                Winship off him, but as he attempted to get up, she grabbed and pulled on
                his leg before he was able to get away. Franklin testified that he and
                Winship spoke the next day and that she accused him of breaking her arm
                during the altercation.
                Failure to collect evidence
                            Franklin argues that all evidence concerning the bicycle
                should have been suppressed because the police officers failed to collect
                and preserve the potentially exculpatory evidence. Franklin failed to
                object at trial, therefore we view for plain error. See Leonard v. State, 117
                Nev. 53, 63, 17 P.3d 397, 403-04 (2001). We conclude that Franklin has
                failed to demonstrate a reasonable probability that, had the bicycle been
                collected and available, the outcome of the trial would have been different.
                See Daniels v. State, 114 Nev. 261, 267, 956 P.2d 111, 115 (1998)
                (providing that defendant must show that evidence police failed to gather
                was material). Franklin's claim that the absence of his fingerprints or
                Winship's blood and hair on the bicycle would tend to establish that he
                never picked it up and that Winship was never hit with it was "'merely a
                hoped-for conclusion." Sheriff v. Warner, 112 Nev. 1234, 1240, 926 P.2d
                775, 778 (1996) (quoting Boggs v. State, 95 Nev. 911, 913, 604 P.2d 107,
                108 (1979)). Furthermore, while the police may have been negligent in
                failing to collect the bicycle, Franklin failed to demonstrate gross
                negligence or bad faith.      See Daniels, 114 Nev. at 267, 956 P.2d at 115
                (providing that, where defendant demonstrates evidence was material,
                "the court must determine whether the failure to gather evidence was the
                result of mere negligence, gross negligence, or a bad faith attempt to
                prejudice the defendant's case" and, in the case of mere negligence,
                limiting defendant's remedy to cross-examination regarding investigative

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                  deficiencies). On cross-examination, the on-scene officer admitted that it
                  was unusual to not photograph a scene or an alleged weapon but that the
                  immediate focus was on locating Franklin and, when he was not found, on
                  meeting with Winship at the hospital for a follow-up interview. The officer
                  stated that Winship's arm had no open cuts and that he felt it was
                  unnecessary to fingerprint the bicycle. As Franklin failed to demonstrate
                  bad faith or gross negligence, it was not error to admit testimony and
                  photographs that were later taken regarding the bicycle.'
                  Gruesome photograph
                              Franklin argues that the district court erred by admitting a
                  photograph of Winship's arm after surgery, claiming that the picture was
                  gruesome and more prejudicial than probative. The district court, after
                  reviewing post-surgical photographs of Winship's arm with staples,
                  admitted one photograph, finding that the probative value of the picture
                  was not substantially outweighed by unfair prejudice, but disallowed a
                  close-up photograph of the same image. "The admission of photographs of
                  victims is within the sound discretion of the trial court and will be
                  disturbed only if that discretion is abused." Wesley v. State, 112 Nev. 503,
                  512-13, 916 P.2d 793, 800 (1996). The admitted photograph was probative
                  to illustrate the victim's injury and disfigurement, which was relevant to
                  establish the substantial-bodily-harm element of the offense, see NRS



                        'While Franklin argues that he was prejudiced by law enforcement's
                  actions and that a showing of prejudice is an alternative to a
                  demonstration of bad faith, this standard, as well as the cases cited,
                  address a failure to preserve evidence. As the police officers never had
                  possession of the bicycle, there could be no failure to preserve it.



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                0.060 (definition of substantial bodily harm), and we conclude that the
                district court did not abuse its discretion.
                Jury instruction
                             Franklin claims that the district court erred in giving a
                transition jury instruction, offered by his counsel, and argues that the jury
                was incorrectly instructed that he could be acquitted of battery or battery
                causing substantial bodily harm but not of both. While the failure to
                object to an instruction generally precludes appellate review, we may
                address plain error affecting the defendant's substantial rights.   Green v.
                State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003). We discern no error as the
                instruction correctly informed the jury that Franklin could be found not
                guilty of either crime and the district court instructed the jury on the
                presumption of innocence, the standard of reasonable doubt, and the
                State's burden of proving each element beyond a reasonable doubt.
                Substantial bodily harm
                             Franklin challenges the finding of substantial bodily harm,
                specifically whether sufficient evidence was presented to establish that
                Winship suffered substantial bodily harm and that Franklin was the cause
                of the harm. Our review of the record, however, reveals sufficient
                evidence 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);
                Origel Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998).
                      -




