*1 years six approximately waited before judgment. rendition See id. he claim that time was convicted has not Williamson met burden. not blood evidence was authentic. This Petition denied. consistently court has held that due dili- gence making required application for relief, and, in the
coram-nobis absence of delay, petition
valid excuse for will be Cloird,
denied. 182 S.W.3d This court will itself
477. examine the
diligence requirement
deny
petition
petitioner
where
is evident that a
failed
Due Arkansas, STATE of Appellee. defendant be unaware the fact at the No. CR-15-124 (2) trial; time the defendant could not have, in diligence, of due pre exercise Supreme Court of Arkansas. trial; sented upon the fact dis Opinion Delivered October fact, covering the the defendant did not delay bringing petition. We hold Williamson has with- acted dili
gence. He has not established that he was
unaware at the time of trial of his claim
concerning authenticity of the blood
evidence; that, if there were reason to altered,
believe that the blood was the fact
could not at the time discovered fjOftrial; or that there was some cause
delay bringing claim he once became
aware facts that showed basis for stated, claim. As Williamson when, how,
explained he obtained the underlying
information his allegation about presented
the blood evidence nor has he any aspect
facts that support allega of the
tion. previously,
As the onus is discussed petitioner in a proceeding coram-nobis diligence establish due
judgment his case rendered while
there fact extrinsic to existed some prevented
record that would have its ren- trial
dition had it been known which, through negligence or fault petitioner,
of the was not brought forward *2 originally
This case was in the filed court of appeals, which affirmed Arms’s conviction. Arms v. Ark. App. granted Arms’s petition for grant When we review. *3 petition to review a of the decision court of appeals, we the matter as treat if the appeal originally had in filed 286, court. .Pickle v. 410; |2On August Arms was charged by information in County Polk with intro- substances, ducing two controlled codeine methamphetamine, and into body the J.A., baby, her on about November trial, 2012. Prior to Arms moved dis- asserting miss charges, that the Polk County jurisdiction Circuit Court lacked and venue to case. try She asserted her that she County in resided Sevier and was transported by ambulance her home DeQueen, County, which' is in Sevier Regional Mena in Polk Medical Center n County. Her born in child was Mena. alleged She had taken no drugs Mena, Rainwater, Randy for appellant. County Polk prior the birth of her child. Gen., Att’y by: Leslie Rutledge, Ashley Arms filed a mo- subsequently second Priest, Argo Att’y Gen., appellee. Ass’t dismiss, tion asserting that she was charged under a not statute that did men- HART, JOSEPHINE LINKER Justice tion argued unborn children. She that the County jury Polk convicted Melissa controlled was substance introduced liA body McCann Arms of introduction her that there was no the. and evi- body controlled into the of an- dence of the of the introduction other person. She was sentenced to twen- substance into the infant after it had been ty years in Department the Arkansas born. The circuit court dénied both mo- Arms argues any Correction. On tions. It appeal, found that “introduction” (1) circuit court erred not granting substances have continued during motion; (2) grant- period hospital. directed-verdict not Arms inwas Fur- ther, ing her motion to dismiss for lack of court juris- while the circuit conceded that diction when there statute did not mention introduced, child, ingested “introduction,” she consumed or it if found occurred, inhaled controlled substance in the continued for a would have time body of Polk County; after the Finally, while and birth of child. that, her motion to granting dismiss purposes ruled upon statute, injection being based the de- would include a human nol-prossed fendant and not fetus. The State the count baby’s heart rate fetal codeine, proceeded to reaction caused involving and Arms When introducing drop abnormally metham- low level. charge trial on born, body of her child. recalled that he phetamine into the the child was Cobb cry, being even after stimulated. Williams, registered nurse em- Amber limp had a facial flaccid He was System ployed by Regional Mena Health one of his face. Cobb fur- droop on side (Mena Regional), Novem- testified baby that when a ther testified Region- ber Arms arrived Mena ^delivered, of time when period there is a by | signs Arms al showed ^ambulance. baby is attached and umbilical cord labor, admitted so Williams The cord is cut outside womb. hospital. that the testified Williams to a a few few minutes. within seconds her that emergency-medical personnel told acting very appellant was erratic out *4 Cannon, investigator for Polk the Elena control, seeing Arms and recalled she office, Attorney’s County Prosecuting tes- bed,” acting “very “thrashing and the search warrant on that she served a tified part out As a of control.” routine the samples and Arms to take urine blood assessment, asked Williams and initial in labor. The warrant while Arms was having drugs. Arms denied taken to samples authorized be taken from also she to Williams stated that had reason The taken to samples the were the and, because of doubt Arms’s denial (Crime Lab) Lab Crime Arkansas State behavior, unusual she contacted Arms’s Little Rock. the police. Hazard, toxicologist a forensic Leanne Floyd, registered Stacie nurse Lab, per- for that she the Crime testified she Regional, Mena that came testified on from formed tests the blood drawn soon she into contact with Arms after was baby. samples positive Arms’s tested hospital. Floyd admitted to the stated codeine, methamphet- amphetamine, for acting atypically that Arms for was some- amine, norfentanyl, and lidocaine. Don It early stages one in the labor. was Riddle, toxicologist also forensic with the keep to in bed for the staff Arms hard and Lab, that Crime testified he tested Arms’s toxicology on A screen the monitor. was baby’s urine the urine. He blood and and Arms, and, to according Floyd, for ordered samples positive that tested stated Arms’s present she was when Arms was confront- methamphetamine. He also found for evi- drug baby’s ed of the with results test. amphetamine baby’s in the urine. dence taking drugs, Arms but that denied stated Patina Fair Registered testified nurse party something at a might she was and that for Arms’s child she cared while he put in her food. that nursery. was in the She stated Registered nurse Amber Cobb testified signs exhibited associated child Regional working that she was at Mena from withdrawal a controlled substance. gave when Arms According birth. Fair, According spoke with Arms she Cobb, performed delivery. she She right she to the before took nurs- positive recalled that Arms’s urine tested ery, Arms to her that and admitted she methamphetamine. for she When told “did this” to the child. Fair told Arms results, very Arms an- Arms the became baby suffering was withdrawal Nonetheless, gry upset. Arms denied methamphetamine use. using any illegal Arms substances. was May, crying .hysterically, point Investigator almost to the Michael Senior opined Drug District Task hyperventilating. She- Arms’s 18th West Judicial Force, he was Ele- asserts that there is asked testified evidence she investigation. injected na Cannon to assist directly Together, Arms at the they interviewed into the of the child before was hospital delivery. after the consent- Arms born. that she
ed the interview admitted This court a motion treats times methamphetamine had used four challenge as a verdict directed the suffi including |¿the day pregnant, while she was ciency of the evidence. Sweet hospital before was admitted In our May inject- Appellant told that she labor. review, this court determines whether the four methamphetamine ed three supported verdict substantial evi during times but aside pregnancy, dence, direct or circumstantial. Id. “puffs from a few bowl” on Hallow- (¡Substantial een, evidence is evidence forceful methamphet- intravenous use enough compel month, conclusion one way amine to a half month beyond the other suspicion conjecture. earlier. view light the evidence case, At the close of State’s verdict, most favorable and we con stated, for a moved directed verdict. She only the supporting sider the ver proven The State has not De- review, In our dict. Id. we leave matters fendant, ingested, cause inhaled *5 fact; credibility to the trier the trier or into human otherwise introduced of fact part is free of any believe all or body of person another sub- testimony may witness’s ques and resolve stance, specifically methamphetamine. conflicting testimony tions of and inconsis still have the same elements here tent evidence. the human body ingested or ingested or or inhaled otherwise intro- Arkansas Code Annotated 5-13- duced. 2013), 210 (Repl. pertinent part: states The State that countered Arms admitted (b) It any person is unlawful for to ad- ingested had methamphetamine while or ingested, minister cause to be in- pregnant, drug was transmitted haled, or otherwise introduced into the through the umbilical cord to the child. body of person human a con- The circuit court Arms’s denied directed- trolled as substance defined the Uni- verdict motion. Arms also renewed her Act, § form 5- Controlled Substances dismiss, motions to which were likewise seq., 64-101 et unless the controlled sub- charged. denied. Arms was convicted as person stance been ordered appeal, argues
On Arms first that receiving the by a controlled substance in not granting court erred practitioner, licensed licensed directed-verdiet motion. that She asserts prescribe state to controlled substances section 5-13- Code Annotated the schedule involved and 210(b)(c)(l) un (cid:127) does not mention fetus or for a legitimate medical purpose. argues born child. She further that the (c) Any who violates this section is evidence clear that she did not introduce respect with to:' body controlled substance her own or Polk her child while
