Is child abuse and neglect a continuing offense for purposes of the statute of limitations?

Child Neglect

Rimer v. State (Nev. Supreme Ct. – June 11, 2015)

The issue is whether the Nevada Legislature intended for child abuse and neglect to be treated as a continuing offense and therefore the statute of limitations does not begin to run until the last act of abuse or neglect is completed.

Stanley and Colleen Rimer had eight children: Jason, Spencer, Enoch, Quaylyn, Aaron, Crystal, Brandon, and Stanley, III. Their youngest child, Jason, was born on March 11, 2004, and was found dead on June 9, 2008. At the time of Jason’s death, Spencer was 9, Enoch was 11, Quaylyn was 14, Aaron was 15, and Crystal was 17 years old, and Brandon and Stanley were adults.

Jason was born with congenital myotonic dystrophy, a chronic condition that affected his muscles and made it difficult for him to breathe, swallow, talk, and walk. Even at four years old, he walked like a baby, required diapers, and communicated mostly by fussing or screaming. He was treated by a neurologist, a gastroenterologist, a cardiologist, an orthopedist, a speech pathologist, a physical therapist, and a nutritionist. For a while, he was fed through a gastrostomy tube (G-tube) that was inserted through his abdomen so that food could be delivered directly to his stomach. He was happy and liked to play with other children.

During Jason’s lifetime, the Rimer home was frequently cluttered: the kitchen and bathrooms went days without being cleaned, the kitchen sink was often filled with dirty dishes, and the laundry room and bedrooms were normally piled with dirty clothing. There were also occasions where dog and bird excrement dirtied the carpet and remained there for days without being removed. Although the Rimers routinely hired housekeepers and carpet cleaners, the house and its carpets quickly became dirty again.

The clutter increased with the decline of Rimer’s construction business and the financial slump that followed. Rimer closed his office and vacated his storage units and moved their contents into the house. The presence of construction tools and paint buckets in the house created obvious safety hazards. Although the Rimer family tried to reduce some of the clutter and generate revenue through yard sales, the house was extremely cluttered at the time of Jason’s death: the household furniture had been moved or stacked for carpet cleaning, the kitchen sink was full of dirty dishes, and the fish tanks were green with algae.

The Rimer family continuously struggled with lice. The children were often sent home from school because they had head lice. Usually, they were treated with a lice-killing shampoo and sent back to school, where they were inspected by a nurse before being allowed back in the classroom. For a while, the children’s grandmother contributed to this recurring problem by refusing to be treated for lice. There also came a time when the lice-killing shampoo was no longer strong enough to kill the lice, but Rimer was able to find a product online that solved the problem.

The Rimer family did not go hungry. They had refrigerators downstairs in the kitchen and upstairs in the master bedroom. And there were also cases of food in the garage and pallets of food in the living room. They had frozen, refrigerated, canned, and dried food. The children routinely ate food that required little preparation or cooking, and when that sort of food ran out, they went upstairs and asked their parents for more. There was always food downstairs, but sometimes it was only the sort of food that required cooking and no one wanted to cook. Colleen did most of the cooking for the family. On one or two occasions, Quaylyn was punished by receiving only bread and water.

Rimer had a tiered approach to disciplining his children. First, he would place his children in a timeout by requiring them to stand in a corner for 5 to 30 minutes, then he would take away their videogame privileges, and finally he would spank them. But if a timeout was not severe enough for the level of misbehavior, the child might be sent to bed without dinner, and if the child’s misbehavior involved fighting, the initial punishment might be a spanking.

Rimer spanked his children on their behinds with boat paddles, paint sticks, belts, and his bare hands. The number of spanks in a spanking could range from 1 to 50. Rimer had two wooden boat paddles: one was three to four feet long and the other was two to three feet long. He purchased the second paddle to replace the first paddle and drew shark’s teeth on it with a permanent-ink marker. He broke both paddles while spanking his children and repaired them with duct tape. Rimer explained to his children what they did wrong and why they were getting spanked before he spanked them.

