IN THE SUPREME COURT OF THE STATE OF NEVADA
EDWARD MANUEL THOMPSON, JR., No. 65538
Appellant,
vs. FILED
THE STATE OF NEVADA,
Respondent. JAN 2 2 2016
ORDER OF REVERSAL AND REMAND
This is an appeal from a judgment of conviction, pursuant to a
jury verdict, of first-degree murder. Eighth Judicial District Court, Clark
County; Stefany Miley, Judge.
In 2006, doctors diagnosed Monique Bork's newborn son with
shaken baby syndrome. Bork's son died in 2011, and the death was
deemed a homicide as a result of non-accidental head trauma the child
sustained in 2006. Police arrested appellant Edward Manuel Thompson
Jr. in connection with the child's death. The State later filed an
information in district court charging Thompson with first degree felony
murder by child abuse. This information was never amended and the
deputy court clerk read it to the jury after the trial commenced. Following
a 10-day jury trial, the jury found Thompson guilty of first-degree felony
murder by child abuse.
Thompson appeals, arguing that the district court abused its
discretion in its instructions to the jury. We agree. The district court
abused its discretion in allowing jury instructions 10 and 11 because the
instructions departed from the information filed to expand the State's
theory of the case. See State v. Eighth Judicial Dist. Court, 116 Nev. 374,
377, 997 P.2d 126, 129 (2000) ("The State is required to give adequate
notice to the accused of the various theories of prosecution.").
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Problematically, while the State charged Thompson with felony murder by
child abuse under NRS 200.030—the felony murder statute—jury
instructions 10 and 11 follow the statutory language of NRS 200.508,
which prohibits abuse, neglect, or endangerment of a child.
Jury instruction 10 mirrors the language of NRS 200.508(2),
prior to its recent amendment, with two exceptions. As shown below, jury
instruction 10 omits two words contained in NRS 200.508(2), which are
shown in parenthesis, and adds the five words in italics:
A person who is responsible for the safety or
welfare of a child and who
a. permits or allows that child to suffer
unjustifiable physical pain or mental
suffering as a result of abuse, or
b. to be placed in a situation where the child
may suffer physical pain or mental
suffering as the result of abuse (or
neglect) is guilty of Child Abuse.
See NRS 200.508(2) (amended 2015). 1
Jury instruction 11 defines abuse. Yet instead of using the
definition of child abuse from the felony murder statute, see NRS
200.030(6)(b), jury instruction 11 uses the definition of "abuse or neglect"
from NRS 200.508(4)(a) Like jury instruction 10, instruction 11 also
erases the "or neglect" portion of the statutory definition (the portion of
NRS 200.508(4)(a) omitted in jury instruction 11 is shown in parenthesis):
'The 2015 amendments to NRS 200.508(2) do not change the
analysis in this order. The amended NRS 200.508(2) mirrors the statute
as reprinted here, but adds the following italicized language: "A person
who is responsible for the safety or welfare of a child pursuant to NRS
432B.130 and who. ." See 2015 Nevada Laws Ch. 399 (A.B. 49)
(emphasis added).
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"Abuse (or neglect)" means physical or mental
injury of a nonaccidental nature or negligent
treatment or maltreatment of a child under the
age of 18 years, under circumstances which
indicate that the child's health or welfare is
harmed or threatened with harm.
We have previously held that a difference exists between what
constitutes felony murder by child abuse under the felony murder statute
and what constitutes child abuse or neglect under NRS 200.508. See
Labastida v. State, 115 Nev. 298, 302-03, 986 P.2d 443, 446 (1999) ("The
use of the term 'child abuse' and not 'child neglect' in NRS 200.030(1)(a)
evinces the legislature's intent that different meanings apply to the two
terms and that a murder perpetrated by means of 'child abuse,' and not
'child neglect,' constitutes first degree murder."). In Labastida, this court
concluded that felony murder by child abuse must follow the definition of
child abuse in the felony murder statute. 115 Nev. 298, 303, 986 P.2d 443,
446 (1999) ("[W]e are not willing to read NRS 200.030(1)(a) so as to define
first degree murder to include a murder which is perpetrated by means of
child neglect. There is no statutory basis for doing so.").
Although the State prosecuted Thompson with felony murder
by child abuse under the felony murder statute, jury instructions 10 and
11 instruct the jury as to whether Thompson is guilty of acts prohibited by
NRS 200.508. The felony murder statute defines murder of the first
degree as murder which is "[c]omitted in the perpetration or attempted
perpetration of," among other crimes, "child abuse." NRS 200.030(1)(b).
The statute defines "child abuse" as "physical injury of a nonaccidental
nature to a child under the age of 18 years." NRS 200.030(6)(b). Thus,
jury instructions 10 and 11 improperly expand upon what is prohibited by
the felony murder statute. For instance, jury instruction 10 instructs the
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jury to find Thompson guilty if he placed Bork's child in a situation in
which the child could suffer physical pain or mental suffering. Jury
instruction 11 instructs the jury that child abuse includes both physical
and mental injury of a nonaccidental nature and negligent treatment of a
child. As explained in Labastida, and by its plain language, the felony
murder statute neither prohibits the conduct in jury instruction 10 nor
uses the more expansive definition of child abuse in jury instruction 11.
Accordingly, we conclude that the district court abused its discretion in its
instructions to the jury regarding felony murder by child abuse.
We further conclude that this error prejudiced Thompson
because the State emphasized in its closing argument the jury's ability to
find Thompson guilty of felony murder by child abuse under the erroneous
language contained in instructions 10 and 11. See NRS 179.598 ("Any
error, defect, irregularity or variance which does not affect substantial
rights shall be disregarded."); see also Dougherty v. State, 86 Nev. 507,
509, 471 P.2d 212, 213 (1970) ("An accurate instruction upon the basic
elements of the offense charged is essential, and the failure to so instruct
constitutes reversible error."). Because of the State's argument, it is
unclear whether the jury convicted Thompson of first-degree felony
murder for conduct prohibited by the felony murder statute or for conduct
merely prohibited by NRS 200.508.
Thus, the district court failed to properly instruct the jury as
to the definition of felony murder by child abuse through jury instructions
10 and 11, and the error prejudiced Thompson. We decline to address
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Thompson's argument regarding compelled witness immunity at this
time. 2
Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for further proceedings
consistent with this order.
C.J.
arra guirre
/St, ett_ret J.
Hardesty
J.
Douglas
J.
J.
Gibbons
9/9 J.
Pickering
2 We
have considered the parties' remaining arguments and conclude
that they are without merit.
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cc: Hon. Stefany Miley, District Judge
Landis Law Group
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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