Reinesto v. Superior Court of State In and For County of Navajo, 1

• Decision Date: 02 May 1995
• Docket Number: No. 1,CA-SA,1
• Citation: 894 P.2d 733,182 Ariz. 190
• Parties: , 63 USLW 2772 Teresa Lopez REINESTO, Petitioner, v. SUPERIOR COURT OF the STATE of Arizona, IN AND FOR the COUNTY OF NAVAJO, the Honorable William J. O'Neil, a judge thereof, Respondent Judge, State of Arizona, Real Party in Interest. 94-0348.
• Court: Arizona Court of Appeals

Page 733

894 P.2d 733

182 Ariz. 190, 63 USLW 2772

Teresa Lopez REINESTO, Petitioner, v. SUPERIOR COURT OF the STATE of Arizona, IN AND FOR the COUNTY OF NAVAJO, the Honorable William J. O'Neil, a judge thereof, Respondent Judge State of Arizona, Real Party in Interest.

No. 1 CA-SA 94-0348.

Court of Appeals of Arizona Division 1, Department C.

May 2, 1995.

[182 Ariz. 191] Myrna J. Parker, Navajo County Public Defender by Cindy L. Wagner, Deputy Public Defender, Holbrook, Center for Reproductive Law & Policy by Lynn M. Paltrow and Susan J. Weiler, New York City, for petitioner.

Grant Woods, Atty. Gen. by Linda L. Knowles, Asst. Atty. Gen., Crim. Appeals Section, Phoenix, for real party in interest.

Nat. Ass'n of Crim. Defense Lawyers and Ariz. Attorneys for Crim. Justice by Nancy Hollander, Albuquerque, Natman Schaye, Tucson, Dennis C. Jones, Phoenix, and Ariz. Civ. Liberties Union and Ariz. Right to Choose by Bendheim & Whitten, P.C., Alice L. Bendheim, Phoenix, and The Southern Ariz. Chapter of The Nat. Lawyers Guild by Gail M. Berkowitz, Tucson, for amicus curiae.

OPINION

McGREGOR, Judge.

The issue in this special action is whether the state can prosecute for child abuse a woman who uses heroin during pregnancy and thereafter gives birth to a heroin-addicted child. We accepted jurisdiction, concluded that Arizona's child abuse statute does not apply to the charged conduct, and ordered that the superior court dismiss the indictment against petitioner, with this opinion to follow.

I.

On July 14, 1993, the Navajo County grand jury indicted petitioner on one count of child abuse. According to testimony presented to the grand jury, petitioner gave birth to "Baby Jane" on July 2, 1993. ¹ Baby Jane, who tested positive for heroin and experienced heroin withdrawal symptoms, was placed in a special care facility, adopted by one of petitioner's relatives, and released from the hospital free of addictive symptoms when she was approximately one month old. The indictment alleged that, by ingesting heroin during her pregnancy, petitioner knowingly caused injury to a child under circumstances likely to produce death or serious physical injury in violation of Arizona Revised Statutes Annotated ("A.R.S.") section 13-3623.B.1, a class 2 felony.

Petitioner moved to dismiss or to remand for a redetermination of probable cause, alleging that the prosecutor did not adequately define "child" for the grand jury and that the legislature did not intend that a fetus would be regarded as a "child" under the statute. Petitioner further argued that she had not received fair warning that the statute applied to her conduct. The trial court denied both motions, concluding that whether the state could sanction petitioner for injuries allegedly caused by prenatal conduct occurring prior to the birth of her child presented a factual issue for the jury to decide. Petitioner then filed this special action. The trial court granted a stay of the proceedings pending resolution of the special action.

II.

A.

Generally, a special action is not an appropriate method to obtain review of an order denying a motion to dismiss. Vo v. Superior Court, 172 Ariz. 195, 198, 836 P.2d 408, 411 (App.1992). "However, where an issue is one of first impression of a purely legal question, is of statewide importance, and is likely to arise again, special action jurisdiction may be warranted." Id. Here, petitioner asks this court to interpret the child abuse statute, and the interpretation of a statute presents purely a question of law. Barry v. Alberty, 173 Ariz. 387, 389, 843 P.2d 1279, 1281 (App.1992). Moreover, this case is one of first impression and of statewide importance. We therefore exercise our discretion and accept jurisdiction of this special action to decide whether section 13-3623 applies to petitioner's conduct. See Arizona Rules of Procedure for Special Actions 1(a).

B.

The statute under which the state charged petitioner applies to "any person" who "[u]nder circumstances likely to produce death or serious physical injury ... causes a child ... to suffer physical injury...." A.R.S. § 13-3623.B. Section 13-3623.A defines a child as "an individual who is under eighteen years of age" and physical injury as "the impairment of physical condition ... or any physical condition which imperils health or welfare."