                             With regard to Franklin's claim that Winship did not suffer
                substantial bodily harm, the jury heard testimony from Winship and her
                mother that nothing was wrong with Winshp's arm prior to the incident.
                Winship testified that immediately after the incident she was in pain and
                could not lift her arm and that she subsequently required surgery and a

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                titanium plate to repair the injury. Winship testified that she continued
                to experience numbness and weakness in her arm. To the extent that
                Franklin argues that the evidence presented was based on hearsay, or the
                doctor's statements to Winship that her arm was broken, we conclude
                that, while it may have been error to introduce the doctor's diagnosis, 2
                Winship was able to testify as to her pain and subsequent surgery, as she
                had direct knowledge of these facts, see NRS 50.025, and from the
                evidence presented, the jury could reasonably infer that she suffered
                substantial bodily harm. See NRS 0.060.
                            With regard to Franklin's claim that there was no evidence
                that his conduct was the cause of the harm, Winship and her mother
                testified that he threw a bicycle onto Winship. The on-scene officer
                relayed Winship's statement that she tried to block the bicycle with her
                arm and felt it break right away. Paramedics took Winship from the scene
                to the hospital, and she testified that as a result of the bicycle being
                thrown on her, she required surgery to mend her arm. We conclude that a
                reasonable juror could infer from the evidence presented that Franklin
                was the cause of Winship's substantial bodily harm. It is for the jury to
                determine the weight and credibility to give to conflicting testimony, and
                the jury's verdict will not be disturbed on appeal where, as here,
                substantial evidence supports the verdict. Bolden v. State, 97 Nev. 71, 73,
                624 P.2d 20, 20 (1981); see also McNair v. State, 108 Nev. 53, 56, 825 P.2d
                571, 573 (1992).



                      2 Franklin fails to demonstrate prejudice by the State's decision not
                to call Winship's doctor to testify.



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                Perjury
                            Franklin contends that his conviction must be set aside
                because Winship committed perjury, as evidenced by inconsistencies
                between her testimony at the preliminary hearing and at trial. Franklin
                failed to object to the admission of these statements, therefore we review
                for plain error. See Sterling v. State, 108 Nev. 391, 394, 834 P.2d 400, 402
                (1992). Franklin's counsel cross-examined Winship on her account of the
                incident, drawing out inconsistencies as to her memory of Franklin
                throwing the bicycle on her, and Winship acknowledged the
                inconsistencies and explained that she had been nervous and scared at the
                preliminary hearing. We conclude that Franklin has failed to demonstrate
                that Winship committed perjury.      See NRS 199.120 (defining perjury).
                Any inconsistencies or improbabilities in her testimony went to the weight
                of the testimony and not the admissibility of the testimony; it was for the
                jury to determine the weight and credibility of the witnesses and
                testimony presented.     See Bolden, 97 Nev. at 73, 624 P.2d at 20.
                Therefore, we conclude that there was no error in the admission of
                Winship's testimony.
                Prosecutorial misconduct
                            Franklin claims that the prosecutor's comments during
                rebuttal argument, that Franklin's testimony was riddled with lies and
                inconsistencies and that Franklin's story about throwing Winship's supply
                of pills down the sink was absurd, warrant reversal. While the failure to
                object generally precludes appellate review, "we will consider prosecutorial
                misconduct, under plain error review, if the error either: (1) had a
                prejudicial impact on the verdict when viewed in context of the trial as a
                whole, or (2) seriously affects the integrity or public reputation of the

