                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                FREDDIE ROMERO,                                        No. 67731
                Appellant,
                vs.                                                         FILED
                THE STATE OF NEVADA,
                                                                             JUN 1 0 2016
                Respondent.

                                        ORDER OF AFFIRMANCE

                            This an appeal from a judgment of conviction, pursuant to a
                jury verdict, of conspiracy to commit robbery and robbery, victim 60 years
                or older. Eighth Judicial District Court, Clark County; Douglas W.
                Herndon, Judge.
                            This case arises from an incident wherein appellant Freddie
                Romero and nonparty Jimmy Betancourt took eighty-five-year-old Sonia
                Kidd's purse. The State charged Romero with (1) conspiracy to commit
                robbery; (2) battery with intent to commit robbery; (3) battery resulting in
                substantial bodily harm, victim 60 years of age or older; and (4) robbery,
                victim 60 years of age or older. The jury found Romero guilty of
                conspiracy to commit robbery and robbery, victim 60 years of age or older.
                            Romero now appeals, arguing that (1) the district court
                presented several erroneous jury instructions; (2) insufficient evidence
                supports the jury's verdict; (3) several of his constitutional rights were
                violated, including his confrontation, speedy trial, and due process rights;
                (4) the district court erred in denying his juror challenges for cause; and
                (5) cumulative error warrants reversal.


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                            We hold that the district court erred when it instructed the
                jury that the prosecution must prove every "material element" of the
                crimes charged beyond a reasonable doubt. In addition, the district court
                erred in denying Romero's juror challenges for cause. However, Romero
                has failed to demonstrate any prejudice resulted from these errors.
                Therefore, we affirm the judgment of the conviction.
                Jury Instructions
                            Romero contends that Jury Instructions No. 5, 6, 14, and 40
                inappropriately lowered the State's burden of proof, and that Jury
                Instruction No. 3 omitted the words "Clark County, Nevada," such that
                the jury never found where the crime took place. With the exception of
                Jury Instruction No. 5, we discern no error in these instructions.
                            Romero did not object to any of the jury instructions now
                challenged. Therefore, we review these arguments for plain error.    Saletta
                v. State, 127 Nev. 416, 421, 254 P.3d 111, 114 (2011). To constitute plain
                error, "the error must be clear under current law." Id. (internal quotation
                marks omitted). Furthermore, plain error does not require reversal unless
                the defendant demonstrates that the error affected his substantial rights
                through actual prejudice or a miscarriage of justice. Id.
                            Jury Instruction No. 5 declares that "the State [has] the
                burden of proving beyond a reasonable doubt every material element of
                the crime charged." In Burnside v. State, we concluded that such an
                instruction, although unnecessary because the State must prove        every
                element of the crimes charged beyond a reasonable doubt, was "not so
                misleading or confusing as to warrant reversal." 131 Nev., Adv. Op. 40,
                352 P.3d 627, 638 (2015). We stated that the phrase "material element"
                "should be omitted from future instructions." Id.

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                            We acknowledge that Jury Instruction No. 5 was given before
                Burnside was decided. Nonetheless, the error need only be plain at the
                time of appellate consideration. See Henderson v. United States, U.S.
                          133 S. Ct. 1121, 1127 (2013) (holding that errors under FRCP
                52(b)—from which Nevada's plain error statute, NRS 178.602, is derived—
                must be plain upon appellate consideration). Therefore, it is clear under
                current law that use of the phrase "material element" is erroneous.
                However, we conclude that its prejudicial effect was limited, because "the
                instructions as a whole . . . sufficiently conveyed to the jury that the State
                had the burden of proving beyond a reasonable doubt each element of the
                charged offenses. . . ." Burnside, 131 Nev., Adv. Op. 40, 352 P.3d at 638.
                Therefore, we are not convinced this error resulted in actual prejudice or a
                miscarriage of justice.
                            Jury Instruction No. 14 reads "[w]henever there is slight
                evidence that a conspiracy existed, and that the defendant was [a]
                member[ I of the conspiracy, then the statements [of another member]
                may be considered by the jury as evidence . . . as to the defendant."
                (emphasis added). In Burnside, we addressed an identical jury instruction
                and held that the instruction "solely addresses the jury's consideration of a
                coconspirator's statements in furtherance of a conspiracy as evidence
                against another member of the conspiracy" and "does not suggest that [the
                defendant] may be convicted of conspiracy or a conspiracy theory of
                liability based on slight evidence instead of the constitutionally required
                beyond-a-reasonable-doubt standard." Id. at 644. Therefore, Romero has
                failed to demonstrate plain error.
                            Jury Instruction No. 6 states that the jurors "are [there] to
                determine the guilt or innocence of the Defendants." Although this