Rimer also struck his children. Crystal had seen her father strike Aaron, Quaylyn, Enoch, and Spencer on the chest, stomach, back, and arms for fighting, stealing, or displaying a bad attitude, and she had observed bruises on their arms. Quaylyn said that his father once punched him with a closed fist for misbehaving. Brandon testified that it was pretty common for his father to mete out discipline in anger and before he had calmed down. The worst word that Rimer’s children recall him using was “damn,” but he sometimes asked his children if they were stupid when they had done something wrong, and he occasionally called Quaylyn “the devil.”

Child Protective Services (CPS) received reports accusing Rimer and Colleen of neglecting their children. Hanna, a special education teacher, made several reports concerning Aaron. Aaron suffered from a severe learning disability and was assigned to Hanna’s classroom. Hanna called CPS when Aaron came to school with body lice, without shoes, or without lunch money or a free-lunch form so that he could eat. Likewise, Atwell, a Nevada Early Intervention Services employee, reported her concerns about Jason. Atwell had previously warned Colleen that Jason should not be fed through his mouth because there was a danger that he might aspirate the food, which could lead to pneumonia or feeding difficulties. When Atwell learned that Jason was being bottle-fed instead of being fed through his G-tube, she felt that Colleen’s failure to heed her warning was medical neglect and reported that neglect to CPS.

CPS investigated these and other allegations of neglect and went to the Rimers’ house on several occasions. Rimer told his children not to speak with CPS and even rewarded one his sons for refusing to speak to an investigator. He would not allow CPS investigators to go beyond the house’s foyer or to speak with his children outside his presence. He also threatened the investigators and complained about their investigations to their supervisors and an assistant manager. Ultimately, CPS investigators concluded that the children were not neglected or at risk and closed the investigations.

Jason was cared for by his mother, brothers, and sister. They changed his diapers, they bathed him, and they fed him Often, however, Jason’s diapers were full and needed changing, the area around his G-tube had not been adequately cleaned and was unsanitary, and his fingernails were dirty. Colleen suffered from adult-onset myotonic dystrophy, digestive tract ailments, and incontinence. She complained that she did not have the strength to lift Jason and stated that she relied upon her sons to get Jason in and out of the family vehicles. Nothing in the trial transcript indicated that Rimer had an active role in Jason’s care.

On Sunday, June 8, 2008, Rimer brought Brandon, Aaron, Quaylyn, Enoch, and Spencer to church in his pickup truck. Rimer gave the opening prayer during the church service and then returned home alone. Colleen brought Jason to church in her Ford Excursion. She later brought Aaron, Quaylyn, Enoch, Spencer, and Jason home from church while Brandon remained behind to talk with the bishop about his upcoming church mission. Colleen and the children arrived home at 2:15 p.m. Colleen told Aaron to get Jason out of the Excursion, but neither she nor anyone else ensured that Jason was actually out of the vehicle. Unable to unfasten his seatbelt and open the door, Jason was left trapped and helpless inside the vehicle.

As the afternoon progressed, the children played video games inside and Colleen went upstairs to take a nap. At some point, Colleen asked the children about Jason and asked for their help finding him. She then returned upstairs Towards evening, Colleen left the house to give Brandon a ride home from the church. She drove the pickup truck because the Excursion was low on gas. Upon returning home, she went back to sleep. Quaylyn wondered where Jason was and looked for him in the rooms downstairs. He did not tell anyone that he could not find Jason, and he assumed that Jason was upstairs with his parents. Quaylyn later went upstairs to speak with his parents about Boy Scout camp. He spoke to his father through a partially opened door and was unable to tell if Jason was in the bedroom. The children made peanut butter and jelly sandwiches for dinner and slept in the family room because their bedrooms were too hot. They did not consider Jason’s absence unusual because he routinely stayed with his parents in their bedroom. Nothing in the trial transcript indicated that Rimer left the bedroom after coming home from church.

On Monday, June 9, 2008, Quaylyn began the morning by getting ready for Boy Scout camp. Colleen was going to take him to the bishop’s house and from there they would go to the campground. They were running late, so Colleen told Quaylyn to get in the Excursion. Quaylyn used the key pad to unlock the driver’s door and pushed the unlock button to open the passenger doors. When he opened the back door, he saw Jason. At first he thought Jason was sleeping, but when he touched him he knew that Jason was dead.

