                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                  EDWARD MANUEL THOMPSON, JR.,                          No. 65538
                  Appellant,
                  vs.                                                               FILED
                  THE STATE OF NEVADA,
                  Respondent.                                                       JAN 2 2 2016

                                   ORDER OF REVERSAL AND REMAND

                              This is an appeal from a judgment of conviction, pursuant to a
                  jury verdict, of first-degree murder. Eighth Judicial District Court, Clark
                  County; Stefany Miley, Judge.
                              In 2006, doctors diagnosed Monique Bork's newborn son with
                  shaken baby syndrome. Bork's son died in 2011, and the death was
                  deemed a homicide as a result of non-accidental head trauma the child
                  sustained in 2006. Police arrested appellant Edward Manuel Thompson
                  Jr. in connection with the child's death. The State later filed an
                  information in district court charging Thompson with first degree felony
                  murder by child abuse. This information was never amended and the
                  deputy court clerk read it to the jury after the trial commenced. Following
                  a 10-day jury trial, the jury found Thompson guilty of first-degree felony
                  murder by child abuse.
                              Thompson appeals, arguing that the district court abused its
                  discretion in its instructions to the jury. We agree. The district court
                  abused its discretion in allowing jury instructions 10 and 11 because the
                  instructions departed from the information filed to expand the State's
                  theory of the case. See State v. Eighth Judicial Dist. Court, 116 Nev. 374,
                  377, 997 P.2d 126, 129 (2000) ("The State is required to give adequate
                  notice to the accused of the various theories of prosecution.").
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                   Problematically, while the State charged Thompson with felony murder by
                   child abuse under NRS 200.030—the felony murder statute—jury
                   instructions 10 and 11 follow the statutory language of NRS 200.508,
                   which prohibits abuse, neglect, or endangerment of a child.
                               Jury instruction 10 mirrors the language of NRS 200.508(2),
                   prior to its recent amendment, with two exceptions. As shown below, jury
                   instruction 10 omits two words contained in NRS 200.508(2), which are
                   shown in parenthesis, and adds the five words in italics:
                               A person who is responsible for the safety or
                               welfare of a child and who
                                     a. permits or allows that child to suffer
                                        unjustifiable physical pain or mental
                                        suffering as a result of abuse, or
                                     b. 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 Child Abuse.
                               See NRS 200.508(2) (amended 2015). 1
                               Jury instruction 11 defines abuse. Yet instead of using the
                   definition of child abuse from the felony murder statute,          see NRS
                   200.030(6)(b), jury instruction 11 uses the definition of "abuse or neglect"
                   from NRS 200.508(4)(a) Like jury instruction 10, instruction 11 also
                   erases the "or neglect" portion of the statutory definition (the portion of
                   NRS 200.508(4)(a) omitted in jury instruction 11 is shown in parenthesis):


                         'The 2015 amendments to NRS 200.508(2) do not change the
                   analysis in this order. The amended NRS 200.508(2) mirrors the statute
                   as reprinted here, but adds the following italicized language: "A person
                   who is responsible for the safety or welfare of a child pursuant to NRS
                   432B.130 and who. ." See 2015 Nevada Laws Ch. 399 (A.B. 49)
                   (emphasis added).


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                                  "Abuse (or neglect)" means physical or mental
                                  injury of a nonaccidental nature or negligent
                                  treatment or maltreatment of a child under the
                                  age of 18 years, under circumstances which
                                  indicate that the child's health or welfare is
                                  harmed or threatened with harm.
                                  We have previously held that a difference exists between what
                      constitutes felony murder by child abuse under the felony murder statute
                      and what constitutes child abuse or neglect under NRS 200.508.           See
                      Labastida v. State, 115 Nev. 298, 302-03, 986 P.2d 443, 446 (1999) ("The
                      use of the term 'child abuse' and not 'child neglect' in NRS 200.030(1)(a)
                      evinces the legislature's intent that different meanings apply to the two
                      terms and that a murder perpetrated by means of 'child abuse,' and not
                      'child neglect,' constitutes first degree murder."). In Labastida, this court
                      concluded that felony murder by child abuse must follow the definition of
                      child abuse in the felony murder statute. 115 Nev. 298, 303, 986 P.2d 443,
                      446 (1999) ("[W]e are not willing to read NRS 200.030(1)(a) so as to define
                      first degree murder to include a murder which is perpetrated by means of
                      child neglect. There is no statutory basis for doing so.").
                                  Although the State prosecuted Thompson with felony murder
                      by child abuse under the felony murder statute, jury instructions 10 and
                      11 instruct the jury as to whether Thompson is guilty of acts prohibited by
                      NRS 200.508. The felony murder statute defines murder of the first
                      degree as murder which is "[c]omitted in the perpetration or attempted
                      perpetration of," among other crimes, "child abuse." NRS 200.030(1)(b).
                      The statute defines "child abuse" as "physical injury of a nonaccidental
                      nature to a child under the age of 18 years." NRS 200.030(6)(b). Thus,
                      jury instructions 10 and 11 improperly expand upon what is prohibited by
                      the felony murder statute. For instance, jury instruction 10 instructs the

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                  jury to find Thompson guilty if he placed Bork's child in a situation in
                  which the child could suffer physical pain or mental suffering. Jury
                  instruction 11 instructs the jury that child abuse includes both physical
                  and mental injury of a nonaccidental nature and negligent treatment of a
                  child. As explained in Labastida, and by its plain language, the felony
                  murder statute neither prohibits the conduct in jury instruction 10 nor
                  uses the more expansive definition of child abuse in jury instruction 11.
                  Accordingly, we conclude that the district court abused its discretion in its
                  instructions to the jury regarding felony murder by child abuse.
                              We further conclude that this error prejudiced Thompson
                  because the State emphasized in its closing argument the jury's ability to
                  find Thompson guilty of felony murder by child abuse under the erroneous
                  language contained in instructions 10 and 11.       See NRS 179.598 ("Any
                  error, defect, irregularity or variance which does not affect substantial
                  rights shall be disregarded."); see also Dougherty v. State, 86 Nev. 507,
                  509, 471 P.2d 212, 213 (1970) ("An accurate instruction upon the basic
                  elements of the offense charged is essential, and the failure to so instruct
                  constitutes reversible error."). Because of the State's argument, it is
                  unclear whether the jury convicted Thompson of first-degree felony
                  murder for conduct prohibited by the felony murder statute or for conduct
                  merely prohibited by NRS 200.508.
                              Thus, the district court failed to properly instruct the jury as
                  to the definition of felony murder by child abuse through jury instructions
                  10 and 11, and the error prejudiced Thompson. We decline to address




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                Thompson's argument regarding compelled witness immunity at this
                time. 2
                                 Accordingly, we
                                 ORDER the judgment of the district court REVERSED AND
                REMAND this matter to the district court for further proceedings
                consistent with this order.

                                                                              C.J.
                                                     arra guirre


                                                      /St,         ett_ret     J.
                                                    Hardesty


                                                                               J.
                                                    Douglas


                                                                               J.




                                                                               J.
                                                    Gibbons


                                                           9/9                 J.
                                                    Pickering


                          2 We
                           have considered the parties' remaining arguments and conclude
                that they are without merit.

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                cc:   Hon. Stefany Miley, District Judge
                      Landis Law Group
                      Attorney General/Carson City
                      Clark County District Attorney
                      Eighth District Court Clerk




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