his children to stay out of the water. That witness testified that he

observed the yellow jet ski slow down as it came into the no wake zone

when Maldonado-Mejia hit the victim at a high rate of speed on the port

side of the yellow jet ski. The witness testified that the victim tried to

turn to the right to avoid the impact but Maldonado-Mejia was going too

fast. A third witness testified that the two jet skis were heading directly

towards each other when he saw the victim's jet ski stop briefly and then

accelerate just before impact.

An officer from the Nevada Department of Wildlife testified

that he arrived on scene shortly after the accident while the victim was

being treated by an off-duty nurse and emergency medical technician and

saw severe bruising on the victim's lower left chest and abdomen. The

victim died a short time later. When the officer spoke with Maldonado-

Mejia, he noticed that Maldonado-Mejia smelled of alcohol and had

bloodshot watery eyes and an unsteady gait. The officer performed six

field sobriety tests for impairment on his boat and Maldonado-Mejia

showed signs of impairment in all six tests. Later, the officer attended the

victim's autopsy and observed that the measurements of the victim's

injuries were consistent with the design of the bow of Maldonado-Mejia's

jet ski. The officer also testified that the watercraft navigation rules

require a vessel which is approaching another vessel's port side to give-

way by stopping or getting out of the way. SUPREME COURT

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We conclude that a rational juror could infer from these

circumstances that Maldonado-Mejia was operating his jet ski under the

influence of intoxicating liquor and crashed into the victim causing

substantial bodily injury and death because he failed to maintain a proper

lookout, observe the victim on his starboard side and give-way, and/or

maintain the proper speed and distance. See NRS 488.420(1); NRS

488.540(1), (3); NRS 488.580(2)(a); NAC 488.430; Inland Navigational

Rules, Rules 14-15, 33 U.S.C. §§ 2014-2015 (head-on situation and

crossing situation), repealed and recodified as 33 C.F.R. §§ 83.14-15 by

Pub. L. 108-293 (Aug. 9, 2004) (eff. May 17, 2010). The jury's verdict will

not be disturbed on appeal where, as here, substantial evidence supports

the conviction. Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20, 20 (1981); see

also Hernandez v. State, 118 Nev. 513, 531, 50 P.3d 1100, 1112 (2002)

("[C]ircumstantial evidence alone may support a conviction."); McNair,

108 Nev. at 56, 825 P.2d at 573 ("[I]t is the jury's function, not that of the

court, to assess the weight of the evidence and determine the credibility of

witnesses.").

Second, Maldonado-Mejia contends that the district court

violated the Confrontation Clause by permitting a medical examiner to

testify to the victim's manner of death and the results of a toxicology

report because the medical examiner did not actually perform the autopsy

or the toxicology test. The autopsy report and the toxicology report were

both admitted into evidence. Because Maldonado-Mejia failed to object to SUPREME COURT

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the medical examiner's testimony, we review for plain error. NRS

178.602; Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003). "In

conducting plain error review, we must examine whether there was 'error,'

whether the error was 'plain' or clear, and whether the error affected the

defendant's substantial rights." Green, 119 Nev. at 545, 80 P.3d at 95.

The Sixth Amendment Confrontation Clause provides that

"[in all criminal prosecutions, the accused shall enjoy the right to . . . be

confronted with the witnesses against him." U.S. Const. amend. VI.

Although the lab technician who concluded that the victim's blood alcohol

content was above the legal limit when he was struck by Maldonado-Mejia

was not subject to cross-examination, we conclude that the medical

examiner's testimony about the lab technician's conclusions did not violate

Maldonado-Mejia's rights under the Confrontation Clause because this

testimony was not "against him." Id. In fact, this evidence supported

Maldonado-Mejia's theory of defense that the victim's actions caused the

accident. Therefore, we conclude that the district court did not commit

plain error by allowing the medical examiner to testify about the result in

the toxicology report.

As to Maldonado-Mejia's contention that the medical

examiner's testimony about the results of an autopsy performed by

another examiner violated the Confrontation Clause, Maldonado-Mejia

fails to identify which statements are testimonial. The medical examiner

testified that her opinion was based upon the autopsy report and the SUPREME COURT

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- . • R.1

photographs taken during the autopsy. We have never held that the

Confrontation Clause prohibits the testimony of an expert witness which

is based upon autopsy photographs. CI Vega v. State, 126 Nev. ,

236 F'.3d 632, 638 (2010) (holding that an independent opinion based on a

video recording does not violate the Confrontation Clause because expert's

judgment, proficiency and methodology are subject to cross-examination).

Because Maldonado-Mejia has not identified the offending testimony with

specificity, we cannot determine whether there was error or whether the

error was clear. Even if the medical examiner's testimony was clear error,

the independent testimony of the officer and other witnesses was sufficient

to establish that Maldonado-Mejia's jet ski caused substantial injury and

death to the victim. Therefore, Maldonado-Mejia cannot show that the

medical examiner's testimony "(1) had a prejudicial impact on the verdict

when viewed in context of the trial as a whole, or (2) seriously affects the

integrity or public reputation of the judicial proceedings." Libby v. State,

109 Nev. 905, 911, 859 P.2d 1050, 1054 (1993), vacated on other grounds,

516 U.S. 1037 (1996). Thus, Maldonado-Mejia is not entitled to relief on

this claim.

