STATE OF OKLAHOMA, Appellant v. KELVIN WAYNE ALLEN & TAMI LEANN WARE
S-2019-849
In the Court of Criminal Appeals of the State of Oklahoma
May 20, 2021
2021 OK CR 14
HUDSON, JUDGE
O P I N I O N
¶1 The State of Oklahoma charged Kelvin Wayne Allen, Appellee, by Information in the District Court of Craig County, Case No. CF-2018-25, with Child Neglect (Count 1), in violation of
¶2 Each case is based on the same facts. The State alleged in Count 1 that both defendants willfully or maliciously neglected A.W., their unborn daughter, through their failure to protect her from exposure to the use or possession of illegal drugs. In Count 2, the State alleged that both defendants conspired and agreed to commit the crime of child neglect. At preliminary hearing, the magistrate bound Allen and Ware over on both counts as charged. Allen and Ware thereafter filed motions to quash both counts in their respective cases, arguing an unborn fetus was not a “child” subject to protection under the child neglect statute.
¶3 The Honorable Shawn S. Taylor, District Judge, granted both motions, finding a fetus was not a “child” subject to protection under the child neglect statute. Appellant, the State of Oklahoma, now appeals. We exercise jurisdiction pursuant to
¶4 On October 2, 2017, Ware gave birth to A.W. at a Vinita hospital. Authorities were contacted because A.W.‘s and Ware‘s blood tested positive for methamphetamine. A.W.
¶5 Allen is A.W.‘s father and he lived with Ware during the pregnancy. The record shows Allen purchased drugs for Ware and the pair frequently ingested methamphetamine while Ware was pregnant. Allen told authorities Ware had ingested methamphetamine as recently as a few days before giving birth to A.W. Ware agreed with Allen to pretend she was not pregnant so the pair could continue using methamphetamine during the pregnancy. When confronted by authorities, Ware acknowledged the positive test results of the drug screenings but expressed a lack of concern because she did not want A.W. anyway. Allen and Ware both admitted knowing the medical harm posed to the unborn child from Ware ingesting drugs.
¶6 Title
¶7 In State v. Green, 2020 OK CR 18, 474 P.3d 886, we interpreted
¶8 The present case is controlled by Green. In both cases, the State alleged the defendants willfully and maliciously engaged in child neglect by subjecting an unborn child to the use of illegal drugs. Green fatally undermines the District Court‘s interpretation of
DECISION
¶9 The ruling of the District Court sustaining Appellees’ motions to quash is REVERSED. This case is REMANDED for further proceedings not inconsistent with this Opinion. Pursuant to
AN APPEAL FROM
THE DISTRICT COURT OF CRAIG COUNTY
THE HONORABLE SHAWN S. TAYLOR, DISTRICT JUDGE
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APPEARANCES AT HEARING KALI STRAIN KENT RYALS CLINTON M. WARD |
APPEARANCES ON APPEAL KALI STRAIN NO RESPONSE FROM |
OPINION BY: HUDSON, J.
KUEHN, P.J.: CONCUR
ROWLAND, V.P.J.: CONCUR
LEWIS, J.: CONCUR IN RESULTS
LUMPKIN, JUDGE: SPECIALLY CONCURRING:
¶1 I join in the well written opinion by Judge Hudson and the application of our decision in Green v. State, 2020 OK CR 18, 474 P.3d 886, to this case.
¶2 I write only to point out that while the medical community has various labels for the development of a child in the womb, those labels do not guide this Court in the application of our State‘s criminal law statutes. Many years ago this Court decided as follows in Hughes v. State, 1994 OK CR 3, ¶ 4, 868 P.2d 730, 731, that pursuant to our homicide statute, a child in the womb is a human being:
We . . . hold that . . . an unborn fetus that was viable at the time of injury is a “human being” which may be the subject of a homicide under
21 O.S.1981 § 691 (“Homicide is the killing of one human being by another“). [Any person who kills a child in the womb is subject to criminal prosecution for the homicide.]
In Green, we consistently applied that fact to the protection of a child in the womb from neglect. Therefore, all persons should take notice that a child in the womb will be protected under Oklahoma law.