                    already knew that accidental discharges do occur and that the parties had
                    stipulated to that fact. We conclude from this record that the district
                    court did not abuse its discretion by refusing to admit the video into
                    evidence.
                    Proposed defense instructions
                                Robbins claims that the district court erred by refusing to give
                    his proposed instructions on trespass because they supported his theory of
                    defense that Christopher Mundy was a trespasser and he used reasonable
                    force to remove Mundy from his property. "The district court has broad
                    discretion to settle jury instructions, and this court reviews the district
                    court's decision for an abuse of that discretion or judicial error." Crawford
                    v. State, 121 Nev. 744, 748, 121 P.3d 582, 585 (2005). "[A] defendant is
                    entitled to a jury instruction on his theory of the case, so long as there is
                    evidence to support it, regardless of whether the evidence is weak,
                    inconsistent, believable, or incredible." Hoagland v. State, 126 Nev. ,
                       , 240 P.3d 1043, 1047 (2010). However, a defendant is not entitled to
                    instructions that are "misleading, inaccurate or duplicitous."      Carter v.
                    State, 121 Nev. 759, 765, 121 P.3d 592, 596 (2005). Here, the record
                    reveals that the district court heard argument on Robbins' proposed
                    trespass instructions and found that they were misleading and inaccurate
                    because they emphasized the crime of trespass and improperly suggested
                    that if the jury found that the victim had trespassed then it could find that
                    Robbins acted in self-defense and that the homicide was justifiable. The
                    record further reveals that the jury was instructed on justifiable homicide,
                    self-defense, and defense of property. We conclude from this record that
                    the district court did not abuse its discretion by rejecting Robbins'
                    proposed trespass instructions.

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                Prosecutorial misconduct
                            Robbins claims that the prosecutor committed misconduct
                during closing argument by mischaracterizing the evidence and inflaming
                the passions of the jury. In particular, Robbins takes exception to the
                prosecutor's comments that "he came out of his house, guns blazing," he
                "executed the victim," and he "could see the victim's hands" at the time of
                the shooting. However, Robbins did not object to the prosecutor's
                comments and he has not demonstrated plain error because there was no
                error. See Valdez v. State, 124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008)
                (reviewing unpreserved claims of prosecutorial misconduct for plain error);
                Parker v. State, 109 Nev. 383, 392, 849 P.2d 1062, 1068 (1993)
                ("Statements by the prosecutor, in argument, indicative of his or her
                opinion, belief, or knowledge as to the guilt of the accused, when made as a
                deduction or a conclusion from evidence introduced in the trial, are
                permissible and unobjectionable." (first alteration, internal quotation
                marks, and brackets omitted)).
                Juror misconduct
                            Robbins claims that juror misconduct occurred when victim
                Pablo Flores' mother entered the courtroom bathroom immediately upon
                seeing a juror enter the bathroom. Robbins argues that the district court
                should have initiated an inquiry to determine what, if anything, the
                mother told the juror, and he asserts that the district court's failure to
                conduct such an inquiry constitutes reversible error. However, Robbins'
                claim is belied by the record, which clearly demonstrates that the district
                court inquired as to whether any jurors had had a conversation with a

