dissenting:
I would affirm the trial court’s ruling that a crime defined solely in terms of certain persistent conduct is unconstitutionally vague. I agree with the trial judge that the word “persistent” as used in NRS 201.020 does not give notice to a reasonably intelligent person as to what conduct is being prohibited because it is impossible to know just when “persistent” begins and non-persistent ends.
Under NRS 201.020, a person’s mere “willful refusal or neglect” to support his or her children will not alone subject that person to criminal punishment. One must persist in such refusal or neglect “for less than 6 months” in order to become punishable as a misdemeanant; for more than six months, but less than one year, to become punishable as a gross misdemeanant; and for more than one year to become punishable as a felon. The problem is that no one can tell with any acceptable degree of certainty at what point the duration of an accused’s willful refusal or neglect reaches the level of being “persistent.” One person’s idea of persistency might be very much different from another’s. One person might think that a person who missed two support installments was being persistent, while another might believe that missing three or four intermittent installments during a six-month period was not being persistent. In cases of intermittent payments that extended over a year’s time, it would be even more difficult to draw the persistency/non-persistency line; and there are no legislative criteria established that give any guidance as to how to make this necessary distinction.
Persistency not only dictates the extent of punishment for committing the crime at issue, it is an essential element of the *65crime. If the accused has not persisted, he or she has not committed the crime. For example, one who willfully neglects or refuses to pay support for his or her children for one month only would, rather clearly, not incur any criminal liability. The State must prove beyond a reasonable doubt that the defendant persisted in refusing or neglecting to support his or her children, or no conviction can result. Persistency is the key to this crime, the sine qua non; and one cannot tell for sure what this word means in the context of this penal statute.
It seems to me that the legislature could have set up more definite and understandable criteria in defining the elements of the crime and distinguishing among the various levels of punishment. Indeed, if the legislature, as opposed to this court, were to define persistent as, say, refusal or neglect to pay support “two or more consecutive months,” the statute would not be unconstitutionally vague. I do not think, however, that any one can be properly deprived of liberty under the statute as it is written now.