State v. Geiser

• Citation: 2009 ND 36,763 N.W.2d 469
• Decision Date: 02 April 2009
• Docket Number: No. 20080120.,20080120.
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Michelle GEISER a/k/a Michelle Behles, Defendant and Appellant.
• Court: North Dakota Supreme Court

763 N.W.2d 469

2009 ND 36

STATE of North Dakota, Plaintiff and Appellee v. Michelle GEISER a/k/a Michelle Behles, Defendant and Appellant.

No. 20080120.

Supreme Court of North Dakota.

April 2, 2009.

Ladd R. Erickson (argued), State's Attorney, Washburn, ND, for plaintiff and appellee.

Thomas J. Glass (argued), Bismarck, ND, for defendant and appellant.

Thomas A. Dickson, Dickson Law Office, Bismarck, ND, and Tiloma Jayasinghe and Lynn M. Paltrow, National Advocates for Pregnant Women, New York, NY, on brief for amicus curiae defendant and appellant.

KAPSNER, Justice.

[¶ 1] Michelle Geiser ("Geiser") appeals from a district court order denying her motion to dismiss the charge of endangerment of a child. We hold the district court erred by concluding the charge of endangerment of a child applies to an unborn child. We reverse and remand to allow Geiser the opportunity to withdraw her guilty plea to the charge of endangerment of a child.

I.

[¶ 2] On or about September 24, 2007, Geiser allegedly overdosed on prescription drugs. At this time, she was approximately 29 weeks pregnant. Geiser was taken by ambulance to Medcenter One in Bismarck, North Dakota. The State asserts the alleged overdose resulted in the demise of the unborn child.

[¶ 3] The State charged Geiser with the following offenses, alleging they occurred on or about September 24, 2007: possession of a controlled substance in violation of N.D.C.C. § 19-03.1-23; ingesting a controlled substance in violation of N.D.C.C. § 19-03.1-22.3; and endangerment of a child or vulnerable adult in violation of N.D.C.C. § 19-03.1-22.2.

[¶ 4] Geiser filed a motion to dismiss the charge of endangerment of a child or vulnerable adult. Geiser asserted the term "child" means an individual under the age of eighteen years and does not include an unborn child. The State resisted Geiser's motion. The State contended the term "child" includes a viable unborn child.

[¶ 5] The district court denied Geiser's motion to dismiss. In its order, the district court relied on Hopkins v. McBane, 359 N.W.2d 862, 865 (N.D.1984), in which this Court held a wrongful-death action may be brought against one whose tortious conduct causes the death of a viable unborn child. The district court also relied on Whitner v. State of South Carolina, 328 S.C. 1, 492 S.E.2d 777, 780 (1997), in which the Supreme Court of South Carolina determined a viable fetus is a person for the purpose of a statute proscribing child abuse. The district court noted Whitner is the minority view opinion and held:

Because North Dakota has recognized a viable unborn child as a human being or person which has life, it would be inconsistent to construe a viable unborn child as a human being or person for the purposes of imposing civil liability while refusing to give it a similar classification in the criminal context.

Geiser entered a conditional plea of guilty to the charge of endangerment of a child or vulnerable adult under N.D.R.Crim.P. 11(a)(2), reserving her right to appeal the district court's denial of her motion to dismiss.

II.

[¶ 6] The issue before this Court is whether the charge of endangerment of a child or vulnerable adult applies to an unborn child. This issue is one of statutory interpretation. "The interpretation of a statute is a question of law, fully reviewable on appeal." Grey Bear v. N.D. Dep't of Human Servs., 2002 ND 139, ¶ 7, 651 N.W.2d 611 (quoting Olander Contracting Co. v. Gail Wachter Invs., 2002 ND 65, ¶ 43, 643 N.W.2d 29).

[¶ 7] The State charged Geiser under N.D.C.C. § 19-03.1-22.2(2), which provides:

Unless a greater penalty is otherwise provided by law, a person who knowingly or intentionally causes or permits a child or vulnerable adult to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in subsection 1, is guilty of a class C felony.

Section 19-03.1-22.2(1)(b), N.D.C.C., states for the purposes of this section, "`[c]hild' means an individual who is under the age of eighteen years."

A.

[¶ 8] When interpreting statutes, this Court has a duty to ascertain the Legislature's intent. Singha v. N.D. State Bd. of Medical Examiners, 1998 ND 42, ¶ 16, 574 N.W.2d 838 (citing County of Stutsman v. State Hist. Soc'y, 371 N.W.2d 321, 325 (N.D.1985)). "The Legislature's intent initially must be sought from the language of the statute as a whole." Id. (citing County of Stutsman, 371 N.W.2d at 325). This Court construes the words in a statute in their plain, ordinary, and commonly understood sense. N.D.C.C. § 1-02-02; Singha, 1998 ND 42, ¶ 16, 574 N.W.2d 838 (citing County of Stutsman, 371 N.W.2d at 327).

