492 P.3d 27
Okla. Crim. App.2021Background
- State charged Kelvin Allen and Tami Ware with Child Neglect (21 O.S.Supp.2014 § 843.5(C)) and Conspiracy to Commit Child Neglect based on conduct during Ware’s pregnancy.
- Ware gave birth to A.W.; mother’s and newborn’s toxicology were positive for methamphetamine and the newborn showed withdrawal symptoms; DHS took the newborn into protective custody.
- Record: Allen bought drugs for Ware, both frequently used methamphetamine during pregnancy, and both admitted knowing the medical risks to the unborn child.
- At preliminary hearing the magistrate bound both over on the charges; Allen and Ware moved to quash arguing an unborn fetus is not a “child” under the neglect statute.
- The district court granted the motions to quash; the State appealed to the Oklahoma Court of Criminal Appeals.
- The Court reversed, holding the district court abused its discretion and finding the case controlled by State v. Green.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the term “child under eighteen years of age” in 21 O.S. § 843.5(C) includes an unborn fetus | The State: yes, an unborn child is protected under § 843.5(C) | Allen/Ware: no, a fetus is not a “child” for purposes of the neglect statute | Court: follows State v. Green — an unborn (viable) fetus can be a “child” under § 843.5(C); reversed district court |
| Whether the district court abused its discretion by granting motions to quash the charges | State: yes, given Green the quash was improper | Defendants: no, quash was proper because fetus not a child | Court: yes abused discretion; remanded for further proceedings |
Key Cases Cited
- State v. Green, 474 P.3d 886 (Okla. Crim. App. 2020) (held an unborn/viable fetus may be the victim of child neglect under § 843.5(C))
- Hughes v. State, 868 P.2d 730 (Okla. Crim. App. 1994) (construed homicide statute to treat a viable unborn fetus as a human being)
- Leftwich v. State, 350 P.3d 149 (Okla. Crim. App. 2015) (statutory construction principles; give effect to legislature’s intent)
- Fuston v. State, 470 P.3d 306 (Okla. Crim. App. 2020) (review standards for statutory interpretation)