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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.
Nevada law requires a district attorney to " inform the grand jurors of the specific elements of any public offense which they may 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 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. 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 ...