[¶ 9] The State contends, "a plain reading of the statute supports a finding that a `child' includes the child at issue in this case and if the [L]egislature disagrees [it has] every ability to say so." Section 19-03.1-22.2(1)(b), N.D.C.C., provides "`[c]hild' means an individual who is under the age of eighteen years." Rather than a "plain reading" of the statute, the State is urging an interpretation that is more expansive than the definition of a "child" contained in the plain language of N.D.C.C. § 19-03.1-22.2(1)(b). We, therefore, review extrinsic evidence to further interpret and construe the statute and determine whether that expansive interpretation is consonant with legislative intent.

B.

[¶ 10] One type of extrinsic evidence we use to interpret statutes is legislative history. State v. Leppert, 2003 ND 15, ¶ 16, 656 N.W.2d 718 (citing County of Stutsman, 371 N.W.2d at 325). The legislative history of N.D.C.C. § 19-03.1-22.2 does not indicate that the Legislature intended the statute to apply to unborn children. Hearing on H.B. 1351 Before the House Judiciary Comm., 58th N.D. Legis. Sess. (Jan. 22, 2003).

[¶ 11] The legislative history explains N.D.C.C. § 19-03.1-22.2 was modeled after a Utah statute. Hearing on H.B. 1351 Before the Joint Senate and House Judiciary Comms., 58th N.D. Legis. Sess. (Jan. 22, 2003) (testimony of Jonathan Byers, Assistant Attorney General). Utah's child endangerment statute provides: "`Child' means the same as that term is defined in Subsection 76-5-109(1)(a)." Utah Code Ann. § 76-5-112.5(1)(b). Section 76-5-109(1)(a), Utah Code Ann., states: "`Child' means a human being who is under 18 years of age." While the Utah Court of Appeals and Supreme Court of Utah have discussed Utah's child endangerment statute, neither court has analyzed whether the statute applies to an unborn child. See State v. Gallegos, 2007 UT 81, ¶ 9, 171 P.3d 426; State v. Nieberger, 2006 UT App. 5, ¶¶ 8, 9, 128 P.3d 1223, overruled by Gallegos, 2007 UT 81, 171 P.3d 426; State v. Draper, 2006 UT App. 6, ¶ 1, 128 P.3d 1220; State v. Atencio, 2004 UT App. 93, ¶¶ 2, 7, 89 P.3d 191.

C.

[¶ 12] This Court has held: "When the plain language of a statute is not `transparent,' our codified rules of statutory interpretation direct us to look to the Code itself in determining the meaning of statutory terms." N. X-Ray Co., Inc. v. State ex rel. Hanson, 542 N.W.2d 733, 735 (N.D. 1996) (citing N.D.C.C. § 1-02-02). We review other provisions of the code to assist in the interpretation of N.D.C.C. § 19-03.1-22.2(1)(b).

[¶ 13] Section 14-10-01, N.D.C.C., states: "Minors are persons under eighteen years of age. In this code, unless otherwise specified, the term `child' means `minor'. Age must be calculated from the first minute of the day on which persons are born to the same minute of the corresponding day completing the period of minority." Geiser asserts N.D.C.C. § 14-10-01, clearly establishes that: "`child' means a person who is a `minor', whose existence and age is reckoned from the first minute of the day on which the person is born." The State contends if the Legislature intended "child" and "minor" to mean the same thing, it could have used the word "minor." However, N.D.C.C. § 14-10-01, provides: "In this code, unless otherwise specified, the term `child' means `minor.'" Therefore, whether the Legislature used the word "child" or "minor" is irrelevant, because the terms are equivalent. Additionally, the State asserts if the Legislature wanted N.D.C.C. § 14-10-01 to apply to N.D.C.C. § 19-03.1-22.2, it could have provided a cross reference to N.D.C.C. § 14-10-01, or it could have expressly stated so. However, N.D.C.C. § 14-10-01 expressly applies to the entire code unless otherwise specified; therefore, a cross reference to N.D.C.C. § 14-10-01 would be unnecessary and redundant. The Legislature has provided that the age of a child is calculated from the day on which the child is born. N.D.C.C. § 14-10-01. An unborn child is not a child or minor according to N.D.C.C. § 14-10-01, and an unborn child is not a child under N.D.C.C. § 19-03.1-22.2(1)(b).

[¶ 14] Section 14-10-15, N.D.C.C., states: "A child conceived but not born is to be deemed an existing person so far as may be necessary for its interests in the event of its subsequent birth." This Court discussed N.D.C.C. § 14-10-15 in Hopkins, 359 N.W.2d at 864. In Hopkins, the issue before this Court was whether North Dakota's wrongful-death statute authorized a wrongful-death action on behalf of a viable unborn child. Id. at 863. To determine whether the statute applied to the viable unborn child, this Court had to determine "whether or not the stillbirth of a child constitutes the `death of a person' for purposes of applying [the wrongful-death statute]." Id. at 864.

[¶ 15] This Court in Hopkins held:

The purpose of [N.D.C.C. § 14-10-15] is to ensure and to protect the interests of a child subsequent to its conception but prior to its birth. We believe that it would be inconsistent with that purpose to construe the section as a provision of limitation which denies "person" status to a stillborn child for purposes of applying the wrongful-death statute.

Id. This Court determined the wrongful-death statute authorized a claim to be...