State v. Allen, Case No. S-2019-849

• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: HUDSON, JUDGE
• Citation: 492 P.3d 27
• Parties: STATE of Oklahoma, Appellant, v. Kelvin Wayne ALLEN & Tami Leann Ware, Appellees.
• Decision Date: 20 May 2021
• Docket Number: Case No. S-2019-849

492 P.3d 27

STATE of Oklahoma, Appellant,
v.
Kelvin Wayne ALLEN & Tami Leann Ware, Appellees.

Case No. S-2019-849

Court of Criminal Appeals of Oklahoma.

FILED MAY 20, 2021

APPEARANCES AT HEARING

KALI STRAIN, ASST. DISTRICT ATTORNEY, ROGERS COUNTY, 200 S. LYNN RIGGS BLVD, SECOND FLOOR, CLAREMORE, OK 74017, COUNSEL FOR THE STATE

KENT RYALS, P.O. BOX 114, VINITA, OK 74301, COUNSEL FOR DEFENDANT KELVIN WAYNE ALLEN

CLINTON M. WARD, 221 W. DELAWARE, VINITA, OK 74301, COUNSEL FOR DEFENDANT TAMI LEANN WARE

APPEARANCES ON APPEAL

KALI STRAIN, ASST. DISTRICT ATTORNEY, ROGERS COUNTY, 200 S. LYNN RIGGS BLVD, SECOND FLOOR, CLAREMORE, OK 74017, COUNSEL FOR APPELLANT

NO RESPONSE FROM APPELLEES

OPINION

HUDSON, JUDGE:

¶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 21 O.S.Supp.2014, § 843.5(C), and Conspiracy to Commit Child Neglect (Count 2), in violation of 21 O.S.2011, § 421. The State charged Tami Leann Ware, Appellee, by Information in the District Court of Craig County, Case No. CF-2018-26, with the same crimes, i.e., Child Neglect (Count 1) and Conspiracy to Commit Child Neglect (Count 2).

¶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 22 O.S.2011, § 1053(4). For the reasons discussed below, we reverse the District Court's ruling and remand for further proceedings.¹

¶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.

492 P.3d 29

remained at the hospital for five days during which she experienced symptoms of drug withdrawal. Based on A.W.'s condition, the State Department of Human Services placed A.W. into protective custody before the newborn ever left the hospital.

¶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...