Clay v. Eighth Jud. Dist. Ct. ( 2013 )

129 Nev,, Advance Opinion Jib
IN THE SUPREME COURT OF THE STATE OF NEVADA
BRYAN CLAY, No. 61986
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
JAMES M. BIXLER, DISTRICT JUDGE,
Respondents,
and
THE STATE OF NEVADA,
Real Party in Interest.
Original petition for a writ of mandamus or prohibition
challenging an order of the district court denying a pretrial petition for a
writ of habeas corpus.
Petition granted in part.
Patti, Sgro & Lewis and Anthony P. Sgro, Las Vegas; Christopher R.
Oram, Las Vegas,
for Petitioner.
Catherine Cortez Masto, Attorney General, Carson City; Steven Wolfson,
District Attorney, and Jonathan E. VanBoskerck, Chief Deputy District
Attorney, Clark County,
for Real Party in Interest.
BEFORE GIBBONS, PARRAGUIRRE and DOUGLAS, JJ.
OPINION
By the Court, DOUGLAS, J.:
Nevada law requires a district attorney to "inform the grand
jurors of the specific elements of any public offense which they may
/.-owo?5/
consider as the basis of the indictment." NRS 172.095(2). In this original
writ proceeding, we consider whether the district attorney violates this
requirement when he or she seeks an indictment for child abuse or neglect
under NRS 200.508(1) based on a nonaccidental physical injury but fails to
inform the grand jurors of the definition of "physical injury" set forth in
NRS 200.508(4)(d). We conclude that regardless of the theory pursued
under NRS 200.508(1), "abuse or neglect" is an element of the offense and
that when the alleged "abuse or neglect" is based on a nonaccidental
physical injury, the district attorney must inform the grand jurors of the
statutory definition of "physical injury" because that definition is more
limited than the meaning that a layperson would attribute to the term.
Because the failure to inform the grand jurors of the statutory definition of
"physical injury" likely caused the grand jury to return an indictment on
less than probable cause for one of the two counts of child abuse, we grant
the petition as to that count.
FACTS AND PROCEDURAL HISTORY
Petitioner Bryan Clay was indicted by a grand jury for two
counts of child abuse and neglect in violation of NRS 200.508(1), for
slapping and hitting his 16-year-old girlfriend on February 14, 2012 (count
one), and March 15, 2012 (count three). The only witness to testify before
the grand jury about the events which transpired in February and March
was Clay's girlfriend, E.F.
E.F. was pregnant with Clay's child. The first charged
incident of abuse occurred two days after she told him about the
pregnancy. Clay slapped her across the face during an argument. The
second charged incident occurred the following month. After the couple
attended a prenatal appointment, E.F. told Clay that she did not want to
be with him anymore, and Clay told her that if she left him, he would kill
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himself. As E.F. walked away, Clay walked up behind her, grabbed her by
the neck with one hand, choked her, and threw her into a gate. When E.F.
continued to ignore him, he started hitting her with a closed fist in her
face, legs, arms, stomach, and back. E.F. fell to the ground and covered
her stomach with her hands. Clay then grabbed her by the hair and
shoved her face into the concrete. Clay tried to move E.F.'s hands from
her stomach and told her that if he could not have her and his child, then
he did not want anyone else to have them either. When a woman came
over to tell him to stop, Clay took E.F.'s purse and left. By the time E.F.
got home, the police had already arrived. E.F. testified that she attempted
to tell the police what happened, but she still could not breathe. An
ambulance took E.F. to the hospital, but she did not stay. There was no
testimony about the nature of E.F.'s injuries resulting from either of the
altercations.
