State v. Cervantes

• Decision Date: 23 December 2009
• Docket Number: A130129.,05FE0735ST
• Citation: 232 Or. App. 567,223 P.3d 425
• Parties: STATE of Oregon, Plaintiff-Appellant, v. Mary Lou CERVANTES, Defendant-Respondent.
• Court: Oregon Court of Appeals

223 P.3d 425

232 Or. App. 567

STATE of Oregon, Plaintiff-Appellant, v. Mary Lou CERVANTES, Defendant-Respondent.

05FE0735ST;

A130129.

Court of Appeals of Oregon, En Banc.

Argued and Submitted September 26, 2008.

Resubmitted En Banc June 17, 2009.

Decided December 23, 2009.;

Jonathan H. Fussner, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Mary Shannon Storey, Deputy Public Defender, argued the cause for respondent. With her on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Before BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, SCHUMAN, ORTEGA, ROSENBLUM, SERCOMBE, Judges, and CARSON, Senior Judge.

BREWER, C.J.

In this pretrial appeal, the state assigns error to the trial court's allowance of defendant's demurrers to three charges: causing another person to ingest a controlled substance, former ORS 475.984 (2003), renumbered as ORS 475.908 (2005); unlawful application of a controlled substance to a minor, former ORS 475.986 (2003), renumbered as ORS 475.910 (2005); and recklessly endangering another person, ORS 163.195.¹ As explained below, the state is not in a position to obtain reversal as to the first two charges. As to the third charge, recklessly endangering another person, we conclude that the trial court properly allowed defendant's demurrer. Accordingly, we affirm the trial court's decision.

As pertinent to the issues raised on appeal, the indictment provided:

"(Count 1—ORS 475.984) That the said defendant, on or about the 19th day of July 2004, in Deschutes County, Oregon, did knowingly cause another person to ingest, other than by administering or dispensing, a controlled substance or a controlled substance analog without consent of the other person. The State further alleges that this count is a separate and distinct criminal act from all other counts. The State further alleges that the following aggravating conditions were present: deliberate cruelty was involved; there was harm or loss significantly greater than typical; a vulnerable victim was involved; the victim sustained permanent injury.

"(Count 2—ORS 475.986) That the said defendant, on or about the 19th day of July 2004, in Deschutes County, Oregon, did unlawfully and intentionally apply METHAMPHETAMINE, a Schedule II controlled substance, to the body of [EH], a person under 18 years, by means other than injection, inhalation or ingestion[.]

The State further alleges that this count is a separate and distinct criminal act from all other counts. The State further alleges that the following aggravating conditions were present: deliberate cruelty was involved; there was harm or loss significantly greater than typical; a vulnerable victim was involved; the victim sustained permanent injury.

"(Count 3—ORS 163.195) That the said defendant, on or about the 19th day of July 2004, in Deschutes County, Oregon, did unlawfully and recklessly create a substantial risk of serious physical injury to [EH] BY INGESTING METHAMPHETAMINE THAT WOULD BE PASSED TO [EH] UPON HER BIRTH[.] The State further alleges that this count is a separate and distinct criminal act from all other counts."

Before trial, defendant filed what she characterized as a "motion to dismiss" the first two counts, asserting that "[t]he facts, as set forth in the State's discovery, are not sufficient to convict." In particular, she argued that the state's theory of the case as to the first two counts was based on evidence that defendant ingested methamphetamine while the alleged victim, EH, was a fetus in defendant's womb and that methamphetamine was passed to the fetus via the umbilical cord and continued to be passed in the moments after EH was born but before the umbilical cord was severed. She argued that the legislature did not intend former ORS 475.984 or former ORS 475.986 to apply to such facts and that, if the legislature did so intend, those statutes are unconstitutional as applied to such facts as these under various provisions of the state and federal constitutions. Defendant also filed a demurrer to count 3 of the indictment, arguing that, as alleged, the indictment failed to state a crime because a fetus is not a "person" for purposes of ORS 163.195 and that, if the statute did apply to the facts as alleged, it would be unconstitutional under various state and federal constitutional provisions. The state filed written responses on the merits to both of defendant's motions.