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                judicial proceedings." Rose v. State, 123 Nev. 194, 208-09, 163 P.3d 408,
                418 (2007) (internal quotation marks omitted).
                              While it is improper to characterize a witness as a liar or a
                witness's testimony as a lie, to represent to the jury that testimony might
                be incredible or to demonstrate through inferences that a witness's
                testimony is palpably untrue is within the confines of proper argument.
                Ross v. State, 106 Nev. 924, 927, 803 P.2d 1104, 1106 (1990); see also
                Rowland v. State, 118 Nev. 31, 40, 39 P.3d 114, 119 (2002) ("A prosecutor's
                use of the words 'lying' or 'truth' should not automatically mean that
                prosecutorial misconduct has occurred."). Here, the prosecutor detailed
                specific inconsistencies between Franklin's version of the incident and
                evidence presented at trial and argued that Franklin's story was palpably
                untrue. While the final observation by the prosecutor, that Franklin's
                story was riddled with lies, was a violation of our prior admonitions to
                refrain from characterizing testimony as a lie, see Witherow v. State, 104
                Nev. 721, 724, 765 P.2d 1153, 1155 (1988), we conclude that this comment
                does not warrant reversal of Franklin's conviction. 3




                      3 To  the extent that Franklin argues, for the first time in his reply
                brief, that the prosecutor vouched for Winship's story by referencing her
                medical records, which were never introduced into evidence, the argument
                is improperly raised. A reply brief is limited to answering any new matter
                in the opposing brief, NRAP 28(c), and therefore we need not address it,
                City of Elko v. Zillich, 100 Nev. 366, 371, 683 P.2d 5, 8 (1984).
                Nevertheless, we conclude that Franklin's claim is without merit as the
                comments were a fair response to Franklin's argument regarding
                Winship's injuries and the absence of the medical records.



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                Habitual criminal
                            Franklin challenges his adjudication as a habitual criminal
                pursuant to NRS 207.010(1)(b) on multiple grounds. First, Franklin
                claims that the district court erred in adjudicating him as a habitual felon
                under NRS 207.010(1)(b) in that the sentencing judge failed to make a
                finding that the requisite number of prior convictions existed and failed to
                exercise discretion in determining whether to dismiss the allegation. The
                district court admitted into evidence certified copies of Franklin's prior
                convictions, see NRS 207.016(5). In reviewing the record as a whole, we
                conclude that the district court understood its sentencing discretion,
                considered the appropriate factors in determining whether to adjudicate
                Franklin as a habitual criminal, see Hughes v. State, 116 Nev. 327, 332-33,
                996 P.2d 890, 893-94 (2000) (holding that there is no requirement that the
                district court "utter specific phrases or make 'particularized findings' that
                it is 'just and proper' to adjudicate a defendant as a habitual criminal"),
                and exercised its discretion. Accordingly, we discern no error in this
                regard. 4
                            Second, Franklin contends that the State failed to prove three
                valid prior felony convictions to support a determination of habitual
                criminality. Specifically, Franklin argues that the State failed to prove he

                      4We  are unconvinced by Franklin's argument that the district court
                found facts, other than the existence of prior convictions, that would
                increase the penalty for his crime beyond the statutory maximum, in
                violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). Rather, the
                record reveals that the district court outlined its consideration of the
                appropriate factors and exercised its discretion in determining whether to
                dismiss the allegation. See O'Neill v. State, 123 Nev. 9, 16, 153 P.3d 38, 43
                (2007).



