*1
STATE Appellee
Michelle Michelle GEISER a/k/a
Behles, Defendant and
Appellant.
No. 20080120.
Supreme Court of North Dakota.
April *2 does not include eighteen years and At- of (argued), State’s Erickson Ladd R. resisted Geis- ND, child. The State Washburn, and an unborn plaintiff torney, contended motion. The State er’s appellee. child. a viable unborn “child” includes term Bismarck, (argued), J. Glass Thomas appellant. and ND, for defendant district court denied Geiser’s The [¶ 5] order, Office, Dickson, In its the dis- Law to dismiss. Dickson motion A. Thomas McBane, Jayasinghe and Bismarck, ND, Hopkins Tiloma relied on and trict court (N.D.1984), Paltrow, Advocates for in which National Lynn M. NY, York, Women, on brief New action wrongful-death held a Pregnant this Court appellant. and defendant amicus curiae tortious brought against one whose may be un- a viable causes the death of KAPSNER, Justice. court also relied child. The district Carolina, 328 v. State South on Whitner (“Geiser”) appeals Michelle Geiser of (1997), in which 1, 492 S.E.2d S.C. denying her court order a district from de- of South Carolina Supreme charge endanger- of motion to dismiss person is a for the a viable fetus court termined hold the district child. ment of a proscribing a statute charge of endan- of concluding the erred an noted Whitner is applies to The district court a child abuse. germent of to allow minority opinion and remand view reverse child. We her to withdraw opportunity Geiser recognized a North Dakota has Because endangerment charge of to the guilty plea being a human or unborn child as viable of a child. life, it would be incon- person which a viable unborn child to construe sistent I. for the being human or as a 24, 2007, September about On or [¶ liability civil while imposing of prescription overdosed on allegedly Geiser it a classification refusing give similar time, approximate- she was drugs. At this in the criminal context. taken Geiser was ly pregnant. 29 weeks plea entered a conditional Geiser in Bis- to Medcenter One by ambulance a child endangerment charge marck, Dakota. The State asserts North adult under N.D.R.Crim.P. or vulnerable in the de- alleged overdose resulted 11(a)(2), reserving right appeal her child. mise of the unborn of her motion to court’s denial district charged Geiser The [¶3] dismiss. offenses, alleging they oc- following 24, 2007: September or about curred on II. in vio- of a controlled substance possession 19-03.1-23; ingesting of N.D.C.C. lation The issue before in violation a controlled substance charge endangerment is whether 19-03.1-22.3; endanger- applies to an child or vulnerable adult child or vulnerable adult ment of a one of statuto child. This issue is § 19-03.1-22.2. violation of a ry interpretation “The interpretation. law, fully reviewa question statute is a filed a motion to dismiss Geiser Grey Dep’t Bear v. N.D. appeal.” ble of a child charge endangerment Servs., 139, 7, 651 Human asserted vulnerable adult. Geiser Contracting Olander (quoting under the N.W.2d means an individual term “child” Invs., Co. v. Gail Waehter pansive than the definition of a “child” plain contained in the language 19-03.1-22.2(l)(b). We, there- charged Geiser under fore, review extrinsic evidence to further 19-03.1-22.2(2), pro- which *3 interpret and construe the statute and de- vides: termine expansive whether that interpre- greater penalty Unless a is otherwise tation is consonant legislative intent. law, provided by knowing- a who ly intentionally or or a permits causes exposed child or vulnerable adult to be B. to, inhale, ingest or or to contact type One extrinsic evi substance, with a controlled chemical dence we use to interpret statutes is legis substance, drug paraphernalia as de- State v. Leppert, 2003 ND history. lative 1, fined in subsection is of a class ¶15, 16, 656 County of (citing N.W.2d 718 felony. C Stutsman, 325). 371 at legis N.W.2d The 03.1—22.2(l)(b),N.D.C.C., Section states 19— lative history 19-03.1-22.2 “ section,
for the
‘[c]hild’ does not
indicate that
in
means an
age
individual who is under the
tended the
to apply
statute
chil
years.”
eighteen
dren. Hearing on H.B. 1351
Before
House Judiciary
58th N.D. Legis.
