                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                FRANK SMITH,                                           No. 67431
                Appellant,
                vs.
                THE STATE OF NEVADA,
                Respondent.
                                                                              FILED
                                                                              MAR 1 7 2016
                                                                             TRACE K. LNDEMAN
                                                                          CLERK OF SUPREME COURT
                                                                         BY     '

                                                                              DEPUTY CLERK

                                        ORDER OF AFFIRMANCE
                            This is an appeal from a judgment of conviction, pursuant to a
                jury verdict, of burglary, home invasion, and first-degree murder. Second
                Judicial District Court, Washoe County; Scott N. Freeman, Judge.
                            First, appellant Frank Smith contends that the district court
                erred by denying his fair-cross-section challenge to the jury venire To
                demonstrate a fair-cross-section violation, a defendant must show: (1) the
                group alleged to be excluded is a distinctive group in the community; (2)
                the representation of the group in venires from which juries are selected is
                not fair and reasonable in relation to the number of such persons in the
                community; and (3) the underrepresentation is due to systematic exclusion
                in the jury-selection process.   Williams v. State, 121 Nev. 934, 940, 125
                P.3d 627, 631 (2005). Here, when resolving the challenge, the district
                court made several comments which suggested that it might be
                considering factors other than the three identified above. Smith did not
                object to the comments and therefore it is difficult to place them in
                context. But even assuming that the district court erroneously considered
                additional factors, we conclude that no relief is warranted. We reject
                Smith's contention that this claim implicates structural error.               See
                Cortinas u. State, 124 Nev. 1013, 1024, 195 P.3d 315, 322 (2008)
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                (explaining the narrow circumstances where a district court commits
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                  structural error). Instead, we will affirm if the district court reached the
                  right result, see Wyatt v. State, 86 Nev. 294, 298, 468 P.2d 338, 341 (1970),
                  which it did because Smith failed to satisfy the second and third elements
                  of the challenge. Although Smith asserts that he was prevented from
                  satisfying these elements because the district court did not hold an
                  evidentiary hearing, he did not request a hearing nor allege sufficient
                  facts to warrant a hearing under the circumstances.      See Cortes v. State,
                  127 Nev., Adv. Op. 4,260 P.3d 184, 187-88 (2011); see also Williams, 121
                  Nev. at 940, 125 P.3d at 631. Therefore, we conclude that no relief is
                  warranted on this claim.'
                              Second, Smith contends that the district court abused its
                  discretion by denying his motion to sever his trial from his codefendant's
                  because they had antagonistic defenses.     See Marshall v. State, 118 Nev.
                  642, 646-47, 56 P.3d 376, 379 (2002) (explaining that this court will not
                  reverse a district court's decision regarding joinder absent an abuse of
                  discretion). We disagree.' Smith did not testify at trial or present
                  witnesses, but in closing argument his counsel claimed that the victim


                        'Smith's reliance on Buchanan v. State, 130 Nev., Adv. Op. 82, 335
                  P.3d 207 (2014), is misplaced because Buchanan holds "when a defendant
                  moves the court to strike a jury venire, and the district court determines
                  that an evidentiary hearing is warranted, it is structural error for the
                  district court to deny the defendant's challenge before holding that
                  hearing to determine the merits of the motion." (emphasis added).

                         'The State asserts that we should decline to review this claim
                  because, while Smith's codefendant moved to sever the trials, Smith did
                  not. Our review of the record indicates that Smith joined in the motion.
                  We note, however, that Smith erroneously includes in his appendix
                  documents relating to the motion to sever filed by his codefendant at their
                  prior trial.

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                  might have started the incident and Smith was only guilty of second-
                  degree murder. Smith's codefendant argued that the encounter started
                  before he arrived and Smith fired the fatal shot. We are not convinced
                  that these defenses are antagonistic       See, e.g., Butler v. State, 797 S.W.2d
                  435, 437 (Ark. 1990) (discussing antagonistic defenses). Regardless,
                  "antagonistic defenses are a relevant consideration but not, in themselves,
                  sufficient grounds for concluding that joinder of defendants is prejudicial."
                  Id. at 648, 56 P.3d at 379. Instead, an appellant "must show that the joint
                  trial compromised a specific trial right or prevented the jury from making
                  a reliable judgment regarding guilt or innocence."        Id. at 648, 56 P.3d at
                  380. Smith fails to make that showing.
                              Third, Smith contends that the district court abused its
                  discretion by allowing the State to introduce a surveillance video on the
                  grounds that it was unauthenticated and constituted inadmissible hearsay
                  evidence. 3 Having considered Smith's arguments and reviewed the record,
                  we are not convinced that the district court abused its discretion.          See
                  Mclellan v. State, 124 Nev. 263, 267, 182 P.3d 106, 109(2008) (stating that
                  the district court's evidentiary decisions are reviewed for an abuse of
                  discretion). Appellant fails to convince us that the video constitutes
                  hearsay or that the district court abused its discretion by admitting it.
                  Therefore, we conclude that no relief is warranted on this claim.



