                About that time, Smith approached the driver's side window and put a gun
                to the victim's neck, demanded money, and threatened to shoot her.
                Meanwhile, the other man rifled through the glove compartment and
                console of the victim's car. The victim handed over $400 to Smith. When
                the victim's cell phone rang, Smith demanded her phone and car keys.
                While attempting to open the car's trunk, Smith accidentally activated the
                alarm. Smith and the other man fled. The victim left the area and drove
                to a nearby gas station to call the police. During the investigation, the
                police retrieved the victim's cell phone from Smith's residence and
                discovered his fingerprints on the victim's car. Viewing the evidence in
                the light most favorable to the State, we conclude it is sufficient to
                establish guilt beyond a reasonable doubt as determined by a rational trier
                of fact. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); McNair v. State,
                108 Nev. 53, 56, 825 P.2d 571, 573 (1992); see also NRS 193.165; NRS
                199.480; NRS 200.380; NRS 202.360. As to the false statements and
                inconsistencies in the victim's statements to the police, those matters were
                explored during her testimony and therefore were before the jury for its
                consideration.   See Washington v. State, 112 Nev. 1067, 1073, 922 P.2d
                547, 551 (1996) (providing that "where there is conflicting testimony
                presented at trial, it is within the province of the jury to determine the
                weight and credibility of the testimony"); McNair, 108 Nev. at 56, 825 P.2d
                at 573 ("[I] t is the jury's function, not that of the court, to assess the
                weight of the evidence and determine the credibility of witnesses.").




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                Further, the jury was also aware that no gun was recovered during the
                investigation.'
                            Second, Smith argues that the district court abused its
                discretion by allowing a police officer to improperly bolster the victim's
                credibility. In her initial statements to the police, the victim related that
                at the time of the robbery, she was on her way to meet a friend and pulled
                into the liquor store because someone was following her. When police
                officers confronted her with evidence that refuted her initial statements,
                the victim told the police that she was in the area to buy prescription pain
                pills. A detective testified at trial about that confrontation, stating that
                the victim gave the police "the correct [version]—well, a different version,
                let's put it that way." When asked by the prosecutor whether the victim
                was "able to basically, come clean about the circumstances of the
                background of coming in contact with the defendant," the detective
                responded affirmatively. Smith argues that that exchange constituted
                improper bolstering. Because he did not object to the detective's



                       'Smith argues that the district court abused its discretion by
                allowing the victim to testify because her testimony was incredible and
                therefore more prejudicial than probative and no weapon was found.
                Because he did not object to this testimony, his claim is reviewed for plain
                error affecting his substantial rights. Mclellan v. State, 124 Nev. 263, 267,
                182 P.3d 106, 109 (2008). Credibility matters associated with the victim's
                testimony and the prosecution's inability to produce the weapon allegedly
                used in the robbery go to the weight of the evidence not admissibility.
                McNair, 108 Nev. at 56, 825 P.2d at 573. We conclude that Smith has
                failed to demonstrate plain error.




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                      testimony, we review for plain error affecting his substantial rights.
                      Mclellan, 124 Nev. at 267, 182 P.3d at 109. We conclude that Smith has
                      failed to demonstrate plain error affecting his substantial rights. The
                      challenged testimony does not concern crucial evidence about the robbery
                      but rather a lesser matter—why the victim was in the area of the crime.
                      Moreover, the detective's testimony shows that the victim lied to the
                      police, which tended to diminish her credibility rather than bolster it. And
                      the victim admitted during her testimony that she lied to the police.
                                     Third, Smith argues that the district court abused its
                      discretion by allowing the prosecution to introduce inadmissible hearsay.
                      During her testimony, the victim related that immediately before the
                      robbery, she called a friend who advised her that she should not meet with
                      people she did not know to buy pills. Considering the context in which the
                      statement was made, we conclude that it was unsolicited by the State and
                      not offered to prove the truth of the matter asserted and therefore did not
                      constitute hearsay. See NRS 51.035.
                                     Fourth, Smith argues that the prosecutor committed
                      misconduct during closing rebuttal argument by commenting on his right
                      not to testify. Specifically, Smith points to the following comments:
                      "[Smith] can't explain away why he has his cell phone—her cell phone
                      because it doesn't make sense that he would have it in some sort of trade."
                      Because Smith did not object to the challenged argument, we review for
                      plain error affecting his substantial rights. Mclellan, 124 Nev. at 267, 182
                      P.3d at 109.
                                     Prosecutorial comment on a defendant's failure to testify is
                      constitutionally impermissible. Sonner v. State, 112 Nev. 1328, 1342, 930

