Carrigan (Justin) v. State ( 2015 )

 suffer unjustifiable physical pain or mental suffering, or (b) be placed in a
situation where she may suffer physical pain or mental suffering; (3) due
to abuse or neglect; (4) resulting in substantial bodily or mental harm. See
NRS 200.508(4)(a) (defining "abuse or neglect" in part as negligent
treatment or maltreatment of a child under the age of 18 years, as set
forth in NRS 432B.140), (b) (defining "[a]llow"), (c) (defining "[p]ermit");
see also Smith v. State, 112 Nev. 1269, 1277, 927 R2d 14, 18 (1996)
(explaining that a defendant must know or have reason to know of the
abuse or neglect yet permit or allow the child to be subject to it), abrogated
on other grounds by City of Las Vegas v. Eighth Judicial Dist. Court, 118
Nev. 859, 862-63, 59 P.3d 477, 480 (2002).
Trial testimony indicated that on the morning of September
27, 2010, Carrigan was home caring for his 3-year-old stepdaughter
Rochelle and his 1-year-old son Eric, in the apartment he shared with his
wife Leah, the mother of both children. At some point that morning,
Carrigan found Rochelle nonresponsive.' Rather than call 9-1-1, Carrigan
left Rochelle and his son unattended and went to a neighbor's residence.
Serina Cottiero testified that she lived "[a] block or two away," and that
Carrigan arrived between 8:45 a.m. and 9:00 an., saying, "he needed
somebody over at his house with him right then," though he did not
specifically say why. Cottiero followed Carrigan back to his apartment.
Cottiero testified that they arrived at Carrigan's apartment approximately
1 Carrigan's accounting varied dramatically: he told various
witnesses that after either hearing a "thump" or a "thud" or no sound at
all, he found Rochelle either slumped over looking at him, about to fall, or
unconscious either in her bedroom, the bathroom, or lying across his lap or
chest as he sat on the couch in the living room.
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30 seconds later and she found Rochelle lying on the couch in her
underwear, looking "really pale," with "mucus or snot like stuff coming out
of one of her nostrils." Rochelle was not responsive and did not appear to
be breathing. Cottiero attempted "chest compressions and mouth to
mouth" in order to resuscitate Rochelle even though Carrigan was trained
in CPR due to health issues related to his son.
Rochelle was not breathing and Cottiero told Carrigan to call
for an ambulance, however, he refused. Cottiero testified:
I believe that what was said between us when I
asked him to first call an ambulance was that he
didn't want to because he had previously, I
believe, the night before spanked her for some
reason, peeing on him while they were watching a
movie or something . . . and he spanked her, and
he didn't want someone to think that he did
something to her. 2
Cottiero yelled at Carrigan "over and over" to call for an ambulance and he
refused, so she lied and told Carrigan that Rochelle was breathing—"I
figured maybe if he thought she was okay more than she was okay that he
wouldn't be so worried about calling." Carrigan then called 9-1-1.
Cottiero could not be sure but estimated that 3 to 4 minutes elapsed after
they arrived at Carrigan's apartment and before he finally called 9-1-1.
The 9-1-1 operator instructed Carrigan on how to properly perform CPR
and, according to Cottiero, he continued doing that at least until she went
outside to get the paramedics' attention. Although Cottiero testified that
Carrigan arrived at her house between 8:45 a.m. and 9:00 a.m., and that
2 Noevidence of physical trauma or fractures were found by
examining doctors at either Renown Children's Hospital (Renown) or
Carson-Tahoe Regional Medical Center (Carson-Tahoe).
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possibly only 3 to 4 minutes elapsed after they returned to Carrigan's
residence and before he called 9-1-1, evidence presented at trial indicated
that the 9-1-1 dispatch center did not receive Carrigan's call until 9:53
a. m.
Tori Riches, a firefighter-paramedic with the Carson City Fire
Department, testified that she and other first responders arrived at
Carrigan's residence five minutes after being dispatched. Riches found
Rochelle "lying motionless on the ground unconscious, unresponsive."
Rochelle was not breathing and did not have a pulse. There was no
electrical activity in Rochelle's heart, meaning, "that her heart has not
been beating for a period of time, quite awhile." After approximately six
minutes performing CPR and administering a second dose of epinephrine,
electrical activity resumed and Rochelle's heart began to beat, although
she was still unable to breathe on her own.
Meanwhile, as the emergency responders attended to Rochelle,
Captain Dan Albee of the Carson City Fire Department made contact with
Carrigan to determine what happened and to get as much information as
possible in order to provide the most appropriate care. Capt. Albee
testified that Carrigan never informed him that between the time he
found Rochelle nonresponsive and the time he called 9-1-1 that he left his
apartment and the two children unattended, went down the street to
Cottiero's residence, returned, and then initially refused to call 9-1-1
before eventually calling after Cottiero insisted. Capt. Albee stated that
the omitted information would have been helpful to determine a course of
action, especially because "anytime that somebody's gone—is down for up
to or more than six minutes, your brain starts to die from lack of oxygen."
Sergeant Darren Sloan of the Carson City Sheriffs Department
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encountered Carrigan outside the apartment and overheard Carrigan
talking to himself, saying "that he was screwed." A bit later, Carrigan
looked at Sgt. Sloan and asked "if he was in trouble."
