                                                        131 Nev., Advance Opinion         41
                         IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                   NOEL LIRIO GONZALES,                                   No. 64539
                   Appellant,
                   vs.
                   THE STATE OF NEVADA,
                                                                              FILED
                   Respondent.                                                JUL 02 2015
                                                                          TRACE K LINDEMAN
                                                                       CLERK OF SUPREME COURT

                                                                       BY _
                                                                               DEPUTY CLERK
                               Appeal from a judgment of conviction, pursuant to a jury
                   verdict, of conspiracy to commit robbery, burglary while in possession of a
                   firearm, robbery with the use of a deadly weapon, and first-degree
                   kidnapping with the use of a deadly weapon. Eighth Judicial District
                   Court, Clark County; Douglas W. Herndon, Judge.
                               Affirmed.


                   Wright Stanish & Winckler and Monti Levy, Las Vegas,
                   for Appellant.

                   Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
                   District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
                   Megan Thomson, Deputy District Attorney, Clark County,
                   for Respondent.




                   BEFORE GIBBONS, C.J., TAO and SILVER, JJ.

                                                    OPINION

                   By the Court, TAO, J.:
                               Appellant Noel Gonzales was convicted of multiple felonies
                   following a jury trial, and part of the evidence introduced against him was

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(o) i94Th   cet.                                                                          IS - 90010
                   his tape-recorded confession to the crimes during a custodial police
                   interrogation. Because Gonzales claims to be a non-native English
                   speaker, he asks us in this appeal to adopt the test set forth by the United
                   States Court of Appeals for the Ninth Circuit in United States v. Carl bay
                   143 F.3d 534, 538 (9th Cir. 1998), to find that his confession should not
                   have been admitted at trial because he was not provided with the
                   assistance of an interpreter and therefore his confession was obtained
                   illegally.
                                We conclude that the test set forth in Garibay provides a
                   helpful guide in identifying and weighing some of the circumstances that
                   may be relevant to the admissibility of confessions rendered by non-native
                   English speakers. However, we decline to adopt the Carl bay test as an
                   overarching inquiry that must always be applied by district courts
                   whenever an interrogated suspect is a non-native English speaker. After
                   reviewing the totality of the circumstances in this case, we conclude that
                   the district court did not err in rulingS that appellant's confession was
                   admissible even though English is not his native language and he was not
                   provided with the assistance of an interpreter during his police
                   interrogation. We also conclude that the district court did not err in
                   admitting documents proffered to tie Gonzales to the scene that Gonzales
                   characterizes as hearsay. In addition, we conclude the evidence presented
                   to the jury in this case was sufficient to sustain convictions for the crimes
                   of kidnapping and robbery arising from the same course of conduct.
                                                     FACTS
                                Michelle Damaya was in the garage of her home vacuuming
                   her car while her 22-month-old daughter Abigail napped inside the house.
                   Three people, a woman and two men, entered through the open garage
                   door and accosted Michelle. The shorter of the two men, later identified as
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                   Gonzales, was wearing a mask and had the hood of his sweatshirt pulled
                   over his head so that Michelle could not immediately see his face.
                   Gonzales pointed a gun at Michelle and told her, "we want your guns, we
                   want your money." The woman motioned for Michelle to go inside the
                   house, and she complied.
                               At gunpoint, Michelle led the trio to the master bedroom,
                   where they ransacked the room in search of valuables. The trio asked
                   Michelle where any guns and money were kept, but Michelle answered
                   that she did not know because her husband had recently moved his guns
                   in order to prevent Abigail from accidentally finding them. The woman
                   responded by calling Michelle stupid for not knowing where anything was.
                   Eventually, after searching the entire room, the perpetrators found a safe
                   and forced Michelle to open it. The perpetrators then forced Michelle to
                   hold laundry baskets for them to fill with items from the safe.
                               Michelle asked if she could go get Abigail, but the perpetrators
                   refused. Following repeated and increasingly insistent requests by
                   Michelle, Gonzales eventually gave permission and Michelle retrieved her
                   daughter. At some point Gonzales and the female perpetrator split up to
                   search other rooms of the house while the taller man stayed in the master
                   bedroom with Michelle and Abigail. The taller man continued searching
                   the master bedroom and eventually discovered a hidden firearm owned by
                   Michelle's husband.
                               After a few minutes, the woman called Michelle to another
                   room, where Michelle watched her go through the drawers of a desk.
                   Michelle asked the taller man why they were there, and he replied that
                   they had been hired to "come get your guns and money." The trio then
                   scattered throughout the house in search of more valuables, leaving

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                   Michelle and Abigail alone. Michelle ran to a side door that she had
                   previously left unlocked, but apparently had been locked by the
                   perpetrators during the crime, unlocked it, and fled the house with Abigail
                   to a neighbor's residence where she called 9-1-1. Police officers arrived
                   moments later and quickly located the woman and the taller man who had
                   accompanied Gonzales. They also found a car parked in Michelle's
                   driveway in which documents bearing Gonzales' name were later
                   discovered.
                                 While police officers worked to establish a perimeter around
                   the house, Gonzales voluntarily approached a police detective parked on
                   the street and spontaneously uttered, in English, "I was involved. It was
                   me. I was involved." He was immediately arrested and searched, and
                   property belonging to Michelle and her husband was found on his person.
                   After the search, Gonzales asked, again in English, to be placed into the
                   police car rather than be left standing in the street, and officers complied.
                   Gonzales remained seated in the police car for approximately one hour
                   with one back door open and the air conditioner turned on while the police
                   continued to investigate the scene.
                                 Gonzales was then transported to police headquarters and
                   interrogated by Detective Patrick Flynn. Prior to the interrogation,
                   Detective Flynn administered warnings, in English, pursuant to Miranda
                   v. Arizona, 384 U.S. 436 (1966). In English, Gonzales stated that he
                   understood his rights and agreed to be questioned. Flynn repeated the
                   warnings again, in slightly different and less formal language, later
                   during the questioning Gonzales, whose native language is Tagalog,
                   never requested the assistance of an interpreter, and none was provided.



