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. § 843.5(C)) and Conspiracy to Commit Child Neglect for exposing their unborn child to methamphetamine.
- After birth, the infant (A.W.) and mother tested positive for methamphetamine; the newborn exhibited withdrawal symptoms and was placed in protective custody.
- The record shows Allen bought drugs for Ware, both used meth during pregnancy, and Ware admitted she did not want the child and continued use. Both acknowledged knowledge of medical harm to the unborn child.
- At preliminary hearing the magistrate bound both over, but Allen and Ware moved to quash arguing an unborn fetus is not a "child" under the child neglect statute. The district court granted the motions and dismissed the counts.
- The State appealed. The Court of Criminal Appeals reversed the district court, holding the district court erred in quashing the charges because an unborn (viable) fetus falls within the statute's protection, relying on State v. Green.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an unborn fetus qualifies as a "child under eighteen" under 21 O.S. § 843.5(C) (child neglect statute). | The State: an unborn child is a "child" under § 843.5(C) and may be a victim of child neglect. | Allen/Ware: an unborn fetus is not a "child" under the statute, so charges must be quashed. | Reversed district court; under State v. Green an unborn (viable) fetus may be protected as a "child" under § 843.5(C); charges may proceed. |
Key Cases Cited
- State v. Green, 474 P.3d 886 (Okla. Crim. App. 2020) (held an unborn/viable fetus can be a victim of child neglect under § 843.5(C)).
- Hughes v. State, 868 P.2d 730 (Okla. Crim. App. 1994) (construed "human being" in homicide statute to include a viable fetus).
- Leftwich v. State, 350 P.3d 149 (Okla. Crim. App. 2015) (statutory interpretation: give effect to Legislature's intent; plain meaning governs).
- Fuston v. State, 470 P.3d 306 (Okla. Crim. App. 2020) (review of statutory interpretation is de novo).