134 Nev., Advance Opinion (03
IN THE SUPREME COURT OF THE STATE OF NEVADA
DONOVINE MICHAEL MATHEWS, No. 72701
A/K/A DONOVIAN MATHEWS,
Appellant,
vs. FILED
THE STATE OF NEVADA, AUG 7 3 2018
Respondent.
ETH A. BR,C3iNi
Appeal from a judgment of conviction, pursuant to a jury
verdict, of child abuse, neglect or endangerment with substantial harm.
Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.
Reversed and remanded.
Philip J. Kohn, Public Defender, and Kristy S. Holiday, Deborah L.
Westbrook, and Howard Brooks, Deputy Public Defenders, Clark County,
for Appellant.
Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson,
District Attorney, Steven S. Owens, Chief Deputy District Attorney, and
Michelle Y. Jobe and Charles W. Thoman, Deputy District Attorneys, Clark
County,
for Respondent.
BEFORE PICKERING, GIBBONS and HARDESTY, JJ.
SUPREME COURT
OF
NEVADA
1B- 3Zi&
OPINION'
By the Court, HARDESTY, J.:
Appellant Donovine Mathews' conviction stems from an
incident involving his girlfriend's two-year-old son, C.J., who incurred burns
on his hands while Mathews was babysitting him and his sibling From the
time of the incident, Mathews has maintained that the burns happened
accidentally, while the State has argued that Mathews intentionally burned
C.J. We are asked to determine whether the district court abused its
discretion in excluding Mathews' expert witness and in rejecting his
proffered jury instruction. To answer these questions, we must determine,
as an issue of first impression, how to assess the "assistance requirement"
in Hallmark v. Eldridge, 124 Nev. 492,
189 P.3d 646 (2008), in the context
of the burden of proof and the purpose for which the expert witness's
testimony is being offered. Because the State bears the burden of proof in
a criminal case, the district court improperly excluded Mathews' proffered
expert witness and improperly refused his jury instruction. Thus, we
conclude that Mathews was denied a fair trial because these errors were not
harmless.
FACTS AND PROCEDURAL HISTORY
On the morning of January 5, 2016, Mathews babysat his
girlfriend Jasmin's two children, C.J. and J.J., at Jasmin's apartment while
she went to a meeting at her apartment complex. Mathews' account of the
incident as told to detectives is that while he was babysitting, he boiled
1 We originally reversed and remanded in an unpublished order.
Appellant has moved to publish the order as an opinion We grant the
motion and publish this opinion in place of our earlier order. See NRAP
36(0.
SUPREME COURT
OF
NEVADA
(0) 1947A
2
water on the stove and poured it into a mug to make instant coffee. After
putting the water in the mug, he set it on the counter and went to change
J.J.'s diaper. When he returned to the kitchen, C.J. was screaming, the
backs of his hands were burned, and the mug was on the floor. Mathews
maintains that C.J. accidentally spilled the water in the mug and burned
himself, while the State contends that Mathews intentionally burned C.J.
During trial, the State presented testimony from three expert
witnesses, all of whom opined that Mathews intentionally burned C.J.
Mathews attempted to have Dr. Lindsay "Dutch" Johnson, a biomechanics
expert, testify to rebut the State's theory and to testify about the mechanism
of C.J.'s injuries. The State filed a motion in limine to strike or limit Dr.
Johnson's testimony, which the district court granted following an
evidentiary hearing. Mathews appeals his conviction, arguing that he was
denied a fair trial because the district court abused its discretion in
excluding his expert witness and in rejecting his proffered jury instruction
on his theory of the case. We agree.
DISCUSSION
The district court abused its discretion in excluding Dr. Johnson
At the evidentiary hearing, the district court asked Dr. Johnson
questions about his experience with burn injuries but cut short his
testimony, and eventually excluded him from testifying at trial. The district
court concluded that Dr. Johnson was not qualified to testify about burns
on a child's skin, and further, his testimony did not have an adequate
factual foundation because nobody could testify to his theory of how C.J.'s
injuries occurred. Mathews repeatedly requested that Dr. Johnson be able
to testify to rebut the State's expert witnesses, but the district court refused
each request.