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                    The entire interrogation was conducted in English and tape-recorded.
                    Gonzales subsequently confessed to the offenses in detail in English.
                                Gonzales and his two codefendants were each charged with
                    the crimes of conspiracy to commit robbery, burglary while in possession of
                    a firearm, robbery with use of a deadly weapon, and first-degree
                    kidnapping with use of a deadly weapon.
                                Prior to trial, Gonzales filed a motion with the district court
                    seeking to suppress incriminatory statements made during his recorded
                    interrogation, asserting that he was under the influence of
                    methamphetamine during the interrogation, and furthermore that he had
                    not been provided with the assistance of a Tagalog interpreter even
                    though English was not his native language. Following a two-day
                    evidentiary hearing, the district cOurt denied the motion. The recorded
                    interrogation was played to the jury during Gonzales' trial, and he was
                    convicted of all counts This appeal followed.
                                                    ANALYSIS
                                In this appeal, we focus upon three contentions of error
                    asserted by Gonzales.' First, Gonzales contends the district court erred by
                    admitting statements made during his recorded interrogation because
                    those statements were not made freely or voluntarily. Second, he asserts
                    the district court erred in admitting hearsay in the form of a rental car
                    agreement and a Money Tree receipt bearing Gonzales' name found in a



                           'Gonzales also contends that the multiple alleged errors constituted
                    cumulative error depriving him of a fair trial. Because we conclude that
                    the district court did not commit any of the individual errors ascribed to it,
                    we also conclude that no cumulative error has occurred. See Pascua v.
                    State, 122 Nev. 1001, 1008 n.16, 145 P.3d 1031, 1035 n.16(2006).

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                   car parked in the driveway of the home. Third, Gonzales avers the
                   evidence was insufficient to support convictions for both kidnapping and
                   robbery, because those counts legally "merged" under the facts of this case.
                   Admission of Gonzales' incriminatory statements
                               Gonzales first contends that incriminatory statements made
                   by him during his recorded interrogation should not have been admitted at
                   trial because his grasp of the English language was insufficient for him to
                   knowingly and intelligently waive his Miranda rights, and because the
                   circumstances demonstrate that the interrogation was coercive as he was
                   not provided with the assistance of an interpreter. Therefore, Gonzales
                   contends his confession should have been deemed inadmissible under the
                   standard set forth in United States v. Gari bay, 143 F.3d 534, 538 (9th Cir.
                   1998).
                               When a confession is challenged and a hearing is requested
                   under Jackson v. Denno, 378 U.S. 368, 380 (1964), the State must prove by
                   a preponderance of the evidence that the defendant's incriminatory
                   statements are admissible. Dewey v. State, 123 Nev. 483, 492, 169 P.3d
                   1149, 1154 (2007). When a defendant has been subjected to "custodial
                   interrogation," the State must first demonstrate the police administered
                   Miranda warnings prior to initiating any questioning. See State v. Taylor,
                   114 Nev. 1071, 1081, 968 P.2d 315, 323 (1998). If the warnings were
                   properly given, the State must then prove the defendant voluntarily,
                   knowingly, and intelligently understood his constitutional right to remain
                   silent and/or to have an attorney present during any questioning, and
                   agreed to waive those rights. See Mendoza v. State, 122 Nev. 267, 276, 130
                   P.3d 176, 181-82 (2006); see also Miranda v. Arizona, 384 U.S. 436 (1966).
                   Even where such warnings were properly administered and waived, the
                   State must also separately show that the defendant's incriminatory
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                   statements were voluntary under the totality of the circumstances.         See
                   Falcon v. State, 110 Nev. 530, 534, 874 P.2d 772, 775 (1994).
                               "A confession is admissible as evidence only if it is made
                   freely, voluntarily, and without compulsion or inducement."       Echavarria
                   v. State, 108 Nev. 734, 742, 839 P.2d 589, 595 (1992) (quoting Franklin v.
                   State, 96 Nev. 417, 421, 610 P.2d 732, 734 (1980)); see also Passama v.
                   State, 103 Nev. 212, 213-14, 735 P.2d 321, 322 (1987) ("In order to be
                   voluntary, a confession must be the product of a rational intellect and a
                   free will." (internal quotation marks omitted)). Voluntariness must be
                   determined by reviewing the totality of the circumstances, including such
                   factors as the defendant's age, education, and intelligence; his knowledge
                   of his rights; the length of his detention; the nature of the questioning; and
                   the physical conditions under which the interrogation was conducted.
                   Passama, 103 Nev. at 214, 735 P.2d at 323. A "confession is involuntary if
                   it was coerced by physical intimidation or psychological pressure."     Brust
                   v. State, 108 Nev. 872, 874, 839 P.2d 1300, 1301 (1992). The ultimate
                   inquiry is whether the defendant's will was overborne by the government's
                   actions. Chambers v. State, 113 Nev. 974, 981, 944 P.2d 805, 809 (1997).
                               In this case, the parties do not dispute that Gonzales was in
                   custody at all times while being questioned, that the police questioning
                   constituted an "interrogation" triggering the administering of Miranda
                   warnings, or that detectives administered the proper warnings prior to
                   commencing the interrogation. Indeed, all of this is confirmed by the
                   recording and transcript of the questioning. The parties also do not
                   appear to dispute that Gonzales verbally acknowledged he understood his
                   rights once they were read by saying "yes," and waived those rights to



