State v. Cotton

• Decision Date: 16 May 2000
• Docket Number: No. 1 CA-CR 99-0180.,1 CA-CR 99-0180.
• Parties: STATE of Arizona, Appellee, v. Lawrence Ebeneza COTTON, Appellant.
• Court: Arizona Court of Appeals

5 P.3d 918

197 Ariz. 584

STATE of Arizona, Appellee, v. Lawrence Ebeneza COTTON, Appellant.

No. -0180.

Court of Appeals of Arizona, Division 1, Department A.

May 16, 2000.

Janet A. Napolitano, Arizona Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, and Jacquelyn B. Eskay, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Dean W. Trebesch, Maricopa County Public Defender by James Haas, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

BERCH, Judge.

¶ 1 On August 14, 1997, Defendant Lawrence Cotton accidently shot his girlfriend, L.W., in the back of the head. L.W. was eight and one-half months pregnant at the time. Although L.W. died shortly after arriving at the hospital, her daughter was delivered alive. But the fatal injury to L.W. had so decreased the blood supply to the baby that the infant died the following day.

¶ 2 The State charged Cotton with two counts of reckless second degree murder. The jury, however, found Cotton guilty of two lesser-included counts of reckless manslaughter. See Ariz.Rev.Stat. Ann. ("A.R.S.") § 13-1103(A)(1) (Supp.1999-2000). Cotton appeals, raising two issues:

1. Did the trial court err in concluding that the Arizona homicide statutes apply to the killing of a newborn infant when the death results from injuries inflicted in utero?

2. Did the trial court err in defining reasonable doubt as required by State v. Portillo?

Finding no error, we affirm Cotton's convictions and sentences.

A. Application of Homicide Statutes

¶ 3 Cotton's appeal raises an issue of first impression: whether a newborn child who dies from injuries inflicted while the child was in utero is a "person" within the meaning of Arizona's homicide statutes.

¶ 4 Arizona's second degree murder statute provides in relevant part that a person commits murder if "without premeditation... [and] [u]nder circumstances manifesting extreme indifference to human life, such person recklessly engages in conduct which creates a grave risk of death and thereby causes the death of another person." A.R.S. § 13-1104(A)(3) (Supp.1999-2000) (emphasis added). The manslaughter statute under which Cotton was convicted states that a person commits manslaughter by "[r]ecklessly causing the death of another person." A.R.S. § 13-1103(A)(1) (emphasis added). For purposes of these homicide statutes, "`[p]erson' means a human being," a definition we find not particularly elucidating. A.R.S. § 13-1101(3) (Supp.1999-2000).

¶ 5 On appeal, Cotton argues that Arizona's homicide statutes do not apply when the harm resulting in the infant's death occurred while the infant was still in utero. In other words, according to Cotton, because the injury in this case was inflicted on a fetus, the victim was not a "person" within the meaning of the homicide statutes.

¶ 6 In construing statutes, we give words their plain and ordinary meaning, unless the legislature has clearly expressed an intent to give a term special meaning. See State v. Mahaney, 193 Ariz. 566, 568, ¶ 12, 975 P.2d 156, 158 (1999). When the Arizona Legislature revised the criminal code in 1978, the drafters abolished all common law crimes and provided that "[n]o conduct or omission constitutes an offense unless it is an offense under this title or under another statute or ordinance." A.R.S. § 13-103 (1989).¹ Although there are no longer common law crimes in Arizona, the legislature continued in force the established common law meanings of terms used in the criminal statutes. See Vo v. Superior Court, 172 Ariz. 195, 200, 836 P.2d 408, 413 (1992).

¶ 7 Under the common law, only a person "born alive" can be the victim of murder. See id. Thus, the commonly accepted meaning of the terms "person" and "human being" in defining the crime of murder at the time the legislature adopted the current criminal code did not include a fetus, but did include a person who was born alive.² See id.

¶ 8 To support his argument that he could not be charged with murder of the infant in this case, Cotton relies primarily on this Court's decisions in Vo and Reinesto v. Superior Court, 182 Ariz. 190, 894 P.2d 733 (1995). Finding those cases distinguishable, we affirm Cotton's conviction for manslaughter of the infant.

¶ 9 In Vo, we concluded that the legislature did not intend to include "fetus" within the definition of "person" as the latter term is used in Arizona's first degree murder statute. 172 Ariz. at 202, 836 P.2d at 415. We therefore held that the trial court should have dismissed murder charges against the defendants for the death of a fetus that occurred after one of the defendants shot the pregnant mother. See id. at 206, 836 P.2d at 419. We reasoned that, in enacting the statute, the legislature had not expressed an intent to deviate from the common law principle that only persons "born alive" could be the victims of homicide. See id. at 200, 836 P.2d at 413.