                        3 Smith also contends that the State failed to preserve the original
                  surveillance video pursuant to Crockett v. State, 95 Nev. 859, 603 P.2d
                  1078 (1979). We decline to consider this assertion because Smith did not
                  raise it below. We note, however, that Smith offers no explanation as to
                  how the original video was exculpatory and all of the evidence in the
                  record suggests otherwise.

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                              Fourth, Smith contends that the district court erred by
                  allowing a detective to narrate the contents of the surveillance video. We
                  review the district court's decision to allow this testimony for an abuse of
                  discretion. See Burnside v. State, 131 Nev., Adv. Op. 40, 352 P.3d 627, 640
                  (2015). Smith fails to demonstrate that the district court abused its
                  discretion because most of the narration appropriately highlighted
                  portions of the video which were relevant to law enforcement's
                  investigation. Even assuming that some of the narration was improper
                  because it constituted an interpretation of the video, any error was
                  undoubtedly harmless given the nature of the video and the overwhelming
                  evidence against Smith.    See Valdez v. State, 124 Nev. 1172, 1189, 196
                  P.3d 465, 476 (2008). Therefore, we conclude that no relief is warranted
                  on this claim.
                              Fifth, Smith contends that the district court erred by refusing
                  his proffered transition instruction. We review a district court's refusal to
                  give a jury instruction for an abuse of discretion and whether the
                  instruction was a correct statement of law de novo.    See Nay v. State, 123
                  Nev. 326, 330, 167 P.3d 430, 433 (2007). The district court did not err or
                  abuse its discretion because the instruction given at trial was a correct
                  statement of law, see Green v. State, 119 Nev. 542, 547, 80 P.3d 93, 96
                  (2003), whereas the instruction proposed by Smith was misleading and
                  therefore he was not entitled to it, see Carter v. State, 121 Nev. 759, 765,
                  121 P.3d 592, 596 (2005) (holding that a defendant is not entitled to
                  misleading instructions). Therefore, we conclude that no relief is
                  warranted on this claim.
                              Sixth, Smith contends that the prosecutor inappropriately
                  shifted the burden of proof to him when questioning a witness. We
                  disagree. Smith asked a State's witness whether a piece of evidence she
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                collected was on an exhibit list and she replied that it was not. 4 During
                redirect, the prosecutor asked the witness if "anybody" had asked her to
                bring evidence to court and the defense objected. The district court
                properly overruled the defense's objection because this exchange did not
                shift the burden of proof to the defense or suggest that the defense had a
                duty to present evidence. See Barron v. State, 105 Nev. 767, 778, 783 P.2d
                444, 451 (1989). Moreover, the jury was properly instructed regarding the
                State's burden of proof. Therefore, we conclude that no relief is warranted
                on this claim.
                            Seventh, Smith contends that the district court abused its
                discretion at sentencing by relying solely upon a California juvenile
                adjudication for murder when imposing sentence. We have consistently
                afforded the district court wide discretion in its sentencing decision, see,
                e.g., Houk v. State, 103 Nev. 659, 664, 747 P.2d 1376, 1379 (1987), and will
                refrain from interfering with the sentence imposed by the district court
                "Islo long as the record does not demonstrate prejudice resulting from
                consideration of information or accusations founded on facts supported
                only by impalpable or highly suspect evidence," Silks v. State, 92 Nev. 91,
                94, 545 P.2d 1159, 1161 (1976). But because Smith failed to object below,
                we review for plain error. See Valdez, 124 Nev. at 1189, 196 P.3d at 476.
                Smith fails to demonstrate plain error. Although he challenges the
                validity of the adjudication and a description of it in his Presentence
                Investigation Report, these documents have not been provided on appeal


                      4 Smith does not identify the evidence, but the record reflects that
                the parties were referring to a curtain obtained from the crime scene.
                Smith offers no explanation of the curtain's relevance and its probative
                value is not apparent from the record.

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                       and we cannot say that they constitute highly suspect evidence. We note
                       that Smith essentially admitted he committed the acts forming the basis
                       of the adjudication at sentencing. And despite Smith's contention that the
                       district court's sole reliance on the adjudication was evidenced by the fact
                       that he received a different sentence from his codefendant, the district
                       court specifically stated that Smith's juvenile background, while relevant,
                       would not form the basis of the sentence. The district court also identified
                       numerous distinctions between Smith and his codefendant and explained
                       why they warranted different sentences. Therefore, we conclude that no
                       relief is warranted on this claim.
                                     Eighth, Smith contends that cumulative error warrants relief.
                       Having considered the relevant factors, see Valdez, 124 Nev. at 1195, 196
                       P.3d at 481, we conclude that no relief is warranted.
                                     Having considered Smith's claims and concluded that no relief
                       is warranted, we
                                     ORDER the judgment of conviction AFFIRMED.



                                                    /---L                 , J.
                                                Hardesty

                                1.                 J.                                        '   J.
                       Saitta                                     Pickering



                       cc: Hon. Scott N. Freeman, District Judge
                            Law Office of Thomas L. Qualls, Ltd.
                            Attorney General/Carson City
                            Washoe County District Attorney
                            Washoe District Court Clerk

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