Vallery v. State, 36586.

• Decision Date: 17 May 2002
• Docket Number: No. 36586.,36586.
• Parties: Delois VALLERY, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

46 P.3d 66

118 Nev. 357

Delois VALLERY, Appellant, v. The STATE of Nevada, Respondent.

No. 36586.

Supreme Court of Nevada.

May 17, 2002.

Lee T. Hotchkin Jr., Reno, for appellant.

Frankie Sue Del Papa, Attorney General, Carson City, Richard A. Gammick, District Attorney, Joseph R. Plater III, Deputy District Attorney, Washoe County, for respondent.

BEFORE: SHEARING, ROSE and BECKER, JJ.

OPINION

PER CURIAM:

Appellant, DeLois Vallery, was convicted of one count of neglect of the elderly causing substantial bodily harm and two counts of neglect of the elderly causing death resulting from her failure to take action to prevent neglect of, or to properly supervise, elderly persons residing in residential group care facilities administered by her. Vallery now appeals on several grounds. However, the primary focus of her appeal involves the construction of different versions of NRS 200.5099, Nevada's older person abuse prevention statute.

For the reasons set forth below, we conclude that the jury was improperly instructed on Count I, neglect of the elderly causing substantial bodily harm. Count I involved an offense committed before the effective date of the 1995 amendments to NRS 200.5099. We will refer to that statute as the 1993 version of the statute. Counts II and III (neglect of the elderly causing death) involved events that occurred subsequent to the effective date of the 1995 amendments to the statute.¹

The 1993 statute requires the State to prove that an individual actually knew that an older person needed care or assistance and failed to provide the necessary care or assistance. In contrast, under the 1995 and current versions of the statute, the State need only prove that the individual knew or should have known that his or her actions, or failure to act, placed an older person under their care in a position where the older person could be subjected to harm. Both versions also require that the accused's actions result in harm to the older person.

The jury instructions did not distinguish between the two versions of the statute and were based on language contained in the 1995 version of the statute. Accordingly, we conclude that the jury was improperly instructed regarding neglect on Count I. We therefore reverse that conviction and remand for a new trial on Count I. We further conclude that the jury instructions properly informed the jury of the elements of the offenses alleged in Counts II and III. We therefore affirm Vallery's convictions on those counts.

FACTS

At the time of the incidents in question, Vallery was the president and sole shareholder of Dee's Sleepy Hollow, Inc. The corporation operated residential group care facilities in Washoe County. Sleepy Hollow was licensed to operate the facilities by the Nevada State Health Division. Division representatives testified that, as part of the license, Sleepy Hollow was required to designate an individual as the administrator of the facilities. Vallery was the designated administrator for the Sleepy Hollow facilities. Pursuant to health division regulations, Vallery was responsible for insuring that the facilities adhered to all relevant codes and regulations governing such facilities.

Sleepy Hollow required the guardians or responsible persons for all residents to sign a "group care agreement" that included the following recital: "The home limits admissions to persons who are ambulatory and only require the furnishing of food, shelter, assistance and limited supervision."

This case involves individuals who resided in two of Sleepy Hollow's facilities, which are residential style houses located on Koenig and Panther Streets in Reno, Nevada. The Koenig house was licensed only as a standard residential group care facility. The Panther house had a higher level of license. It was licensed as a twenty-four-hour supervision facility. Both facilities were required to have live-in caregivers for the residents, but in the Panther house, at least one caregiver had to be awake and on duty at all times. In addition, alarms were required in the Panther house so that residents could not leave the house without the knowledge of the caregivers.

The resident caregivers in the Koenig house were Louise Edwards, Vallery's sister-in-law, and Addie Clarence Coleman, a man who had been raised by the same family as Vallery. The resident caregivers at the Panther home were Lucas Mack, Vallery's husband, and Vallery herself.²

Vallery was charged with violations of NRS 200.5099, Nevada's elder abuse and neglect prevention statute, as a result of the harm suffered by three individuals: Howard Thomas, Daniel Barreto and Duffy Sullivan.

