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 firstdegree 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. 

2The district 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 felonymurder 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. Postmortem 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 firstdegree 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\ 

Hardesty 

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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J. 

J. 
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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J. 

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. 

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