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                 sentence does not include the applicable evidentiary standard, this same
                 instruction clarifies that "if the evidence in the case convinces you beyond
                 a reasonable doubt of the guilt. . . of the Defendant[ ], you should so find."
                 We hold such an instruction does not impermissibly lower the State's
                 burden of proof, and Romero has failed to demonstrate plain error.
                             Jury Instruction No. 40 states that it is each juror's duty "to be
                 governed in [his or her] deliberation by the evidence. . . and by the
                 law. . with the sole, fixed and steadfast purpose of doing equal and exact
                 justice between the Defendant and the State of Nevada." Romero asserts
                 that it is the prosecutor's duty—not the jury's—to seek justice, and that
                 this instruction should have instructed the jury on its duty to determine if
                 the State proved the elements of the crime beyond a reasonable doubt.
                             We hold that the instructions, as a whole, sufficiently
                 conveyed to the jury that it had a duty to determine whether the
                 defendant was guilty of the crimes charged beyond a reasonable doubt.
                 Jury Instructions No. 1 and 2 directed the jury to follow the instructions
                 and to consider the instructions as a whole, each in regard to all others.
                 Jury Instructions No. 3, 6, and 37 informed the jury that it had a duty to
                 determine whether the defendant was guilty. Lastly, Jury Instructions
                 No. 5, 6, 23, 29, and 34 reiterated that the jury must be convinced of the
                 defendant's guilt beyond a reasonable doubt in order to find him guilty. In
                 this context, Jury Instruction No. 40 did not impermissibly alter the jury's
                 duty, nor did it diminish the State's burden of proof. Therefore, Romero
                 has failed to demonstrate plain error.
                             Finally, Jury Instruction No. 3 described the charges against
                 Romero. Romero contends that this instruction was erroneous because it
                 omitted the phrase "Clark County, Nevada," such that the jury never

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                 found where the crime took place. We decline to address the merits of this
                 argument. Not only did Romero fail to object to this instruction, but
                 Romero never disputed, either below or on appeal, where the crimes
                 occurred.   See Saletta, 127 Nev. at 421, 254 P.3d at 114 (noting that
                 unpreserved error may frustrate appellate review).
                 Sufficiency of Evidence
                             Romero argues that there is insufficient evidence that he used
                 force or violence to obtain Kidd's purse, especially in light of the fact that
                 Detective Michael Sclimenti reminded Kidd in a pretrial interview that
                 two men had taken her purse. We disagree.
                             In reviewing this argument, we must determine "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." Origel-Candido v. State, 114 Nev. 378,
                 381, 956 P.2d 1378, 1380 (1998) (internal quotation marks omitted)
                 (emphasis in original). Furthermore, lidt is the jury's function, not that of
                 the court, to assess the weight of the evidence and determine the
                 credibility of witnesses." Id. (internal quotation marks omitted).
                             Portions of Romero's audio confession were played at trial, in
                 which Romero admitted that (1) he targeted Kidd because she was the
                 "easiest target" and she was "walking really slow," (2) he grabbed the
                 purse and fled, and (3) he dropped the purse while effectuating his escape.
                 In addition, video shows that Kidd carried her purse on her left forearm.
                 Given that Kidd was walking normally with her purse over her left
                 forearm until Romero attempted to take her purse, a strong implication
                 can be drawn that force was used to obtain the purse. Furthermore, other
                 evidence also suggests that Kidd was forced to the ground in some