Following the return of the indictment, Clay filed a pretrial
petition for a writ of habeas corpus challenging the indictment on two
grounds. First, he argued that there was insufficient evidence to support
a finding of probable cause as to the two counts of child abuse and neglect
because there was no evidence of a nonaccidental physical or mental
injury and therefore the State failed to prove that abuse or neglect
occurred. Second, he argued that the State failed to comply with the
requirements of NRS 172.095(2) by not instructing the jury on the
definition of "physical injury" as used in the applicable child-abuse-and-
neglect statute. In its response, the State argued that the "showing of
physical or mental injury is not a requirement" of the child-abuse-and-
neglect statute; rather, the mere possibility of physical or mental injury is
sufficient. The State did not respond to Clay's NRS 172.095(2) argument.
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The district court orally denied the petition with little analysis or
explanation other than observing that the child-abuse-and-neglect statute
"is a very liberally-written statute, and probably for good reason" and
summarily agreeing with the State's argument. Like the State, the
district court did not discuss the merits of Clay's NRS 172.095(2)
argument. Clay then filed this original petition for a writ of mandamus or
prohibition challenging the district court's decision.
DISCUSSION
A writ of mandamus may issue to compel the performance of
an act which the law requires "as a duty resulting from an office, trust or
station," NRS 34.160, or to control an arbitrary or capricious exercise of
discretion, see Round Hill Gen. Improvement Dist. v. Newman, 97 Nev.
601, 603-04, 637 P.2d 534, 536 (1981). 1 The writ will not issue, however, if
the petitioner has a plain, speedy, and adequate remedy in the ordinary
course of the law. See NRS 34.170. Here, Clay has another remedy
because a violation of NRS 172.095(2) can be reviewed on direct appeal
from a final judgment of conviction. See NRS 177.045. Nonetheless, that
remedy may not be adequate because any error in the grand-jury
proceeding is likely to be harmless after a conviction. Lisle v. State, 114
Nev. 221, 224-25, 954 P.2d 744, 746-47 (1998). We therefore have
recognized that "[a] writ of mandamus is an appropriate remedy for
[violations of grand-jury procedures]." Lisle v. State, 113 Nev. 540, 551,
1 We focus on Clay's request for a writ of mandamus as he has not
asserted a claim that challenges the district court's jurisdiction. See NRS
34.320 (providing that writ of prohibition is available to halt proceedings
occurring in excess of a court's jurisdiction).
937 P.2d 473, 480 (1997), clarified on rehearing, 114 Nev. 221, 954 P.2d
744 (1998).
Mandamus, however, is an extraordinary remedy.
Accordingly, it is within the discretion of this court to determine if a
petition will be considered. See Poulos v. Eighth Judicial Dist. Court, 98
Nev. 453, 455, 652 P.2d 1177, 1178 (1982); see also State ex rel. Dep't of
Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339 (1983). In
exercising that discretion, we must "consider [1 whether judicial economy
and sound judicial administration militate for or against issuing the writ."
Redeker v. Eighth Judicial Dist. Court, 122 Nev. 164, 167, 127 P.3d 520,
522 (2006), limited on other grounds by Hidalgo v. Eighth Judicial Dist.
Court, 124 Nev. 330, 341, 184 P.3d 369, 377 (2008). "Where the
circumstances establish urgency or strong necessity, or an important issue
of law requires clarification and public policy is served by this court's
exercise of its original jurisdiction, this court may exercise its discretion to
consider a petition for extraordinary relief." Schuster v. Eighth Judicial
Dist. Court, 123 Nev. 187, 190, 160 P.3d 873, 875 (2007).
Applying these considerations, we exercise our discretion to
consider the petition as to the alleged violation of NRS 172.095(2). 2 On
2 To the extent that Clay's petition is framed as a challenge to the
district court's conclusion that there was slight or marginal evidence
supporting the grand jury's indictment, we decline to exercise our
discretion to consider the petition. See Kussman v. Eighth Judicial Dist.
Court, 96 Nev. 544, 546, 612 P.2d 679, 680 (1980) (explaining that judicial
economy and sound administration of justice generally militate against
the use of mandamus to review pretrial probable-cause determinations).
