                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                CORDIAL LESHUN SMITH,                                No. 68213
                Appellant,
                vs.
                THE STATE OF NEVADA,
                Respondent.
                                                                        FILED
                                                                         MAY 09 2016



                                       ORDER OF AFFIRMANCE
                            This is an appeal from a judgment of conviction, pursuant to a
                jury verdict, of conspiracy to commit robbery, conspiracy to commit
                burglary, burglary while in possession of a firearm, assault with a deadly
                weapon, and attempted robbery with use of a deadly weapon. Eighth
                Judicial District Court, Clark County; Jessie Elizabeth Walsh, Judge.
                           Appellant first contends that the district court erred when it
                admitted into evidence a still photograph showing a gun pointed in a
                victim's face that was taken from a surveillance video after the court had
                previously excluded the surveillance video because of its late disclosure.
                The district court allowed the photograph to be admitted because
                appellant's counsel had opened the door to the evidence during opening
                statements by implying that a gun was never pointed in one of the victim's
                faces. Appellant argues that his counsel did not open the door to this
                evidence because her opening statement was not evidence and because her
                statement regarding the victim's testimony went to whether the victim
                feared for his life rather than whether the gun was pointed in his face.
                Because the opening statement may have cast doubt as to whether the
                gun was pointed in the victim's face, the district court did not abuse its
                discretion in admitting the still photograph from the surveillance video.
SUPREME COURT
        OF
     NEVADA     See Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109 (2008) ("We
(0) 1947A
                 review a district court's decision to admit or exclude evidence for an abuse
                 of discretion."); see also Cordova v. State, 116 Nev. 664, 670, 6 P.3d 481,
                 485 (2000) (explaining that a defendant may open the door, permitting the
                 State to introduce evidence that it could not otherwise offer); Bergeron, v.
                 State, 913 So. 2d 997, 1002 (Miss. Ct. App. 2005) (providing that "the
                 defendant may 'open the door' by mentioning during opening statements
                 the evidence which they are seeking to be excluded from the prosecution's
                 case-in-chief, thus giving the prosecution the opportunity to incorporate
                 the evidence into its case-in-chief').
                              Appellant next asserts that the district court erred in
                 admitting his jail phone call into evidence because the State failed to lay
                 the proper foundation establishing the identity of the other party and
                 because the statements made during the phone call were hearsay. The
                 State laid a proper foundation establishing that the person on the call was
                 appellant's coconspirator because the State demonstrated that it was the
                 coconspirator's phone number and the police detective testified that it was
                 the coconspirator's voice.     See MRS 52.065 (providing that a voice is
                 sufficiently identified by opinion based upon hearing the voice at any time
                 under circumstances connecting it with the alleged speaker"); see also
                 Thomas v. State,      114 Nev. 1127, 1148, 967 P.2d 1111, 1124 (1998)
                 (explaining that foundation is satisfied by "evidence sufficient to support a
                 finding that the matter in question is what its proponent claims" (quoting
                 U.S. v. Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996)). Because the
                 statements were made by the coconspirator and appeared to deal with
                 having a victim change his testimony, those statements were not hearsay
                 as they were made in furtherance of the conspiracy. NRS 51.035(3)(e)
                 (providing that a statement made by co-conspirator in furtherance of the
                 conspiracy is not hearsay); Crew v. State, 100 Nev. 38, 46, 675 P.2d 986,
SUPREME COURT
        OF
     NEVADA
                                                          2
(0) 1947A    e
                 991 (1984) (explaining that "the duration of a conspiracy is not limited to
                 the commission of the principal crime, but extends to affirmative acts of
                 concealment"). Thus, the district court did not abuse its discretion in
                 admitting the jail phone call. Mclellan, 124 Nev. at 267, 182 P.3d at 109.
                               Lastly appellant contends that the district court abused its
                 discretion in overruling his objection to his codefendant arguing
                 prejudicial facts that were not in evidence during his closing argument.
                 Although the district court overruled appellant's objection, the court
                 nonetheless limited appellant's codefendant's closing argument to facts in
                 evidence. Thus, we conclude that the district court did not abuse its
                 discretion in overruling appellant's objection.         See Glover v. Eighth
                 Judicial Dist. Court, 125 Nev. 691, 704, 220 P.3d 684, 693 (2009)
                 (explaining that this court reviews the latitude allowed counsel in a
                 closing argument for an abuse of discretion). Accordingly, we
                               ORDER the judgment of conviction AFFIRMED.



                                                                        J.
                                           Hardesty




                 Saitta                                      Pickering




                 cc:      Hon. Jessie Elizabeth Walsh, District Judge
                          Gregory & Waldo
                          Attorney General/Carson City
                          Clark County District Attorney
                          Eighth District Court Clerk


SUPREME COURT
        OF
     NEVADA
                                                        3
CO) 1941A    e