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                manner, including: Kidd's testimony that she was pushed; Austin Flores's
                testimony that a "big force" caused her to fall, as her "whole body [was] in
                the air"; and Krista Gibb's testimony that Kidd told her at the scene that
                someone had "knocked [her] down."
                              Although there may have been reasons to question Kidd's
                recollection of the event, it is the jury's job to "determine the credibility of
                witnesses."    Origel-Candido, 114 Nev. at 381, 956 P.2d at 1380. After
                viewing the evidence in the light most favorable to the State, we hold that
                a rational jury could have found that Romero used force or violence to
                obtain Kidd's purse beyond a reasonable doubt.
                Confrontation Right
                              Romero argues that his Sixth Amendment right to confront
                the witnesses against him was violated when (1) a portion of Betancourt's
                audio confession was played for the jury; (2) eyewitness Matthew Dunn
                testified that Betancourt admitted to taking an old lady's purse; and (3)
                Officer James LaRosa testified that Betancourt admitted he was present
                when Kidd was "at least thrown to the ground, grabbed or her purse [was]
                taken[.]" We disagree.
                              Romero never objected to these statements at trial. Therefore,
                we review these arguments for plain error. See Martinorellan v. State, 131
                Nev., Adv. Op. 6, 343 P.3d 590, 593 (2015) (holding "all unpreserved errors
                are to be reviewed for plain error without regard as to whether they are of
                constitutional dimension").
                              The United States Supreme Court has held that in a joint
                trial, the Confrontation Clause of the Sixth Amendment is violated if a
                non-testifying codefendant makes a confession that incriminates the
                defendant. Bruton v. United States, 391 U.S. 123, 135-37 (1968). After

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                reviewing the challenged statements, we hold that Romero's confrontation
                rights were not violated. Although Betancourt's statements can be
                understood as implicitly suggesting a second person was involved—as he
                admitted that he was present when Kidd's purse was taken, but he did not
                admit to taking the purse—none of the challenged statements identify or
                implicate Romero. Indeed, it was Romero's confession and his
                identification from two witnesses that incriminated him specifically, not
                Betancourt's statements. Therefore, we conclude Romero's Sixth
                Amendment right to confront the witnesses against him was not violated.
                Speedy Trial Rights
                            Romero contends that his statutory and constitutional speedy
                trial rights were violated when the district court continued his trial twice.
                We disagree.
                            Under NRS 178.556(1), a district court may dismiss a case if
                the "defendant .. . is not brought to trial within 60 days after the
                arraignment on the. . . information." This court has stated that the "60-
                day rule ... has flexibility," Adams v. Sheriff, White Pine Cty.,    91 Nev.
                575, 575-76, 540 P.2d 118, 119 (1975) (internal quotation marks omitted),
                and that a district court has discretion in deciding whether to dismiss an
                information pursuant to NRS 178.556, Browning v. State, 104 Nev. 269,
                271, 757 P.2d 351, 352 (1988). In determining whether to dismiss an
                information, a "trial court may give due consideration to the condition of
                its calendar, other pending cases, public expense, the health of the judge,
                and the rights of co-defendants." Adams, 91 Nev. at 575-76, 540 P.2d at
                119 (internal quotation marks omitted).
                            Although Romero invoked his right to a speedy trial, the
                district court continued the trial over his objection because (1) Romero did