In this opinion, we address the evidence presented and the probable-cause
determination only in the context of deciding whether the failure to
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5
that issue, the petition raises important legal questions as to what the
prosecution must inform the grand jurors of under NRS 172.095(2) when
the grand jury is considering whether to indict a person for a violation of
NRS 200.508(1).
This court has held as a general proposition that "it is not
mandatory for the prosecuting attorney to instruct the grand jury on the
law." Hyler v. Sheriff, Clark Cnty., 93 Nev. 561, 564, 571 P.2d 114, 116
(1977) (citing Phillips v. Sheriff, Clark Cnty., 93 Nev. 309, 311-12, 565
P.2d 330, 331-32 (1977)). Although the general proposition still holds
true, see Schuster, 123 Nev. at 192, 160 P.3d at 876-77 (rejecting argument
that prosecutor must instruct grand jury on legal significance of
exculpatory evidence), there is a limited instance in which the prosecuting
attorney is required to inform the grand jury as to the law. Almost a
decade after our early pronouncement of the general proposition in Hyler,
the Nevada Legislature enacted NRS 172.095(2). 1985 Nev. Stat., ch. 367,
§ 6, at 1029. This statute requires the prosecutor to "inform the grand
jurors of the specific elements of any public offense which they may
consider as the basis of the indictment" before seeking an indictment. To
determine whether the prosecution failed to comply with NRS 172.095(2)
by not informing the grand jurors as to the statutory definition of
"physical injury," we must first determine whether "physical injury" is an
element of the charged offenses under NRS 200.508(1), which involves
statutory interpretation.
...continued
comply with NRS 172.095(2) undermined the integrity of the grand-jury
proceeding.
6
"We review questions of statutory interpretation de novo."
Bigpond v. State, 128 Nev. „ 270 P.3d 1244, 1248 (2012). When
interpreting a statutory provision, this court looks first to the plain
language of the statute. Id. "This court avoids statutory interpretation
that renders language meaningless or superfluous and if the statute's
language is clear and unambiguous, this court will enforce the statute as
written." In re George J., 128 Nev. „ 279 P.3d 187, 190 (2012)
(internal quotation marks and alterations omitted). "Likewise, this court
will interpret a rule or statute in harmony with other rules and statutes."
Id. (internal quotation marks omitted).
Interpretation of NRS 200.508(1)
Applying these rules of statutory interpretation, we
necessarily start with the statutory language. NRS 200.508(1) provides in
relevant part that
[a] person who willfully causes a child who is less
than 18 years of age to suffer unjustifiable
physical pain or mental suffering as a result of
abuse or neglect or 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 a felony].
NRS 200.508(1) thus sets forth alternative means of committing the
offense. The first requires the State to prove that (1) a person willfully
caused (2) a child who is less than 18 years of age (3) to suffer
unjustifiable physical pain or mental suffering (4) as a result of abuse or
neglect. The second requires the State to prove that (1) a person willfully
caused (2) a child who is less than 18 years of age (3) to be placed in a
situation where the child may suffer physical pain or mental suffering (4)
as the result of abuse or neglect. The fourth element of both alternatives,
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"abuse or neglect," is specifically defined by NRS 200.508(4)(a). Based on
NRS 200.508(4)(a) and the statutes referenced therein, NRS 200.508(1)
criminalizes five different kinds of abuse or neglect: (1) nonaccidental
physical injury, (2) nonaccidental mental injury, (3) sexual abuse, (4)
sexual exploitation, and (5) negligent treatment or maltreatment. The
first type of abuse or neglect—nonaccidental physical injury—is
implicated in this case. 3 "Physical injury" is defined in NRS 200.508(4)(d)
as "[p]ermanent or temporary disfigurement" or "[i]mpairment of any
bodily function or organ of the body."
Clay asserts that NRS 200.508(1) requires the State to prove
that "abuse or neglect" occurred regardless of which alternative is charged;
thus, in this case, the State had to prove "physical injury." Relying on the
second means of violating NRS 200.508(1), the State argues that it only
had to prove that Clay caused the victim to be placed in a situation where
she may suffer physical pain or mental suffering, and therefore, it did not
have to prove that "physical injury" occurred.