The trial court held a hearing on the motions described above, as well as additional pending motions, taking evidence that indicated that the state's theories on the first two counts were, in fact, as defendant assumed—that defendant passed drugs to EH "during the period of time after [EH] was born and was no longer in the womb and before the umbilical cord was cut." As to the third charge, reckless endangerment, the court asked the prosecutor:

"[A]re you saying that Count 3 requires that [defendant] provides drugs to her child after the child is born, or are you saying it was the, it was [defendant's] act of taking the drugs while the child was, was unborn and the drugs entering the child's body while it was unborn which created a substantial risk of serious physical injury to the baby after it was born?"

The prosecutor responded:

"I think it's a little bit of both, Your Honor. Because the way the State is looking at this is that it is, she, she takes the controlled substance when the child is not a person, a person for purposes of criminal law. But those substances still, still passed, are still passed into that child upon birth before that umbilical cord is cut. * * * [T]he state has to prove that it is a person that's being placed in the risk of serious physical injury. So it has to be at the time of birth."

At that point in the hearing, the court began to consider whether it was appropriate to be looking at factual issues, noting that criminal procedure did not, in essence, provide for summary judgment procedures. Defense counsel responded by suggesting that the court did not need to decide disputed facts but could simply view the anticipated evidence in the light most favorable to the state. Both parties then proceeded to argue the merits of defendant's motions. The court then asked counsel whether the issues raised by defendant were "appropriately raised now under this pleading, which doesn't talk anything about in Counts 1 and 2, prenatal use of methamphetamine," and asked counsel for further argument on that issue.

When the court reconvened, it noted that the "motion to dismiss" filed by defendant concerning the first two charges was based on an argument that the facts as set forth in the state's discovery were not sufficient to convict, and it denied that motion, noting that it was the equivalent of a summary judgment motion, which does not exist in criminal cases. The court went on, however, to suggest that defendant's constitutional arguments concerning those charges "can be raised by demurrer" and "probably should have been by demurrer." Defendant then moved to amend her motion and "to proceed as a demurrer to Counts 1 and 2 on the basis of the constitutional grounds as set forth and argued and laid out in the body of the memoranda." The court asked the prosecutor if she had any objection, and she responded, "Your Honor, the State has no, no objection. We have an interest in having the constitutional issues resolved here."

The court then proceeded to rule on defendant's demurrer to all three charges. Specifically, as to the first two charges, the court noted that a fetus is not a "person" under Oregon law, and that having methamphetamine in one's body is not a crime in Oregon and "only arguably becomes unlawful subsequently and then only if and when the child is born and then only if mother still has methamphetamine in their system and some of that methamphetamine passes to the newborn after the child is born and before the umbilical cord is severed." The court went on to note that crimes require a "voluntary act," ORS 161.095, that neither former ORS 475.984 nor former ORS 475.986 criminalized consuming methamphetamine, yet that was the only "voluntary act" that the state would attempt to prove. The court concluded that, instead, "it is the delivery through the umbilical cord after birth that the State attempts to punish" and that the flow of blood through an umbilical cord was not a knowing or intentional act. Thus, the court concluded, former ORS 475.984 and former ORS 475.986 were unconstitutional as applied, because "a person of reasonable intelligence would not know that these statutes prohibited defendant's alleged conduct."

As for Count 3, reckless endangerment, the court noted that the pertinent allegation in the indictment was that defendant had ingested methamphetamine that "would be passed to" EH "upon her birth." The court, based on the parties' agreement on the definition of "person" as found in ORS 163.005(3) (a "person" is one who "has been born and was alive at the time of the criminal act"), concluded that the named victim was not yet a living person when the voluntary act (ingestion of drugs) occurred and that the named victim who was not a "person" at that time "was the only one who could possibly have been endangered, i.e., for whom a risk of serious physical injury could have been created by defendant's prenatal drug use." Therefore, the court concluded, because no act was alleged to have occurred after the only possible victim became a "person," no crime was alleged.

The state appealed the court's pretrial demurrer rulings, arguing that, as a matter of substantive law, the court was incorrect. Defendant responded by arguing that, as a matter of substantive law, the court was correct. In their arguments with respect to the charges alleged in Counts 1 and 2, the...