                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                ARMANDO VERGARA-MARTINEZ                               No. 65853
                A/K/A ARMANDO MARTINEZ
                VERGARA,
                Appellant,
                vs.
                                                                               FILED
                THE STATE OF NEVADA,                                           APR 0 5 2016
                Respondent.
                                                                              TRACE K LINDEMAN
                                                                           CLERK OF SUPREME COURT
                                                                          BY
                                        ORDER OF AFFIRMANCE                    DEPUTY CLERK



                            This is an appeal from a judgment of conviction, pursuant to a
                jury verdict, of attempted murder with the use of a deadly weapon, battery
                with the use of a deadly weapon resulting in substantial bodily harm
                constituting domestic violence, and mayhem. Eighth Judicial District
                Court, Clark County; Abbi Silver, Judge.
                            The jury found appellant Armando Vergara-Martinez guilty of
                attempted murder with the use of a deadly weapon, battery with the use of
                a deadly weapon resulting in substantial bodily harm constituting
                domestic violence (hereinafter "battery resulting in substantial bodily
                harm"), and mayhem after he attacked former girlfriend Maria Gomez
                with a machete—splitting her head open and nearly severing both her
                hands. The district court sentenced him to the maximum punishment for
                each count, to be served consecutively. On appeal, Vergara-Martinez
                contends that this court should reverse his judgment of conviction,
                alleging a variety of errors at the trial level. We conclude that reversal is
                not warranted.
                            First, Vergara-Martinez argues that double jeopardy prohibits
                his dual conviction for battery resulting in substantial bodily harm and
                mayhem. We disagree. Double jeopardy does not prohibit the dual
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                    convictions here because each machete stabbing to Gomez's person
                    constituted its own distinct act of violence, resulting in distinct injuries to
                    distinct body parts. Therefore, each conviction stems from a separate act
                    constituting a criminal offense, whereas double jeopardy is concerned
                    with, among other things, multiple punishments for a single criminal
                    offense. See Jackson v. State, 128 Nev., Adv. Op. 55, 291 P.3d 1274, 1278
                    (2012) (stating that the Double Jeopardy Clause prohibits "multiple
                    punishments for the same offense" (emphasis added)); Gaxiola v. State, 121
                    Nev. 638, 651, 119 P.3d 1225, 1234 (2005) (finding that separate acts may
                    "result in separate convictions even though the acts were the result of a
                    single encounter and all occurred within a relatively short time" (internal
                    quotation omitted)). The State's charging document supports this
                    interpretation because it specifies separate acts which provided the bases
                    for each charge. Specifically, Vergara-Martinez was convicted of battery
                    resulting in substantial bodily harm for "striking . . . Gomez in the head,
                    neck, and/or chest," whereas the mayhem conviction was based on striking
                    "Gomez about the arms and/or hands with a machete," and actually
                    depriving her of her arms and/or hands. Therefore, we conclude that
                    Vergara-Martinez's dual convictions for battery resulting in substantial
                    bodily harm and mayhem are not prohibited by double jeopardy.
                                Second, Vergara-Martinez argues that due process and the
                    Sixth Amendment notice requirement prohibit an amendment to the
                    information allowing additional charges to be filed on the second day of a
                    three-day trial. We disagree. Vergara-Martinez failed to object below and
                    on appeal fails to demonstrate that his substantial rights were affected.
                    See Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003) (concluding
                    that the failure to object to jury instructions generally precludes appellate

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                   review unless there is plain error, meaning that the asserted error must
                   have affected the defendant's substantial rights). Specifically, Vergara-
                   Martinez fails to demonstrate that a miscarriage of justice occurred and
                   that he was prejudiced by the amendment, since he had adequate notice of
                   the State's theories of prosecution prior to trial based on the previously-
                   filed first and second amended information—both of which alleged the
                   same three charges and featured only minor changes to the language of
                   each charge. See id. (stating that "the burden is on the defendant to show
                   actual prejudiceS or a miscarriage of justice"); see also Viray v. State, 121
                   Nev. 159, 162-63, 111 P.3d 1079, 1082 (2005) (stating that prejudice
                   relating to an information amendment depends on whether a "defendant
                   had notice of the State's theory of prosecution"); State v. Eighth Judicial
                   Dist. Court, 116 Nev. 374, 377, 997 P.2d 126, 129 (2000) (holding that the
                   State is required to provide a defendant with adequate notice regarding
                   the various theories of prosecution).
                               Third, Vergara-Martinez argues that the district court
                   erroneously admitted the following pieces of evidence over his objection:
                   (1) Dr. Coates' expert testimony describing Gomez's wrist wounds as
                   "defensive wounds," despite Dr. Coates' absence at the scene of the attack,
                   because such a statement is speculative and pertains to causation, and (2)
                   non-testifying Dr. Cappana's medical record claiming that the incident
                   was "a classic attempt of beheading," because the Confrontation Clause
                   bars its admission. We disagree. The district court did not abuse its
                   discretion in admitting Dr. Coates' testimony because his opinion was
                   based on facts or data that he had personally observed as the first
                   physician to treat Gomez in the emergency room, and he offered his
                   conclusion to a reasonable degree of medical probability, as evidenced by