SUPREME COURT
OF
NEVADA
(0) 1947A e 3
On appeal, Mathews argues that the district court abused its
discretion in excluding Dr. Johnson because he was qualified to testify as
an expert in biomechanics and his testimony would assist the jury in
assessing the mechanism of C.J.'s injuries. The State argues that this court
has determined that Nevada law does not recognize biomechanics as a field
of expertise, and regardless, Dr. Johnson was not qualified to testify as an
expert regarding burn injuries on a child's skin.
"Whether expert testimony will be admitted, as well as whether
a witness is qualified to be an expert, is within the district court's discretion,
and this court will not disturb that decision absent a clear abuse of
discretion." Mulder v. State, 116 Nev. 1, 12-13,
992 P.2d 845, 852 (2000).
An expert witness must satisfy three requirements before being permitted
to testify as an expert under NRS 50.275: "(1) he or she must be qualified in
an area of scientific, technical or other specialized knowledge (the
qualification requirement); (2) his or her specialized knowledge must assist
the trier of fact to understand the evidence or to determine a fact in issue
(the assistance requirement); and (3) his or her testimony must be limited
to matters within the scope of [his or her specialized] knowledge (the limited
scope requirement)." Hallmark v. Eldridge, 124 Nev. 492, 498,
189 P.3d
646, 650 (2008) (alteration in original) (internal quotation marks omitted).
In assessing the "qualification requirement," the district court
stated, "I really don't believe your expert can testify about burn patterns on
a child's skin.. . . I don't think that taking an anatomy class and . . . his first
aid training in the Marines allows him to testify about the different burn
patterns on a child's skin. . . ." It does not appear from the record before us
that the district court considered Dr Johnson's academic degrees, licensure,
and other experience, which he not only testified to but evidence of which
SUPREME COURT
OF
NEVADA
4
(0) 1947A
was also included in Mathews' supplemental briefing and offer of proof. See
Id. at 499,
189 P.3d at 650-51 (stating that to determine whether an expert
meets the "qualification requirement," the district court should consider,
among other things, the witness's "(1) formal schooling and academic
degrees, (2) licensure, (3) employment experience, and (4) practical
experience and specialized training." (footnotes omitted)). Rather, the
district court made conclusory findings about Dr. Johnson's medical
qualifications without considering whether Dr. Johnson was qualified to
testify about the mechanism of C.J.'s injuries. Thus, the district court
abused its discretion by failing to apply the Hallmark factors for the
"qualification requirement" before disqualifying Dr. Johnson as an expert
witness.
The district court also improperly analyzed the "assistance
requirement." See id. at 500,
189 P.3d at 651 (stating that the district court
must determine whether the expert's testimony will assist the trier of fact,
and explaining that the testimony will assist the trier of fact "only when it
is relevant and the product of reliable methodology" (footnote omitted)).
Mathews argued to the district court that Dr. Johnson's testimony would
assist the trier of fact because his testimony offered an alternate mechanism
of C.J.'s injuries, which directly refuted the State's theory. The State
argued that Dr. Johnson's testimony was based on assumption and not
grounded in the facts of the case. The district court repeatedly stated that
Dr. Johnson was making up scenarios that were not supported by the facts
of the case.
