State v. Clemons , 2013 Ohio 3415 ( 2013 )

[Cite as State v. Clemons, 2013-Ohio-3415.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 12CA9
:
vs. :
: DECISION AND JUDGMENT
ASTASIA CLEMONS, : ENTRY
:
Defendant-Appellant. : Released: 07/24/13
_____________________________________________________________
APPEARANCES:
Conrad A. Curren and Carol Ann Curren, Greenfield, Ohio, for Appellant.
Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for
Appellee.
Elizabeth Cooke, Amna Akbar, Alyssa Bowerman, and Wondwosen
Woldegebriel, The Ohio State Legal Clinic, Columbus, Ohio, and Farah
Diaz-Tello, National Advocates for Pregnant Women, New York, New
York, for Amici Curiae.
_____________________________________________________________
McFarland, P.J.
{¶1} Appellant, Astasia Clemons, appeals her conviction for
corrupting another with drugs after pleading no contest to the charge upon
the trial court’s denial of her motion to dismiss. On appeal, Appellant
contends that the trial court erred to her detriment when it denied her motion
to dismiss count one of the indictment. In light of our determination that the
allegations contained in the indictment did not constitute an offense under
Highland App. No. 12CA9 2
Ohio criminal law, we conclude that the trial court erred in denying
Appellant’s motion to dismiss the indictment. As such, Appellant’s sole
assignment of error is sustained. Accordingly, the decision of the trial court
is reversed and Appellant’s conviction is vacated.
FACTS
{¶2} A review of the record reveals that on November 14, 2011,
Appellant gave birth to a child who, upon birth, tested positive for
marijuana, morphine an oxycodone. As a result, the child was transferred to
Dayton’s Children’s Hospital, where she was treated and released.
Appellant later informed a Children’s Services worker that she had ingested
Percocet, without a prescription, prior to giving birth, and had also used
marijuana throughout her pregnancy.
{¶3} Based upon these events, on January 10, 2012, Appellant was
indicted on two counts of corrupting another with drugs, in violation of R.C.
2925.02(A)(1) and (A)(3), both second-degree felonies. Appellant appeared
for her arraignment without counsel and the court entered a plea of not guilty
on her behalf. Subsequently, on March 29, 2012, Appellant filed a motion to
dismiss both charges, claiming the charges were not valid based upon the
plain language of the statute. A hearing was held on the motion on April 4,
2012, after which the trial court granted Appellant’s motion to dismiss the
Highland App. No. 12CA9 3
R.C. 2925.03(A)(3) charge only, based upon the fact that it appeared the
child had suffered no injury as a result of the drug exposure. The trial court
denied the motion as to the (A)(1) charge, which did not contain the element
of physical harm.
{¶4} Appellant ultimately entered a plea of no contest to the R.C.
2925.02(A)(1) charge on April 6, 2011, and was sentenced to two years
imprisonment, which were stayed pending appeal.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED TO THE DETRIMENT OF
APPELLANT/DEFENDANT WHEN IT DENIED THE
APPELLANT’S/DEFENDANT’S MOTION TO DISMISS COUNT
ONE OF THE INDICTMENT.”
LEGAL ANALYSIS
{¶5} In her sole assignment of error, Appellant contends that the trial
court erred to her detriment when it denied her motion to dismiss count one
of the indictment. “ ‘[A] motion to dismiss charges in an indictment tests
the [legal] sufficiency of the indictment, without regard to the quantity or
quality of evidence that may be produced by either the state or the
defendant.’ ” State v. Barcus, 133 Ohio App.3d 409, 414, 728 N.E.2d 420(1999); quoting State v. Patterson, 63 Ohio App.3d 91, 95, 577 N.E.2d 1165(1989). Thus, “when a defendant moves to dismiss, the proper determination
is whether the allegations contained in the indictment constitute offenses
Highland App. No. 12CA9 4
under Ohio criminal law.” Id. If they do, it is premature for the trial court to
determine, in advance of trial, whether the state could satisfy its burden of
proof with respect to those charges. State v. Nihiser, 4th Dist. No. 03CA21,
2004-Ohio-4067, ¶ 9.
{¶6} Appellate review of a trial court's decision regarding a motion to
dismiss involves a mixed question of law and fact. State v. Staffin, 4th Dist.