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                   the detailed medical support included in his testimony.     See Mclellan v.

                   State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008) (stating that the trial
                   court's decisions to admit or exclude evidence are reviewed for an abuse of
                   discretion); see also NRS 50.275-.285; see also Morsicato v. Say-On Drug
                   Stores, Inc., 121 Nev. 153, 158, 111 P.3d 1112, 1116 (2005) (holding that
                   medical expert testimony regarding causation cannot be highly
                   speculative, but must be made "to a reasonable degree of medical
                   probability").
                                Further, the district court did not err in admitting Dr.
                   Capanna's medical record because the "beheading" statement therein was
                   made during an ongoing emergency in which emergency room doctors
                   were tending to Gomez's life-threatening injuries and, therefore, is
                   considered non-testimonial.    See Crawford v. Washington, 541 U.S. 36, 68
                   (2004) (holding that the Confrontation Clause bars only the use of
                   testimonial statements made by witnesses that are unavailable for trial
                   unless the defendant was afforded a prior opportunity for cross-
                   examination); see also Davis v. Washington, 547 U.S. 813, 821 (2006)
                   (holding that statements are nontestimonial when made during the course
                   of an ongoing emergency).
                                Fourth, Vergara-Martinez argues that he was prejudiced by
                   media attention and protestors during trial. We disagree. The district
                   court did not err in failing to remove the trial from Clark County due to
                   publicity surrounding the trial because Nevada does not recognize a
                   district court's power to sua sponte change venue, and Vergara-Martinez
                   failed to apply for removal.   See NRS 174.464(1) (providing that a party
                   must make an application for removal "in open court, and in writing,



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                 verified by the affidavit of the defendant or district attorney," and serve a
                 copy of the affidavit on the adverse party).
                              Fifth, Vergara-Martinez argues that the district court
                 permitted prosecutorial misconduct. We conclude that, to the extent that
                 the prosecutor misstated evidence and law and made himself a witness for
                 impeachment purposes, those misstatements do not warrant reversal.
                 Specifically, the three instances in which the prosecutor made himself a
                 witness for impeachment purposes do not warrant reversal because the
                 two unobjected-to incidents do not rise to the level of plain error and the
                 third incident, to which Vergara-Martinez objected, was harmless error
                 because the jury was already aware of the same information based on trial
                 testimony.   Rose u. State, 123 Nev. 194, 209, 163 P.3d 408, 418 (2007)
                 (stating that this court reviews unobjected-to prosecutorial misconduct for
                 plain error, examining whether the error "had a prejudicial impact on the
                 verdict when viewed in context" or whether the error "seriously affects the
                 integrity or public reputation of the judicial proceedings" (internal
                 quotation omitted)); see also Valdez v. State, 124 Nev. 1172, 1188-89, 196
                 P.3d 465, 476 (2008) ("[T]his court will not reverse a conviction based on
                 prosecutorial misconduct if it was harmless error. . . . If the error is not of
                 constitutional dimension, we will reverse only if the error substantially
                 affects the jury's verdict.") Further, the prosecutor's minor unobjected-to
                 misstatements during closing argument regarding Gomez's injuries do not
                 rise to the level of plain error. Additionally, the prosecutor's statement
                 claiming that alcohol was "wholly irrelevant" is indeed problematic
                 standing alone, but when viewed in context of the prosecutor's entire
                 closing argument, it ultimately describes a correct statement of law, and
                 therefore did not have a prejudicial impact on the verdict in the context of

