Case dismissed against homeowner with gun in toy box

A child abuse case that stemmed from the accidental shooting of a 5-year-old boy was dismissed Thursday by a Henderson judge who said the charge “does not fit the facts” in the case.

“I just don’t think that this statute applies,” Henderson Justice of the Peace David Gibson Sr. said.

Sidney Jacobs, 39, was charged with child abuse and neglect with substantial bodily harm after Robert Martin IV, known as Bobby, was fatally shot in his home Sept. 25, 2011. A conviction would have carried a potential sentence of two to 20 years in prison.

“To follow one tragedy of the accidental death of a child with the subsequent tragedy of prosecuting an innocent man would be inappropriate,” defense attorney Robert Draskovich said. “We’re very pleased with Judge Gibson’s well-reasoned decision.”

Bobby was shot by his 11-year-old uncle, who told police he found the gun in a cardboard box labeled “treasure chest” and thought it was a toy. The gun was registered to Jacobs.

“This was a terrible, tragic accident, and there’s going to be immense suffering over the years by all the people involved in this thing,” Gibson said.

The case lingered for nearly two years in the justice system while Jacobs made various legal challenges. Last year, the Clark County district attorney’s office was disqualified from prosecuting the case because of a conflict of interest.

Steve Wolfson had represented Jacobs before being appointed district attorney in January 2012.

Jay “Chip” Siegel was appointed special prosecutor and pursued the case in Henderson Justice Court, where Gibson presided over a preliminary hearing in February.

In April, Draskovich filed a motion to dismiss the case. He argued prosecutors could not prove Jacobs acted intentionally.

“Mr. Jacobs did nothing to harm the child nor did he know of any abuse or neglect to the child,” Draskovich wrote.

The attorney also argued the child abuse charge did not apply because Jacobs did not have a “caretaker relationship” with the victim, whose mother was in the home at the time of the shooting.

Siegel opposed the motion, arguing that the statute “only requires the defendant have the intention of placing the child in a situation where the defendant knows there is a risk of harm.”

The prosecutor also argued the statute “does not require any relationship between the defendant and the child.”

“The defendant, by knowingly allowing children to play in his house, assumed responsibility for their safety,” Siegel wrote.

Gibson relied on the written arguments in making his decision, which he announced in court Thursday.

The judge explained his job was to determine whether there was probable cause that a crime occurred and that the defendant committed it.

Gibson likened the case to other child deaths in which parents did not face charges, such as deaths that resulted from a parent unintentionally leaving a child in a hot car, or from a parent failing to notice a child had entered a swimming pool.

The judge said the case against Jacobs lacked any evidence to show he had taken on the responsibility of caring for the children.

Gibson also noted that Jacobs, whom he described as “kind of an argumentative fellow,” had not exercised the best judgment while the case was pending.

“I understand he was under a lot of stress, and I appreciate that,” the judge said.

Before Siegel took over the case, a chief deputy district attorney accused Jacobs of trying to intimidate prosecutors. Jacobs, who is now out of custody, also was recently arrested at the Henderson courthouse after he was accused of threatening a clerk.

“They just like to throw me in jail,” Jacobs told the Review-Journal.

Gibson expressed his “prayer” that, through counseling and the love of his family, the boy who shot Bobby will come to understand “this is something that he’s not responsible for.”

If anyone should be charged with a crime, the judge said, it should be the person who brought Bobby to the home or the person who prepared the room where the shooting occurred.

The shooting occurred at 586 Lairmont Place, in the MacDonald Ranch community near Horizon Ridge Parkway and Stephanie Street in Henderson. Jacobs no longer owns the three-story home.

Bobby’s mother, Cristin Wacaser, brought both boys to the home the day of the shooting. Her son was shot by her brother. Wacaser could not be reached for comment Thursday.

Jacobs’ girlfriend, Jessica Corso, had prepared the room. Both she and Jacobs have denied that the gun was in the treasure box. Jacobs also has repeatedly expressed his view that the shooting was intentional.

Siegel said he has not decided what he will do next with the case, if anything. He conceded that Nevada’s child abuse statute is “not as clear as other statutes.”

Theoretically, Siegel could seek to indict Jacobs by presenting the case to a grand jury. Any indictment then would come to a Clark County district judge.

Siegel said he could not imagine Bobby’s mother facing criminal charges.

“I was surprised when I heard the judge say that,” the lawyer said.

Contact reporter Carri Geer Thevenot at cgeer@reviewjournal.com or 702-384-8710.

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