STATE v. ALLEN
2021 OK CR 14
| Okla. Crim. App. | 2021Background
- Kelvin Wayne Allen and Tami Leann Ware were charged in Craig County with Child Neglect (21 O.S.Supp.2014 § 843.5(C)) and Conspiracy to Commit Child Neglect for exposing their unborn daughter A.W. to methamphetamine during pregnancy.
- A.W. was born Oct. 2, 2017; both mother and newborn tested positive for methamphetamine and the newborn exhibited withdrawal symptoms; DHS took the newborn into protective custody while still at the hospital.
- Evidence showed Allen purchased drugs for Ware, both used meth throughout the pregnancy, Ware concealed the pregnancy to continue use, and both admitted awareness of medical risks to the unborn child.
- After a preliminary hearing bound the defendants over, Allen and Ware moved to quash, arguing an unborn fetus is not a "child" under § 843.5(C); the district court granted the motions.
- The State appealed; the Oklahoma Court of Criminal Appeals reviewed statutory interpretation de novo, found the decision controlled by State v. Green, and reversed the district court, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the phrase "child under eighteen" in 21 O.S.Supp.2014 § 843.5(C) includes an unborn fetus | State: an unborn child qualifies as a "child" under the statute and may be protected from neglect | Defendants: the statute does not reach an unborn fetus; therefore charges should be quashed | Court: reversed the quash; following State v. Green, an unborn (viable) fetus may be a "child" for § 843.5(C) purposes |
| Whether the district court abused its discretion by quashing the counts | State: district court misinterpreted the statute and therefore abused its discretion | Defendants: statutory text excludes fetuses, supporting the quash ruling | Court: statutory interpretation is reviewed de novo; district court erred and abused its discretion in light of Green; reversal and remand ordered |
Key Cases Cited
- State v. Green, 474 P.3d 886 (Okla. Crim. App. 2020) (held an unborn/viable fetus may be a victim of child neglect under § 843.5(C))
- Hughes v. State, 868 P.2d 730 (Okla. Crim. App. 1994) (held a viable fetus is a "human being" for homicide statute purposes)
- Leftwich v. State, 350 P.3d 149 (Okla. Crim. App. 2015) (sets out principled approach to statutory construction)
- Fuston v. State, 470 P.3d 306 (Okla. Crim. App. 2020) (confirms de novo review for statutory interpretation)