IN THE SUPREME COURT OF THE STATE OF NEVADA
RUSS HAGH, No. 77863
Appellant,
vs.
THE STATE OF NEVADA, FILED
Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
jury trial, of attempted murder with the use of a deadly weapon, domestic
battery with the use of a deadly weapon causing substantial bodily harm,
and assault with a deadly weapon. Second Judicial District Court, Washoe
County; Kathleen M. Drakulich, Judge.1
Appellant Russ Hagh shot his brother-in-law in the hip after
saying "I kill you." He then pointed the gun at his nephew, who successfully
disarmed Hagh following a brief struggle. A jury convicted Hagh of
attempted murder and battery for shooting his brother-in-law and assault
against his nephew. The district court sentenced Hagh to an aggregate
term of 84 to 300 months.
Hagh argues that the district court abused its discretion in
excluding evidence of the preliminary breath test showing his blood-alcohol
level shortly after the shooting. NRS 484C.150(3) provides that "Nile result
of the preliminary test must not be used in any criminal action, except to
show there were reasonable grounds to make an arrest." The plain
language of NRS 484C.150(3) provides that the breath test was
inadmissible here, as the basis for Hagh's arrest was not at issue. See Bailey
SUPREME COORT
OF 'Pursuant to NRAP 34(f)(1), we have determined that oral argument
NEVADA
is not warranted in this appeal.
10) 1947A 4/00.1
To. (41.54 3
v. State, 120 Nev 406, 409,
(2004) (providing that a court
will not look beyond a statute's plain language where it has a definite and
ordinary meaning). The district court therefore did not abuse its discretion
in excluding evidence of the breath test. See Mclellan v. State,
(2008) (review[ing] a district court's decision to
admit or exclude evidence for an abuse of discretion").
Hagh next argues that the district court abused its discretion
in excluding the defense expert on the basis of the expert's report without
calling her to testify regarding her anticipated testimony. We review a
district court's exclusion of a defense expert for abuse of discretion.
Hallmark v. Eldridge,
.
After considering the defense proffer, the district court concluded that
Hagh's expert's anticipated testimony was not the product of reliable
methodology.2 Hagh does not dispute the court's conclusion that the
methodology was not reliable; instead relies on Mathews v. State,
(2018), to contend that the district court had to call the
expert before excluding her testimony. While the district court in Mathews
heard the contested expert's testimony, Mathews does not set forth an
evidentiary procedure that the district court must follow in assessing the
2The district court found that the expert evaluated Hagh's intent at
the time of the offense on the basis of Hagh's self-assessment in an interview
14 months later, the police reports, and the preliminary hearing transcript,
noting that the breath test was not available to be used. It concluded that
Hagh did not show that this analysis had been approved by the scientific
community, was testable or repeatable, within the expert's field of
expertise, or based more on particularized facts than assumption or
generalization. Cf. Hallmark,
-52
SUPREME COURT
(discussing considerations for determining reliable methodology).
OF
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Hallmark factors in a pretrial hearing and thus does not specifically require
calling a proffered expert to testify. See
(reviewing district court's exclusion of a proffered expert in light of
Hallmark without opining on the specific procedure the district court must
follow in exercising its discretion); cf. Brant v. State,
, 580, 582 (2014) (concluding that the district court did not
abuse its discretion in excluding defense expert testimony following a
hearing where the expert did not testify); see also NRS 47.080
(acknowledging offers of proof may be in narrative or question and answer
form). Hagh has not identified any authority requiring the district court to
direct a party to present a witness to support the party's offer of proof. See
Maresca v. State,
(1987). We conclude that Hagh
has not shown that the district court abused its discretion in excluding the
expert's testimony. Accordingly, we
ORDER the judgment of conviction AFFIRMED.
Parraguirre
i'4\64-A`ef J.
Hardesty Cadish
cc: Hon. Kathleen M. Drakulich, District Judge
David Kalo Neidert
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
SUPREME COURT
OF
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3
tth 1947A 481PD