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                not yet have the preliminary hearing transcript, and proceeding to trial
                without it would have likely generated an ineffective assistance claim; (2)
                Judge Herndon did not have time to conduct the trial at the set date, and
                the case was not eligible for overflow treatment; and (3) Betancourt was
                not prepared for trial, as he had just recently obtained a new attorney. As
                a result, the district court stated that the continuances were made at the
                court's convenience. We conclude that these were proper considerations
                and that the district court did not abuse its discretion in declining to
                dismiss the information pursuant to NRS 178.556.
                            However, NRS 178.556 "does not define the constitutional
                right" to a speedy trial. Anderson v. State, 86 Nev. 829, 834, 477 P.2d 595,
                598 (1970). Indeed, "there is no fixed time that indicates when the
                [constitutional] right to a speedy trial has been violated; thus, the right is
                assessed in relation to the circumstances of each case."      Furbay v. State,
                116 Nev. 481, 484, 998 P.2d 553, 555 (2000). This court considers the
                following factors in determining whether a defendant's constitutional
                speedy trial right has been violated: "(1) length of delay; (2) the reason for
                the delay; (3) the defendant's assertion of his right; and (4) prejudice to the
                defendant." Id. at 484-85, 998 P.2d at 555.
                            We hold the continuances did not violate Romero's
                constitutional right to a speedy trial. The trial was delayed approximately
                four and a half months, and as previously discussed, the district court had
                good cause for the delay. Id. at 485, 998 P.2d at 555-56 (holding a five and
                a half year delay did not deprive the defendant of his Sixth Amendment
                speedy trial right); But see Wood v. Sheriff, Carson City, 88 Nev. 547, 548-
                49, 501 P.2d 1034 (1972) (holding that a defendant's Sixth Amendment
                speedy trial right was violated where the State caused the sixteen month

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                  delay and failed to justify it). Furthermore, although Romero did invoke
                  his rights, Romero has not argued how the delay has prejudiced him.
                  Therefore, we conclude Romero's constitutional and statutory speedy trial
                  rights were not violated.
                  Due Process Rights
                              Romero argues that the district court violated his due process
                  rights because it erroneously concluded his confession was voluntary,
                  despite the fact he had used drugs the day before the confession was made.
                  We disagree.
                              "Where the district court's determination that a confession is
                  voluntary is supported by substantial evidence, we will not substitute our
                  judgment for that of the district court." Steese v. State, 114 Nev. 479, 488,
                  960 P.2d 321, 327 (1998). "Substantial evidence is that which a
                  reasonable mind might consider adequate to support a conclusion." Id.
                              "A confession is admissible only if it is made freely and
                  voluntarily. . . ." Passama v. State, 103 Nev. 212, 213, 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." Id. at 213-14, 735 P.2d at 322 (internal
                  quotation marks omitted). Furthermore, "Nntoxication without more will
                  not preclude the admission of incriminating statements unless it is shown
                  that the defendant was so intoxicated that he was unable to understand
                  the meaning of his statements." Stewart v. State, 92 Nev. 168, 170-71, 547
                  P.2d 320, 321 (1976).
                              Substantial evidence supports the district court's conclusion
                  that Romero's statement was voluntary. Although Romero admitted he
                  had a heroin addiction and that he had used heroin the day prior to the
                  interview, there is no evidence to suggest that Romero was under the

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                        influence at the time of the interview. Detective Bruno read Romero his
                        Miranda rights, and Romero stated he understood them. In addition,
                        Detective Bruno testified that Romero did not appear under the influence
                        of any narcotics at the time of the interview. Furthermore, the district
                        court correctly recognized that Romero's answers were "long. . . cogent,
                        comprehensible, [and] reasonable," and that they did not give the
                        impression Romero was unable to understand the questions he was asked
                        or the answers he was providing. Therefore, we conclude Romero's due
                        process rights were not violated.
                        Juror Challenges
                                    Romero argues that the district court erroneously denied two
                        of his juror challenges for cause. We agree; however, we hold Romero has
                        failed to demonstrate any resulting prejudice.
                                    Under NRS 175.036(1), "[e]ither side may challenge an
                        individual juror. . . for any cause. . . which would prevent the juror from
                        adjudicating the facts fairly." When a prospective juror is challenged for
                        cause, the district court has broad discretion in deciding whether to
                        remove the prospective juror. Weber v. State, 121 Nev. 554, 580, 119 P.3d
                        107, 125 (2005). "The test for evaluating whether a juror should have
                        been removed for cause is whether a prospective juror's views would
                        prevent or substantially impair the performance of his duties as a juror in
                        accordance with his instructions and his oath."     Id. (internal quotation
                        marks omitted). Furthermore, "[d]etached language considered alone is
                        not sufficient to establish that a juror can be fair when the juror's
                        declaration as a whole indicates that she could not state unequivocally
                        that a preconception would not influence her verdict." Id. at 581, 119 P.3d
                        at 125.

