## Facts

- Kriseya J. Labastida lived with her seven-week-old infant, Thunder, and the infant’s father, Michael Strawser, in a dark basement apartment.
- Over several weeks, Thunder suffered repeated injuries, including visible bruising and other trauma in various stages of healing.
- Strawser inflicted the most severe abuse in the last few days of Thunder’s life, including forcing a finger down the infant’s throat, rupturing the throat and causing infection that led to death.
- When the infant stopped breathing, Labastida called an ambulance; responders observed multiple injuries and difficulty seeing inside the apartment due to darkness.
- Strawser testified that he abused the infant, hid his conduct from Labastida, and lied to her about the causes of the injuries.
- The State charged Labastida with second-degree murder and felony child neglect based on her alleged failure to protect the infant and seek help.

## Issues

1. Whether the evidence was sufficient to prove second-degree murder where the defendant did not inflict the fatal injuries but allegedly failed to prevent or respond to another’s abuse.
2. Whether Nevada’s second-degree murder statute and accomplice principles permit a murder conviction based on parental omission absent proof of malice or intentional participation.
3. Whether child-neglect liability may be sustained on the same course of conduct even if the homicide conviction fails.

## Decision

- A jury convicted Labastida of second-degree murder and felony child neglect and imposed a life sentence with the possibility of parole plus a consecutive term for neglect.
- The Nevada Supreme Court initially affirmed the convictions in the reported 1996 opinion.
- On rehearing, the court granted rehearing, withdrew the earlier opinion, and reversed the second-degree murder conviction.
- The court left the felony child-neglect conviction in place.

## Legal Principles

- Second-degree murder requires proof of malice aforethought (express or implied), and implied malice requires more than speculation that a defendant “might have known” of a life-threatening risk.
- A parent’s omissions can support felony child-neglect liability when a caregiver knowingly or willfully fails to protect a child or obtain necessary care.
- Elevating parental neglect to second-degree murder based on omission requires proof that the defendant had a malicious mental state (such as conscious disregard of a known, life-threatening risk) or intentionally aided or encouraged the fatal abuse.
- Appellate courts may correct a prior affirmance on rehearing where the prior decision relied on unreasonable inferences about intent or misapplied the governing murder statute.

## Conclusion

The court ultimately rejected second-degree murder liability based on a parent’s failure to prevent another’s abuse where proof of malice or intentional participation was insufficient, while sustaining felony child-neglect liability for the failure to protect the child and obtain timely help.


Labastida v. State, 931 P.2d 1334 (Nev. 1996)