No. 07CA2967, 2008-Ohio-338, ¶ 6 (reviewing a dismissal on speedy-trial
grounds), citing State v. Pinson, 4th Dist. No. 00CA2713, 2001 WL 301418(Mar. 16, 2001). We accord due deference to the trial court's findings of fact
if supported by competent, credible evidence; however, we independently
review whether the trial court properly applied the law to the facts of the
case. Id.; citing State v. Thomas, 4th Dist. No. 06CA825, 2007-Ohio-5340, ¶
8. Thus, our role is limited to conducting a de novo review of the trial
court's application of the law to the stipulated facts. State v. Taylor, 4th Dist.
No. 05CA19, 2005-Ohio-6378, ¶ 10 (dealing with a motion to suppress).1
{¶7} A court interpreting a statute must look to the language of the
statute to determine legislative intent. State v. Osborne, 4th Dist. No. 05
CA2, 2005-Ohio-6610, ¶ 18. Courts should give effect to the words of the
statute and should not modify an unambiguous statute by deleting or
1
Although there were no “stipulated facts” per se, counsel for both the State and Appellant referred to
certain facts below that appeared to be agreed upon relating to the child’s toxicology results after birth and
Appellant’s drug use during pregnancy.
Highland App. No. 12CA9 5
inserting words; that is, we have no authority to ignore the plain and
unambiguous language of a statute under the guise of statutory
interpretation. State v. McDonald, 4th Dist. No. 04CA2806, 2005-Ohio-3503,
¶ 11. In interpreting a criminal statute, courts must construe the statute
strictly against the state and liberally in favor of the accused. R.C.
2901.04(A); State v. Gray, 62 Ohio St.3d 514, 515, 584 N.E.2d 710 (1992).
“The interpretation of a statute or ordinance is a question of law, which we
review de novo.” State v. Frey, 166 Ohio App.3d 819, 2006-Ohio-2452, 853
N.E.2d 684, ¶ 9.
{¶8} Appellant was originally indicted on two counts of corrupting
another with drugs, in violation of R.C. 2925.02(A)(1) and (A)(3), based
upon the fact that she gave birth to a child who was drug dependent at birth
by virtue of Appellant’s drug use during pregnancy. As set forth above, the
indictment on the (A)(3) charge was dismissed based upon the belief that the
child did not suffer any physical harm as a result, but the trial court refused
to dismiss the indictment on the (A)(1) charge, which did not contain
physical harm as an element. As a result, Appellant pled no contest to
corrupting another with drugs in violation of R.C. 2925.02(A)(1), which
provides that:
“(A) No person shall knowingly do any of the following:
Highland App. No. 12CA9 6
(1) By force, threat, or deception, administer to another or
induce or cause another to use a controlled substance[.]”
The word “another” is not defined within the statute, nor does a definition of
“another” appear in the definitions section of R.C. 2925. In fact, like the
trial court, we were unable to find a definition for the word “another;”
however, we agree with the trial court’s common sense reversion to the word
“person” to determine the meaning of the word “another” within the context
of this statute.
{¶9} As such, we look to the general provisions of R.C. Chapter 29
wherein R.C. 2901.01 “Definitions” defines the word “person” in section
(B)(1)(a) as follows:
“(B)(1)(a) Subject to division (B)(2) of this section, as used in
any section contained in Title XXIX of the Revised Code that
sets forth a criminal offense, “person” includes all of the
following:
(i) An individual, corporation, business trust, estate, trust,
partnership, and association;
(ii) An unborn human who is viable.
(b) As used in any section contained in Title XXIX of the
Revised Code that does not set forth a criminal offense,
Highland App. No. 12CA9 7
“person” includes an individual, corporation, business trust,
estate, trust, partnership, and association.
(c) As used in division (B)(1)(a) of this section:
(i) “Unborn human” means an individual organism of the
species Homo sapiens from fertilization until live birth.
(ii) “Viable” means the stage of development of a human fetus
at which there is a realistic possibility of maintaining and
nourishing of a life outside the womb with or without
temporary artificial life-sustaining support.