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                   participate in the police interrogation by answering questions without
                   invoking his right to remain silent or asking for an attorney.
                               Gonzales contends, however, that his statements were
                   inadmissible because he was not provided with the assistance of a
                   Tagalog interpreter while being questioned, and also because he was
                   intoxicated during the interrogation. 2 Consequently, Gonzales contends
                   his Miranda waiver was inadequate and the entire interrogation was
                   unconstitutionally conducted.
                   The test of United States v. Gari bay
                               Questions relating to the admissibility of a confession
                   rendered by a non-native English speaker during a custodial police
                   interrogation are ones that the courts of this state are encountering with
                   increasing frequency. During a single shift, a police officer in Nevada may


                         2As a general proposition, intoxication is a factor the district court
                   must consider in determining whether a confession was truly voluntary.
                   However, intoxication is not, by itself, sufficient to render a confession
                   involuntary when the totality of the circumstances otherwise indicate that
                   the statements were voluntary. E.g., Chambers v. State, 113 Nev. 974,
                   981-82, 944 P.2d 805, 809-10 (1997) (confession voluntary even when given
                   with blood alcohol content (BAC) of .27 and other drugs were present in
                   defendant's system, and defendant was in pain from an open stab wound
                   in arm); Kirksey v. State, 112 Nev. 980, 992, 923 P.2d 1102, 1110 (1996) (to
                   render confession involuntary, defendant must have been so intoxicated
                   that "he was unable to understand the meaning of his comments" (internal
                   quotation marks omitted)); Falcon v. State, 110 Nev. 530, 533-35, 874 P.2d
                   772, 774-75 (1994) (confession admitted even though defendant was under
                   influence of illegal narcotics at time of questioning); Tucker v. State, 92
                   Nev. 486, 487-88, 553 P.2d 951, 952 (1976) (confession admissible even
                   though defendant's BAC was .20 at the time he signed the confession);
                   Wallace v. State, 84 Nev. 603, 605, 447 P.2d 30, 31 (1968) (confession
                   voluntary even when given in emergency room after being shot).



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                   encounter a variety of different languages and dialects, and court-certified
                   interpreters may not always be readily available to assist the officer
                   whenever an interrogation is necessary. At the same time, there appears
                   to be a dearth of published precedent from the Nevada Supreme Court to
                   guide trial courts and police officers in handling such interrogations.
                                To fill that void, Gonzales asks this court to require district
                   courts to apply the six-prong test set forth in United States v. Garibay, 143
                   F.3d 534, 538 (9th Cir. 1998), whenever the admissibility of a custodial
                   police interrogation of a non-native English speaker is challenged. In
                   Garibay, the Ninth Circuit canvassed existing case law and identified six
                   factors that federal courts generally consider relevant to the voluntariness
                   of a confession rendered by a non-native English speaking defendant.
                   Specifically, the court stated:
                               In applying the "totality of circumstances" test, we
                               further examine whether other circumstances
                                surrounding Garibay's interrogation indicate that
                               he knowingly and intelligently waived his
                               constitutional rights, despite his English-language
                               difficulties, borderline retarded IQ, and poor
                               verbal comprehension skills. The following
                               considerations guide our inquiry: (1) whether the
                                defendant signed a written waiver; (2) whether the
                                defendant was advised of his rights in his native
                               tongue; (3) whether the defendant appeared to
                               understand his rights; (4) whether a defendant
                               had the assistance of a translator; (5) whether
                               the defendant's rights were individually and
                               repeatedly explained to him; and (6) whether the
                               defendant had prior experience with the criminal
                               justice system.
                   Id. at 538. Factually, the Ninth Circuit held that Garibay's confession was
                   involuntary because he possessed a low IQ, had some history of mental
                   illness, and spoke English very poorly, yet was not provided with the
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                   assistance of an interpreter during a custodial interrogation.    Id. at 538-
                   39. Because the interrogation of Garibay failed to meet even a single one
                   of the six factors identified by the Ninth Circuit, the confession was
                   deemed inadmissible. Id.
                               Gonzales asks this Court to follow the guidance of Gari bay in
                   determining the voluntariness of his confession in this case. As a general
                   proposition, Nevada's Due Process Clause is textually identical to the
                   federal Due Process Clause in relevant respects. Compare Nev. Const. art.
                   1, § 8(5), with U.S. Const. amend. XIV, § 1. The Nevada Supreme Court
                   reads the state clause as coextensive with the federal clause.      See, e.g.,
                   Wyman v. State,      125 Nev. 592, 600, 217 P.3d 572, 578 (2009).
                   Furthermore, "Nevada has historically followed the United States
                   Supreme Court on most, if not all, of its interpretations and applications of
                   the law governing searches and seizures." State v. Lloyd, 129 Nev. ,
                        312 P.3d 467, 471 (2013) (internal quotation marks omitted). Thus,
                   Gari bay represents persuasive authority that can be considered by this
                   court.
                               Contrary to Gonzales' characterization, however, Garibay did
                   not articulate a comprehensive legal test that, by itself, determines the
                   admissibility of any confession made by a non-native English speaker.
                   Constitutionally, admissibility must be assessed in view of the "totality of
                   the circumstances." Passama, 103 Nev. at 214, 735 P.2d 323.          Gari bay
                   identifies some of the myriad circumstances generally relevant to the
                   admissibility of any confession within the existing constitutional
                   framework that might have special relevance when the defendant is a non-
                   native speaker, but the factors listed therein are nonexclusive. 143 F.3d
                   at 538 (stating that the factors listed were "considerations [to] guide our