A.
(Jan.
2003).
22,
Sess.
interpreting
[¶ 8] When
stat
utes,
duty
a
Court has
to ascertain the
legislative history
[¶ 11] The
explains
Singha
v. N.D. State
Legislature’s
intent.
19-03.1-22.2 was modeled af
Examiners,
Bd. Medical
42,
1998 ND
Hearing
on H.B. 1351
ter a Utah
statute.
¶ 16, 574
(citing County
N.W.2d 838
the Joint Senate and House Judi
Stutsman v.
Soc’y,
State Hist.
Comms.,
(Jan.
ciary
Legis.
58th N.D.
(N.D.1985)).
Legislature’s
“The
2003)
22,
(testimony
Byers,
of Jonathan
initially
sought
intent
must be
from the
General).
Attorney
Assistant
Utah’s child
“
language of the statute as a whole.” Id.
endangerment
statute
‘Child’
Stutsman,
(citing County
371 N.W.2d at
means the same as that term is defined in
325). This Court construes the words in a
76-5-109(1)(a).”
Subsection
Utah Code
in
plain, ordinary,
statute
their
and com
76-5-112.5(1)(b).
Ann.
Section 76-5-
“
monly
understood sense. N.D.C.C.
1- 109(1)(a),
Ann.,
Utah Code
states:
‘Child’
¶
02-02;
Singha, 42,
16,
574 means a human being who is under 18
Stutsman,
County of
(citing
N.W.2d 838
age.”
While the Utah Court of
at
N.W.2d
Appeals and Supreme Court of Utah have
contends,
plain
“a
read-
discussed
endangerment
Utah’s child
stat
ute,
supports
finding
of the statute
analyzed
neither court has
whether
‘child’ includes the child at issue in this
to an unborn child. See
applies
statute
if
Gallegos,
State v.
[Legislature
disagrees
81, 9, 171
case and
[it
UT
P.3d
every ability
426;
Nieberger,
State v.
say
5,
has]
so.” Section 19-
App.
2006 UT
¶¶
22.2(l)(b),
8,
overruled
provides
9,
1223,
Galle
128 P.3d
03.1—
“ ‘[cjhild’
gos,
81,
426;
means an individual who
State v.
is under
2007 UT
171 P.3d
Draper,
eighteen years.”
Rather than a
App.
2006 UT
128 P.3d
Atencio,
statute,
State v.
“plain reading”
1220;
the State is
App.
UT
¶¶
urging
interpretation
an
is more ex-
G. according born child is not a child or minor This “When 14-10-01, and an unborn not ‘transpar- is language of statute plain not a child under N.D.C.C. statutory inter- ent,’ rules our codified to look to the direct us Code pretation meaning of statu- determining itself [IF Section Co., X-Ray Inc. N. v. State tory terms.” states: “A child but not born is conceived (N.D. Hanson, ex rel. an so far as existing person deemed 1-02-02). 1996) re- (citing N.D.C.C. may necessary for interests its of the code to assist provisions view other subsequent event its birth.” This Court *4 § interpretation 19- in the § Hop- in discussed N.D.C.C. 14-10-15 kins, Hopkins, at 864. In the issue before this Court was whether North 13] Section wrongful-death statute author- Dakota’s persons eigh “Minors are under states: a of a wrongful-death ized action on behalf code, In this unless age. teen viable child. Id. at To deter- unborn 863. specified, the term ‘child’means otherwise applied mine whether the statute the Age ‘minor’. be calculated from must child, viable this had to de- unborn day persons minute of on which first the or not of a termine “whether the stillbirth the minute of corre are to same the born person’ child the ‘death of a constitutes mi day completing period the sponding purposes applying wrongful-death [the § 14-10- nority.” Geiser asserts N.D.C.C. “ at Id. 864. statute].” 01, clearly that: ‘child’means establishes ‘minor’, whose who a existence person a is Hopkins This Court in from the minute age is reckoned first and day person the which is born.” The purpose of is [N.D.C.C. 14-10-15] Legislature if the in The State contends to protect and to the interests of ensure “child” “minor” to the tended and mean a to subsequent conception but its thing, it have used the word same could it prior to its birth. believe However, 14-10-01, N.D.C.C. “minor.” purpose inconsistent would be “In unless otherwise provision to the section a construe as ” means specified, the term ‘child’ ‘minor.’ “person” limitation which status denies Therefore, Legislature the whether used to a purposes apply- stillborn child for irrelevant, “minor” is the word “child” or wrongful-death the statute. equivalent. the are Addi because terms wrongful- Id. This Court determined the if the tionally, Legisla the State asserts death a claim to be statute authorized 14-10-01 to ture wanted N.D.C.C. brought against one tortious con- whose 19-03.1-22.2, it to N.D.C.C. could duct the death caused of a viable a reference N.D.C.C. provided cross Therefore, child. according Id. at 865. 14-10-01, or it could have expressly holding Hopkins, an unborn child However, so. N.D.C.C. 14-10-01 stated at rights against third Id. party. expressly applies to the entire code unless However, not nec- holding 864. does therefore, specified; otherwise ref cross that an child has essarily imply erence to 14-10-01 would be N.D.C.C. against mother. unnecessary Legisla and redundant. The Hopkins, In not provided ture has that the a child is day wrongful-death calculated from on which child ed the statute “is a remedi- provide Chapter 12.1-17.1, statute al whose right against it a of action one whose tortious makes crime for a the death commit following causes of another. Con against acts an un- might murder, it sequently, manslaughter, to the extent that child: negli- argued ambiguity gent homicide, aggravated assault, [the there is under stat and as- ute], liberally §§ it sault. should construed 12.1-17.1-02 to 12.1- (cita accomplish objective.” Legislature at its Id. 17.1-06. The enacted N.D.C.C. omitted). Hopkins tions ch. present post-Hopkins. and 12.1-17.1 1987 N.D. 166, § case In Hopkins, are different. stat Laws eh. legislators remedial, interpreted contemplated ute this Court was whether “person,” for the purposes we it In liberally. 12.1-17.1, and construed Id. ch. should case, present interpreting are a crimi include pregnant we woman. Hearing on statute, nal “[c]riminal statutes are H.B. 1557 Judiciary Senate (March strictly construed favor of the defendant 50th N.D. Legis. Sess. against government.” Ultimately, State v. deter- 173, ¶ 14, Beciraj, 2003 ND mined ch. 12.1- *5 Rue, 17.1, (citing v. “person” does not preg- include the 12.1-17.1-01(2). nant § woman. N.D.C.C. Therefore, the mother of the unborn child Subsequent to decision in charged cannot against with a crime Hopkins, Legislature the enacted her unborn child under ch. N.D.C.C. 12.1- N.D.C.C. ch. 12.1-17.1. N.D. Sess. 17.1. 12.1-17.1, § Chapter Laws ch. 1. § If hold we N.D.C.C. 19-03.1- that, recognized consistent with 22.2(l)(b) child, includes an unborn Geiser holding Hopkins, the of un- the would of endangerment of a protected against born children are actions child, with the victim her being unborn 12.1-17.1, parties. Chapter of third child. Charging pregnant woman for a N.D.C.C., governs offenses unborn against crime allegedly against committed her un- supports children and our conclusion that born child the express legislative violates an unborn child is not included in the policy of ch. N.D.C.C. 12.1-17.1. Our hold- child, § definition of a under N.D.C.C. 19- ing that a pregnant woman cannot be For the purposes of charged for a crime allegedly committed 12.1-17.1, Legislature N.D.C.C. ch. the de- against her unborn child under N.D.C.C. fined “unborn child” as: “the conceived 19-03.1-22.2(l)(b) with both coincides yet not offspring but born human Hopkins and N.D.C.C. ch. 12.1-17.1. being, which, but for the action actor beyond a would reasonable doubt have D.