County. She that other Any concedes the unborn controlled substance in I, “may II, child some controlled III have absorbed” Schedule Schedule or Schedule mother, felony. further of a B guilty but Class con Therefore, to sustain this it. 5-13-210 re- inhale that section note We first viction, required makes be It no this' would only “person.” to á fers or an unborn child. a fetus section 5-13-210 mean mention of construe as a define fetus drug Our code does “other criminal use meant Arms’s own for certain “person,” but introduc[ing]” homicide the child. We wise sec- Annotated Arkansas Code offenses. there was note part pertinent states: tion 5-1-102 méthamphétamine ongoing transfer “defendant,” “Person,” “actor,” (13)(A) system Arms’s the child that was in after “she,” “her,” “he,” or “him” includes: jury thus was born. The (i) person; and natural “other Any speculate forced introducing” drug into the child
wise jury its reaches point. When §§ (B)(i)(a) 5-10-101-5-10- As used or resorting speculation conclusion includes an unborn also supported the verdict develop- conjecture, any stage of útero at 17in evidence, |sby and must re we substantial ment. charges. Pridgett v. verse and dismiss (1982). (13)(B) (iii) Nothing in this subdivision However, is an even more funda there charging allow shall construed to be proof. with problem the State’s mental crimi- a woman conviction crimi expressly Section 5-13-210 does her own nal the death of offense bodily processes that re passive nalize the in útero. unborn child entering a drug in a mother’s use of sults expressly Significantly, our criminal code unborn, system. newborn child’s criminalizing respect to limits conduct with the cannon Further under construction offenses, child to homicide provides which ejusdem generis, then, not allow mother even does *6 specific follow words general “when words any of of- charged or convicted homicide enumeration, statutory general in a part is in As fense her child útero. while construction, to embrace ob words are construed guided by of we our strict are objects similar in nature to those -expressio jects unius est exclusio maxim by preceding specific inclusion of un- express alterius —the enumerated words,” to regard with of- con born child section cannot homicide 5-13-210 be inclusion for non- passive fenses excludes similar process. include such a strued to State, v. See Bolin offenses. Campbell, homicide See Edwards 2015 459 788. Accord- S.W.3d 250. The other enumerated ingly, of conduct could offend none Arms’s 5-13-210, by conduct section criminalized 5-13-210 child was in section while ingested, or “to administer cause be focus on útero. must therefore We undertaking an active inhaled” entail it to Arms’s as relates conduct person dose another with controlled sub during of the narrow window time when Thus, introduced” stance. “otherwise womb, still the child was outside but interpreted must to refer to an active be placenta by to the umbilical attached Arms’s conviction process. Accordingly, cord. stand; construction of crimi Our cannot strict, any nal is and we resolve statutes completely
The record is devoid Heikki in favor the defendant. any directly Arms doubts evidence that intro 805 baby’s la v. methamphetámine into her duced cannot, (2003). through con ingest courts the child to The system by causing case, statute, In struction create a criminal Arms admitted that she had injected express methamphetamine that is creat terms three times offense - while Id. by Legislature. pregnant. do not She ed -admitted that she methamphetamine day an act had have the smoked the. be- authority declare fore she was by hospital within the criminal of this state admitted laws n Both Arms son implication. newborn We therefore reverse labor. positive methamphetamine, tested arid and dismiss Arms’s conviction. Because point, baby exhibited symptoms we reverse and on this withdraw- we dismiss (cid:127) al. argu issue' whether Arms’s conduct need consider Arms’s other falls1 within those actions proscribed by ments. 5-13-210(b). section dismissed; ap- Reversed and court peals The'State contends that the opinion-vacated. concluding not err in the statute