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                    inquiry"). Thus, the framework of Gari bay may provide helpful guidance
                    to district courts grappling with the question of admissibility of such
                    confessions, and the Gari bay factors may be considered by district courts
                    when reviewing those confessions. However, the mere fact that a
                    particular confession fails to satisfy the six factors identified in Gari bay
                    does not, by itself, render the confession inadmissible any more than an
                    otherwise involuntary confession becomes admissible merely because it
                    meets those six factors.
                                Questions relating to the admissibility of confessions by non-
                    native English speakers are far too complex and fact-specific to pigeonhole
                    into any single legal test, even one with six elements. Indeed, no single
                    legal litmus test can possibly capture all of the relevant variations and
                    iterations that could help determine the voluntariness of an interrogated
                    suspect who speaks English as a second language, because non-native
                    speakers who are somewhat familiar with English may possess different
                    degrees of fluency that are not always easy to label or categorize.
                    For example, some non-native English speakers may speak English
                    conversationally yet not understand arcane or complex legal terms; some
                    may speak English well but cannot read it; some may read and write
                    English extremely well yet speak with accents that render their spoken
                    words difficult for others to understand; some may understand the
                    meaning of English words when they hear them without being able to
                    generate those same words quickly during conversation; some may speak
                    and understand English well when conversing with some people but have
                    difficulty understanding others who speak with a strong regional accent
                    such as a southern drawl or northeastern inflection; and some may
                    understand extremely complex English words and concepts when formally

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                   phrased yet not understand street jargon, slang, aphorisms, pop-culture
                   references, or other colloquialisms that, to native speakers, might be far
                   more conceptually simple. It is even possible that some non-native
                   speakers may, based upon their education, understand the legal system
                   extremely well yet not understand other words or concepts that might be
                   conceptually simpler to others.
                               All of these subtleties are relevant to the voluntariness of a
                   confession, but nonetheless are not captured well in the Garibay test.
                   Consequently, while Garibay provides useful guidance for district courts
                   grappling with the admissibility of confessions rendered by non-native
                   English speakers, we decline the invitation to adopt the Gari bay test as a
                   comprehensive test of voluntariness in Nevada. The constitutional test for
                   admissibility remains whether the confession was voluntary under the
                   totality of all circumstances relevant to the confession, whether the
                   circumstances are delineated in Gari bay or not. See Passama, 103 Nev. at
                   214, 735 P.2d at 323.
                               Consequently, we cannot conclude that the district court erred
                   in this case merely because it failed to set forth its findings within the
                   context of the Gari bay analysis.
                   Admissibility of Gonzales' confession
                               The district court conducted a two-day evidentiary hearing
                   pursuant to Jackson v. Denno, 378 U.S. 368, 380 (1964), and concluded
                   that Gonzales' statements were admissible. We review the district court's
                   factual findings for "clear error" and its legal conclusions de novo. Lamb v.
                   State, 127 Nev. 26, 31, 251 P.3d 700, 703 (2011). "On appeal, if
                   substantial evidence supports the district court's finding that the
                   confession was voluntary, then the district court did not err in admitting
                   the confession." Brust v. State, 108 Nev. 872, 874, 839 P.2d 1300, 1301
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                   (1992). "Substantial evidence" has been defined as evidence that "a
                   reasonable mind might consider adequate to support a conclusion." Steese
                   v. State, 114 Nev. 479, 488, 960 P.2d 321, 328 (1998). Additionally, even if
                   the admission of a confession is deemed to have been erroneous, reversal is
                   not required if the error was harmless.    Mendoza v. State, 122 Nev. 267,
                   277 n.28, 130 P.3d 176, 182 n.28 (2006).
                               In this case, the district court concluded that Gonzales' ability
                   to speak and understand English was sufficiently high that he was fully
                   capable of understanding and waiving his Miranda rights and making free
                   and voluntary admissions. During the two-day evidentiary hearing,
                   certified court interpreter Josefina Dooley testified that Tagalog speakers
                   who can appear to speak English well may have trouble understanding
                   complicated legal principles such as Miranda warnings, and there are
                   words contained within the standard Miranda warnings (such as "waiver")
                   that cannot be easily translated directly into Tagalog. Ms. Dooley also
                   testified that she had interpreted for Gonzales on approximately ten
                   occasions and had witnessed him respond to questions inappropriately or
                   incorrectly on a number of occasions. However, Ms. Dooley admitted she
                   had also witnessed Gonzales begin to correctly answer questions posed to
                   him in English before they were translated to him by her.
                               Two psychologists, Dr. John Paglini and Dr. Gary Lenkeit,
                   were asked to conduct competency evaluations of Gonzales, and testified
                   that Gonzales needed translation assistance during their evaluations. Dr.
                   Paglini testified that Gonzales appeared to have good English
                   comprehension skills, was "pretty fluent" in English, and had a higher-
                   than-average IQ. Dr. Paglini described Gonzales as being able to respond
                   in English approximately 30 to 50 percent of the time during the

