Ankrom v. State (Ex parte Ankrom), 1110176
| Court | Supreme Court of Alabama |
| Writing for the Court | PARKER |
| Parties | Ex parte Hope Elisabeth Ankrom In re: Hope Elisabeth Ankrom v. State of Alabama Ex parte Amanda Helaine Borden Kimbrough In re: Amanda Helaine Borden Kimbrough v. State of Alabama |
| Docket Number | 1110219,1110176 |
| Decision Date | 11 January 2013 |
Ex parte Hope Elisabeth Ankrom
In re: Hope Elisabeth Ankrom
v.
State of Alabama
Ex parte Amanda Helaine Borden Kimbrough
In re: Amanda Helaine Borden Kimbrough
v.
State of Alabama
1110176
1110219
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2012-2013
DATED: January 11, 2013
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
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PARKER, Justice.
Hope Elisabeth Ankrom and Amanda Helaine Borden Kimbrough ("the petitioners") each petitioned this Court for a writ of certiorari to review the Court of Criminal Appeals' decisions in their cases. We granted the petitions and consolidated these cases, each of which presents the same issue of first impression for this Court's consideration: Whether the term "child" as used in § 26-15-3.2, Ala. Code 1975 ("the chemical-endangerment statute"), includes an unborn child. Concluding that it does and that the Court of Criminal Appeals reached
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the correct decision in both cases, we affirm the judgments of the Court of Criminal Appeals.
The Court of Criminal Appeals recounted the facts of Ankrom's case as follows in its opinion:
"At the guilty-plea hearing, the parties stipulated to the following facts:"'On January 31, 2009, the defendant, Hope Ankrom, gave birth to a son, [B.W.], at Medical Center Enterprise. Medical records showed that [Ankrom] tested positive for cocaine prior to giving birth and that the child tested positive for cocaine after birth."On February 18, 2009, Ankrom was arrested and charged with chemical endangerment of a child. On August 25, 2009, the grand jury indicted Ankrom. The indictment stated that Ankrom 'did knowingly, recklessly, or intentionally cause or permit a child, to-wit: [B.W.], a better description of which is to the Grand Jury otherwise unknown, to be
"'Department of Human Resources worker Ashley Arnold became involved and developed a plan for the care of the child. During the investigation [Ankrom] admitted to Ashley that she had used marijuana while she was pregnant but denied using cocaine.
"'Medical records from her doctor show that he documented a substance abuse problem several times during her pregnancy and she had tested positive for cocaine and marijuana on more than one occasion during her pregnancy.'
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exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in Section 13A-12-260 of the Code of Alabama, 1975, to-wit: Cocaine, in violation of Section [26-15-3.2(a)(1)].'
"On September 25, 2009, Ankrom filed a motion styled as a 'Motion to Dismiss Indictment.' In that motion, after setting forth the facts, Ankrom argued that '[t]he plain language of [§ 26-15-3.2, Ala. Code 1975,] shows that the legislature intended for the statute to apply only to a child, not a fetus'; that 'courts in other states which have enacted the same or similar chemical endangerment statutes have determined that such statutes do not apply to prenatal conduct that allegedly harms a fetus'; that '[t]he state's contention that the defendant violated this statute renders the law impermissibly vague, and therefore the rule of lenity applies'; that '[t]he legislature has previously considered amending the statute to include prenatal conduct that harms a fetus, and declined to do so'; that 'the defendant has not been accorded due process because there was no notice that her conduct was illegal under this statute'; that '[t]he prosecution of pregnant women is a violation of the constitutional guarantee of Equal Protection'; and that '[p]rosecution of pregnant, allegedly drug-addicted women is against public policy for numerous moral and ethical reasons.' The State responded to that motion on October 13, 2009. In the State's response, it agreed that on January 31, 2009, Ankrom gave birth to a son and that medical records showed that Ankrom tested positive for cocaine immediately prior to giving birth and that the child tested positive for cocaine after birth. Based on that conduct, the State argued that prosecution of Ankrom was proper under § 26-15-3.2, Ala. Code 1975. On October 15, 2009, the trial court denied Ankrom's motion.
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"On April 1, 2010, Ankrom pleaded guilty to a violation of § 26-15-3.2(a)(1), Ala. Code 1975."
