MARK ANDRE LUTZ v. THE STATE OF NEVADA (2025)

ORDER OF AFFIRMANCE

Mark Andre Lutz appeals from a judgment of conviction, entered pursuant to a jury verdict, of domestic battery resulting in substantial bodily harm. Fourth Judicial District Court, Elko County; Alvin R. Kacin, Judge.

Lutz argues that admitting the victim's statement to the responding officer, in which she acknowledged that Lutz battered her, violated his right of confrontation. Lutz acknowledges that Crowley v. State, 120 Nev. 30, 35, 83 P.3d 282, 286 (2004), permits admission of a prior statement where the witness does not remember making that statement. He nevertheless argues that admitting the statement violated his right to cross-examination because the victim's complete lack of memory regarding the statement rendered his opportunity to cross-examine illusory. Lutz asserts that this court should reexamine Crowley in light of Crawford v. Washington, 541 U.S. 36 (2004).

We generally review the decision to admit or exclude evidence for an abuse of discretion. Crowley, 120 Nev. at 34, 83 P.3d at 286. However, we review de novo whether a district court's ruling violates a defendant's Confrontation Clause rights. Chavez v. State, 125 Nev. 328, 339, 213 P.3d 476, 484 (2009).

A prior inconsistent statement of a testifying witness does not constitute inadmissible hearsay. NRS 51.035(2)(a). Pursuant to Crowley, “when a trial witness fails, for whatever reason, to remember a previous statement made by that witness, the failure of recollection constitutes a denial of the prior statement that makes it a prior inconsistent statement pursuant to NRS 51.035(2)(a).” 120 Nev. at 35, 83 P.3d at 286. “The previous statement is not hearsay and may be admitted both substantively and for impeachment.” Id. Accordingly, the victim's recorded statement describing the battery, which she testified she did not remember making, was properly admitted as substantive evidence.

Moreover, this court need not re-examine Crowley in light of Crawford because the decisions are consistent.¹ The Confrontation Clause bars the introduction of testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 59. However, “when the declarant appears for cross-examination at trial,” as she did in this matter, “the Confrontation Clause places no constraints at all on the use of [her] prior testimonial statements.” Id. at 59 n.9. Further, the Sixth Amendment “only requires that a defendant have the opportunity to confront the witnesses against him, but it does not explicitly require that the defendant be availed of the opportunity to confront the witness concerning a prior statement.” Richard v. State, 134 Nev. 518, 526 n.5, 424 P.3d 626, 632 n.5 (2018). Accordingly, we

ORDER the judgment of conviction AFFIRMED.

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   To the extent Lutz asks this court to overrule Crowley we cannot. See Eivazi v. Eivazi, 139 Nev. 408, 418 n.7, 537 P.3d 476, 487 n.7 (Ct. App. 2023) (“[T]his court cannot overrule Nevada Supreme Court precedent.”).