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                P.2d 707, 716 (1996); McGuire v. State, 100 Nev. 153, 157, 677 P.2d 1060,
                1063 (1984). An indirect reference is impermissible where "the language
                used was manifestly intended to be or was of such a character that the
                jury would naturally and necessarily take it to be comment on the
                defendant's failure to testify.' Harkness v. State, 107 Nev. 800, 803, 820
                P.2d 759, 761 (1991) (quoting United States v. Lyon, 397 F.2d 505, 509
                (7th Cir. 1968)). Considering it in context, the prosecutor's comment was
                made in response to Smith's argument that because it was unknown how
                the cell phone came to be in Smith's home, the State failed to meet its
                burden of proof. Under the circumstances, we do not consider the
                challenged comment improper. See Bridges v. State, 116 Nev. 752, 764, 6
                P.3d 1000, 1009 (2000) (observing that "where the prosecutor's reference
                to the defendant's opportunity to testify is a fair response to a claim made
                by defendant or his counsel,' there is no constitutional violation" (quoting
                United States v. Robinson, 485 U.S. 25, 32 (1988))). Even assuming that
                the comment was improper, we conclude that Smith has failed to show
                plain error affecting his substantial rights, considering the brevity of the
                comment and the evidence supporting his guilt.
                            Fifth, Smith contends that the district court abused its
                discretion by admitting an exhibit referencing the bifurcated felon-in-
                possession charge during the trial on the remaining charges. Smith
                brought to the district court's attention that the State had introduced an
                exhibit indicating that the police had impounded a cell phone related to
                the case. The exhibit lists the charges against him, including the entry
                "Ex-Felon Poss. of F/A." It appears from the record that the jury was
                exposed to the exhibit for only a few seconds. After some discussion, the

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                district court designated the exhibit as a court exhibit so that it would not
                be given to the jury during its deliberations. Smith requested no
                additional remedy. Although error was committed in this instance, see
                generally Morales v. State, 122 Nev. 966, 970, 143 P.3d 463, 465-66 (2006)
                ("As with full severance, bifurcation prevents the State from discussing or
                producing proof of prior felony convictions until after the jury has
                deliberated on the charges that are unrelated to the defendant's status as
                an ex-felon."), given the jury's brief exposure to the exhibit, we conclude
                that Smith failed to show prejudice. 2
                            Sixth, Smith argues that the district court erred by not
                dismissing a juror based on the juror's contact with a third party. During
                trial, juror 10 notified the district court that Smith's sister approached
                him and asked if he knew anything "about the jury selection process and
                shouldn't there be a black person on the jury." The juror indicated that
                the encounter would not affect his ability to continue his duties. The
                remaining jurors were canvassed about any attempted contact with them
                or if they observed anyone attempting to contact a juror. One juror
                responded that she observed someone talking to a juror but did not hear



                      2 Smith  argues that this error was compounded by the State's use of
                a photograph during opening statement that contained his "Scope ID" and
                date of arrest. It appears from the record that the jury's exposure to the
                photograph was brief and the parties agreed to redact the challenged
                information if the photograph was admitted into evidence or otherwise
                used at trial. Under those circumstances, even if error was committed,
                Smith has not shown prejudice.




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                the conversation. At the conclusion of the inquiry, the district court
                determined that removing juror 10 was "probably not necessary" but
                would accommodate the parties if they agreed to juror 10's dismissal.
                After consulting with counsel, Smith declined to seek removal of the juror.
                Considering Smith's decision not to challenge juror 10 and the lack of any
                indication that the contact prejudiced him, see Meyer v. State, 119 Nev.
                554, 563-64, 80 P.3d 447, 455 (2003), we conclude that the district court
                did not abuse its discretion in this regard, see Weber v. State, 121 Nev.
                554, 580, 119 P.3d 107, 125 (2005).
                              Having considered Smith's arguments and concluded that no
                relief is warranted, we
                              ORDER the judgment of conviction AFFIRMED. 3



                                                                    ,J.
                                          Hardesty



                Parraguirre




                      3 We  reject Smith's claim that the cumulative effect of trial error
                requires reversal of his convictions as any errors committed were
                immaterial and substantial evidence supports his convictions. See Valdez
                v. State, 124 Nev. 1172, 1195, 196 P.3d 465, 481 (2008).




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                cc: Hon. Jessie Elizabeth Walsh, District Judge
                     Langford McLetchie LLC
                     Attorney General/Carson City
                     Clark County District Attorney
                     Eighth District Court Clerk




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