(2) Notwithstanding division (B)(1)(a) of this section, in no
case shall the portion of the definition of the term “person” that
is set forth in division (B)(1)(a)(ii) of this section be applied or
construed in any section contained in Title XXIX of the Revised
Code that sets forth a criminal offense in any of the following
manners:
***
(b) In a manner so that the offense is applied or is construed as
applying to a woman based on an act or omission of the woman
that occurs while she is or was pregnant and that results in any
of the following:
Highland App. No. 12CA9 8
(i) Her delivery of a stillborn baby;
(ii) Her causing, in any other manner, the death in utero of a
viable, unborn human that she is carrying;
(iii) Her causing the death of her child who is born alive but
who dies from one or more injuries that are sustained while the
child is a viable, unborn human;
(iv) Her causing her child who is born alive to sustain one or
more injuries while the child is a viable, unborn human;
(v) Her causing, threatening to cause, or attempting to cause, in
any other manner, an injury, illness, or other physiological
impairment, regardless of its duration or gravity, or a mental
illness or condition, regardless of its duration or gravity, to a
viable, unborn human that she is carrying.” (Emphasis added).
Thus, based upon the definitions provided in R.C. 2901.01, it is clear that
Appellant’s unborn child was a person, even while in utero before its birth.
The trial court reached this same result in determining whether Appellant’s
child was a “person” or “another,” for purposes of R.C. 2925.02(A) at the
time of Appellant’s drug use.
{¶10} However, as set forth above, R.C. 2901.01 contains exceptions
or limits to the manner in which the word “person” can be “applied or
Highland App. No. 12CA9 9
construed” in a situation involving a pregnant woman and her viable, unborn
child. Specifically, R.C. 2901.01 (B)(2)(b)(i)-(v) essentially protects
conduct by a woman during her pregnancy that might or does result in the
injury, illness, impairment or death of her child, either before or after its
birth. Thus, based upon a plain reading of the statute, a woman cannot be
criminally prosecuted for her conduct during pregnancy that results in harm
to her child.
{¶11} Much like the parties, this Court has been unable to locate any
other case in Ohio where a woman was convicted of a crime for actions
taken during pregnancy that affected her unborn child. Although Appellant
directs our attention to State v. Hade, 6th Dist. No. OT-07-037, 2008-Ohio-
1859, our review of that case reveals that although Hade was indicted for a
violation of R.C. 2925.02(A)(4)(a), she was ultimately not convicted of that
offense. Instead she pled guilty to drug possession and child endangering.
Id. at ¶ 2.
{¶12} Which leads to the next topic of discussion that has been
highly debated both below and on appeal, i.e. whether or not the Supreme
Court of Ohio’s holding in State v. Gray, supra, has any applicability to the
case sub judice. In Gray, the Court held that “[a] parent may not be
prosecuted for child endangerment under R.C. 2919.22(A) for substance
Highland App. No. 12CA9 10
abuse occurring before the birth of the child.” Gray at syllabus.
Admittedly, Gray involved a different statute, child endangering, which
supposes a certain relationship existing between a parent and a child, which
is not present in R.C. 2925.02. However, we find its reasoning to be
applicable nonetheless. For instance, as reasoned in Gray, “[t]he statutory
and regulatory scheme in Ohio strongly indicates that where the concerns of
the unborn are at issue, the legislature and administrative bodies have
referred to the unborn specifically.” Gray at 516. (Internal citations
omitted).
{¶13} Further, we agree with the sentiment of the Gray Court, which
acknowledged the growing problem of prenatal drug use. Id. at 517-518.
As set forth in Gray verbatim:
“ ‘The Legislature is an appropriate forum to discuss public
policy, as well as the complexity of prenatal drug use, its effect
upon an infant, and its criminalization.’ [People v. Hardy,
supra, 188 Mich.App. 305, 310, 469 N.W.2d 50 (1991).] The
Ohio Legislature currently has before it S.B. No. 82, which, if
passed, would create the new crime of prenatal child neglect
Highland App. No. 12CA9 11
[2]to handle situations such as those at bar. ‘ “A court should
not place a tenuous construction on [a] statute to address a
problem to which the legislative attention is readily directed
and which it can readily resolve if in its judgment it is an
appropriate subject of legislation.” ’ Hardy, quoting People v.