Brill,-C.J., Wood, J. concur. in this case Arms’s unborn because applied child was a “person” considered under sec- Brill, Justice, W. Howard Chief 5-13-2ÍO(b). Further, tion con- State concurring. that, although may tends correct be" |9I agree majority case in' stating that section 5-13-210 does not should be reversed and dismissed. write child,” expressly include the term “unborn separately to my set forth rationale. | clearly Arkansas law estab- ^nonetheless Code Annotated 5-13- lishes fetuses protec- are entitled to - 210(b) 2013) (Repl. states that tions that the law otherwise accords to persons. FinaEy, person argues is unlawful for “oth- [i]t admin- inhaled, ingested, language ister or cause erwise introduced” encompasses otherwise introduced into the human the transmission substance a.controlled a controlled sub- through the umbilical cord the immedi- baby. as ate stance the Uniform Con- after birth minutes defined Act, § 5-64-10Í trolled Substances et code, In -its' definitions in the criminal seq., unless the controlled substance legislature adopted- Act person receiving been ordered for the amending Arkansas sec- Code Annotated the controlled licensed tion 5-1-102 “unborn child” practitioner, pre- licensed the state within homi- definition *7 scribe substances the Robbins, cide offenses.. See Michael S. schedule for. a involved and Comment, The Fetal Re- Act: Protection legitimate purpose. medical Ar- defining Purposes “Person” the of for Statutes,' kansas’ Homicide scope Criminal presents The of 54 this statute (2001) (discussing 75 his- issue for this No would Ark. L.Rev. court. one dis- pute, example, prohib- torical of unborn children in the that the statute treatment law). of is parent feeding marijua- its a from a The unborn children protection Likewise, likewise Arkansas Code Annotat- na-laced brownies. one found.in 13—201(a)(5),which reasonably nursing ed states contend that a section 5— person first-degree battery if suffering congestion mother from commits nasal causing physi- with the of ingests purpose who a controlled such as serious wom- injury cal an child or to a pseudoephedrine V be unborn Schedule should child,” if an is an unborn prosecuted “pregnant transferred who the substance is injury person physical serious by milk her infant. causes her and absorbed 644 Moreover, people, As determined in certain child. every protect the life of public policy “is to justi-
circumstances, woman is pregnant birth, until conception unborn child deadly phys- force or using physical fied n Con permitted by the Federal the extent protect force-against ical Const, LXVIII, Ark. amend. stitution.” Ark. Ann. Code See § is not a self- 2.2 But the amendment 2013). (Repl. § 5-2-615 all executing that criminalizes provision is enactments is clear from these What might the health of conduct that affect in- legislature, intends that when the pro constitutional unborn child. “[F]or clude within the “unborn child” definition self-executing, there must be vision be “person,” protec- or it afford of intends indicating that it language-in provision children, expressly it does tion to unborn enactment, com present ‘is intended as criminal code de- statute. The so legislation, definitive plete itself as “[a]ny person,” natural fines as contemplates subsequent legislation to car ” appropriate, organization and “[w]hen Ward, it Knowlton v. ry effect.’ 11s>into § Ann. Ark. as defined 5-2-501.” Code 875, 721, 867, Ark. 889 726 318 S.W.2d 2013). However, 5-l-102(13)(A) § (Repl. Erwin, (1994) Myhand v. 231 (quoting |, /‘person” criminal-code definition 68, 444, 452, Ark. 330 S.W.2d 72-73 “unborn expressly expanded to is include § citing 16 Constitutional Law C.J.S. See id. cases homicide. child” (1956)). self-executing 146 It is if at 5-l-102(13)(B). § supplies rule it a sufficient means chosen not to legislature has may right given enjoyed be which the within the definition “unborn child” imposed protected, duty may purposes of section 5-13- “person” for the enforced; self-executing it 210(b).1 legislature, it is not the And merely principles, when it indicates court, of conduct that determines kind down rules laying without means Sparrow See that constitutes crime. may be principles given which those (1985); State, 683 218 284 S.W.2d force law. see also Meadows v. 291 Knowlton, Ark. at 889 318 (1987) (declining to create 722 S.W.2d Cooley, (quoting Thomas M. Constitu kill- a common-law reckless crime (7th 1903)). ed. Al tional Limitations legislative ing an unborn fetus when the public though amendment reflects shown, of a any, killing intent if that the state, provide any policy does manslaughter). is not viable fetus id., policy. See means effectuate Rather, policy It is that Arms’s use to infer at 726. reasonable expressed giv methamphetamine during pregnan- in the amendment through legislative of law public of this state. en the force policy offends the cy *8 session, legislative compelling pro in In HB 2. The a interest 1. state has the 2015 potential tecting point of human life 5-1- which would amended section viability. Pa. v. Planned Parenthood Se. 102(13)(B)(i)(a) to section 5-13-210 to add of 833, 2791, Casey, 112 S.Ct. 120 505 U.S. “unborn enumerated statutes which Wade, (1992); 410 U.S. L.Ed.2d 674 Roe v. of child” is included within definition 113, 705, (1973); 35 147 see 93 S.Ct. L.Ed.2d "person,” die ad- died in House at sine 1113, Beck, F.3d 1119 also Edwards v. (8th 786 journment. 2015) (recognizing “viability that Cir. conception”). steadily back towards moves
645
enactments,
Wood, Justice,
recognized
court has
Rhonda
concurring.
