d Weishaar’s posthypnotic testimony was unreliable, it was manifest error for the district court to admit such testimony. Harmless error Although the admission of Weishaar’s posthypnotic testimony violated NRS 48.039, we conclude the district court’s error was harmless because it is clear beyond a reasonable doubt that the error did not contribute to the verdict.[6] We conclude beyond a reasonable doubt that the jury would have found Nolan guilty even without Weishaar’s testimony and that the jury’s verdict is not attributable to the erroneous admission of that testimony.[7] Employees at the pub witnessed Weishaar and Nolan talking at the bar and later leaving around the same time. Weishaar admitted she had been drinking and had taken an antidepressant and a painkiller. Weishaar was found injured outside Nolan’s apartment late at night. Her injuries were consistent with a sexual assault. Nolan was later seen using Weishaar’s stolen credit card to purchase several pairs of shoes on separate occasions. He also attempted to use the same card to pay for a dinner. Further, Nolan admitted to having sexual intercourse with Weishaar and even suggested an acquaintance possibly caused the severe injuries Weishaar suffered. Based upon this evidence and the extensive testimony presented at trial, it is clear beyond a reasonable doubt that the error did not contribute to the verdict. Thus, even though the district court erred in admitting Weishaar’s testimony, the error was harmless beyond a reasonable doubt. Confrontation Clause violation Nolan argues that allowing a detective to read portions of a statement Weishaar gave violated his confrontation rights under the Sixth Amendment. For a Confrontation Clause violation to occur, a witness must make a testimonial statement.[8] The witness who made the testimonial statement must then be unavailable at trial and the defendant must have been deprived of an opportunity to cross-examine that witness on that statement.[9] While the statements Weishaar made to the detective may have been testimonial, Weishaar was available at trial and was subject to cross-examination by Nolan. Although her memory was severely compromised, Nolan could cross-examine her about her lack of memory. Thus, Nolan’s Sixth Amendment right to confront Weishaar was not violated. Juror questioning of a witness Nolan alleges that the spontaneous outburst and questioning by a juror during trial was prejudicial and warrants a new trial. However, Nolan failed to preserve this issue for appeal by failing to object to the juror questioning at trial when it occurred.[10] Consequently, this court will not review this issue on appeal unless the error was plain and affected the defendant’s substantial rights.[11] To show that an error affected a defendant’s substantial rights, the defendant must establish the error was prejudicial.[12] During cross-examination of the emergency medical technician who found Weishaar in the street, a juror interrupted the witness and asked how far away from the curb Weishaar’s body was found. When the witness stated the body was approximately 8 feet from the curb, the juror then stated, “[Weishaar] only took two steps.” Later, the juror remarked during witness testimony, “[Weishaar] had to have more than a running start.” Jurors are allowed to ask witnesses questions; however, there are strict guidelines that must be followed to prevent prejudicial error. In Allred v. State , we held that a juror question must be submitted in writing, the question must be reviewed for admissibility, counsel must be provided an opportunity to object to the question, and an admonishment must be given to the jury that they should refrain from putting undue weight on the answer to juror questions.[13] Unlike the scenario in Allred , in which this court found harmless error because the district court complied with most of the juror-questioning procedures,[14] none of the Allred requirements could have been met here because the juror’s comments were spontaneous. This said, the district court committed plain error when it failed to admonish the jury as required. However, this error was not prejudicial and did not affect Nolan’s substantial rights. Weishaar suffered serious bodily injuries that clearly were not related to a fall from the curb, including a laceration in her vagina and bruising around her anus. Second trial issues Nolan assigns as error in the second trial that the police failed to preserve evidence, that the district court gave an improper jury instruction on kidnapping, that there was insufficient evidence to support his convictions, and that battery with the use of a deadly weapon with substantial bodily harm should be merged with attempted murder with the use of a deadly weapon. Preservation of evidence Nolan contends that the investigating police officers acted in bad faith. Specifically, he alleges that the officers should have recovered DNA swabs from his groin along with the rock he allegedly used to beat Dyson’s son because both pieces of evidence would prove favorable to his defense. This court utilizes a two-part test when a defendant seeks to dismiss charges based on the State’s failure to gather evidence.[15] “The first part requires the defense to show that the evidence was ‘material,’ meaning that there is a reasonable probability that, had the evidence been available to the defense, the result of the proceedings would have been different.”[16] “If the evidence was material, then the court must determine whether the failure to gather evidence was the result of mere negligence, gross negligence, or a bad faith attempt to prejudice the defendant’s case.”[17] Nolan argues that the DNA swab was material because had the police taken a swab of his genital area, the result of the proceedings would have been different. More specifically, Nolan argues that Dyson did not testify that she performed oral sex upon him. Had a DNA swab found DNA from Dyson’s saliva, it would have discredited her testimony regarding her lack of consent. We disagree. There is no reasonable probability that had evidence of the presence of Dyson’s saliva been available to Nolan, the proceedings would have been different. The presence of Dyson’s saliva in Nolan’s genital area would not prove whether the contact was forced or consensual, only that there was in fact contact. Because a DNA swab of Nolan’s genital area is not material, the inquiry ends here. Thus, the police officers’ failure to gather the DNA swab as evidence does not result in reversible error. Nolan also argues that the rock he allegedly used in the fight with Dyson’s son was material and should have been collected. Nolan argues that witnesses differed as to whether he used a rock, and he believes these conflicting accounts show that the rock may have been small or there may not have been a rock at all. Without the rock, Nolan claims it is reasonably probable that he may not have been convicted of attempted murder, and especially attempted murder with the use of a deadly weapon. Again, we disagree. First, Nolan was free to argue at trial that the evidence failed to show that he used the rock. Second, had the police gathered the rock, this evidence would have been inculpatory, not exculpatory. Put differently, had the rock been gathered by the police and admitted at trial, it is not reasonably probable that Nolan would have been acquitted of the attempted murder with the use of a deadly weapon charge. Because the rock was not critical to any issue in the case, the police officer’s failure to gather the rock as evidence does not compel reversal. Doctrine of merger Nolan contends that his conviction for battery with the use of a deadly weapon with substantial bodily harm should be merged with his conviction for attempted murder with the use of a deadly weapon

Vegas Law