d by a person that had the same voice as Nolan. The jury found Nolan guilty in the first trial of first-degree kidnapping, sexual assault, sexual assault with substantial bodily harm, robbery, burglary, unauthorized signing of a credit or debit transaction, and attempted unauthorized signing of a credit or debit transaction. In the second trial, Nolan was tried on multiple counts arising from his alleged sexual assault of victim Cynthia Dyson at his apartment and a fight with Dyson’s son after the alleged assault. Dyson testified that in September 2002, Nolan approached her on the street and expressed an interest in her church. Dyson offered to walk with Nolan to his home and provide him with information concerning the church. According to Dyson, once the two arrived at Nolan’s apartment, Nolan pulled Dyson inside and sexually assaulted her. After Nolan released her, Dyson went immediately to the apartment she shared with her son and informed him about the incident. Dyson’s son located Nolan and the two individuals engaged in a fight outside Nolan’s apartment. During the altercation, Nolan repeatedly struck Dyson’s son with a large rock. Dyson’s son was taken to the hospital and received treatment for a laceration to his head and a broken nose. At the close of trial, the jury found Nolan guilty of first-degree kidnapping, sexual assault, attempted murder with the use of a deadly weapon, and battery with the use of a deadly weapon with substantial bodily harm. This appeal concerns both trials. DISCUSSION First trial issues Nolan contends the district court erred in the first trial when it allowed the victim to testify after a hypnotic session, violated his confrontation rights under the Sixth Amendment, permitted irrelevant testimony, permitted a juror to question a witness, and provided improper jury instructions for the kidnapping charge. Additionally, Nolan maintains that the evidence was insufficient to sustain his convictions. Posthypnotic testimony under NRS 48.039 Nolan contends that, by allowing victim Weishaar to testify about the assault after she was the subject of hypnosis and failing to admonish the jury about the reliability of posthypnotic testimony, the district court failed to follow the procedural requirements of NRS 48.039 governing the admissibility of posthypnotic testimony. The decision to admit evidence is “within the district court’s sound discretion,” and this court will “respect the lower court’s determination” if it is not ‘“manifestly wrong.’”[1] NRS 48.039 provides procedural safeguards that must be followed before presenting testimony from a witness who has previously undergone hypnosis to recall events that are the subject matter of the testimony, and states as applicable here: 1. The testimony of a witness who previously has undergone hypnosis to recall events that are the subject matter of the testimony is admissible if: . . . . (c) Before the hypnosis was induced, a written record was made that includes, without limitation: (1) A description of the subject matter of the hypnosis as provided by the witness; and (2) The information that was provided to the hypnotist concerning the subject matter of the hypnosis; (d) The entire session at which the hypnosis was induced was electronically recorded by audio or video recording equipment, including, without limitation, any interview that was conducted before or after the hypnosis was induced; (e) The recording of the entire session at which the hypnosis was induced was made available by the party who produced the witness to each party involved in the case, pursuant to the discovery procedures as provided in NRS 174.235 to 174.295, inclusive, the Nevada Rules of Civil Procedure or the Justice Court Rules of Civil Procedure, depending upon the nature of the proceedings; and (f) The hypnotist and the witness were the only persons present during the session of hypnosis unless the hypnotist or a law enforcement officer who is investigating the criminal case, if any, determined that it was necessary for one of the following persons to be present during the session: (1) A parent or guardian of a witness who is a minor; or (2) An artist employed by a law enforcement agency. 2. The court, on its own motion or that of a party, may exclude the testimony of a person who previously has undergone hypnosis to recall events which are the subject matter of the testimony if the court determines that such testimony is unreliable or is otherwise inadmissible. 3. The court shall instruct the jury to exercise caution when considering the reliability of the testimony of a person who previously has undergone hypnosis to recall events that are the subject matter of the testimony. “Where the language of a statute is plain and unambiguous, . . . there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.”[2] NRS 48.039(1) provides that it applies to “[t]he testimony of a witness who previously has undergone hypnosis to recall events that are the subject matter of the testimony.” This statute is plain and unambiguous. Since Weishaar underwent hypnosis to recall what happened the night of the assault, and because that was the subject of her testimony, NRS 48.039 applies. While NRS 48.039 implicitly provides that documented recollections made prior to a hypnotic session are admissible, this statute applies to memory refreshed through hypnosis. The statute addresses reliability concerns previously addressed by the California Supreme Court in People v. Shirley : [I]t is the consensus of informed scientific opinion today that in no case can a person previously hypnotized to improve his recollection reliably determine whether any unverified item of his testimony originates in his own memory or is instead a confusion or confabulation induced by the hypnotic experience. It would fly in the face of that consensus to allow a witness to be the judge of which portions of his testimony were actually produced by hypnosis.[3] As stated in Shirley , neither a victim nor a judge is qualified to determine which memories are or are not recalled independent of hypnosis.[4] Shirley and NRS 48.039 recognize that a person previously hypnotized to improve his or her recollection cannot reliably determine whether any unverified information is his or her own memory or induced by the posthypnotic experience. The district court limited Weishaar’s testimony to the two memories she claimed she could recall before she underwent hypnosis. Weishaar testified that, independent of the hypnosis, she remembered lying on her back while Nolan forced sexual intercourse on her and being sodomized while lying on her stomach. Notwithstanding her attempt to recall during the preliminary hearing, Weishaar was asked if she could remember anything other than the sodomy and she replied “No.” At trial, she was asked whether she remembered anything else, and Weishaar replied she could recall the other events. She then described, among other things, how Nolan forced sexual intercourse on her. Weishaar presumably followed the directions of the district court but still testified as to a memory she previously stated she did not have before her hypnotic session.[5] Given the circumstances surrounding the crime and the undeniable psychological effect of the assault, Weishaar’s difficulty differentiating between which memories were actually produced by hypnosis and which were not is understandable. Here, all of her recollections regarding the sexual assault followed hypnosis. Thus, because the State and the district court failed to follow the procedural safeguards provided in NRS 48.039 an

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