Gilbert (1982), 414 Mich. 191, 212–213, 324 N.W.2d 834, 844.
‘[I]f a legally cognizable duty on the part of pregnant women to
their developing fetuses is to be recognized, the decision must
come from the legislature only after thorough investigation,
study and debate.’ Stallman v. Youngquist (1988), 125 Ill.2d
267, 280, 126 Ill.Dec. 60, 66, 531 N.E.2d 355, 361. The
legislature is now undertaking the thorough investigation
necessary to resolve this important and troubling social
problem.” Id.; see also In re Baby Boy Blackshear, 90 Ohio
St.3d 197, 736 N.E.2d 462, FN 2 (2000) (finding that a
newborn child with a positive toxicology screen is per se an
abused child for purposes of R.C. 2151.031(D), but noting that
the court must liberally construe the applicable statute in favor
2
Originally denoted as FN3 in Gray, the Supreme Court was referring to then pending draft version of R.C.
2919.221, which prohibited actions by pregnant women which would cause their children to be “drug
exposed at birth.”
Highland App. No. 12CA9 12
of the accused, as opposed to a criminal case, where the court
must strictly construe the statute against the state).
However, our research indicates that neither this proposed legislation, nor
any other similar legislation has ever been passed. Although Appellee
indicates that R.C. 2925.02, as it currently exists, was the legislature’s
answer to the growing problem of prenatal drug use, our review of the plain
language of the statute, coupled with our review of the legislative history
related thereto does not lead us to that conclusion. Further, a review of
pending legislation regarding this statute contained in S.B. No. 329, dated
April 17, 2012, reveals no addition or clarification that this offense does, in
fact, encompass conduct of a pregnant woman in relation to her unborn
child.
{¶14} Here, the State argued and the trial court concluded that
because R.C. 2925.02(A)(1) did not contain an element of physical harm,
that the exceptions to the definition of “person” under R.C. 2901.01 did not
apply, and that Appellant could be prosecuted for the crime. Based upon the
foregoing, however, we disagree. Instead we find the plain language of R.C.
2925.02, read in conjunction with the definitions and exceptions thereto
contained in R.C. 2901.01, do not support the application of the statute to the
facts sub judice. Further, we find merit to Appellant’s argument that it is
Highland App. No. 12CA9 13
“incongruous” to disallow prosecution for a woman’s conduct during
pregnancy that results in harm to her unborn child, while allowing
prosecution for conduct that does not harm her child. “Such a result would
be absurd, and ‘[i]t is presumed that the legislature does not intend absurd
results.’ O'Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889
N.E.2d 505, ¶ 56, citing State ex rel. Haines v. Rhodes (1958), 168 Ohio St.
165, 5 O.O.2d 467, 151 N.E.2d 716, paragraph two of the syllabus.” Widen
v. Pike Cty., 187 Ohio App.3d 510, 2010-Ohio-2169, 932 N.E.2d 929, ¶ 23.
{¶15} Based upon the foregoing reasoning and the absurd result that
we reach if we apply the definitions contained in R.C. 2901.01 to permit
prosecution for maternal conduct that results in no harm to the unborn child,
while protecting maternal conduct that actually results in harm or threatened
harm to the child, we sustain Appellant’s sole assignment of error. In
reaching this result, we acknowledge and agree with the concerns mentioned
in State v. Gray, supra, regarding the growing problem of prenatal, or
maternal, drug use.
{¶16} Nonetheless, based upon the language of the statute as it exists
at this time, as well as the absence of any legislative action in this area since
the time in which State v. Gray, supra, was decided, we are constrained to
find that the trial court failed to correctly apply the law to the facts of this
Highland App. No. 12CA9 14
case. As such, we conclude that the trial court erred in denying Appellant’s
motion to dismiss this portion of the indictment and, thus, we sustain
Appellant’s sole assignment of error. Accordingly, the decision of the trial
court is reversed and Appellant’s conviction is vacated.
JUDGMENT REVERSED AND VACATED.
Highland App. No. 12CA9 15
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED AND VACATED and
Appellant recover costs from Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Exceptions.
Harsha, J. & Abele, J.: Concur in Judgment Only.
For the Court,
BY: _______________________
Matthew W. McFarland
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.