Count I—Howard Thomas

Thomas, age eighty, suffered from senile dementia and Alzheimer's disease when he became a resident of the Koenig house. At some point in March 1995, Thomas and his roommate were not staying in their beds and sleeping at night. Instead, they would get up, ransack their room, and eventually fall asleep on the floor. As a result of sleeping on the floor, Thomas developed a pressure sore on his hip. The record reflects that such sores are common in older persons.

The sore first appeared as a red mark in early April. By April 11, the sore was an open wound that required medical attention. Thomas' relatives were not advised of his condition until April 21, nor did any representative of Sleepy Hollow seek medical attention for Thomas' condition.

Conflicting testimony was presented as to Vallery's knowledge of Thomas' condition. Vallery testified that she only found out about the serious nature of the sore on April 24, and she informed Thomas' son that his father needed immediate medical attention. Vallery admitted that Edwards had told her that Thomas was sleeping on the floor and that he had "bruises" but denied that Edwards ever expressed concern for Thomas' condition. Edwards testified that she notified Vallery more than once of Thomas' progressive condition because only Vallery was authorized to contact Thomas' son or seek medical attention for Thomas.

In addition, on the audio track of a videotape of Thomas' condition filmed on April 11, Coleman notes that one of the purposes of the tape was to document Thomas' condition due to concerns that Vallery had not responded to Edwards' requests. Edwards was present when the remark was made and did not contradict Coleman. There was also conflicting testimony regarding whether Vallery viewed the videotape prior to Thomas' removal from the Koenig home.

The State presented medical testimony indicating that when hospitalized on April 24, Thomas had a large infected decubitus ulcer with cellulitis on his right hip. The medical testimony also indicated that the ulcer created a substantial risk of death based on the possibility of blood infection, i.e., sepsis, and was a painful condition. The record reflects that the ulcer took three to six months to heal completely and caused permanent scarring. Vallery's medical experts testified that the ulcer was not infected or life-threatening but conceded that the ulcer, as depicted in the April 11 videotape, required medical attention.

Count II—Daniel Barreto

Barreto, age eighty-four, suffered from Alzheimer's disease and required twenty-four-hour supervision prior to his admission to the Sleepy Hollow Panther residence. On December 21, 1996, Barreto left the residence without the knowledge of Vallery or Mack, both of whom were present in the house. It was snowing. Vallery discovered that Barreto was missing and began searching for him. Testimony indicated that about fifteen or twenty minutes passed between the time Barreto was last seen and the time that Vallery noticed that Barreto "wasn't where she could see him." Caregivers spent five to ten minutes looking for Barreto in the house before they proceeded to search outside the house. Barreto was found covered in snow fifty to sixty feet outside the house under a tree.

Paramedics called to the scene were unable to ascertain any life signs in Barreto and instituted resuscitative measures, which were unsuccessful. Because of the chilled condition of Barreto's body, he was transported to a hospital as hypothermia cases may still respond if given more extensive resuscitative efforts at a medical facility. At the hospital, his core temperature was measured at seventy-nine degrees. Medical personnel advised Barreto's family that there was little chance he could be successfully revived because of the length of time he had been non-responsive and his temperature. In addition, the family was informed that if he were revived he would have significant impairments. Barreto's family declined to authorize extraordinary procedures, and Barreto was officially pronounced dead. An autopsy report and medical testimony indicated the cause of death to be organ failure due to extreme hypothermia.

Experts gave conflicting testimony regarding how long Barreto must have been outside to obtain a body temperature of seventy-nine degrees. The periods ranged from twenty minutes up to one hour.

Evidence was admitted that at least one other resident had left the Panther house without a caregiver's knowledge. In addition, Barreto had eloped from the Sleepy Hollow facilities, including the Panther house, three times prior to December 21, 1996.

Finally, evidence was admitted regarding the functioning of the door alarms. The exit doors at the Panther residence were equipped with alarms to prevent a resident from leaving the house without a caregiver's knowledge. Vallery and Mack testified that they did not hear the alarm. However, they did not assert that the alarms were malfunctioning, and an expert testified that there was nothing wrong with the alarms. The testimony raised three possible explanations for the failure of the alarms to alert Vallery and Mack to Barreto's elopement: (1) the alarm was improperly set on a soft chime mode that could not be heard, (2) the batteries on the alarm were bad,...