                conviction must be reversed. The jury was instructed that the elements of

                felony murder were "(1) The Defendant did willfully and unlawfully: (2)

                commit or attempt to commit an act of child abuse[ 1    ]   (   3) which resulted in

                the death of a child." The relevant instruction defined "abuse" as "physical

                injury of a nonaccidental nature to a child under the age of 18 years."         See
                NRS 200.030(6)(b). The jury was also instructed that to establish first-

                degree felony murder based on child abuse the prosecution need not prove

                that appellant "intended to kill or seriously injure the child" or that the

                killing was premeditated or deliberate but was "only required to prove the

                elements set forth [in the murder instruction] "2 The jury was further


                      'The jury was instructed on child abuse as follows:

                              The elements of [child abuse] are: (1) the
                              defendant willfully and unlawfully, (2) caused a
                              child who is less than 18 years of age, (3) to suffer
                              unjustifiable physical pain or mental suffering as
                              a result of abuse.
                              For the purposes of [this count], "abuse" is defined
                              as a physical injury of a non-accidental nature.
                              The State is not required to prove that the
                              defendant intended to injure the child. The State
                              is only required to prove the elements set forth
                              above.
                      2 Thedistrict court defined "willfully" as "to knowingly do an act, or
                knowingly omit to do an act" but that "willfully" did not require that the
                prosecution prove that appellant intended to injure the child or violate the
                law.




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                  instructed concerning the State's obligation to prove the elements of the

                  offenses beyond a reasonable doubt. In a recent case involving felony

                  murder based on child abuse, we determined that instructions indicating

                  that "the child abuse must be nonaccidental and, [that] to find murder in

                  the first degree, the State must prove beyond a reasonable doubt that the

                  murder was committed in the perpetration of child abuse" comported with

                  our statutory scheme concerning first-degree murder and child abuse.

                  Coleman v. State,    130 Nev. , , 321 P.3d 901, 911 (2014). We

                  conclude that the instructions here comport with the statutory scheme

                  regarding first-degree murder and child abuse, as the prosecution was not

                  required to prove that he intended to injure or kill the child victim to

                  establish felony murder but only that he committed the underlying felony

                  (child abuse) and death resulted. Id.; see also Payne v. State, 81 Nev. 503,

                  506, 406 P.2d 922, 924 (1965) (observing that purpose of felony-murder

                  rule is "to deter felons from killing negligently or accidentally by holding

                  them strictly responsible for the killings that are the result of a felony or

                  an attempted one"). Accordingly, appellant failed to demonstrate that the

                  district court plainly erred by instructing the jury as it did.

                              Second, appellant argues that the district court failed to

                  instruct the jury on the definition of malice. Under the felony-murder

                  rule, "malice is implied by the intent to commit the underlying felony."

                  Nay v. State, 123 Nev. 326, 332, 167 P.3d 430, 434 (2007). Therefore, the




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                  omission of a malice instruction where the jury was properly instructed on

                  the predicate felony of child abuse does not result in plain error.

                                Third, appellant contends that the district court erred by not

                  instructing the jury on the definition of "physical injury" for the purposes

                  of NRS 200.508(4)(d) (child abuse, neglect or endangerment) and that he

                  was prejudiced by the omission "due to the child's preexisting polycystic

                  disease." Although the district court erred by not instructing the jury on

                  the definition of "physical injury,'       see NRS 200.508(4)(d) (defining

                  "physical injury" as Iplermanent or temporary disfigurement" or

                  "[i]mpairment of any bodily function or organ of the body"), we conclude

                  that appellant failed to demonstrate plain error regarding the felony-

                  murder charge where the evidence showed that the victim died from

                  significant multiple blunt force injuries including a "pulverized" liver and

                  wounds to his diaphragm, lower esophagus, and spleen and that his death

                  was unrelated to his kidney disease. We further conclude that appellant

                  failed to demonstrate plain error as to the child abuse charge because his

                  allegation of prejudice relates to the cause of the victim's injuries rather

                  than whether there was "physical injury." And to the extent appellant

                  argues that the omission may have led the jury to impose a broader

                  interpretation of "physical injury" than the statutory definition, he has not

                  shown that the victim's injuries relative to the child abuse charge did not

                  fall within the statutory definition. Accordingly, no relief is warranted on

                  this claim.

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                                  Fourth, appellant argues that the district court erred by not

                      instructing the jury on second-degree murder and involuntary

                      manslaughter as lesser-included offenses of first-degree murder. He

                      contends that instructions on those lesser-included offenses were required

                      considering evidence of the victim's polycystic kidney disease and evidence

                      that "falling on the child" or "pushing on a deceased person" could lead to

                      the injuries the victim suffered. A defendant is entitled, upon request, "to

                      an instruction on a lesser included offense if the evidence would permit a

                      jury rationally to find him guilty of the lesser offense and acquit him of the

                      greater."   Rosas v. State, 122 Nev. 1258, 1264, 147 P.3d 1101, 1105-06

                      (2006) (quoting Keeble v. United States, 412 U.S. 205, 208 (1973)); see

                      Lisby v. State,   82 Nev. 183, 188, 414 P.2d 592, 595 (1966). Because

                      appellant did not request the instruction below, there is no error that is

                      plain from a casual inspection of the record. See Green v. State, 119 Nev.