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                             Romero challenged Juror No. 111 and Juror No. 130. Juror
                 No. 111 stated that his father had a respect for police officers and that his
                 brother considered becoming a police officer as his first career choice. As a
                 result, Juror No. 111 stated that he viewed police officers as authority
                 figures and that he had a slight bias in favor of them. He also stated that
                 he was the victim of two different thefts, which might cause him to be
                 slightly more sympathetic to the victim. However, Juror No. 111 said "I
                 think I would be fair," and that he could scrutinize a police officer's
                 testimony if he believed the officer was lying. Juror No. 130 stated (1) she
                 had heard about Romero's case on the news and discussed the case with
                 others, (2) it was "sad. . . that somebody so old was hurt so very badly,"
                 and (3) that although she would "like to think [she] would be objective,"
                 she was not sure "[she] absolutely could be objective in this situation."
                             We hold that the district court abused its discretion in denying
                 Romero's juror challenges for cause. Both of the challenged prospective
                 jurors espoused prejudices that could be reasonably understood as
                 preventing them from adjudicating the facts fairly. Juror No. 111
                 specifically stated he would be biased, albeit slightly, in favor of police
                 officers, and Juror No. 130 stated she felt bad for the elderly victim and
                 was not sure she could be objective. Furthermore, when pressed on their
                 prejudices, neither prospective juror offered unconditional assurance that
                 they would be fair and impartial; rather, they both stated that they
                 thought they could be fair, or that they would like to think they would be
                 fair. See Bryant v. State, 72 Nev. 330, 332-33, 305 P.2d 360, 361 (1956)
                 (holding a district court erred in failing to remove a prospective juror for
                 cause when the juror stated she had read about the case in the newspaper



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                    and had already formed an opinion on the matter, even though the juror
                    subsequently stated she would act fairly and impartially).
                                However, "[WI the jury actually seated is impartial, the fact
                    that a defendant had to use a peremptory challenge to achieve that result
                    does not mean that the defendant was denied his right to an impartial
                    jury."   Blake v. State,   121 Nev. 779, 796, 121 P.3d 567, 578 (2005)
                    (emphasis added). Therefore, a defendant must show (1) he exhausted all
                    of his peremptory challenges, and (2) that any juror actually impanelled
                    was unfair or biased. See id.; see also Bryant, 72 Nev. at 335, 305 P.2d at
                    362.
                                Romero used peremptory challenges on both Juror No. 111
                    and Juror No. 130; therefore, neither was actually impanelled.
                    Furthermore, Romero does not allege that any juror actually seated was
                    unfair or biased. Therefore, Romero has failed to demonstrate any
                    prejudice resulted from the district court's error.
                    Cumulative Error
                                Finally, Romero contends that cumulative error warrants
                    reversal because (1) the issue of Romero's guilt was close, (2) the quality
                    and character of the jury instruction errors were severe, and (3) the crime
                    is grave because it is a robbery conviction. We disagree.
                                "The cumulative effect of errors may violate a defendant's
                    constitutional right to a fair trial even though errors are harmless
                    individually." Hernandez v. State, 118 Nev. 513, 535, 50 P.3d 1100, 1115
                    (2002). We consider the following factors in reviewing a claim of
                    cumulative error: "(1) whether the issue of guilt is close, (2) the quantity
                    and character of the error, and (3) the gravity of the crime charged."
                    Mulder v. State, 116 Nev. 1, 17, 992 P.2d 845, 854-55 (2000).

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                           Although the evidence of Romero's guilt may not be
                overwhelming, and a robbery charge is a serious charge whose
                punishment should not be lightly considered, Romero has failed to
                demonstrate any prejudice resulted from the aforementioned errors.
                Therefore, we find that such errors do not warrant reversal, either
                individually or cumulatively. Accordingly, we
                           ORDER the judgment of conviction AFFIRMED.




                                                                           J.
                                                  Hardesty




                                                  Pickering




                cc: Hon. Douglas W. Herndon, District Judge
                     Clark County Public Defender
                     Attorney General/Carson City
                     Clark County District Attorney
                     Eighth District Court Clerk




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