The State's argument does not take account of the "result of
abuse or neglect" language in both provisions under NRS 200.508(1). A
plain reading of NRS 200.508(1) leads to the conclusion that the State
must prove that "abuse or neglect" occurred under both means of violating
the statute. 4 We find support for this conclusion in the Legislature's use of
3 The grand jury was informed that "child abuse" is a nonaccidental
physical injury to a child, and the allegations in the indictment focus on
this kind of abuse.
4This conclusion is also supported by the statute's legislative history.
As originally codified, NRS 200.508 punished a parent or guardian for
causing or permitting eight different types of harm. See 1971 Nev. Stat.,
ch. 398, § 1, at 772-73. Notably, this version only required one of the eight
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the same language—may suffer physical pain or mental suffering as the
result of abuse or neglect—in subsection 2 of the same statute. NRS
200.508(2) punishes a person who is responsible for a child's safety or
welfare and "allows" or "permits" a child "to be placed in a situation where
the child may suffer physical pain or mental suffering as the result of abuse
or neglect." (Emphasis added.) When the Legislature bifurcated the child-
abuse-and-neglect statute in 1985 to distinguish between persons who
cause abuse or neglect and those who passively permit abuse or neglect,
see generally Ramirez v. State, 126 Nev. „ 235 P.3d 619, 623 (2010),
it added the word "allow," 1985 Nev. Stat., ch. 455, § 88, at 1399-1400, and
included a definition of "allow" that assumes that abuse or neglect has
occurred, see NRS 200.508(4)(b) ("Allow' means to do nothing to prevent or
stop the abuse or neglect of a child in circumstances where the person
knows or has reason to know the child is abused or neglected." (emphasis
added)). That definition of "allow" supports the conclusion that the
language at issue still requires the State to prove that "abuse or neglect"
...continued
types of harm to be the "result of abuse or neglect." In 1977, the
Legislature overhauled NRS 200.508, requiring for the first time that all
of the types of harm listed in NRS 200.508 be the "result of abuse or
neglect" as defined by statute. See 1977 Nev. Stat., ch. 383, § 4, at 738. In
that revision, the Legislature replaced "causes. . . such a child to be placed
in such situation that its life or limb may be in danger or its health likely
to be injured" with "causes . . . a child to be placed in a situation where the
child may suffer physical pain or mental suffering as the result of abuse or
neglect." Id. (Emphases added.) After this revision, the statute required
one of the defined acts of abuse or neglect to occur regardless of which
theory of liability the State pursued.
9
occurred regardless of the theory on which an offense under subsection 1 is
prosecuted.
It is this "abuse or neglect" element that in some cases will
result in the State presenting evidence that shows actual physical pain or
mental suffering even though it is proceeding under the second theory in
NRS 200.508(1). The best example is where, as here, the alleged "abuse or
neglect" is based on a nonaccidental physical injury. See NRS
200.508(4)(a). In that situation, the State must prove that the victim
suffered "[p]ermanent or temporary disfigurement" or "[i]mpairment of
any bodily function or organ of the body." NRS 200.508(4)(d). Evidence
that meets this definition of physical injury oftentimes will also
demonstrate that the victim suffered physical pain or mental suffering.
But that is a by-product of the particular type of "abuse or neglect." The
fact that this type of "abuse or neglect" often carries with it proof of actual
physical pain or mental suffering that otherwise is not required under the
second theory in subsection 1 does not allow us to ignore the plain
language of NRS 200.508(1), which requires "abuse or neglect" under both
theories.
