State v. Geiser , 2009 N.D. LEXIS 57 ( 2009 )

SANDSTROM, Justice,

concurring specially.

[¶ 23] I agree with the majority that the conviction must be set aside. Under our system of separation of powers, it is not the role of this Court to criminalize what the legislature has not clearly made criminal. State v. Mosbrucker, 2008 ND 219, ¶42, 758 N.W.2d 663 (Sandstrom, J., dissenting).

[¶ 24] I disagree with the majority that this Court can rely on N.D.C.C. § 14-10-01 for its definition of “a child.” The introductory language of N.D.C.C. § 14-10-01 specifically provides that it applies only if no other definition is supplied: “In this code, unless otherwise specified, the term ‘child’ means ‘minor.’” (Emphasis added.) The section 14-10-01 definition does not apply here because N.D.C.C. § 19-03.1-22.2 specifically provides a definition of “a child”:

1. For purposes of this section:

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b. “Child” means an individual who is under the age of eighteen years.

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In addition, the expansive application given by the majority to the N.D.C.C. § 14-10-01 definition of “a child” throughout the code would radically alter our probate laws, N.D.C.C. ch. 30.1, as well as other provisions of the code.

[¶ 25] Extensive review of the legislative history of N.D.C.C. § 19-03.1-22.2 reflects no discussion of application to the unborn. The legislative discussion focused primarily on the risk to children living where methamphetamine and other dangerous substances were being produced or were otherwise present. Hearing on H.B. 1351 Before the Joint Senate and House Judiciary Comm., 58th N.D. Legis. Sess. (Jan. 22, 2003) (testimony of Jonathan Byers, Assistant Attorney General). In addition, the North Dakota Legislative Assembly has specifically excluded the mother from the application of the statute relating to conduct causing the death of an unborn child. N.D.C.C. § 12.1-17.1-01(2).

[¶ 26] Although statutory language differs, the overwhelming majority of states that have looked at this question have concluded that it does not apply to the unborn. Reinesto v. Superior Ct. of the State of Arizona, 182 Ariz. 190, 894 P.2d 733 (App.1995); Reyes v. Super. Ct. of the State of California, 75 Cal.App.3d 214, 141 Cal.Rptr. 912 (Cal.Ct.App.1977); State v. Gathers, 585 So.2d 1140 (Fla.Dist.Ct.App.1991); State v. Luster, 204 Ga.App. 156, 419 S.E.2d 32 (1992); Com. v. Welch, 864 S.W.2d 280 (Ky.1993); Kilmon v. State, 394 Md. 168, 905 A.2d 306 (2006); Sheriff, Washoe County v. Encoe, 110 Nev. 1317, 885 P.2d 596 (1994); State v. Martinez, 139 N.M. 741, 137 P.3d 1195 (App.2006); State v. Gray, 62 Ohio St.3d 514, 584 N.E.2d 710 (1992); Richards v. State, 2005 WL 2138244; Collins v. State, 890 S.W.2d 893 (Tex.Ct.App.1994); State v. Dunn, 82 Wash.App. 122, 916 P.2d 952 (1996); State v. J.Z., 228 Wis.2d 468, 596 N.W.2d 490 (App.1999). Only South Carolina, looking at the specific language of its statute in conjunction with its purpose and the policy of the law, reached a contrary result. Whitner v. State, 328 S.C. 1, 492 S.E.2d 777, 779-80 (1997) (acknowledging that South Carolina has long recognized that viable fetuses are persons holding certain legal rights and privileges, concluding “it would be absurd to recognize the viable fetus as a person for purposes of homicide laws and wrongful death statutes but not for the purposes of statutes proscribing child abuse”).

[¶ 27] Lenity requires deference to the accused when the scope of a statute does not clearly apply. State v. Laib, 2002 ND 95, ¶ 15, 644 N.W.2d 878.

[¶ 28] I agree that the criminal judgment must be reversed.

[¶ 29] DANIEL J. CROTHERS, J., concurs.