Brandon awoke to Quaylyn screaming that Jason was dead. Brandon did not believe Quaylyn and went to see for himself. He peered inside the Excursion and saw Jason’s body lying on the middle seat. Rimer asked Brandon if Jason was dead and then started the Excursion and rolled down the windows; he did not touch Jason. Brandon returned to the house. He tried to call the bishop, but Rimer took the phone away, told him that his mother was on the phone with the authorities, and asked him to bring Jason’s body into the house.

Clark County Fire Department rescue personnel arrived on the scene as Brandon was carrying Jason’s body into the house. The rescue personnel observed that Brandon was visibly upset, Quaylyn was crying, and Colleen was upset and sobbing. They described Rimer’s demeanor variously as calm, emotionless, in disbelief, and in shock. They entered the house and found Jason laid face up on a couch in the front room. Jason was not breathing, his face had a blanched appearance, his nose was obscured by a white mucus type substance, and his body was in rigor mortis. They preserved the scene for the police.

Thereafter, Las Vegas Metropolitan Police Department crime scene analysts documented the scene, police detectives interviewed Colleen, and a county medical examiner conducted a forensic autopsy of Jason’s body. The medical examiner, Dr. Olsen, determined that the manner of death was homicide because it occurred when other people left the small, disabled child in a car from which he could not escape, and she concluded that the cause of death was environmental heat stress that was brought on by the build-up of heat inside the car. She did not detect any other trauma to Jason’s body, but she observed that his fingernails were dirty and his shirt was filthy.

After eight days of trial and three days of deliberation, a jury found Rimer guilty of involuntary manslaughter, child abuse and neglect causing substantial bodily harm, and the five child-abuse-and neglect counts. The district court imposed various consecutive and concurrent sentences amounting to a prison term of 8 to 30 years. Rimer appealed.

Rimer claimed, among other issues, that the district court erred by refusing to dismiss child-abuse-and-neglect counts 3 through 7 because they violated the statute of limitations by relying upon conduct that occurred outside the three-year statutory limit. The State responded that the district court properly denied the motion to dismiss after concluding that NRS 200.508 plainly contemplates that child abuse and neglect is a continuing offense and the statute of limitations does not begin to run until the commission of an offense is completed.

Here, the indictment was filed on July 23, 2008, and it alleged that Rimer had committed five felony counts of child abuse and neglect through various acts that occurred between March 11, 2004, and June 9, 2008. Because the alleged period of misconduct exceeded the three-year statute of limitations and the indictment left open the possibility that some of the misconduct occurred outside of the statute, prosecution of the child-abuse-and-neglect counts was barred unless child abuse and neglect is a continuing offense.

The Nevada Supreme Court explained that the hallmark of the continuing offense is that it perdures beyond the initial illegal act, and that each day brings a renewed threat of the evil the Legislature sought to prevent even after the elements necessary to establish the crime have occurred.

The Court held that the proper standard for identifying a continuing offense is the legislative-intent test set forth in Toussie v. United States, 397 U.S. 112 (1970). Under this test, an offense to be considered a continuing offense only when the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that the Legislature must assuredly have intended that it be treated as a continuing one.

The Court reasoned that the explicit language of NRS 200.508 does not compel a conclusion that child abuse and neglect is a continuing offense; however, the nature of the offense demonstrates that the Nevada Legislature must have intended for child abuse and neglect to be treated as a continuing offense. Child abuse and neglect is damage to a child for which there is no reasonable explanation. Child abuse is usually not a single physical attack or a single act of molestation or deprivation. It is typically a pattern of behavior. Its effects are cumulative. The longer it continues, the more serious the damage.

Given the nature of this offense, it was apparent that the child-abuse-and-neglect statute may be violated through a single act, but is more commonly violated through the cumulative effect of many acts over a period of time. Consequently, the Court concluded that the Legislature intended for child-abuse-and-neglect violations, when based upon the cumulative effect of many acts over a period of time, to be treated as continuing offenses for purposes of the statute of limitations. The court further concluded that the district court did not err by ruling that counts 3 through 7 of the amended indictment were continuing offenses and that the statute of limitations did not begin to run until the last alleged act of abuse or neglect was completed.

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