Birdine v. State , 75 O.B.A.J. 620 ( 2004 )

LUMPKIN, Judge:

concur in part/dissent in part.

¶ 1 I concur in the Court’s decision to affirm the judgment and sentence in Count I. I also concur in the Court’s decision to modify the conviction in Count II to Manslaughter in the First Degree, with the sentence of life imprisonment. However, I would not modify the sentences to run concurrently.

¶2 In addition, I appreciate the Court’s recognition the infant victim is a child. As I stated in McCarty v. State, 2002 OK CR 4, 41 P.3d 981, the correct terminology should be either “unborn viable child” or “unborn quick child”. Absent acknowledgment that the unborn child is a “human being” and a “person” protected by the statutory language, liability cannot attach to a person charged with the crime. The language of the instruction is now clear the unborn child is a person so protected.