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                   evaluation and that approximately 50 to 70 percent of the time Gonzales
                   could respond in English but would depend upon the interpreter to
                   translate the questions for him before answering. Dr. Lenkeit testified
                   that during his evaluation Gonzales relied upon the interpreter
                   approximately 40 percent of the time, and appeared to particularly need
                   translation assistance when asked questions relating to the legal system
                   or to legal principles. Both Dr. Paglini and Dr. Lenkeit testified they could
                   not have completed Gonzales' assessment without the assistance of a
                   Tagalog interpreter. Dr. Lenkeit also opined that, had Gonzales ingested
                   methamphetamine hours before the interview, the drugs would have
                   further impaired his already-limited understanding of the interview in
                   English.
                                  A police detective testified that he interacted with Gonzales at
                   the scene of the crime and, based upon his training and experience,
                   Gonzales did not appear to be intoxicated or under the influence of
                   narcotics. He also testified that while Gonzales spoke with an accent, he
                   conversed freely in English and spontaneously admitted his involvement
                   in the crime in English before being arrested. Two other police detectives
                   testified that although Gonzales spoke with a pronounced accent, he was
                   able to speak and understand most or all of what was said to him in
                   English. They testified that Gonzales claimed during the interview to
                   have ingested methamphetamine at approximately 10 o'clock the morning
                   of the crime. The interrogation occurred at 7:32 that evening, some nine
                   hours later.
                                  Another police officer testified that he had previously arrested
                   Gonzales for an unrelated offense and had administered                Miranda
                   warnings in English that Gonzales acknowledged understanding. He also

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                   testified that Gonzales spoke with a heavy accent and occasionally gave
                   answers that were difficult to understand or unintelligible, but Gonzales
                   was able to answer most questions posed to him in proper English.
                               After hearing this testimony, the district court concluded that
                   Gonzales "presented insufficient evidence that he was under the influence
                   of a narcotic that would render his statement involuntary." Our review of
                   the record reveals the only evidence presented by Gonzales of any drug
                   use was his own claim to have ingested methamphetamine more than nine
                   hours prior to the interrogation. No witness testified that Gonzales
                   appeared to be intoxicated during the interrogation, and no medical
                   evidence of drug usage was presented to the district court. Under these
                   circumstances, the district court's conclusion was not clearly erroneous.
                               The district court also concluded that Gonzales understood
                   and spoke English sufficiently well that his incriminatory statements were
                   free and voluntary and he could understand and thereby waive his
                   Miranda rights even without the assistance of an interpreter. In
                   reviewing the record, we note the district court was presented with
                   evidence suggesting that Gonzales' grasp of the English language was
                   limited and he had difficulty understanding legal concepts in English. The
                   transcript of his interrogation includes certain confused descriptions, such
                   as describing criminals as "the felonies people."
                               On the other hand, the evidence before the district court also
                   suggested that Gonzales understood most of what was said to him during
                   the interrogation. Indeed, Gonzales concedes in his appeal briefing that
                   he "appears [to observers] to be fluent in conversational English." The
                   transcript of the interrogation further indicates Gonzales understood
                   virtually every question asked of him, his answers were on the whole

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                   clear, appropriate, and responsive to the questions asked, and he even
                   occasionally corrected erroneous information presented to him. Some of
                   his answers consisted of lengthy narratives in English that included
                   complex words and concepts such as "diversified," "camouflage,"
                   "informant," "prescription," and "discharging firearms." Additionally,
                   Gonzales was described as having a higher-than-average IQ and was
                   familiar with the Miranda warnings from at least one previous police
                   interrogation. At one point during the interrogation, the following
                   colloquy occurred:
                               Gonzales: Man it's in my heart to help, you know,
                               but the problem is the English the problem—that's
                               my problem.
                               Detective Flynn: Yeah I think your English is
                               pretty good. There's only been a couple—couple
                               times when I had a hard time understanding you
                               but you just explained it a different way. I
                               understand everything you are saying.
                               Gonzales: But. . .
                               Detective Flynn: Do you understand everything
                               I'm saying?
                               Gonzales: Yes sir.
                               Detective Flynn: Okay. You've never had a
                               problem understanding what I'm saying?
                               Gonzales: No you're clear.
                               The district court also indicated it had listened to audio
                   recordings of the interrogation and two phone calls made by Gonzales
                   while incarcerated. Importantly, the court noted that witnesses Josefina
                   Dooley, Dr. Paglini, and Dr. Lenkeit had not been provided with either the
                   videotape of Gonzales' interrogation or audio recordings of Gonzales'
                   phone calls that the court reviewed. After considering all of the evidence,
                   the district court concluded Gonzales "has sufficient skills in English to
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                   not only understand the Miranda warnings, but to waive his rights and
                   make a statement against interest."
                                In this case, the district court was presented with conflicting
                   evidence. While reasonable minds could perhaps reach different
                   conclusions based upon that evidence, the district court heard the
                   witnesses and saw the evidence firsthand while this court has only the
                   written record. Based upon the evidence in the record, we cannot fairly
                   say the district court's factual findings constituted clear error, and we
                   conclude the district court did not err as a matter of law by admitting
                   Gonzales' confession. 3
                                Finally, we note that even if Gonzales' custodial confession
                   was improperly admitted, the collective evidence against him was
                   overwhelming. Police found Gonzales near the scene moments after the
                   crime with some of the victim's stolen property in his pocket, and he
                   immediately confessed to the crime (in a statement not challenged on
                   appeal) before even being identified as a suspect or arrested. Thus, any
                   error in admitting Gonzales' statement, even if such error occurred, would
                   have been harmless.