¶ 10 We also found support for our conclusion in Vo in the fetal manslaughter statute, A.R.S. § 13-1103(A)(5) (Supp.1999-2000), which, by defining the killing of an unborn child as a separate offense from the killing of a "person," evidenced a legislative determination that a fetus was not to be considered a person within the meaning of the murder statute. 172 Ariz. at 201, 836 P.2d at 414;³ see also State v. Brewer, 170 Ariz. 486, 508, 826 P.2d 783, 805 (1992) (holding that defendant could not be charged with first degree murder of fetus in light of fetal manslaughter statute). We noted that where the legislature has intended to refer to an unborn child or fetus, it has done so specifically. See Vo, 172 Ariz. at 201, 836 P.2d at 414. We interpreted its failure to list a fetus as a "person" as evidence that the legislature did not intend to include a fetus as a victim under the homicide statute.

¶ 11 Cotton urges us to extend the reasoning in Vo. He maintains that his action in causing harm to a pregnant woman that fatally injured her child was like that of the defendants in Vo. He therefore reasons that, if it was not murder for the Vo defendants to cause the death of an unborn child, it similarly should not be murder or manslaughter for him to have harmed a fetus who later died of her injuries after birth. The flaw in Cotton's reasoning is that Cotton caused the death not of a fetus, but of a child who had been born. We therefore find Vo distinguishable and decline to extend it. Indeed, we find that Vo recognized the continuing vitality of the "born alive" rule, a conclusion that undermines Cotton's contention and supports the conviction here.

¶ 12 Cotton also relies upon this Court's decision in Reinesto, 182 Ariz. at 192, 894 P.2d at 735. In that case, a woman's heroin use during pregnancy resulted in the birth of a baby who tested positive for heroin and experienced withdrawal symptoms. See id. at 191, 894 P.2d at 734. The State prosecuted her for child abuse. See id. We held that the child abuse statute did not apply to harm to a fetus that affects the child after birth because the statute proscribes only "conduct that directly endangers a child, not ... activity that affects a fetus and thereby ultimately harms the resulting child." Id. at 192, 894 P.2d at 735. Cotton maintains that this describes his conduct: The gunshot to L.W. was an act that affected a fetus and thereby harmed the resulting child and, therefore, based upon the reasoning in Reinesto, he should not be chargeable with murder.

¶ 13 The Reinesto holding, however, was strictly limited to the child abuse statutes at issue in that case. The Court noted that many prenatal maternal choices, such as having a baby late in life, drinking caffeinated coffee, smoking cigarettes, or not taking vitamins, might result in harm to the infant. See id. at 193-94, 894 P.2d at 736-37. Thus, although some of the language in Reinesto appears to support Cotton's position, the case fairly read does not because it focuses on voluntary acts or choices by the mother that relate to her health or well-being. See also Cuellar v. Texas, 957 S.W.2d 134, 140 (Tex. App.1997) (declining to apply holding of case similar to Reinesto to intoxication manslaughter resulting from automobile collision); Kentucky v. Welch, 864 S.W.2d 280 (Ky.1993) (holding that woman could not be prosecuted for child abuse for drug use while pregnant).

¶ 14 Finally, Cotton claims that the fetal manslaughter statute might have applied to this case.⁴ Relying on the reasoning in Vo, Cotton contends that the statute reflects a legislative determination that the State's other homicide statutes should not apply to situations in which fatal injuries are inflicted on a fetus, even if death does not result until after the child is born. We disagree.

¶ 15 By its terms, the fetal manslaughter statute applies only to the killing of an unborn child. It reflects a legislative decision to afford protection to unborn children that was not available under traditional homicide statutes because of the common law born alive rule. See Vo, 172 Ariz. at 203 n. 8, 836 P.2d at 416 n. 8 (discussing legislative responses of other states to cases recognizing born alive rule).⁵ Absent any legislative history to the contrary, we presume that the legislature's adoption of section 13-1103(A)(5) merely reflects a desire to afford greater protection to the unborn fetus than was available under common law, not less protection to a child who, despite the homicidal conduct of another, happens to survive past birth.⁶

¶ 16 That the shooting in this case occurred while the infant was in utero does not preclude her post-birth status as a "person" for purposes of Arizona's homicide statutes. While the homicide statutes require that the victim be a "person," they do not limit the nature or timing of the injury that causes the death of the "person." Additionally, the statutes do not require that all the elements of the offenses be immediately satisfied at the time of the defendant's...