During the course of the investigation, it was soon discovered
that Carrigan was less than forthcoming about what transpired on the day
in question. Carrigan told emergency responders, investigators, family
and friends that after finding Rochelle nonresponsive, he performed CPR
and called 9 1 1. Carrigan never told anyone that he left the apartment
- -
and his kids unattended and sought out Cottiero after finding Rochelle
nonresponsive or that he initially refused to call 9-1-1. It was only while
reviewing the 9 1 1 recording that Detective Dina Lacy of the Carson City
- -
Sheriffs Department heard a female voice in the background, eventually
leading her to discover Cottiero's involvement and the omitted portion of
Carrigan's accounting of events.
Dr. Jack Schmurr, an emergency physician at Carson-Tahoe,
testified that when Rochelle arrived at the hospital on the morning of the
incident, her heart was beating, "[Nut neurologically, she had no function
whatsoever." Dr. Schmurr testified that "any delay of getting oxygen to
the brain tissue is going to be catastrophic. . . . In four minutes, it starts to
die; in six minutes, damage is done; eight minutes brain death." Dr.
Edwin Peters, a pediatric intensive care doctor at Renown, testified that
when Rochelle was discharged after two months in the hospital, "[s]he was
still severely impaired," "was not communicative," and "unable to eat by
herself." Leah Carrigan testified that Rochelle was presently living in a
24-hour nursing home and that she will need supportive care for the rest
of her life.
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Circumstantial evidence alone may sustain a conviction.
Buchanan v. State, 119 Nev. 201, 217, 69 P.3d 694, 705 (2003). It is for
the jury to determine the weight and credibility to give conflicting
testimony, McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992), and
a jury's verdict will not be disturbed on appeal where, as here, sufficient
evidence supports the verdict, Bolden v. State, 97 Nev. 71, 73, 624 P.2d 20,
20 (1981); see also NRS 200.508(2)(a)(2), (4). Therefore, we conclude that
Carrigan's contention is without merit.
Second, Carrigan contends that the district court violated NRS
173.095(1) and his right to due process by allowing the State to file an
amended criminal information which increased the number of charges.
Carrigan claims that the amendment of the original criminal information,
which charged alternative theories in one count, violated his right to due
process "because it cannot be said that the magistrate at the preliminary
examination would have found probable cause on Count II"—the count on
which he was ultimately convicted. 3 We disagree with Carrigan's
contention.
A district judge may allow the prosecution to amend the
charging document in a criminal case any time before the verdict so long
as "no additional or different offense is charged and [the] substantial
rights of the defendant are not prejudiced." NRS 173.095(1). We defer to
the district court's decision except when it "manifestly abuses" its
considerable discretion. State v. Eighth Judicial Dist. Court, 116 Nev.
374, 379, 997 P.2d 126, 129 (2000). Here, there is no indication in the
3 Theoriginal criminal information charged Carrigan with violating,
in one count, both NRS 200.508(1)(a)(2) and NRS 200.508(2)(a)(2).
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record that Carrigan objected to the amended criminal information. 4 See
Grey v. State, 124 Nev. 110, 120, 178 P.3d 154, 161 (2008) ("Failure to
object below generally precludes review by this court; however, we may
address plain error and constitutional error sua sponte." (internal
quotation marks omitted)). Moreover, defense counsel expressly stated at
the hearing on his motion to dismiss prior to the filing of the amended
information that "[nth/ common sense tells me that the solution is to make
them divide that single count into two alternative counts." The amended
information did not charge Carrigan with an "additional or different
offense," the two counts incorporated the same elements as alleged in the
original charging document, and Carrigan fails to demonstrate that his
substantial rights were adversely affected. Therefore, we conclude that
the district court did not abuse its discretion by allowing for the amending
of the criminal information.
Third, Carrigan contends that NRS 200.508(2) and (4)(b) are
facially void for vagueness "because they fail to delineate the boundaries of
unlawful conduct" and unconstitutionally vague as applied to the facts of
this case. "We review the constitutionality of a statute de novo, presuming
that a statute is constitutional." Clancy v. State, 129 Nev. Adv. Op. No.
89, 313 P.3d 226, 231 (2013). We have previously rejected challenges to
the constitutionality of Nevada's child-abuse-and-neglect statute, and
here, Carrigan fails to demonstrate that NRS 200.508(2) did not provide
him with adequate notice that his conduct, as detailed above, "was
proscribed by law." Smith, 112 Nev. at 1276, 927 P.2d at 18. Additionally,
4We further note that the amending of the criminal information
occurred prior to Carrigan's first trial. The State proceeded with the same
charging document, without objection, during Carrigan's second trial.
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Carrigan fails to demonstrate that NRS 200.508 is unconstitutionally
vague as applied to his case because a person of ordinary intelligence
would have fair notice that the delay, as described in this case, in seeking
medical attention for an unconscious 3-year-old is allowing the child to
suffer unjustifiable physical pain as a result of neglect and is placing her
in a situation where she may suffer unjustifiable physical pain. We
conclude that Carrigan fails to overcome the statute's presumed
constitutionality. Accordingly, we
ORDER the judgment of' conviction AFFIRMED.
(271_ ,J
Saitta
PieAdu
Gibbons Pickering
cc: Hon James Todd Russell, District Judge
Robert B. Walker
Attorney General/Carson City
Carson City District Attorney
Carson City Clerk
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