                         3 We  also note Gonzales' confession in this case met three of the six
                   factors set forth in Gari bay. While Gonzales did not sign a written waiver
                   and was not provided with the assistance of an interpreter, the detective
                   took the time to explain the individual portions of the Miranda warnings
                   in plain English several times during the interrogation, and each time
                   Gonzales stated that he understood them. Furthermore, Gonzales had
                   prior experience with the criminal justice system and had been
                   administered Miranda warnings on at least one prior occasion. See
                   Gari bay, 132 F.3d at 538.


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                    Admission of alleged hearsay evidence
                                Gonzales also contends the district court erred in admitting
                    evidence in the form of photographs of documents found at the scene of the
                    crime that, according to Gonzales, constituted hearsay.
                                Hearsay is defined as an out-of-court statement offered to
                    prove the truth of the matter asserted. NRS 51.035. Hearsay is generally
                    inadmissible unless it meets a recognized exception. NRS 51.065(1).
                    Alleged hearsay errors are subject to harmless-error analysis.   Franco v.
                    State, 109 Nev. 1229, 1237, 866 P.2d 247, 252 (1993). The trial court is
                    vested with broad discretion in determining the admissibility of evidence,
                    and a decision to admit or exclude particular evidence will not be reversed
                    absent a clear abuse of discretion.   Crowley v. State, 120 Nev. 30, 34, 83
                    P.3d 282, 286 (2004).
                                In this case, the evidence in question consisted of photographs
                    of a rental car agreement and a Money Tree receipt bearing Gonzales'
                    name that police found in a car parked in Michelle's driveway. Michelle
                    testified the car did not belong to her. The photographs were proffered by
                    the State in order to connect the vehicle to Gonzales. The district court
                    admitted the photographs of the documents over a timely objection by
                    Gonzales, reasoning that they tied Gonzales to the car. Gonzales argues
                    that this was error because the presence of his name on the documents
                    constituted a hearsay statement "asserting' that Gonzales rented or drove
                    the car, yet no witnesses were able to testify that the papers fell within
                    the "business records" exception to the hearsay rule.
                                The question of whether the hearsay statute encompasses
                    documents offered as circumstantial evidence linking a defendant to a
                    particular person, place, or thing has not been specifically addressed by
                    the Nevada Supreme Court. It has, however, been addressed by numerous
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                   federal courts, and the decisions of those courts constitute persuasive
                   authority for this court. Cf. Terry v. Sapphire Gentleman's Club, 130 Nev.
                        , 336 P.3d 951, 957 (2014) ("having no substantive reason to break
                   with the federal courts on this issue, judicial efficiency implores us to use
                   the same test as the federal courts under the [Fair Labor Standards Act]."
                   (internal quotation omitted)); State v. Lloyd, 129 Nev. „ 312 P.3d
                   467, 471 (2013) ("Nevada has historically followed the United States
                   Supreme Court on most, if not all, of its interpretations and applications of
                   the law governing searches and seizures." (internal quotation marks
                   omitted)); Exec. Mgmt., Ltd. v. Ticor Title Ins. Co., 118 Nev. 46, 53, 38 P.3d
                   872, 876 (2002) ("Federal cases interpreting the Federal Rules of Civil
                   Procedure are strong persuasive authority, because the Nevada Rules of
                   Civil Procedure are based in large part upon their federal counterparts."
                   (internal quotation marks omitted)). This is especially so because
                   Nevada's hearsay statute is virtually identical to the federal hearsay rule.
                   Compare NRS 51.035, with Fed. R. Evid. 801(c).
                               "Many [federal] courts . . . have held that merchandise
                   receipts, utility bills, and similar documents are not hearsay when they
                   are offered as circumstantial evidence to link a defendant to a particular
                   place, to other defendants, or to an illegal item." United States v. Serrano,
                   434 F.3d 1003, 1005 (7th Cir. 2006); United States v. Thornton, 197 F.3d
                   241, 251 (7th Cir. 1999) (receipts, utility bills, and business cards were
                   admissible to show the relationship of coconspirators to each other);
                   United States v. McIntyre,      997 F.2d 687, 702-04 (10th Cir. 1993)
                   (testimony regarding rental, money order, and credit card receipts was
                   admissible to link defendants together and to certain locations);      United
                   States v. Patrick, 959 F.2d 991, 999-1000 (D.C. Cir. 1992) (television sales