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                member of the victim's family while in the public restroom and determined
                that no such conversations had occurred. Accordingly, this claim is
                without merit. See generally Meyer v. State, 119 Nev. 554, 563-64, 80 P.3d
                447, 455 (2003) (to prevail on a claim of juror misconduct, a "defendant
                must present admissible evidence sufficient to establish: (1) the occurrence
                of juror misconduct, and (2) a showing that the misconduct was
                prejudicial").
                NRS 47.080 violation
                             Robbins claims that the district court violated NRS 47.080 by
                failing to conduct its hearings on the admissibility of evidence outside the
                hearing of the jury. Robbins asserts that the jury was able to hear
                inadmissible evidence through the courtroom walls and that defense
                counsel was cautioned that the jury might be able to hear him during a
                bench conference. Robbins argues that the jury was prejudiced by hearing
                inadmissible evidence and he was deprived of his constitutional right to a
                fair and impartial jury. However, Robbins did not preserve this issue for
                appeal and he has not demonstrated plain error because there was no
                error,    See NRS 47.080 ("[H]earings on preliminary questions of
                admissibility . . . shall to the extent practicable . . . be conducted out of the
                hearing of the jury." (emphasis added)); Gallego v. State, 117 Nev. 348,
                365, 23 P.3d 227, 239 (2001) (reviewing unpreserved claims for plain
                error), abrogated on other grounds by Nunnery v. State, 127 Nev.            ,
                & n.12, 263 P.3d 235, 253 & n.12 (2011).
                Failure to preserve evidence
                             Robbins claims that the State's failure to preserve the vehicle
                driven by Christopher Mundy and the district court's refusal to instruct
                the jury pursuant to Sanborn v. State, 107 Nev. 399, 408, 812 P.2d 1279,

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                1286 (1991) (an adverse instruction informing the jury that the lost
                evidence is irrebuttably presumed to be unfavorable to the State),
                deprived him of a fair trial.
                            This court has consistently held that in order to
                            establish a due process violation resulting from
                            the state's loss or destruction of evidence, a
                            defendant must demonstrate either (1) that the
                            state lost or destroyed the evidence in bad faith, or
                            (2) that the loss unduly prejudiced the defendant's
                            case and the evidence possessed an exculpatory
                            value that was apparent before the evidence was
                            destroyed.
                Klein v. Warden, 118 Nev. 305, 313, 43 P.3d 1029, 1034 (2002) (internal
                quotation marks and brackets omitted). The limited record that Robbins
                provided on this issue does not demonstrate that the State acted in bad
                faith or that he was prejudiced by the loss of the vehicle. Accordingly, we
                conclude that Robbins has not established a due process violation in this
                regard.
                Cruel and unusual punishment
                             Robbins claims that his sentence of life imprisonment with the
                possibility of parole for the second-degree murder count constitutes cruel
                and unusual punishment because it is disproportionate to his crime.
                Robbins asserts that he was a hard-working family man; had no prior
                criminal history; and was acting in self-defense, the defense of others, and
                the defense of his property when he killed Christopher Mundy. However,
                Robbins does not claim that the relevant statute is unconstitutional, see
                Blume v. State, 112 Nev. 472, 475, 915 P.2d 282, 284 (1996), his sentence
                falls within the parameter of that statute, see NRS 200.030(5)(a), and we
                are not convinced that the sentence is so grossly disproportionate to the
                gravity of the offense as to shock the conscience, see Harmelin v. Michigan,

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                 501 U.S. 957, 1000-01 (1991) (plurality opinion); Blume, 112 Nev. at 475,
                 915 P.2d at 284. Accordingly, we conclude that Robbins' sentence does not
                 violate the constitutional proscriptions against cruel and unusual
                 punishment.'
                 Cumulative error
                               Robbins claims that cumulative error deprived him of a fair
                 trial and requires reversal of his conviction. However, Robbins has failed
                 to demonstrate any error, and we conclude that he was not deprived of fair
                 trial due to cumulative error.
                               Having concluded that Robbins is not entitled to relief, we
                               ORDER the judgment of conviction AFFIRMED. 2




                                           Pickering


                                                                                             J.
                 Parraguirre




                        'To the extent that Robbins also claims that the district court
                 abused its discretion by imposing a greater sentence than the sentence
                 recommended by the Division of Parole and Probation, our review of the
                 record reveals that the Division recommended a sentence of life
                 imprisonment with the possibility of parole for the second-degree murder
                 count.

                       2   We deny Robbins' motion for oral argument.


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                cc: Hon. Robert W. Lane, District Judge
                     The Law Office of Dan M. Winder, P.C.
                     Nye County District Attorney
                     Attorney General/Carson City
                     Nye County Clerk




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