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                 the trial as a whole.   See NRS 193.220 ("No act committed by a person
                 while in a state of voluntary intoxication shall be deemed less criminal by
                 reason of his . condition, . . . [but] the fact of the person's intoxication
                 may be taken into consideration in determining the purpose, motive or
                 intent."). We finally conclude that the prosecutor's objected-to closing
                 argument statements alleging that alcohol was first mentioned during
                 Sergio Vergara-Martinez's testimony did not substantially affect the jury's
                 verdict under Valdez because the jury was aware of the defense's repeated
                 suggestion throughout trial that Vergara-Martinez was intoxicated.
                             Sixth, Vergara-Martinez argues that the district court abused
                 its discretion in rejecting his proposed jury instruction explaining the
                 defense theory regarding specific intent. We disagree. The district court
                 did not abuse its discretion in denying the proposed jury instruction
                 regarding specific intent because the proposed instruction was
                 substantially covered by instruction 14 and the instruction properly
                 avoided diminished capacity language.      See Oaanbengboune v. State, 125
                 Nev. 763, 774, 220 P.3d 1122, 1129 (2009) ("This court reviews a district
                 court's decision to issue or not to issue a particular jury instruction for an
                 abuse of discretion."); see also Davis v. State, 130 Nev., Adv. Op. 16, 321
                 P.3d 867, 874 (2014) C[T]he district court may refuse a jury instruction on
                 the defendant's theory of the case which is substantially covered by other
                 instructions." (alteration in original) (internal quotation omitted)).
                             Seventh, Vergara-Martinez argues that he was prejudiced due
                 to gruesome" and "overly prejudicial" photos presented to the jury during
                 the prosecution's opening statement. We disagree. The district court did
                 not abuse its discretion in permitting the State to present graphic crime
                 scene photos during its opening statement because the trial judge properly

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                weighed the probative value versus the prejudicial effect of the photos, and
                the prosecutor did not offer the crime scene photos in an improper attempt
                to argue the issues during opening statement.     See West v. State, 119 Nev.
                410, 420, 75 P.3d 808, 815 (2003) ("We will not disturb a district court's
                decision to admit photographic evidence unless the district court abused
                its discretion."); see also Theriault v. State, 92 Nev. 185, 193, 547 P.2d 668,
                674 (1976) ("Despite gruesomeness, photographic evidence has been held
                admissible when it accurately shows the scene of the crime ... and when
                it reflects the severity of wounds and the manner of their infliction."
                (citations omitted)), overruled on other grounds by Alford v. State,       111

                Nev. 1409, 1415 n.4, 906 P.2d 714, 717 n.4 (1995); see also Watters v.
                State, 129 Nev., Adv. Op. 94, 313 P.3d 243, 247 (2013) ("In a criminal case,
                the prosecutor's opening statement should be confined to a statement of
                the issues in the case and the evidence the prosecutor intends to offer."
                (internal quotation omitted)); see also NRS 48.035(1) (stating that relevant
                evidence is inadmissible "if its probative value is substantially outweighed
                by the danger of unfair prejudice, of confusion of the issues or of
                misleading the jury").
                            Finally, Vergara-Martinez argues that the cumulative effect of
                the errors warrants reversal of his conviction. We disagree. This court
                will not reverse a conviction based on cumulative error unless there is a
                showing that the cumulative effect of errors violated the defendant's right
                to a fair trial.   See Rose,   123 Nev. at 211, 163 P.3d at 419. When
                evaluating whether a claim of cumulative error warrants reversal, we
                consider "(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 omitted). Here, the

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                 issue of guilt was not close because Vergara-Martinez admitted to
                 attacking Gomez during his opening statement, conceding counts two and
                 three. Although the charges against Vergara-Martinez were serious, any
                 district court error that occurred was either harmless or did not amount to
                 plain error.' Accordingly, we
                              ORDER the judgment of conviction AFFIRMED.



                                                                                    J.




                                                                                    J.
                                                    Cherry




                                                    Gibbons




                 cc:   Eighth Judicial District Court Dept. 15
                       Clark County Public Defender
                       Attorney General/Carson City
                       Clark County District Attorney
                       Eighth District Court Clerk




                       1 Wehave considered Vergara-Martinez's remaining arguments and
                 conclude that they are without merit.


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