                    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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