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                   receipt bearing defendant's name was admissible to link defendant to
                   cocaine and a weapon found in the same bedroom, but it was not
                   admissible to prove the defendant resided at the address listed on the
                   receipt), abrogated on other grounds by United States v. Webb, 255 F.3d
                   890, 894-95 (D.C. Cir. 2001); see also United States v. Richardson, 208
                   F.3d 626, 632 (7th Cir. 2000) (finding the defendant "had a substantial
                   connection to the house: in his bedroom were multiple medicine bottles
                   labeled with his name as well as hisS clothes; he received his mail at [the
                   house]; and he admitted that he was the caretaker and landlord of the
                   address"); United States v. Kitchen, 57 F.3d 516, 520 (7th Cir. 1995) ("The
                   search revealed, in addition to the firearms, a number of Kitchen's
                   possessions—his El Rukn bracelet, bills and papers bearing his name and
                   various articles of men's clothing.").
                                In such cases, the documents are not introduced
                                for the truth of the matters they assert—for
                                example, that the defendant rented a car,
                                bought a television, or used 500 kilowatt
                                hours of electricity. Rather, the documents are
                                introduced for the inferences that may be drawn
                                circumstantially from their existence or from
                                where they are found, regardless of whether
                                the assertions contained therein are true or
                                not. . . See also Fed. R. Evid. 801 Advisory
                                Committee Notes to 1972 Proposed Rules (noting
                                that the rule excludes from the definition of
                                hearsay "verbal conduct which is assertive but
                                offered as a basis for inferring something other
                                than the matter asserted").
                   Serrano, 434 F.3d at 1005 (internal quotation marks omitted).
                                Thus, the weight of federal authority holds the admission of
                   documents bearing a defendant's name in order to establish a
                   circumstantial link to the defendant does not necessarily violate the

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                   hearsay rule. We find this authority, persuasive. Had the State sought to
                   introduce the documents found in the car to prove that Gonzales actually
                   rented a car or borrowed money from Money Tree, the documents may
                   have constituted hearsay. But in this case, the State introduced the
                   documents to link Gonzales to a vehicle found at the crime scene under
                   circumstances in which it was unlikely that documents bearing his name
                   would be left in the car by anyone other than Gonzales, regardless of
                   whether it was true or not that he rented the car or ever patronized the
                   Money Tree. What mattered was not the truth asserted within the
                   documents, but rather the circumstances of their discovery. Thus, the
                   photographs of those documents were not hearsay and the district court
                   did not err in admitting them.
                   Sufficiency of the evidence sustaining the convictions for kidnapping and
                   robbery
                               Gonzales contends the evidence in this case was insufficient to
                   sustain convictions for both first-degree kidnapping with the use of a
                   deadly weapon and robbery with use of a deadly weapon.
                               The test for sufficiency of the evidence in a criminal case is
                   "whether, after viewing the evidence in the light most favorable to the
                   prosecution, any rational trier of fact could have found the essential
                   elements of the crime beyond a reasonable doubt."      McNair v. State, 108
                   Nev. 53, 56, 825 P.2d 571, 573 (1992) (quoting Jackson v. Virginia, 443
                   U.S. 307, 319 (1979)). "Mt is the jury's function. . . to assess the weight of
                   the evidence and. . . credibility of witnesses." Id.
                               In this appeal, Gonzales does not challenge the sufficiency of
                   the evidence supporting his individual convictions for robbery, burglary, or
                   conspiracy. Instead, he challenges only the evidence underlying the first-
                   degree kidnapping conviction, contending that the facts sustaining the
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                   kidnapping conviction were intertwined with those proving the robbery
                   conviction and therefore he cannot be convicted of both crimes.
                               The crime of robbery is articulated in NRS 200.380, while the
                   crime of first-degree kidnapping is described in NRS 200.310(1). A
                   conviction for first-degree kidnapping requires proof that a victim was
                   seized or detained for one of certain specifically enumerated purposes,
                   including (among other things) for the purpose of committing one of the
                   listed predicate felonies such as sexual assault, extortion, robbery, or
                   homicide. Dual convictions under both statutes are permitted based upon
                   the same conduct. However, in such cases, the Nevada Supreme Court
                   has held:
                               to sustain convictions for both robbery and
                               kidnapping arising from the same course of
                               conduct, any movement or restraint must stand
                               alone with independent significance from the act
                               of robbery itself, create a risk of danger to the
                               victim substantially exceeding that necessarily
                               present in the crime of robbery, or involve
                               movement, seizure or restraint substantially in
                               excess of that necessary to its completion.
                   Mendoza v. State, 122 Nev. 267, 275, 130 P.3d 176, 181 (2006). In general,
                   "[w]hether the movement of the victims is incidental to the associated
                   offense and whether the risk of harm is substantially increased thereby
                   are questions of fact to be determined by the trier of fact in all but the
                   clearest cases."   Curtis D. v. State, 98 Nev. 272, 274, 646 P.2d 547, 548
                   (1982).
                               The Nevada Supreme Court has held that moving a victim
                   from one room inside a house to another room in search of valuables
                   during the commission of a robbery is insufficient, by itself; to sustain
                   convictions for both kidnapping and robbery. See Wright v. State, 94 Nev.
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                   415, 417-18, 581 P.2d 443-44 (1978) (reversing kidnapping conviction as
                   incidental to robbery when movement from room to room occurred "only
                   for the short period of time necessary to consummate the robbery" for
                   purposes of locating valuables).   Wright is the principal authority relied
                   upon by Gonzales in challenging his kidnapping conviction.
                               In this case, Michelle was accosted at gunpoint while in her
                   garage with the door open and the interior visible to her neighbors, and
                   then forced into the residence and moved from room to room. The jury
                   could have found that, by moving Michelle from a public place into a
                   private one, Gonzales substantially increased the risk of harm to Michelle,
                   because had Michelle been detained in the open garage while her
                   residence was ransacked, she might have been seen by passersby who
                   could have called police, she might have had a chance to cry out to her
                   neighbors for help, and she might even have found an easier opportunity
                   to escape while her house was being searched room by room. But these
                   opportunities were diminished once she was removed from public view.
                   Furthermore, moving Michelle from the open garage into the secluded
                   interior of the locked house, and then throughout the house, may have
                   psychologically emboldened the defendant to escalate the violence of the
                   crime, as well as to extend the length of time over which it took place, once
                   Michelle's fate was less likely to be witnessed by her neighbors.
                               Gonzales nonetheless argues that he cannot be convicted of
                   both kidnapping and robbery because Michelle was only moved into the
                   house to help search for valuables during the robbery. Gonzales'
                   argument touches upon one of the curiosities of the Mendoza doctrine,
                   which fundamentally asks the jury to define the level of violence
                   acceptably necessary to commit the crime of robbery. Gonzales contends