Ankrom v. State, [Ms. CR-09-1148, Aug. 26, 2011] ___ So. 3d ___ (Ala. Crim. App. 2011). Ankrom was sentenced to three years in prison, but her sentence was suspended and she was placed on probation for one year. Ankrom, ___ So. 3d at ___. In its unpublished memorandum in Kimbrough v. State (No. CR-09-0485, Sept. 23, 2011), ___ So. 3d ___ (Ala. Crim. App. 2011) (table), the Court of Criminal Appeals recounted the facts of Kimbrough's case as follows:
"In September 2008, Amanda Helaine Borden Kimbrough was indicted for the chemical endangerment of a child that resulted in death, a violation of § 26-15-3.2(a)(3), Ala. Code 1975. The indictment stated:"'The grand jury of said county charge that, before the finding of the indictment, Amanda Helaine Borden Kimbrough, whose name is otherwise unknown to the Grand Jury than as stated, ... did knowingly, recklessly, or intentionally cause or permit a child, Timmy Wayne Kimbrough, to be exposed to, to ingest or inhale, or to have contact with a controlled substance, to wit: methamphetamine, and the exposure, ingestion, inhalation, or contact resulted in the death of Timmy Wayne Kimbrough, in violation of [§] 26-15-3.2 of the Code of Alabama [1975], against the peace and dignity of the State of Alabama.'
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"Kimbrough, through retained counsel, filed several pretrial motions, including four motions to dismiss the indictment. In her motions to dismiss, Kimbrough alleged: (1) that the term 'child' in § 26-15-3.2 did not include an unborn child, and therefore, her conduct in smoking methamphefamine while pregnant did not constitute the offense of the chemical endangerment of a child; (2) that prosecuting her for violating § 26-15-3.2 for conduct that occurred during her pregnancy when, she says, that conduct did not constitute the offense of chemical endangerment of a child, violated the doctrine of separation of powers; (3) that interpreting the term 'child' in § 26-15-3.2 to include an unborn child rendered the statute void for vagueness and violated her due-process right to notice that her conduct was proscribed; and (4) that interpreting the term 'child' in § 26-15-3.2 to include an unborn child violated her right to equal protection under the law. The trial court denied the motions without comment.
"Kimbrough initially proceeded to trial; however, after the trial court denied her motion for a judgment of acquittal at the close of the State's case, Kimbrough reached a plea agreement with the State, and the jury was dismissed. Pursuant to the plea agreement, Kimbrough pleaded guilty to the chemical endangerment of a child as charged in the indictment, and the trial court sentenced her to 10 years' imprisonment.
"Before entering her guilty plea, Kimbrough's counsel expressly reserved Kimbrough's right to appeal several issues, namely:"'Colbert County being improper venue and improper jurisdiction.
"'The constitutional issue with an unborn child is not covered by [§ 26-15-3.2, Ala. Code 1975].
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"'The denial of indigency status on her behalf for the purposes of expert witnesses. The plain language of this statute shows that the legislature intended the statute to apply only to a child and not an unborn child. This statute is vague and impermissibly vague. And the legislature has declined to pass a statute that would include an unborn child in this type of situation. And that [Kimbrough] has not been afforded due process because there was no notice to her that the conduct was illegal under the statute."The record reflects the following facts. Shortly before 10 a.m. on April 29, 2008, Kimbrough was admitted to the Helen Keller Hospital in Colbert County experiencing labor pains. She was 25 weeks and 5 days pregnant at the time. Her obstetrician, Dr. F.C. Gapultos, Jr., diagnosed her with preterm labor and 'occult cord prolapse,' a condition in which the umbilical cord descends through the birth canal before the fetus, resulting in the blood flow through the umbilical cord being cut off. Dr. Gapultos also ordered a urine drug screen on Kimbrough, which came back positive for methamphetamine. Both Dr. Gapultos and the biological father of Kimbrough's unborn child confronted her about using methamphetamine while
"'The prosecution of pregnant women is a violation of the constitution [sic] of the guaranty of equal protection. And the prosecution of a pregnant addicted woman is against public policy for ethical and morale [sic] reasons. And [Kimbrough] is not a re[sponsible] person as defined under the statute.
"'And anything else I objected to.'
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pregnant, but Kimbrough denied using methamphetamine while she was pregnant....
"A Caesarian section was performed on Kimbrough and, at approximately 1:21 p.m., she delivered a baby boy she named Timmy Wayne
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