The State suggests that an interpretation that would always
require it to prove physical pain or mental suffering would reduce the
second theory in NRS 200.508(1) to mere surplusage because it would add
nothing to the first theory. We agree. Our interpretation of the statute,
however, does not have that effect. The second theory retains significance
because, in contrast to "abuse or neglect" based on physical injury, other
types of "abuse or neglect" under NRS 200.508(4)(a) do not necessarily
result in actual physical pain or mental suffering. Although those types of
abuse or neglect could not lead to conviction under the first theory in NRS
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200.508(1) if they did not result in physical pain or mental suffering, they
can support a charge under the second theory so long as the child may
suffer physical pain or mental suffering as a result of the abuse or neglect.
A good example is abuse or neglect based on negligent treatment or
maltreatment of a child. "[N]egligent treatment or maltreatment of a
child" occurs if a child is "without proper care, control and supervision."
NRS 432B.140, listed in NRS 200.508(4)(a). The definition of this kind of
abuse or neglect encompasses conduct that does not necessarily result in
actual physical pain or mental suffering. If there is no physical pain or
mental suffering as a result of the negligent treatment or maltreatment,
then the defendant cannot be charged under the first theory of liability in
NRS 200.508(1). But criminal liability will still attach in that scenario
under the second theory in subsection 1 if the defendant placed the child
in a situation where the child may suffer physical pain or mental suffering
as the result of the negligent treatment or maltreatment. For this reason,
we see no merit in the State's argument that an "intoxicated driver [could]
raise a 'no harm, no foul' defense" to a charge under NRS 200.508(1) when
he places his child in a car and then drives without an accident. A child
who is placed in a car by an intoxicated driver is without proper care,
control, or supervision under circumstances which indicate that the child's
health or welfare is threatened with harm. See NRS 200.508(4)(a); NRS
432B.140. The driver thus has placed the child in a situation where the
child may suffer physical pain or mental suffering as a result. Our
interpretation of the statute gives meaning to both provisions.
We conclude that NRS 200.508(1) unambiguously requires the
State to prove that "abuse or neglect," as defined by NRS 200.508(4)(a),
occurred regardless of the theory under which the offense is prosecuted.
11
Because the State alleged that the nonaccidental physical injury kind of
abuse and neglect occurred, "physical injury" was an element of the
offense for which the State sought an indictment. We turn then to
whether the district attorney was required to instruct the grand jurors on
the statutory definition of "physical injury."
Application of NRS 172.095(2)
NRS 172.095(2) provides that "[b] efore seeking an
indictment,. . . the district attorney shall inform the grand jurors of the
specific elements of any public offense which they may consider as the
basis of the indictment." Clay argues that the State was required by NRS
172.095(2) to inform the grand jurors that "physical injury" is defined by
the child-abuse-and-neglect statute as "permanent or temporary
disfigurement" or "impairment of any bodily function or organ of the
body." The State argues that it complied with the statute because it
provided instructions to the jury, and it asked the grand jury if it had any
questions about those instructions. We conclude that the State neglected
its duty under the statute.
We have not addressed the requirements of NRS 172.095(2) in
any significant detail since its enactment. Nevada is among several
jurisdictions that require the prosecutor to instruct the grand jury on the
elements of the crime, see, e.g., People v. Calbud, Inc., 402 N.E.2d 1140,
1144 (N.Y. 1980), and cases from those jurisdictions provide some
guidance as to the scope of the prosecutor's duty to instruct the grand
jurors here in Nevada. In New York, the test is whether "the integrity of
[the grand jury] has been impaired," meaning that misleading or
incomplete instructions likely caused the grand jury to return an
indictment on less than probable cause. Id. (explaining that "it may fairly
12
be said that the integrity of [the grand jury] has been impaired" "[w]hen
the District Attorney's instructions to the Grand Jury are so incomplete or
misleading as to substantially undermine [its] essential function"); People
v. Ramos, 637 N.Y.S.2d 93, 93 (App. Div. 1996) (dismissing indictment
because grand jury determination "hinged upon the definition" of a term
and "the prosecutor's instructions to the Grand Jury. . . did not provide it
'with enough information to enable it intelligently to decide whether a
crime has been committed and to determine whether there exists legally
sufficient evidence to establish the material elements of the crime'
(quoting Calbud, Inc., 402 N.E.2d at 1143)); cf. People v. Gnass, 125 Cal.