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                is the individual convicted of stop-required-on-signal-of-police-officer, that
                the State failed to affirmatively show that he had counsel in connection
                with the robbery conviction, that some of the prior convictions were
                duplicitous, that the attempted unauthorized use of a vehicle was a
                misdemeanor, and that the submitted convictions contained documents
                wholly unrelated to Franklin or Franklin's criminal history. Franklin
                made no objection at the sentencing hearing; rather, his counsel stated
                that she had reviewed the prior convictions and that there was no issue in
                terms of their constitutionality. "[A]n unexcused failure to object in the
                trial court to the State's failure to make an affirmative showing of the
                validity of the prior convictions relied upon to enhance a penalty under
                NRS 207.010 precluded the raising of this objection for the first time on
                appeal." Baymon v. State, 94 Nev. 370, 372, 580 P.2d 943, 944 (1978). In
                his reply brief, Franklin attempts to explain his failure to object by
                alleging ineffective assistance of counsel. This court has repeatedly
                declined to address claims of ineffective assistance of counsel on direct
                appeal unless an evidentiary hearing has been held or would be
                unnecessary. See Pellegrini v. State, 117 Nev. 860, 883, 34 P.3d 519, 534
                (2001). Neither of these exceptions exists here; therefore, we decline to
                address this claim.
                            Third, Franklin argues that the district court was prejudiced
                by the State's submission of a packet of convictions which contained the
                errors mentioned above. As Franklin failed to object at the sentencing
                hearing, we review for plain error. Davidson v. State, 124 Nev. 892, 899,
                192 P.3d 1185, 1190-91 (2008). "Under plain error review, this court has
                the discretion to address an error if it was plain and affected the
                defendant's substantial rights." Id. at 899-900, 192 P.3d at 1191 (internal

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quotation marks omitted). "Normally, the defendant must show that an
error was prejudicial in order to establish that it affected substantial
rights."   Gallego v. State, 117 Nev. 348, 365, 23 P.3d 227, 239 (2001),
abrogated on other grounds by Nunnery v. State, 127 Nev. , 263 P.3d
235 (2011), cert. denied, U.S. , 132 S. Ct. 2774 (2012). Franklin has
failed to demonstrate that the requisite number of prior convictions under
NRS 207.010(1)(b) was not proven to the district court and that he was
prejudiced by the district court's review of the packet of convictions.
             Fourth, Franklin argues that the district court abused its
discretion when it adjudicated him a habitual criminal because his prior
convictions were stale and trivial. The age of the convictions does not
eliminate them from potential consideration; rather, the statute leaves the
matter to the district court's discretion. Arajakis v. State, 108 Nev. 976,
983, 843 P.2d 800, 805 (1992) ("NRS 207.010 makes no special allowance
for non-violent crimes or for the remoteness of convictions; instead, these
are considerations within the discretion of the district court"); see also
NRS 207.010(2). Besides the prior felony convictions, the district court
considered Franklin's presentence investigation report, outlining his
criminal activity in its entirety, and his institutional behavior. We
conclude that the district court did not abuse its discretion by declining to
dismiss the habitual criminal count.
             Fifth, Franklin contends that NRS 207.010 is unconstitutional
as applied because his sentence of life without the possibility of parole
constitutes cruel or unusual punishment in violation of the United States
and Nevada Constitutions. We review the constitutionality of a statute de
novo. Silvar v. Eighth Judicial Dist. Court, 122 Nev. 289, 292, 129 P.3d
682, 684 (2006). "Statutes are presumed to be valid, and the challenger



                                       10
bears the burden of showing that a statute is unconstitutional. In order to
meet that burden, the challenger must make a clear showing of
invalidity."      Id.   (footnote omitted). Because Franklin has not
demonstrated that the habitual-criminal-punishment statute is
unconstitutional, his sentence falls within the parameters of that statute,
and we are not convinced that the sentence is so grossly disproportionate
to the gravity of the offense and Franklin's history of recidivism as to
shock the conscience, we conclude that the sentence does not violate the
constitutional proscriptions against cruel and unusual punishment.
Ewing v. California, 538 U.S. 11, 29 (2003) (plurality opinion); Harmelin v.
Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion); Blume v. State,
112 Nev. 472, 475, 915 P.2d 282, 284 (1996); see also Arajakis, 108 Nev. at
983, 843 P.2d at 805.
               Having considered Franklin's contentions and determined that
they are without merit, we
               ORDER the judgment of conviction AFFIRMED.




                                                                   J.
                                    Douglas


                                                                   J.
                                    Saitta




                                      11
                cc: Hon. Brent T. Adams, District Judge
                     Janet S. Bessemer
                     Attorney General/Carson City
                     Washoe County District Attorney
                     Washoe District Court Clerk




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