The state does not argue that the statutory reference to a "child" includes a fetus, an argument virtually foreclosed by our holding in Vo. ² The state does contend, however, that it can prosecute petitioner under the statute for prenatal conduct that caused Baby Jane injury after her birth. We disagree for several reasons.

First, the plain language of the statute does not support the state's argument. As we noted in Vo, "Arizona is a 'code state,' and this court is legislatively precluded from creating new crimes by expanding the common law through judicial decision." Vo, 172 Ariz. at 204, 836 P.2d at 417; see also State v. Womack, 174 Ariz. 108, 112, 847 P.2d 609, 613 (App.1992) ("Defining criminal behavior and establishing penalties for violating criminal laws are functions of the legislature, not the judiciary."). Only the legislature may create crimes. Thus, the court's function is limited to interpreting statutory language to determine what conduct the legislature has proscribed in light of its intent and the wording of a statute. See Womack, 174 Ariz. at 112, 847 P.2d at 613. In interpreting statutes, we must give words their fair meaning "to promote justice and effect the objects of the law...." A.R.S. § 13-104. When the meaning of a statute is unclear or subject to more than one interpretation, the rule of lenity requires us to resolve any ambiguity in favor of the defendant. Vo, 172 Ariz. at 200, 836 P.2d at 413; State v. Pena, 140 Ariz. 545, 549-50, 683 P.2d 744, 748-49 (App.1983), approved 140 Ariz. 544, 683 P.2d 743 (1984).

The plain language of section 13-3623 indicates that the legislature intended to proscribe conduct by any person that causes physical harm to a child. Applying the ordinary meaning of these words leads us to conclude that the statute refers to conduct that directly endangers a child, not to activity that affects a fetus and thereby ultimately harms the resulting child. As we discussed in Vo, when the legislature has intended to refer to an unborn child or fetus, the legislature has done so specifically. 172 Ariz. at 201, 836 P.2d at 414. For example, the manslaughter statute expressly prohibits "[k]nowingly or recklessly causing the death of an unborn child at any stage of its development by any physical injury to the mother of such child which would be murder if the death of the mother had occurred." A.R.S. § 13-1103. The legislature also has elected to use the death of an unborn child as an aggravating factor in criminal sentencing. See A.R.S. § 13-702.C.10. The legislature's specific decision to include a reference to an "unborn child" in these contexts and others ³ and to exclude such a reference under section 13-3623 indicates that the legislature did not intend that the child abuse statute apply to situations in which harm to a fetus subsequently affects the newborn. See Vo, 172 Ariz. at 201, 836 P.2d at 414; Pima County v. Heinfeld, 134 Ariz. 133, 134, 654 P.2d 281, 282 (1982).

Second, interpreting the statute as the state urges would be contrary to the accepted principle that criminal statutes focus on the conduct of the accused, not on the status of the alleged victim. The public policy of the state and the general purpose of the criminal code, as expressed by the legislature, are "[t]o proscribe conduct that unjustifiably and inexcusably causes or threatens substantial harm to individual or public interests," "[t]o give fair warning of the nature of the conduct proscribed and of the sentences authorized upon conviction," and "[t]o impose just and deserved punishment on those whose conduct threatens the public peace." A.R.S. § 13-101 (emphasis added). If we adopt the state's position, we would be focusing not on petitioner's conduct of ingesting heroin--conduct for which the state brought no criminal charge--but rather on the child's status as heroin-addicted.

We agree with petitioner that, were we to interpret A.R.S. section 13-3623 to reach the conduct on which this prosecution is based, we would offend due process notions of fundamental fairness and render the statute impermissibly vague. Due process requires "that criminal offenses be defined in terms sufficient to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle for the requirement is that no person should be required, at the risk of his liberty, to speculate as to the meaning of a criminal statute." State v. Limpus, 128 Ariz. 371, 375, 625 P.2d 960, 964 (App.1981) (citations omitted). Because the statutory reference to "child" does not include a fetus, petitioner could not reasonably have known she could be prosecuted for child abuse because of her prenatal conduct. See Georgia v. Luster, 204 Ga.App. 156, 419 S.E.2d 32, 34 (1992) (pregnant woman could not have known use of illegal drugs that affected the fetus could subject her to criminal prosecution).

Accepting the state's interpretation also would render the statute vague. The conduct prohibited by A.R.S. section 13-3623 is conduct likely to produce death or serious physical injury to a child. Were we to extend the statute to prenatal conduct that affects a fetus in a manner apparent after birth--conduct that would be defined solely in terms of its impact on the victim--the boundaries of proscribed conduct would become impermissibly broad and ill-defined.

Many types of prenatal conduct can harm a fetus, causing physical or mental abnormalities in a newborn. For example, medical researchers have stated that smoking during pregnancy may cause, among other problems, low birth weight, which is...