Rptr. 2d 225, 252, 254, 258 (Ct. App. 2002) (withholding of certain
instructions in a manner that may mislead the grand jury about an
element of the crime is error and should result in dismissal where the
error is likely to have caused the grand jury to return an indictment on
less than probable cause).
This focus on the integrity of the grand-jury proceedings is
consistent with the Nevada Legislature's concerns in adopting NRS
172.095(2). The statute was part of a series of bills adopting various
provisions of the American Bar Association's principles of grand jury
reform. See Hearing on S.B. 107 Before the Senate Judiciary Comm., 63d
Leg. (Nev., March 4, 1985) (statement of subcommittee member Senator
Sue Wagner). The statute is based on the principle that "[t]he grand jury
shall be informed as to the elements of the crimes considered by it," ABA
Grand Jury Policy and Model Act, Grand Jury Principles, Principle 27, at
5 (2d ed. 1982), and was intended to add an element of fairness to grand-
jury proceedings by providing instruction in complex cases so that
laypersons with no background in the law would know what to look for
13
from the witnesses appearing before them, id. at 12 (commentary to
Principle 27); see also Hearing on S.B. 107 Before the Senate Judiciary
Comm., 63d Leg. (Nev., March 6, 1985) (statement of Principal Deputy,
Legislative Counsel, Kim Morgan and Senator Sue Wagner) ("[I]t was the
intent of the subcommittee to clarify the elements of a crime to the grand
jurors . . . a layman reading a statute probably cannot pick out each
specific element. . . if you were not familiar with the law, the elements
would be hard to understand."). Consistent with those legislative concerns
underlying the statute, we agree that the focus should be on the effect that
misleading or omitted instructions on the elements of the offense had on
the integrity of the grand-jury proceedings.
Here, the grand jury was instructed that "qc]hild abuse' means
physical injury of a non-accidental nature to a child under the age of 18
years. If a person willfully causes a child who is less than 18 years of age
to suffer unjustifiable physical pain as a result of abuse, that person has
committed child abuse." The grand jury was not informed of the statutory
definition of the term "physical injury"—permanent or temporary
disfigurement or impairment of any bodily function or organ of the body.
If that definition is not technical and reflects a layperson's common
understanding of the term, then the State is correct that the prosecutor's
failure to instruct the grand jurors on the statutory definition of this
element does not warrant dismissal. Cf. People v. Woodring, 850 N.Y.S.2d
809, 812 (App. Div. 2008) (affirming the denial of motion to dismiss where
statutory definition of the term was "not technical and reflects a lay
person's common understanding of the term"). We cannot, however,
conclude that the statutory definition reflects a layperson's common
understanding of the term "physical injury."
14
The statutory definition of "physical injury" set forth in NRS
200.508(4)(d) is more limited than a layperson's common understanding of
the term. "[I]njury" is commonly defined as "[d] amage or harm done
to. . . a person" or "a particular form of hurt, damage, or loss." The
American Heritage Dictionary of the English Language 930 (3d ed. 1996);
see also Merriam-Webster's Collegiate Dictionary 644 (11th ed. 2003) ("[a]n
act that damages or hurts" or "hurt, damage, or loss sustained"). The
statutory definition is more specific and narrow than the common
definition. The definition in NRS 200.508(4)(d) also is narrower than the
definition used elsewhere in Nevada statutes. E.g., NRS 432B.090
(including six additional definitions for the term "physical injury,"
including "[a] cut, laceration, puncture or bite"). We are convinced that
the statutory definition in NRS 200.508(4)(d) is technical and does not
reflect a layperson's common understanding of the term "physical injury."