Third, Maldonado-Mejia contends that the district court erred

by instructing the jury that "[title contributory negligence of another does

not exonerate the defendant unless the other's negligence was the sole

cause of injury." Maldonado-Mejia argues that this part of the proximate

cause jury instruction shifted the burden of proof by requiring him to SUPREME COURT

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- • • • - •

prove that he bore no fault for the accident. Maldonado-Mejia is mistaken.

When read within the context of the jury instruction as a whole, this

sentence merely explains to the jury that, if they find that Maldonado-

Mejia was the proximate cause of the victim's injury, the contributing

fault of the victim does not necessarily negate that finding. See Williams

v. State, 118 Nev. 536, 550, 50 P.3d 1116, 1125 (2002) (approving the same

proximate cause instruction because "an intervening cause must be a

superseding cause or the sole cause in order to completely excuse the prior

act" (internal quotation marks omitted)); Taylor v. Silva, 96 Nev. 738, 741,

615 P.2d 970, 971 (1980) (explaining that contributing fault of the injured

party does not negate a finding that defendant's negligence was a

proximate cause of her injuries); see also 1 Charles E. Torcia, Wharton's

Criminal Law § 47 (15th ed. 2012) (collecting cases). Therefore, the

district court did not err by giving this instruction.

Fourth, Maldonado-Mejia contends that the district court

erred by permitting two officers to testify to their conclusions about who

was at fault for the accident because this testimony invaded the province

of the jury. Maldonado-Mejia is mistaken. See David H. Kaye, David E.

Bernstein, & Jennifer L. Mnookin, The New Wigmore: Expert Evidence §

2.2.1 (2d ed. 2013) (explaining why leading evidence scholars disagree). In

Nevada, "[t] estimony in the form of an opinion or inference otherwise

admissible is not objectionable because it embraces an ultimate issue to be

decided by the trier of fact." NRS 50.295. To the extent Maldonado-Mejia SUPREME COURT

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relies on this court's opinion in Frias v. Valle, 101 Nev. 219, 221, 698 P.2d 875, 876 (1985), a personal injury case, his case is distinguishable. In

Valle, we held that an officer's opinion, as contained in his admitted

accident report, was unreliable because it was based upon a cursory

inspection of the scene. Id. Here, the officers' opinion was based on a

thorough investigation conducted over a period of two weeks, including an

examination of the damage to the vessel, the angle of impact, transfer

marks, and a reconstruction of the accident. We conclude that the district

court did not err by admitting the testimony of the officers.

Fifth, Maldonado-Mejia contends that the district court erred

by failing to exclude the results of two blood tests taken more than two

hours after the accident indicating that his blood alcohol level was .112

two hours and fifteen minutes after the accident and .095 an hour and two

minutes later. Maldonado-Mejia failed to object to the admission of these

results and we review for plain error. See Green, 119 Nev. at 545, 80 P.3d at 95. When asked on direct examination if she could form an opinion

about Maldonado-Mejia's blood alcohol level at the time of the accident

based on the test results, the forensic scientist testified that she could not

form an opinion because there were too many variables. In light of this

testimony, we agree with Maldonado-Mejia that the probative value of this

evidence may have been outweighed by the danger of unfair prejudice. See

State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. „ 267 P.3d 777, 781-82 (2011). However, Maldonado-Mejia has not met his SUPREME COURT

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burden of showing that this testimony affected his substantial rights.

The forensic scientist repeatedly stated on direct and cross-examination

that she could not draw any conclusions from these results about

Maldonado-Mejia's blood alcohol content at the time of the accident

thereby diminishing the possibility that the jury might have declared him

guilty based solely on a reaction to his blood alcohol level several hours

later. See id. Moreover, an officer testified that Maldonado-Mejia showed

signs of impairment in all six of the field sobriety tests which were

performed immediately after the accident. This independent evidence

strongly supported the conclusion that Maldonado-Mejia was "under the

influence of intoxicating liquor." NRS 488.420(1)(a). Therefore, we

conclude that Maldonado-Mejia has not established plain error and is not

entitled to relief on this claim.

Sixth, Maldonado-Mejia contends that his due process rights

were violated because the officer did not conduct the field sobriety tests in

Spanish. Maldonado-Mejia failed to object to this testimony and we

review for plain error. See Green, 119 Nev. at 545, 80 P.3d at 95.

Maldonado-Mejia admits that he could not find any case law on point but

asks this court to consider this issue despite his failure to make any

attempt to analogize his case to any other due process case. We conclude

that Maldonado-Mejia has failed to demonstrate plain error. SUPREME COURT

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Seventh, Maldonado-Mejia contends that cumulative error

warrants reversal of his convictions. "One error is not cumulative error."

U.S. v. Sager, 227 F.3d 1138, 1149 (9th Cir. 2000).

Having considered Maldonado-Mejia's contentions and

concluded that they lack merit, we

ORDER the judgment of conviction AFFIRMED.

Saitta

cc: Hon. James M. Bixler, District Judge

Christopher R. Oram

Attorney General/Carson City

Clark County District Attorney

Eighth District Court Clerk SUPREME COURT

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