045(2) by admitting two different
                statements. The first statement was contained in the 911 recording and
                alleged that Percy had been in jail for traffic tickets. It does not appear,
                however, that Percy made a contemporaneous objection to the 911
                recording on this basis. See Sullivan v. State, 115 Nev. 383, 387 n.3, 990
                P.2d 1258, 1260 n.3 (1999) (reviewing claim for plain error when appellant
                failed to make a contemporaneous objection). Regardless, Percy is not
                entitled to relief based on the admission of this statement under harmless
                or plain error review because, as discussed above, this statement did not
                substantially affect the jury's verdict.   See NRS 178.598; NRS 178.602;
                Valdez, 124 Nev. at 1189-90, 196 P.3d at 476-77. The second statement
                was contained in a recorded conversation between Percy and his sister and
                mother. Percy contends that his mother's statements implied that Percy
                "had committed other crimes and/or bad acts" in violation of NRS
                48.045(2). We disagree. The vague statement made by Percy's mother
                was not character evidence that the jury may have believed was
                introduced in order to show that Percy acted in conformity therewith on
                the day of the home invasion. See NRS 48.045(2). Therefore, Percy is not
                entitled to relief on these claims.
                             Fifth, Percy contends that the district court erred by failing to
                issue a limiting instruction sua sponte.     See Tavares v. State, 117 Nev.
                725, 731, 30 P.3d 1128, 1132 (2001), holding modified by Mclellan v. State,
                124 Nev. 263, 268-69, 182 P.3d 106, 110-11 (2008). During cross-
                examination of a police officer, Percy asked the officer why law

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                 enforcement was monitoring people exiting city buses and stopped
                 "somebody" exiting the bus. The officer responded by stating, "[w]e had
                 several calls or cases within like a 30-day period involving a very generic
                 description." This vague statement about "somebody" did not require the
                 district court to issue a limiting instruction sua sponte because it did not
                 qualify as a prior bad act under NRS 48.045(2). Even if it did, the district
                 court's failure to give such an instruction was harmless.     See Rhymes v.
                 State, 121 Nev. 17, 24, 107 P.3d 1278, 1282 (2005).
                             Sixth, Percy contends that the district court erred by refusing
                 to give an instruction on open or gross lewdness as a lesser-included
                 offense of sexual assault. This court has held that open lewdness involves
                 the intent to commit a sexual act that could be observed by another and
                 would be offensive to observers. Berry v. State, 125 Nev. 265, 280-82, 212
                 P.3d 1085, 1095 97 (2009), abrogated on other grounds by State v.
                                   -




                 Castaneda, 126 Nev. , 245 P.3d 550 (2010). Gross lewdness involves
                 the intent to commit a sexual act which is glaringly noticeable or obviously
                 objectionable. Id. at 281, 212 P.3d at 1096. Open or gross lewdness would
                 be a lesser-included offense of sexual assault only if the elements of open
                 or gross lewdness are entirely included within the elements of sexual
                 assault—nonconsensual sexual penetration. Wilson v. State, 121 Nev. 345,
                 358-59, 114 P.3d 285, 294 (2005); see NRS 200.366. "The test ultimately
                 resolves itself on whether the provisions of each of the different statutes
                 require the proof of a fact that the other does not."   Wilson, 121 Nev. at
                 359, 114 P.3d at 294-95. While it is true that nonconsensual sexual
                 penetration is a sexual act which could be observed and would be offensive
                 to any observer including the victim, it is not necessarily true that the two
                 offenses share the same elements. For example, the act of sexual assault

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                always involves an act performed on the victim, while the sexual act of
                open or gross lewdness could be performed on either the perpetrator or the
                victim. The harm caused by open or gross lewdness involves the
                possibility of observing an offensive sexual act while the harm caused by
                sexual assault is being physically subjected to• nonconsensual sexual
                penetration. Therefore, open or gross lewdness is not a lesser-included
                offense of sexual assault and the district court did not err by refusing to
                give the instruction.
                            Seventh, Percy contends that his sentence amounts to cruel
                and unusual punishment under the United States and Nevada
                constitutions. See U.S. Const. amend. VIII; Nev. Const. art. 1, § 6. Percy's
                sentence of three consecutive terms of life in prison with a possibility of
                parole after ten years, each with a consecutive term of 12 to 240 months, a
                consecutive term of 96 months with a minimum parole eligibility of 38
                months and a concurrent term of 98 months with a minimum parole
                eligibility of 28 months, falls within the parameters provided by the
                relevant statutes, see NRS 193.167(1); NRS 200.366(2)(b); NRS 205.060(2);
                NRS 205.067(2), and the sentence is not so unreasonably disproportionate
                to the gravity of the offenses as to shock the conscience, see CuIverson v.
                State, 95 Nev. 433, 435, 596 P.2d 220, 221-22 (1979); Harmelin v.
                Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion). Therefore,
                Percy's sentence did not amount to cruel and unusual punishment. 2


                      2To the extent that Percy argues, for the first time in his reply brief,
                that the procedures required in NRS 193.167(3) were not followed, we
                decline to consider that allegation. See NRAP 28(c); see also Elvik v. State,
                114 Nev. 883, 888, 965 P.2d 281, 284 (1998) (explaining that arguments
                made for the first time in a reply brief prevent the respondent from
                responding to appellant's contentions with specificity).

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                              Finally, Percy contends that cumulative error warrants
                  reversal. "When evaluating a claim of cumulative error, we consider the
                  following factors: (1) whether the issue of guilt is close, (2) the quantity
                  and character of the error, and (3) the gravity of the crime charged."
                  Valdez, 124 Nev. at 1195, 196 P.3d at 481 (internal quotation marks
                  omitted). Having considered these factors we conclude that the
                  cumulative effect of any errors does not entitle Percy to the reversal of his
                  convictions, and we
                              ORDER the judgment of conviction AFFIRMED.




                                                                                      J.
                                                                 CelzmalaCit
                                                      Parraguirre


                                                                                      J.



                  cc: Hon. Valorie J. Vega, District Judge
                       Thomas Michaelides
                       Attorney General/Carson City
                       Clark County District Attorney
                       Eighth District Court Clerk




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