                      542, 80 P.3d 93, 95 (2003) ("In conducting plain error review, we must

                      examine whether there was 'error,' whether the error was 'plain' or clear,

                      and whether the error affected the defendant's substantial rights.");

                      Patterson v. State, 111 Nev. 1525, 1530, 907 P.2d 984, 987 (1995)

                      (observing that error is "plain error" if error is so unmistakable that it

                      reveals itself by casual inspection of record). Furthermore, because the

                      prosecution met its burden of proof on the greater offense and there was

                      no evidence at the trial tending to reduce the greater offense, see Rosas,

                      122 Nev. at 1265, 147 P.3d at 1106, appellant cannot show prejudice. In


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                particular, the medical examiner testified that the victim's kidney

                condition did not contribute to his death. And while the medical examiner

                agreed with defense counsel's suggestion that "pushing on a person who is

                deceased [could] cause damage to the internal organs," the medical

                examiner testified that the cause of death was blunt force trauma. Post-

                mortem pushing on the body does not tend to reduce the greater offense of

                murder. Finally, while the medical examiner agreed with defense

                counsel's suggestion that falling on a person from some height could

                constitute blunt force, appellant's supposition does not tend to reduce the

                greater offense. Accordingly, we conclude that appellant failed to

                establish that the district court plainly erred by not instructing the jury on

                lesser-included offenses.

                            Fifth, appellant contends that the distinction between first-

                degree murder based on child abuse and second-degree felony murder is

                arbitrary and therefore violates his due process and equal protection

                rights. We
                        •  disagree. As we explained in Rose v. State, 127 Nev.

                255 P.3d 291, 295 (2011), unlike second-degree felony murder, "[t]he

                Legislature has specified the felonies that provide the malicious intent

                necessary to characterize a killing as first-degree murder." Those

                enumerated felonies include child abuse. NRS 200.030(1)(b). While there

                are no statutorily identified felonies respecting second-degree felony

                murder, see Rose, 127 Nev. at       255 P.3d at 295 (providing "that killings

                occurring in the commission of an unlawful act that naturally tends to


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                 destroy human life or committed in the 'prosecution of a felonious intent'

                 are murder and, unless the murder is committed in a manner that

                 satisfies NRS 200.030(1), are murder of the second degree"), we have

                 placed limitations on second-degree felony murder requiring that the

                 predicate felony be inherently dangerous and the existence of an

                 "immediate and direct causal relationship" between the defendant's

                 actions and the victim's death.     Id. at 255 P.3d 296. Given this
                 statutory scheme, we conclude that appellant has failed to show that the

                 distinction between first- and second-degree felony murder is arbitrary

                 and therefore no relief is warranted.

                             Having considered appellant's claims and concluded that no

                 relief is warranted, we

                             ORDER the judgment of conviction AFFIRMED. 3



                                                        --itpt-t -Pea-it\          J.
                                                     Hardesty


                                                                                   J.
                                                     Douglas



                       3Appellant's  argument that cumulative error requires reversal of his
                 convictions fails because the only trial error shown is the omission of an
                 instruction defining "physical injury."




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                    cc: Hon. Scott N. Freeman, District Judge
                         Law Office of Thomas L. Qualls, Ltd.
                         Attorney General/Carson City
                         Washoe County District Attorney
                         Washoe District Court Clerk




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                CHERRY, J., dissenting:
                            I respectfully dissent. I would reverse the judgment of
                conviction based on the instructional errors in this case. I have a concern
                with the instruction relating to child abuse, see majority order ante at n.l.
                I disagree that the State is not required to prove that the defendant
                intended to injure the child. Law school teaches us that felony murder is
                governed by the legal fiction of transfer of intent. How can there be a
                transfer of intent to find a defendant guilty of first-degree murder if the
                State need not prove "the defendant intended to injure the child." Would
                the same apply if a death occurred during a robbery, kidnapping, arson,
                etc., such that a defendant could be convicted of first-degree murder
                (felony-murder) if a defendant did not intend to commit one of these
                serious felonies? I think not! How can there be a joint operation of act
                and intent with this jury instruction? I believe the error is structural
                error and mandates reversal of defendant's convictions.
                            The absence of an instruction defining "physical injury" was of
                particular significance to the child abuse charge because it reasonably
                could have led thefl jury to impose a broader interpretation of "physical
                injury" than the statutory definition allowed,      see NRS 200.508(4)(d).
                Further, I believe the jury should have been instructed on second-degree
                murder. 1
                            I recognize that the instructional challenges presented are
                reviewed for plain error. See Valdez v. State,    124 Nev. 1172, 1190, 196


                       iMy experience in the criminal justice arena has always been that in
                every murder case I tried as an attorney or as a trial judge, an instruction
                on second-degree murder was always given to the jury whether requested
                or not.


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                     P.3d 465, 477 (2008). Considering the record as a whole, I believe that the
                     omission of essential instructions affected appellant's substantial rights in
                     this case and demand reversal of the judgment of conviction.


                                                                                         J.




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