                       conclude that the district court could determine that the three burglaries
                       evidenced a common scheme or plan and that evidence from the three
                       burglaries would be cross-admissible in separate trials. See id.; see also
                       Graves v. State, 112 Nev. 118, 128, 912 P.2d 234, 240 (1996). Accordingly,
                       the district court did not abuse its discretion in allowing the three
                       burglaries to be joined together.
                                   Third, Davidson contends that he was denied his right to
                       confront the witnesses against him under the Confrontation Clause.
                       Specifically, Davidson contends that the district court erred by permitting
                       a witness who did not actually develop a DNA profile in the lab from the
                       buccal swabs recovered from the scene of the crimes to testify that the
                       DNA profile from those swabs matched Davidson's DNA profile based on
                       the witness' review of the nontestifying analyst's certified report and the
                       documentation generated by that analyst in the lab. The witness also
                       testified that the analyst could not have made any mistakes because "he
                       followed the procedures that would prevent anything like [a mix-up] from
                       happening," which the witness testified that she confirmed by reviewing
                       the documentation contained in the analyst's case file.
                                   A report is testimonial if "it would lead an objective witness to
                       reasonably believe that the statement would be available for use at a later
                       trial." Vega v. State, 126 Nev. „ 236 P.3d 632, 637 (2010) (internal
                       quotation marks omitted). Here, the nontestifying analyst developed a
                       DNA profile from the buccal swabs recovered from the crime scene so that
                       he could compare them to Davidson's DNA profile and then declared under
                       the penalty of perjury that the conclusions in his report were true and
                       correct. We conclude that an analyst conducting such an analysis would
                       reasonably believe that his or her report and findings would be available

SUPREME COURT
        OF
     NEVADA

                                                            2
(0) 1947A


              gtgaAi
              I,                    ,
                                                                           12itA
                                                                          :;
                                                                                        -
                   for use at a later trial. See id.; see also Williams v. Illinois, 567 U.S.     ,
                   132 S. Ct. 2221, 2260-61 (2012) (Thomas, J., concurring) (distinguishing
                   between the reports in Bullcoming v. New Mexico, 564 U.S. , 131 S. Ct.
                   2705 (2011) and Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) and
                   the report in Williams by noting that the Bullcoming and Melendez-Diaz
                   reports were sworn or certified). 1
                               This court has previously held that expert testimony
                   regarding the content of a testimonial statement in a written report may
                   function as the equivalent of a testimonial statement, see Vega v. State,
                   126 Nev.     236 P.3d 632, 638 (2010), and that another analyst's
                   testimony as to the testimonial statements of a nontestifying analyst
                   violates the Confrontation Clause, see Polk v. State, 126 Nev. „ 233
                   P.3d 357, 359 (2010) (relying on the Supreme Court opinions in Crawford
                   v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz). Although the
                   State relies on the opinion of the plurality in the Supreme Court's recent
                   decision in Williams v. Illinois, 567 U.S. , 132 S. Ct. 2221 (2012), to
                   rebut Davidson's contention, it fails to acknowledge that the analyses and
                   conclusions of the plurality were repudiated by a five-justice majority. See
                   Williams, 567 U.S. at , 132 S. Ct. at 2257 (2012) (Thomas, J.,
                   concurring) (agreeing with the four dissenters, that "[t]here is no
                   meaningful distinction between disclosing an out-of-court statement so
                   that the factfinder may evaluate the expert's opinion and disclosing that
                   statement for its truth"); see also id. at , 132 S. Ct. at 2268 (Kagan, J.,
                   dissenting). Accordingly, in light of this court's Confrontation Clause

                         'We also note that the analyst's statement was prepared for the
                   primary purpose of accusing Davidson, a "targeted individual." See
                   Williams, 567 U.S. at ,132 S. Ct. at 2242 (plurality opinion).

  SUPREME COURT
          OF
       NEVADA

                                                         3
  (0) 1947A


cANNE11111911W-7     2214
                jurisprudence, the facts of this case, and the "divergent analyses and
                conclusions of the plurality and dissent" in Williams which "[aft the least
                • . . casts doubt on using expert testimony in place of testimony from an
                analyst," see United States v. Turner, No. 08-3109, 2013 WL 776802, at *1
                (7th Cir. Mar. 4, 2013), we conclude that the expert witness' testimony
                violated Davidson's rights under the Confrontation Clause.
                            Because the district court erred by admitting the testimony,
                we must determine whether this error was harmless beyond a reasonable
                doubt. See Medina v. State, 122 Nev. 346, 355, 143 P.3d 471, 476-77
                (2006). The State bears the burden of proving that this error was
                harmless. Polk, 126 Nev. at n.2, 233 P.3d at 359 n.2. The State
                contends that this error was harmless because Davidson was captured on
                video surveillance in all three burglaries, he was wearing similar shoes to
                those shown on the video surveillance at the time of his arrest, and he had
                small cuts on his body which were consistent with the type of injuries one
                would sustain in committing the burglaries. During closing arguments,
                Davidson argued that the surveillance videos were not clear and only
                depicted a balding African-American male. Because the State has not
                provided this court with a copy of the surveillance videos or requested that
                this court direct the district court clerk to transmit the original exhibit,
                see NRAP 30(d), we cannot determine whether the videos were sufficiently
                clear for the jury to determine the identity of the person depicted in the
                images. Therefore, we conclude that the State has failed to satisfy its
                burden of proving that the Confrontation Clause violation was harmless
                beyond a reasonable doubt, and we




SUPREME COURT
        OF
     NEVADA

                                                      4
(0) 1947A
                              ORDER the judgment of conviction REVERSED AND
                REMAND this matter to the district court for proceedings consistent with
                this order.

                                                       A6-A                    J.
                                                 Hardesty


                                               P  C0-4.3t
                                                 Parraguirre
                                                                               J.



                                                                               J.



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




SUPREME COURT
        OF
     NEVADA

                                                   5
(0) 1947A
