State v. Gray

• Citation: 584 N.E.2d 710,62 Ohio St.3d 514
• Decision Date: 12 February 1992
• Docket Number: No. 90-1986,90-1986
• Parties: The STATE of Ohio, Appellant, v. GRAY, Appellee.
• Court: Ohio Supreme Court

Page 514

62 Ohio St.3d 514

584 N.E.2d 710

The STATE of Ohio, Appellant, v. GRAY, Appellee.

No. 90-1986.

Supreme Court of Ohio.

Submitted Oct. 23, 1991.

Decided Feb. 12, 1992.

SYLLABUS BY THE COURT

A parent may not be prosecuted for child endangerment under R.C. 2919.22(A) for substance abuse occurring before the birth of the child.

On January 28, 1987, the appellee, Tammy Gray, gave birth to a daughter. The child was allegedly addicted to cocaine. On December 9, 1988, an indictment was filed, charging Gray with one count of child endangerment in violation of R.C. 2919.22(A). In response to a motion made by Gray, the state filed a bill of particulars, which provided:

"Tammy Gray, on or about the 28th day of January, 1987, in Lucas County, Ohio, being the parent of Sierra Gray, (d.o.b. 1-28-87), a child under eighteen (18) years of age, did prior to the birth of said child recklessly create substantial risk to the health or safety of her subsequently born child, Sierra Gray, by violating a duty of care, protection, or support, by the ingestion of cocaine in the third trimester of her pregnancy, which resulted in serious physical harm to Sierra Gray after her birth in Lucas County, Ohio, on or about January January [sic ] 28, 1987."

Subsequently, Gray filed a motion to dismiss on the ground that R.C. 2919.22(A) did not create a duty of care to a fetus. The trial court found R.C. 2919.22(A) inapplicable to Gray's conduct, and granted Gray's motion to dismiss. The Court of Appeals for Lucas County affirmed the trial court's decision.

The cause is now before this court pursuant to the allowance of the state's motion for leave to appeal.

Anthony G. Pizza, Pros. Atty., Thomas N. Tomczak and Mark E. Lupe, Toledo, for appellant.

Julia A. Davis, Columbus and Paul L. Geller, Toledo, for appellee.

Patric Mary O'Brien, Cleveland, urging reversal for amicus curiae, Ohio Pros. Atty's Ass'n.

Randall M. Dana, Ohio Public Defender and Allen v. Adair, Columbus, urging affirmance for amicus curiae, Ohio Public Defender.

MARY CACIOPPO, Judge.

The issue presented in this appeal is whether a parent may be prosecuted for child endangerment pursuant to R.C. 2919.22(A) for substance abuse occurring before the birth of the child.

It is well recognized that the criminal statutes of the Revised Code are to be strictly construed against the state and liberally construed in favor of the accused. R.C. 2901.04. Furthermore, words and phrases in Ohio statutes are to be construed "according to the rules of grammar and common usage." R.C. 1.42. It is with these principles in mind that we analyze R.C. 2919.22(A) and its applicability to the situation at bar.

R.C. 2919.22(A) provides in part:

"No person, who is the parent, guardian, custodian, person having custody or control, or person in loco parentis of a child under eighteen years of age or a mentally or physically handicapped child under twenty-one years of age, shall create a substantial risk to the health or safety of the child, by violating a duty of care, protection, or support. * * * "

As stated in State v. Sammons (1979), 58 Ohio St.2d 460, 12 O.O.3d 384, 391 N.E.2d 713, the apparent intention of the drafters of this section "was to punish a breach of statutory duty, when the breach results in a substantial risk to the health or safety of a child." Id. at 463, 12 O.O.3d at 386, 391 N.E.2d at 715. For the following reasons, we conclude that R.C. 2919.22(A) does not create a statutory duty which is breached when a parent uses cocaine prior to the child's birth.

A review of the terms "parent" and "child" within their common usage supports the conclusion that R.C. 2919.22(A) does not proscribe the conduct at issue. Under the common usage of the term "parent," Gray did not become a parent until the birth of the child. Furthermore, the child did not become a "child" within the contemplation of the statute until she was born. As stated in State v. Anders (June 19, 1989), Stark Cty. C.P. No. JU 68459, unreported, at 3:

"The plain interpretation of the word is mother or father of a child who has been born alive. The word parent comes from the Latin parere, meaning to give birth. In addition, a plain reading of the statute indicates that this parent-child relationship must be in existence at the time of the creation of the substantial risk of harm. * * * "

The statutory and regulatory scheme in Ohio strongly indicates that where the concerns of the unborn are at issue, the legislature and administrative bodies have referred to the unborn specifically. ¹