and this
K.
necessary
legislative action is
to clari
that
I concur
majority opinion
with the
that
to an
fy
applies
a statute
unborn
whether
this case should be reversed and dis
However,
or a viable fetus.3
missed.
depart
child
I
from
opin
remarks,
concluding
ion’s
which suggest
discourage pregnant
No one wishes to
that section 5-13-210 could never include
fighting
who are
an addiction from
women
the transfer
aof
controlled substance
|13seeking treatment and rehabilitation for
through
passive
bodily function.
canWe
argument
substance abuse. The
has been
appeal
this
addressing
decide
without
this
that criminal prosecutions
made
will have
issue,
majority’s
so the
final comments are
However,
balancing
effect.
advisory.
purely
The briefs
case
this
to
legitimate policies
by
be made
focused on
questions:
two
whether
legislature,
and not
this court.4 Just as
§
from
definition
section
5-13-
210
criminal convictions cannot be
includes
an
based
[14unborn
sufficient
supports
whether
general
policy
legislative
statements
At
point
appellant,
verdict.
did
alone, they cannot be set
intent
aside be-
State, or
analyze
amici
whether “otherwise
perceived
public-health
cause
issues.
passive
introduced”
bodily
excludes
funct
Because the
at issue
conduct
case
ion.1 Nor
appellant
did
raise at trial the
expressly
legisla-
was not
included
argument
“otherwise
introduced”
5-13-210,
ture when
enacted
a passive
could
include
transfer
compelled
am
through
reverse and dismiss.
post-delivery.
the umbilical cord
example,
Department
3.
4. HB
For
Arkansas
Hu
1376 of
included this
2015
statement
Collier,
506,
Services v.
351 Ark.
legislative
man
95
intent:
(2003),
statutory
772
we held that the
Assembly encourages
The General
(“birth
18”)
age
definition of a child
in the
judges
attorneys
prosecuting
permit
juvenile code did
a court
not authorize
to take
charged
§
a woman
under
5-13-210 when
custody.
child
In
Chatelain v.
carrying
woman
517,
(1995),
Kelley, 322
215
Ark.
910 S.W.2d
útero
the commission of the
and.
offense
wrongful-death
we held that the
statute did
injury
resulted
the death
or other
not cover the death of an unborn child. See
to enter into
unborn child
Snow, Note,
Daugherty
Brenda
A ViableFetus
op-
abuse treatment and rehabilitation as
Wrong
is Not a "Person"
Arkansas
Under the
posed
convicted and sentenced un-
Kelley,
v.
Death Statute. Chatelain
322
ful
§der
5-13-210.
517,
(1995),
Ark.
agree with trial that presented at metham appellant transferred from
phetamine short via umbilical cord
her child I also post-delivery. agree
moments that, our rules of statu majority under construction, 6-13-210 cannot
tory read to Assembly specifically amended
General to include an unborn homicide offenses
[1Bchild,but likewise amend section failed to
5-1 3-210.3 . Should intend other
wise, Assembly can the General amend intro
relevant statutes to criminalize the un drugs by a mother to her
duction child.,
born addition, ignore the Gen- infra, appellant’s only In we cannot 2. As statuto- discussed Assembly specifically mother eral excluded a ry-construction argument related to whether un- prosecution for the homicide of her child was a under section ' § 5-1- born child. Ark. Code Ann. 5-13-210. 102(13)(B)(iii).