The "assistance requirement" must be assessed in the context
of what the burden of proof is and who bears that burden. In a criminal
case, such as here, the State has the burden to prove the elements of a crime
SUPREME COURT
OF
NEVADA
e 5
(0) 1947A
beyond a reasonable doubt. See Burnside v. State, 131 Nev. 371, 385,
352
P.3d 627, 638 (2015). Thus, the State had the burden to prove that Mathews
intentionally burned C.J. beyond a reasonable doubt. It is clear from the
transcript of the evidentiary hearing that the district court failed to consider
the purpose for which Mathews was offering Dr. Johnson's testimony, which
was to rebut the State's theory that Mathews intentionally burned C.J. See
Leavitt v. Siems, 130 Nev. 503, 510,
330 P.3d 1, 6 (2014) (explaining that
rebuttal testimony "contradict[s] the [opposing partyls expert or furnish [es]
reasonable alternative causes to that offered by the [opposing party]"
(internal quotation marks omitted)). Indeed, the State presented testimony
from three experts, all of whom opined that Mathews intentionally burned
C.J., including one expert who stated it was "as next to impossible as it
comes" that C.J.'s injuries were accidental. Dr. Johnson was prepared to
testify that it was not impossible and to explain how the child could have
tipped the cup and spilled the scalding water on his hands accidentally.
In concluding that Dr. Johnson's testimony lacked an adequate
factual foundation, the district court presumed that the State's experts were
correct and consequently placed the burden on Mathews to prove beyond a
reasonable doubt that C.J.'s burns occurred accidentally. But this was not
Mathews' burden of proof to bear. See Jorgensen v. State, 100 Nev. 541, 544,
688 P.2d 308, 310 (1984) (explaining that "when a defense negates an
element of the offense, the state must disprove the defense because of the
prosecution's burden to prove all elements of the charged offense beyond a
reasonable doubt").
In this case, Dr. Johnson's testimony would assist the trier of
fact by demonstrating that an accidental mode of injury was possible.
Notably, Dr. Johnson was not testifying to medical causation; rather, the
SUPREME COURT
OF
NEVADA
6
(0) 1947A
focus of Dr Johnson's testimony would have been on the mechanics of C.J.'s
injury, which was within his scope of expertise and directly refuted the
State's theory. Accordingly, we conclude that the district court abused its
discretion by failing to assess the purpose of Dr. Johnson's testimony in the
context of the burden of proof when analyzing the "assistance requirement."
Finally, according to the State's argument on appeal, we
previously determined that biomechanics is not a recognized field of
expertise in Nevada, suggesting that biomechanical experts are not
permitted to testify. However, the State misapprehends our holdings in
Hallmark and Rish v. Simao, 132 Nev. 189, 195-96,
368 P.3d 1203, 1208
(2016).
In Hallmark, we concluded that while the expert witness met
the "qualification requirement," he did not satisfy the "assistance
requirement" because there was no evidence presented to show that
biomechanics was a recognized field of expertise, or that the expert's
methodology was reliable, had been tested, or was published or subject to
peer review. 124 Nev. at 499-502,
189 P.3d at 651-52. Additionally, we
concluded that the expert's opinion was highly speculative because he
admitted that he formed it without knowing several pertinent facts of the
case. Id. at 501-02,
189 P.3d at 652-53. In Rish, we clarified that "Hallmark
stands for the well-established proposition that expert testimony,
biomechanical or otherwise, must have a sufficient foundation before it may
be admitted into evidence." 132 Nev. at 196, 368 P.3d at 1208.
Thus, biomechanical experts are not precluded from testifying
altogether, and weaknesses in a purported expert's testimony, including
that one expert may have lesser qualifications than the opposing party's
expert witness, "goes to the weight, not the admissibility, of the evidence."
SUPREME COURT
OF
NEVADA
7
(0) 1947A
Brown v. Capanna, 105 Nev. 665, 671,
782 P.2d 1299, 1303-04 (1989); see
also Mulder, 116 Nev. at 13, 992 P.2d at 852 ("It is a function of the jury,
not the court, to determine the weight and credibility to give [expert]
testimony."); Leavitt, 130 Nev. at 510, 330 P.3d at 6 (concluding that in the
context of a challenge to expert testimony as speculative, "even if portions
of [an expert's] testimony [are] speculative, it [i]s for the jury to assess the
weight to be assigned to [the] testimony").
We conclude that the district court abused its discretion by
improperly applying the Hallmark factors in disqualifying Dr. Johnson as
an expert witness under NRS 50.275 and thus not permitting him to testify.