In Reyes v. Superior Court of San Bernadino Cty. (1977), 75 Cal.App.3d 214, 141 Cal.Rptr. 912, the California Court of Appeals addressed the issue of whether a heroin-addicted mother could be prosecuted under the California child endangering law ² for using heroin prior to the birth of her child. The court found that the word "child" as used in the California child endangering statute "was not intended to refer to an unborn child and that petitioner's prenatal conduct does not constitute felonious child endangering within contemplation of the statute." Id. at 216, 141 Cal.Rptr. at 913. In similar fashion, the Michigan Court of Appeals, in addressing a charge of delivery of cocaine based on the movement of cocaine through the umbilical cord after birth, held the relation of the statute to the facts was so tenuous that the court could not infer that the legislature intended it to apply absent unmistakable evidence of legislative intent. People v. Hardy (1991), 188 Mich.App. 305, 307-312, 469 N.W.2d 50, 52-53. Other states' courts have reached similar conclusions. See Commonwealth v. Pellegrini (Mass.Sup.Ct. Oct. 15, 1990), Plymouth No. 87970, unreported (mother charged with distributing cocaine to a person under eighteen); State v. Gethers (Fla.App.1991), 585 So.2d 1140 (mother charged with aggravated child abuse); and State v. Inzar (N.C.Sup.Ct. April 9, 1989), Robeson Cty. Nos. 90CRS6960 and 90CRS6961, unreported (mother charged with assault with a controlled substance and delivery of a controlled substance).

The state relies primarily upon our previous holding in State v. Dickinson (1971), 28 Ohio St.2d 65, 57 O.O.2d 255, 275 N.E.2d 599, in contending that Gray can be properly prosecuted under R.C. 2919.22(A). In Dickinson, this court held that an essential element of R.C. 4511.181 (vehicular homicide) is that the person whose life was taken has been born alive, id. at paragraph one of the syllabus, and that a viable fetus is not a person within the meaning of R.C. 4511.181, id. at paragraph two of the syllabus. The state contends by analogy that prenatal conduct can be punished under R.C. 2919.22(A) if the child endangered is subsequently born alive. We do not find the state's argument in this regard to be persuasive. As stated in Anders, supra, at 6-7:

" * * * [T]he Dickinson case must be distinguished on the following points. Firstly, 2919.22(A), unlike the homicide statutes, indicates that a certain relationship must be in existence between the defendant and the victim at the time the act of creating a substantial risk is done. The homicide statutes indicate that 'no person' shall commit the acts as described. Nowhere in 2919.22(A) does it indicate that mothers-to-be or pregnant women are in the specific group of people at whom the statute is directed. Secondly, 2919.22(A) does not contain proof of harm as an element of the crime. Obviously, a crucial element of the homicide statutes is proof that someone died. In 2919.22(A), the creation of the risk is the criminal conduct. Thirdly, California's ruling on a homicide statute, Keeler v. Superior Court of Amador County, (1970) [2 Cal.3d 619, 87 Cal.Rptr. 481,] 470 P.2d 617 was identical to Ohio's ruling in Dickinson, at the time the California court in Reyes ruled on the inapplicability of the California child endangering statute to a situation where the accused was a heroin addict whose twins were born addicted to heroin. Fourthly, the unique relationship between a pregnant woman and the developing fetus requires a careful look at what activities will be deemed criminal, and at what point during the pregnancy."

Based upon these obvious distinctions, we do not believe that the reasoning of Dickinson is applicable in the case at bar.

"The Legislature is an appropriate forum to discuss public policy, as well as the complexity of prenatal drug use, its effect upon an infant, and its criminalization." Hardy, supra, 188 Mich.App. at 310, 469 N.W.2d at 53. The Ohio Legislature currently has before it S.B. No. 82, which, if passed, would create the new crime of prenatal child neglect ³ to handle situations such as those at bar. " 'A court should not place a tenuous construction on [a] statute to address a problem to which the legislative attention is readily directed and which it can readily resolve if in its judgment it is an appropriate subject of legislation.' " Hardy, quoting People v. Gilbert (1982), 414 Mich. 191, 212-213, 324 N.W.2d 834, 844. "[I]f a legally cognizable duty on the part of pregnant women to their developing fetuses is to be recognized, the decision must come from the legislature only after thorough investigation, study and debate." Stallman v. Youngquist (1988), 125 Ill.2d 267, 280, 126 Ill.Dec. 60, 66, 531 N.E.2d 355, 361. The legislature is now undertaking the thorough investigation necessary to resolve this important and troubling social problem.

Therefore, we conclude that R.C. 2919.22 does not apply where a mother abuses drugs during her pregnancy. The judgment of the court of appeals is hereby affirmed.

Judgment affirmed.

MOYER, C.J., and SWEENEY, HOLMES and HERBERT R. BROWN, JJ., concur.

DOUGLAS and WRIGHT, JJ., dissent.

MARY CACIOPPO, J., of the Ninth Appellate District, sitting for RESNICK, J.

WRIGHT, Justice, dissenting.

I must respectfully dissent. Tammy Gray gave birth to Sierra Gray. According to documents filed pursuant to...