Walsh (Robert) v. State ( 2015 )

 treatment, thereby suggesting that the district court has no duty
regarding notice of such treatment). Moreover, Walsh has failed to
demonstrate that his substantial rights were violated, because he admits
that he was aware the State was seeking such treatment. See LaChance,
130 Nev., Adv. Op. 29, 321 P.3d at 928 ("[Tlhe clear purpose of NRS
207.010(2) is to ensure that the defendant has notice that the State will
request habitual criminal adjudication."). He acknowledges that written
notice was served on his attorney and states that he was personally made
aware of the State's intent during his jury trial. Accordingly, Walsh has
failed to demonstrate that the district court committed plain error in
regard to the habitual criminal notification.'
Walsh next argues that the district court erred in accepting
certified judgments of conviction as proof of two of his prior convictions in
support of the habitual criminal adjudication, because the State's notice of
intent to seek habitual criminal treatment also included for the same two
prior cases guilty plea agreements that did not appear to be properly
executed. Again, because he did not object below, we review Walsh's claim
for plain error. LaChance, 130 Nev., Adv. Op. 29, 321 P.3d at 928. Walsh
has not demonstrated error that is plain from the record. The certified
judgments of conviction are prima facie evidence of the prior convictions,
NRS 207.016(5), and they are facially constitutional as they indicate that
'Walsh contends for the first time in his reply brief that the State
did not comply with statutory procedure because it filed a notice of intent
to seek habitual criminal treatment instead of amending the information.
See NRS 207.010(2). Because this argument was not raised in Walsh's
opening brief, we do not consider it. See NRAP 28(c) (providing that a
reply brief "must be limited to answering any new matter set forth in the
opposing brief').
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Walsh was represented by counsel and was convicted of a felony in each
case, see Dressler v. State, 107 Nev. 686, 698, 819 P.2d 1288, 1296 (1991).
Any irregularity, in the signatures in accompanying guilty plea
agreements does not rebut that presumption of validity. Moreover, Walsh
has failed to demonstrate that his substantial rights were violated as he
does not dispute that the judgments of conviction are accurate or that he
was represented by counsel. Accordingly, Walsh has failed to demonstrate
that the district court committed plain error in regard to the habitual
criminal adjudication.
Walsh next argues that the district court improperly admitted
testimony about the results of narcotics field testing because it did "not
meet the applicable 'general acceptance' standard for the admission of
expert testimony" as set forth in Frye v. United States, 293 F. 1013 (D.C.
Cir. 1923). Trial counsel objected to the testimony, but on different
grounds. Accordingly, we review Walsh's claim for plain error. See Grey v.
State, 124 Nev. 110, 120, 178 P.3d 154, 161 (2008). Walsh has not
demonstrated error that is plain from the record. First, the testimony was
not "expert" testimony, because the record indicates that it was admitted
for the purpose of establishing why the witness submitted the substance to
the forensic laboratory for further testing, and not as "scientific, technical
or other specialized knowledge" introduced to "assist the trier of fact to
understand the evidence or to determine a fact in issue." NRS 50.275
(defining expert testimony). Second, even if it were expert testimony, NRS
50.275, not Frye, would govern its admissibility. Higgs v. State, 126 Nev.,
Adv. Op. 1, 222 P.3d 648, 659 (2010); Santillanes v. State, 104 Nev. 699,
704 n.3, 765 P.2d 1147, 1150 n.3 (1988). Moreover, Walsh has failed to
demonstrate that his substantial rights were violated because the forensic
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scientist, who was qualified as an expert in the identification of controlled
substances, testified shortly thereafter as to her methodology and
conclusions, which confirmed the results of the narcotics field test.
Finally, Walsh argues in his reply brief that the prosecutor
committed repeated acts of misconduct. Because this argument was not
raised in Walsh's opening brief, we do not consider it. See NRAP 28(c).
Having reviewed the claims Walsh raised in his opening brief,
we conclude they are without merit for the foregoing reasons. Accordingly,
we
ORDER the judgment of conviction AFFIRMED.
CJILett
Saitta
, J.
, J.
Gibbons
&km.
Pickering
cc: Hon. Kimberly A. Wanker, District Judge
David H. Neely, III
Attorney General/Carson City
Nye County District Attorney
Nye County Clerk
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