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Vivar-Perez (Juan) v. State ( 2013 )


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  •                 other grounds by Rosas v. State,
    122 Nev. 1258
    ,
    147 P.3d 1101
     (2006).
Vivar-Perez's own testimony established that he did not have a key, was
not on the lease, did not pay rent, maintained his own apartment, and was
allowed in the apartment only by invitation of the victims and was not
welcome absent their permission. Any permission that Vivar-Perez had to
stay with the victims was clearly revoked when they refused him entry for
several days leading up to the incident and on the day in question. We
conclude that this claim lacks merit.
Second, Vivar-Perez argues that the State inappropriately
commented on his right to remain silent during closing argument by
questioning why he never told the police that he lived at apartment. We
conclude that this claim lacks merit. Initially, we note that Vivar-Perez
did not invoke his right to remain silent and testified at trial. Moreover,
the challenged statements were made during rebuttal argument and were
a fair response to the defense's closing argument, which accused police
officers of performing an incomplete investigation for failing to determine
whether Vivar-Perez was a resident of the apartment. See Bridges v.
State,
    116 Nev. 752
    , 764,
    6 P.3d 1000
    , 1009 (2000) (holding no error where
prosecutor's remarks are fair response to defense argument).
Third, Vivar-Perez argues that the State inappropriately
vouched for the victims' credibility. Because Vivar-Perez did not object to
the statements, we review for plain error affecting his substantial rights.
See Valdez v. State,
    124 Nev. 1172
    , 1190,
    196 P.3d 465
    , 477 (2008).
Although the State vouched for the credibility of the victims, we conclude
that relief is not warranted.
    Id.
    Fourth, Vivar-Perez argues that the State made several
additional comments during closing argument that constitute
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prosecutorial misconduct. Having considered each of the challenged
comments in context, we conclude that the State did not disparage
legitimate defense tactics, see Williams v. State,
    103 Nev. 106
    , 110,
    734 P.2d 700
    , 703 (1987), or attempt to shift the burden of proof to the defense,
see Lisle v. State,
    113 Nev. 540
    , 553-44,
    937 P.2d 473
    , 481 (1997), decision
clarified on denial of reh'g,
    114 Nev. 221
    ,
    954 P.2d 744
     (1998).
Fifth, Vivar-Perez argues that cumulative error entitles him to
relief. Having considered whether the issue of guilt is close, the quantity
and character of the error, and the gravity of the crime charged, we
conclude that this claim lacks merit. Valdez, 124 Nev. at 1195,
    196 P.3d at 481
    . Accordingly, we
ORDER the judgment of conviction AFFIRMED.
J.
Hardesty
Parraguirre
„0
cc: Chief Judge, Second Judicial District Court
Second Judicial District Court, Dept. 8
Washoe County Public Defender
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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