## Facts

- DeLois Vallery was president and sole shareholder of a corporation operating licensed residential group care facilities in Washoe County, Nevada, and served as the designated administrator responsible for oversight.
- The State charged Vallery with elder neglect under NRS 200.5099 based on harm to three elderly residents.
- Count I (Howard Thomas): a resident with dementia developed an infected bedsore; the State alleged Vallery failed to obtain timely medical care, causing severe infection and permanent scarring constituting substantial bodily harm. The conduct occurred before the effective date of 1995 amendments to NRS 200.5099.
- Count II (Daniel Barreto): an Alzheimer’s patient left a facility during a snowstorm after disabling a required door alarm and died of hypothermia; evidence indicated prior escapes and alleged inadequate preventive measures by Vallery. The incident occurred after the 1995 amendments.
- Count III (Duffy Sullivan): an Alzheimer’s patient sustained fatal burns after being left alone with access to scalding bathwater. The incident occurred after the 1995 amendments.
- A jury convicted Vallery of one count of neglect causing substantial bodily harm (Count I) and two counts of neglect causing death (Counts II and III).

## Issues

1. Whether the district court committed reversible error by instructing the jury on Count I using the 1995 version of NRS 200.5099 rather than the 1993 version applicable at the time of the alleged conduct.
2. Whether the jury instructions for Counts II and III correctly stated the elements under the 1995 version of NRS 200.5099.

## Decision

- The court reversed the conviction on Count I and remanded for a new trial because the jury was instructed under the wrong statutory version, using a less demanding mens rea than required at the time of the offense.
- The court affirmed the convictions on Counts II and III because the 1995 version applied to the 1996–1997 conduct and the instructions properly reflected that statute’s elements.

## Legal Principles

- The governing version of a criminal statute is the one in effect at the time of the charged conduct; later amendments altering elements, including mens rea, cannot be used to define an earlier offense.
- Under the 1993 version of NRS 200.5099, the State had to prove the defendant actually knew an older person needed care or assistance and failed to provide it, resulting in harm.
- Under the 1995 version of NRS 200.5099, the State could satisfy mens rea by proving the defendant knew or should have known that acts or omissions placed an older person under the defendant’s care in a position to be subjected to harm, and that harm resulted.
- Jury instructions that fail to track the applicable statutory version and permit conviction without proof of the required mens rea constitute reversible instructional error.

## Conclusion

The court held that Count I required application of the pre-amendment elder-neglect statute demanding proof of actual knowledge, making the trial court’s use of the later “knew or should have known” instruction reversible; it affirmed Counts II and III because the later statute applied and the jury was properly instructed.


Vallery v. State, 118 Nev. 357, 46 P.3d 66 (Nev. 2002)