Lawrence (Melissa) v. Dist. Ct. (State) ( 2015 )

 197, 179 P.3d 556, 558 (2008) ("A writ of mandamus is available to compel
the performance of an act that the law requires as a duty resulting from
an office, trust, or station or to control an arbitrary or capricious exercise
of discretion." (footnote omitted)).
Lawrence claims that the district court arbitrarily or
capriciously exercised its discretion when it granted the State's motion to
file an information by affidavit after the justice court discharged an
allegation of substantial bodily harm and a count of preventing or
dissuading a witness or victim from reporting a crime or commencing
prosecution. Pursuant to NRS 173.035(2), after a preliminary
examination and subsequent discharge of an accused by the justice court,
the prosecution may upon affidavit and with leave of the district court file
an information. "[NRS 173.035(2)] contemplates a safeguard against
egregious error by a magistrate in determining probable cause, not a
device to be used by a prosecutor to satisfy deficiencies in evidence at a
preliminary examination, through affidavit." Cranford v. Smart, 92 Nev.
89, 91, 545 P.2d 1162, 1163 (1976) (emphasis added).
First, Lawrence contends that the justice court correctly
discharged the allegation of substantial bodily harm attendant to the
count of child neglect or endangerment. At the preliminary hearing, S.L.
testified that she was beaten with a belt every other day for years, that
the marks lasted 1 to 2 weeks, and that she never received medical
attention for her injuries. Dr. Ceti testified that one priority in treating
injuries such as those seen in photographs of S.L.'s back and introduced
into evidence would be pain control, especially given that the injured area
was one where movement and contact with clothing and furniture could
cause further pain. The district court concluded that "there is no question
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that Si. suffered prolonged physical pain." We agree, see NRS 0.060
(defining substantial bodily harm, in part, as "[prolonged physical pain"),
and conclude that the district court did not arbitrarily or capriciously
exercise its discretion.
Second, Lawrence contends that the justice court correctly
discharged the count of preventing or dissuading a witness or victim from
reporting a crime or commencing prosecution. The State's evidence
consisted of (1) Lawrence's own statements to law enforcement upon
finding out that her children were being removed ("I hope they fight. I
have instructed them to kick, scream, yell," and "to fight CPS if they tried
to pick them up"); (2) an employee of Department of Family Services
testifying about an interview with S.L.'s younger sister, N.B., 5 years
previous, in which N.B. said that her parents (codefendant and Lawrence)
told her not to say anything if an adult asks questions about what goes on
in the home or she would get in trouble; and (3) testimony by N.B. at the
preliminary hearing that she was scared to answer questions about
whether her parents told her not to talk to or cooperate with CPS because
it could hurt her family. S.L. testified that it was the codefendant, not
Lawrence, who told her to lie or not to disclose to Child Protective
Services.
In granting the State's motion to file an information by
affidavit, the district court found that the State presented sufficient
evidence of the count and that it was improperly stricken by the justice
court. Unlike the evidence of substantial bodily harm, the evidence
supporting this count was less compelling and conclusive. While the
district court may have reached a different conclusion than the justice
court, that does not make the failure to bind over an egregious error. See
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Cipriano v. State, 111 Nev. 534, 540, 894 P.2d 347, 351 (1995) (recognizing
that a reviewing court may reach a different conclusion regarding
probable cause but that does not make the failure to bind over egregious
error), overruled on other grounds by State v. Sixth Judicial Dist. Court,
114 Nev. 739, 964 P.2d 48 (1998). We conclude that the district court
abused its discretion when it allowed the State to file an information
containing this count and grant the petition in part as it relates to this
claim.
To the extent that Lawrence argues that the State failed to file
a supporting affidavit as required by NRS 173.035(2), the statute provides
that "Mlle affidavit need not be filed in cases where the defendant has
waived a preliminary examination, or upon a preliminary examination has
been bound over to appear at the court having jurisdiction" (emphasis
added). Lawrence had a preliminary examination and was bound over to
the district court on three of the counts alleged in the criminal complaint.
Therefore, this argument has no merit.
For the reasons stated above, we
ORDER the petition DENIED IN PART AND GRANTED IN
PART AND DIRECT THE CLERK OF THIS COURT TO ISSUE A WRIT
OF MANDAMUS instructing the district court to strike the count of
preventing or dissuading a witness or victim from reporting a crime or
commencing prosecution fink the information.
Parraguirre
‘7)-oLk9k 101-6
Douglas
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cc: Hon. Douglas Smith, District Judge
Gary A. Modafferi
Michael I. Gowdey
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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