Despite the difference between the common understanding of
the term "physical injury" and its statutory definition under the child-
abuse-and-neglect statute, the State argues that the charges should not be
dismissed because the prosecutor provided instructions to the grand jury
and asked the grand jurors if they had any questions about those
instructions. Relying on Gordon v. Eighth Judicial District Court, 112
Nev. 216, 913 P.2d 240 (1996), the State argues that this was sufficient to
comply with the statute. In Gordon, we held that the district attorney
complied with NRS 172.095(2) even though he did not provide the grand
jurors with an elements instruction because the district attorney read the
charges to the grand jury, explained how they interrelated in layperson's
terms, and asked the grand jurors if they had any questions. 112 Nev. at
225, 913 P.2d at 246. Here, neither the proposed indictment nor the
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instructions provided the statutory definition of "physical injury," and
there was no discussion or explanation of this definition or any of the
other elements of the child-abuse-and-neglect statute in layperson's terms.
Accordingly, Gordon does not control our decision in this case.
Given the difference between the statutory and common
definition of "physical injury," it was incumbent upon the prosecutor to
provide the statutory definition of this element consistent with NRS
172.095(2). Because the prosecutor failed to provide the grand jurors with
that definition, we must determine whether this error is likely to have
caused the jury to return an indictment on less than probable cause. We
turn then to the evidence presented in support of the indictment.
Although there was strong evidence to support a charge of
domestic battery for the second altercation, see NRS 200.481; NRS 33.018,
there was little evidence presented to the grand jury about the type of
injury suffered by Clay's girlfriend. A grand jury, however, needs only
slight or marginal evidence to return an indictment. Sheriff, Washoe Cnty.
v. Hodes, 96 Nev. 184, 186, 606 P.2d 178, 180 (1980) ("The finding of
probable cause may be based on slight, even marginal evidence, because it
does not involve a determination of the guilt or innocence of an accused."
(internal quotation marks and citation omitted)). Because a properly
instructed grand jury could have found slight or marginal evidence of
"[i]mpairment of any bodily function or organ of the body," NRS
200.508(4)(d)(2), based on E.F.'s testimony that she had difficulty
breathing when she was telling police officers about the second
altercation, we cannot say that the State's failure to inform the grand
jurors about the definition of "physical injury" caused the grand jury to
16
return an indictment on less than probable cause for this count (count
three).
The same cannot be said for the other child-abuse-and-neglect
count. The only evidence supporting the first count of abuse and neglect
was E.F.'s testimony that Clay slapped her across the face. E.F. did not
testify to the nature or extent of any "physical injury" as a result of the
slap. Applying a common understanding of the term "physical injury," the
grand jury could have concluded that there was slight or marginal
evidence of damage or harm done to E.F. But given the limited testimony,
we are not convinced that it likely would have concluded that there was
slight or marginal evidence of "[p]ermanent or temporary disfigurement"
or "[i]mpairment of any bodily function or organ of the body." NRS
200.508(4)(d). Because the failure to instruct the grand jury on the
statutory definition of "physical injury" likely caused the grand jury to
return an indictment on count one based on less than probable cause, the
violation of NRS 172.095(2) requires dismissal of that count.
The district court's failure to recognize these errors may not
have amounted to a manifest abuse of discretion with respect to count
three, but its failure to address the State's violation of NRS 172.095(2) and
decision to accept the State's erroneous interpretation of the child-abuse-
and-neglect statute with respect to count one was a manifest abuse of its
discretion which adversely affected Clay's right to a grand jury
determination based upon probable cause. See State v. Eighth Judicial
Dist. Court (Armstrong), 127 Nev. „ 267 P.3d 777, 780 (2011)
(defining manifest abuse of discretion as clearly erroneous interpretation
or application of a law or rule). We therefore grant Clay's petition for
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17
extraordinary relief, in part, and direct the clerk of this court to issue a
writ of mandamus instructing the district court to dismiss count one of the
indictment without prejudice.
DOLAxf aa'S.
----- J.
Douglas
Gibbons
Parraguirre
18