Having so concluded, we must now determine whether the error was
harmless. See Lobato v. State, 120 Nev. 512, 521,
96 P.3d 765, 772 (2004)
(stating that "any error that does not affect a defendant's substantial rights
shall be disregarded"); see also NRS 178.598. We conclude that it was not
harmless, as "[t]he exclusion of a witness' testimony is prejudicial if there
is a reasonable probability that the witness' testimony would have affected
the outcome of the trial." Lobato, 120 Nev. at 521,
96 P.3d at 772 (internal
quotation marks omitted). "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. (internal quotation
marks omitted). Accordingly, we conclude that reversal is warranted.
The district court abused its discretion in rejecting Mathews' proffered jury
instruction
Although we need not address Mathews' argument regarding
his proffered jury instruction, we do so to avoid repetition on retrial.
Mathews requested the following jury instruction:
A person who committed an act or made the
omission charged, through misfortune or accident,
when it appears that there was no evil design,
SUPREME COURT
OF
NEVADA
8
(C) 1947A e
intention or culpable negligence, must be found not
guilty of the charge.
In the district court, Mathews argued that this instruction should be given
because the facts in evidence could show C.J.'s injuries happened
accidentally. The State argued that Mathew's theory was that he did not
do any act, not that he did an act accidentally. The district court refused
Mathews' proffered jury instruction without explanation.
"The district court has broad discretion to settle jury
instructions and decide evidentiary issues," thus, this court reviews the
decision to give or not give a specific jury instruction for abuse of discretion.
Jackson v. State, 117 Nev. 116, 120,
17 P.3d 998, 1000 (2001). "This court
has consistently held that the defense has the right to have the jury
instructed on its theory of the case as disclosed by the evidence, no matter
how weak or incredible that evidence may be." Crawford v. State, 121 Nev.
744, 751,
121 P.3d 582, 586 (2005) (internal quotation marks omitted).
"This court evaluates appellate claims concerning jury instructions using a
harmless error standard of review." Barnier v. State, 119 Nev. 129, 132,
67
P.3d 320, 322 (2003). If "a defendant has contested the omitted element [of
a criminal offense] and there is sufficient evidence to support a contrary
finding, the error [in the instruction] is not harmless." Id. at 132-33,
67
P.3d at 322 (alterations in original) (internal quotation marks omitted).
However, the defense is not entitled to an instruction that misstates the
law. Ducksworth v. State, 113 Nev. 780, 792,
942 P.2d 157, 165 (1997).
If not for the district court's error in excluding Dr. Johnson's
expert witness testimony, there may have been evidence presented that
would have warranted Mathews' proffered jury instruction. Further, the
instruction was based on Mathews' theory of the case and correctly stated
the law. See McCraney v. State, 110 Nev. 250, 254-55,
871 P.2d 922, 925
SUPREME COURT
OF
NEVADA
10) 1947A e 9
(1994) (approving a jury instruction that stated: "All persons are liable to
punishment except those persons who committed the act through
misfortune or by accident, when it appears that there was no evil design,
intention or culpable negligence."). Had Dr. Johnson been permitted to
testify, it is reasonably probable that the jury could have found that the
"act" Mathews committed, and which resulted in C.J.'s injuries, was
accidentally leaving a mug of hot water on the counter within C.J.'s reach.
Therefore, we conclude that the district court abused its discretion in
rejecting Mathews' proffered instruction and such error was not harmless. 2
See Barnier, 119 Nev. at 132,
67 P.3d at 322; NRS 178.598.
Accordingly, for the reasons set forth above, we reverse the
judgment of conviction and remand this matter to the district court for a
new trial.
‘ct,A
Hardesty
We concur:
Reku tiAP
Pickerin
J.
Gibbons
2 Because we are reversing and remanding for a new trial, we need not
address Mathews' additional claims of error.
SUPREME COURT
OF
NEVADA
10
(0) 1947A e(D
r