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                   that Michelle's detention was inherent in, and necessary to, the robbery
                   because she was only detained for as long as it took to ransack the house,
                   and was only moved within the house for the purpose of aiding• in the
                   search for valuables. In essence, he avers that Michelle's movement
                   cannot constitute a kidnapping because it was closely related, spatially
                   and temporally, to the facts required to prove the elements of the crime of
                   robbery.
                               Some cases contain language supporting Gonzales' argument.
                   See Wright, 94 Nev. at 417-18, 581 P.2d at 443-44 (referring to the "short
                   period of time" during which robbery occurred). However, casting the
                   Mendoza test solely or primarily in relation to overlapping space and time
                   raises logical problems. A robbery can take place over extended distance
                   and time, including efforts to escape the scene after property has been
                   taken. See Fouquette v. State, 67 Nev. 505, 527-28, 221 P.2d 404, 416-17
                   (1950). In this case, Michelle was detained for somewhat less than an
                   hour while the criminals ransacked the house. But Gonzales' argument
                   suggests that a victim could be detained for much longer, many hours or
                   perhaps even days, without converting a robbery into a kidnapping so long
                   as the criminals continue to leisurely search for valuables during the
                   entire period. It also suggests that a victim could be physically
                   transported over vast distances without being kidnapped, so long as the
                   purpose of the transportation is to collect the victim's far-flung
                   possessions. Thus, under Gonzales' theory, had Michelle owned a vacation
                   home in Miami, transporting her thousands of miles from Las Vegas to
                   Florida over a period of many days could conceivably be argued to have




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                   been necessary to effectuate the taking of all of her possessions; but that
                   argument is clearly not what Mendoza envisioned.4
                               In this case, Michelle was moved from the open garage into
                   the house, and then from room to room, while the criminals ransacked the
                   entire home. Gonzales argues that the movement was intended to assist
                   him in locating valuables, but as it turned out, Michelle provided almost
                   no help because she did not know where her husband had stored his
                   weapons. Indeed, her assistance turned out to be so inconsequential that
                   the criminals berated her for her ignorance. Yet, even after realizing she
                   could provide little guidance to them, the perpetrators nonetheless
                   continued moving her to different rooms for no ascertainable purpose.
                   Under these facts, the jury could have found that the robbery could have
                   been successfully completed by simply detaining Michelle in the garage
                   while other accomplices searched through the residence for valuables
                   without her, and Michelle was therefore unnecessarily forced at gunpoint
                   into the house when she did not need to be for the robbery to occur and her
                   concealment increased the danger to her and allowed the crime to
                   continue unabated for much longer than it otherwise might have.
                               Under the circumstances of this case, the jury could
                   reasonably have found that Michelle's movement substantially exceeded


                         4 Conversely,   it is also true that multiple crimes can occur within a
                   very small window of time and space; here, Gonzales does not challenge
                   the validity of his convictions for burglary and conspiracy based upon facts
                   occurring in rapid succession and in close physical proximity to the facts
                   underlying the robbery conviction. See Garcia v. State, 121 Nev. 327, 344,
                   113 P.3d 836, 847 (2005) (affirming convictions for kidnapping, robbery,
                   and conspiracy based on events occurring close together in time and
                   within the same room).


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                   that necessary to complete the robbery and/or substantially increased the
                   harm to her. Whether Michelle's movement was incidental to the robbery,
                   and whether the risk of harm to her was substantially increased, are
                   questions of fact to be determined by the jury in "all but the clearest of
                   cases." Curtis D., 98 Nev. at 274, 646 P.2d at 548. We conclude that this
                   is not one of the "clearest" of cases in which the jury's verdict must be
                   deemed unreasonable. We therefore conclude that the evidence presented
                   to the jury was sufficient to convict Gonzales of both robbery and first-
                   degree kidnapping.
                                                  CONCLUSION
                                 For the foregoing reasons, we conclude that the district court
                   did not commit reversible error, and therefore affirm the judgment of
                   conviction.




                                                       Tao
                                                               Tire
                   We concur:



                                                      , C.J.
                   Gibbons



                                                          J.
                   Silver




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