State v. Coleman

• Citation: 705 N.E.2d 419,124 Ohio App.3d 78
• Decision Date: 23 December 1997
• Docket Number: No. 97APA06-795,97APA06-795
• Parties: The STATE of Ohio, Appellee, v. COLEMAN, Appellant. *
• Court: United States Court of Appeals (Ohio)

Page 78

124 Ohio App.3d 78

705 N.E.2d 419

The STATE of Ohio, Appellee, v. COLEMAN, Appellant. ^*

No. 97APA06-795.

Court of Appeals of Ohio Tenth District, Franklin County.

Decided Dec. 23, 1997.

Ronald J. O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, Columbus, for appellee.

Judith M. Stevenson, Franklin County Public Defender, and Paul Skendelas, Assistant Public Defender, Columbus, for appellant.

CLOSE, Judge.

Defendant-appellant, Wayne Coleman, appeals from a judgment of the Franklin County Court of Common Pleas, based on a judgment and sentence for the offense of manslaughter regarding the unlawful termination of a pregnancy. For the reasons stated below, the judgment of the trial court is affirmed.

Appellant was indicted on single counts of each of the following: murder, for purposely causing the termination of Olivia Williams's pregnancy; involuntary manslaughter, for causing the unlawful termination of Olivia Williams's pregnancy as a proximate result of committing or attempting to commit a felony of domestic violence or felonious assault; felonious assault; domestic violence; and kidnapping. All counts stem from an incident involving Olivia Williams and her child by appellant. On motion, appellant sought to have those portions of the indictment, charging him with committing offenses involving the unlawful termination of Williams's pregnancy, dismissed. The motion was overruled. Subsequently, no contest pleas were entered to involuntary manslaughter and felonious assault. Sentence was imposed accordingly.

Appellant brings the following single assignment of error:

"The trial court erred in failing to grant the defense motion to dismiss portions of the indictment on the grounds that the statute proscribing the unlawful termination of pregnancy is unconstitutional."

Historically, there was no protection in the Criminal Code for unborn children unless they were subsequently born alive. State v. Dickinson (1971), 28 Ohio St.2d 65, 57 O.O.2d 255, 275 N.E.2d 599. The word "person" was strictly construed in criminal statutes. Am.Sub.S.B. No. 239 ("S.B. 239"), which was effective June 19, 1996, expanded the definition of "persons" for purposes of the Criminal code to include an unborn human. R.C. 2901.01(B)(1)(a)(ii).

The effect of this statute was to make unborn children "persons" under the law, as well as those subsequently born alive. The bill also created a criminal liability for those causing the "unlawful termination of another's pregnancy or another's unborn." Unlawful termination of another's pregnancy is defined as "causing the death of an unborn member of the species homo sapiens, who is or was carried in the womb of another, as a result of injuries inflicted during the period that begins with fertilization and that continues unless and until live birth occurs." R.C. 2903.09(A).

In so doing, the General Assembly excepted consensual abortions, pregnant women, and, in some circumstances, their physicians. In the case at hand, after appellant beat Williams, including kicks to the stomach, he refused her permission to go to the hospital. When she did seek medical help, the embryo was dead. On the day of the beating, Williams had been examined earlier that morning and the heartbeat of the child was heard.

Initially, we are asked to address the issue raised by appellant's motion to dismiss that portion of the indictment which includes the unlawful termination of pregnancy or causing serious physical harm to another's unborn, thereby raising his facial challenge to the "overbreadth" of S.B. 239. A facial challenge to a legislative act is the most difficult to mount successfully, since the challenger must establish that no set of circumstances exists under which the act would be valid. United States v. Salerno (1987), 481 U.S. 739, 749, 107 S.Ct. 2095, 2102-2103, 95 L.Ed.2d 697, 710. A facial challenge to this statute must fall simply because, as appellant concedes, the state may prosecute and punish offenses committed after viability. Since the statute may be constitutional in some of its applications, a facial challenge would ordinarily be rejected. Id. To support a facial constitutional challenge, appellant must show that the punishment accorded for involuntary manslaughter would be cruel and unusual under every set of circumstances to which the statute is applicable. Id.

The whole substance thereafter of appellant's argument is that the state cannot define the termination of an unborn child as a homicide unless the unborn is viable. A substantive due process claim requires the denial of a fundamental liberty interest. Washington v. Glucksberg (1997), 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772. There is no interest identified here that is fundamental under the standards applied. Quite simply, there never has been any notion that a third party, as appellant here, has a fundamental liberty interest in terminating another's pregnancy.

The Ohio Supreme Court also acknowledged, in State v. Gray (1992), 62 Ohio St.3d 514, 516, 584 N.E.2d 710, 711-712, that the protection of an unborn child is for legislative resolution. There is simply no fundamental right to cause harm to another, whether living or not living. The main thrust of appellant's argument appears to be that, pursuant to Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, the General Assembly has no legitimate interest in protecting pre-viable fetal life. The Roe court, itself, stated at 162, 93 S.Ct. at 731, 35 L.Ed.2d at 182, that the state had an "important legitimate interest in protecting the potentiality of human life." The Roe court, most importantly, addressed only the issue of a woman's decision of whether or not to terminate her pregnancy. It had nothing to do with the right of a third party to make that decision to terminate.

The United States Supreme Court went further in Planned Parenthood v. Casey (1992), 505 U.S. 833, 846, 112 S.Ct. 2791, 2804, 120 L.Ed.2d 674, 694, stating that "the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child." Roe protects a woman's constitutional right. It does not protect a third party's unilateral destruction of a fetus. State v. Merrill (Minn.1990), 450 N.W.2d 318. Roe gave women a fundamental right to terminate a pregnancy; however, that right does not translate into a fundamental right of a third person to use...