subsequently been alive.” N.D.C.C. 12.1-17.1-01(3). This makes it clear [1120] “Child” is defined as “an Legislature that when the to wants cover individual who is under age eighteen the children, expressly. 19-03.1-22.2(l)(b). it years” does so If in N.D.C.C. enacting the N.D.C.C. Section 19-03.1-22.2, intended persons N.D.C.C. 19- “Minors are under eighteen 22.2(l)(b) children,
OS. include age. to In this unless otherwise 1— provided specified, it could have a similar definition the term ‘child’ means ‘minor’. children, previously Age of unborn as in the must be calculated from the first min existing ch. 12.1-17.1. ute of the on which day persons are born b. means an individual who corresponding “Child” minute
to the same eighteen is under minority.” period day completing coincide, years. to appear these definitions While inconsistent, we they are to the extent lenity lenity. The rule the rule of
apply addition, giv- expansive application In criminal statutes ambiguous “requires 14- majority en favor.” in a defendant’s be construed throughout “a child” 10-01 definition Laib, probate radically alter our code would 30.1, laws, well as other N.D.C.C. ch. as
provisions of code. III. legisla- Extensive review of We conclude re- history tive 19-03.1-22.2 PI to an unborn does not application 03.1-22.2 flects no discussion the district remand child. We reverse discussion focused legislative unborn. an opportunity allow Geiser living court order to primarily on the risk children charge guilty plea her methamphetamine withdraw and other dan- where endangerment of child. being produced were gerous substances Hearing on H.B. present.
were otherwise
WALLE,
VANDE
GERALD W.
and House
Joint Senate
MARING,
C.J.,
MUEHLEN
and MARY
Legis.
58th N.D.
Judiciary
JJ., concur.
2003)
(Jan. 22,
(testimony of Jonathan
General).
Attorney
In
Byers, Assistant
SANDSTROM, Justice,
spe-
concurring
*6
addition,
Legislative
the North Dakota
As-
cially.
sembly
specifically
has
excluded the moth-
majority
with the
that
I agree
application of
relat-
er from the
the statute
aside. Under
must
set
conviction
causing
the death of an
powers, it is
separation of
system
12.1-17.1-01(2).
unborn child. N.D.C.C.
to criminalize
not
role
Although statutory language dif-
clearly
not
made
legislature
has
what
fers,
overwhelming majority of
states
Mosbrucker,
v.
2008
criminal. State
question
that have looked at this
(Sandstrom, J.,
219, ¶42,
(1992); Richards v. 2005 WL State, 2138244; Collins v. S.W.2d 893 Dunn, v.
(Tex.Ct.App.1994); State (1996);
Wash.App. 916 P.2d J.Z.,
v. 228 Wis.2d N.W.2d 490 Carolina, Only South
(App.1999). looking specific language
at the its statute in
conjunction with its and the policy law, contrary reached a result. State, v.
Whitner 328 S.C. 492 S.E.2d (1997)
777, 779-80 (acknowledging that Carolina long recognized
South persons holding
viable fetuses are certain
legal and privileges, concluding “it recognize
would be absurd to the viable as a person
fetus of homicide and wrongful
laws statutes death but not the purposes proscribing statutes abuse”). Lenity requires deference
[¶ when scope
accused statute does Laib, clearly apply.
not
¶95, 15,
[¶ must
ment be reversed. CROTHERS, J., 29] DANIEL J.
concurs.
STATE Plaintiff Appellee Lynn FOREID,
Derek Defendant Appellant.
No. 20080128.
Supreme Court of Dakota. North
April