State v. Green

Decision Date10 September 2020
Docket NumberCase Number: S-2019-308
Citation474 P.3d 886
Parties The STATE of Oklahoma, Appellant v. Kathryn Juanita GREEN, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma


¶1 The State of Oklahoma charged Appellee Kathryn Juanita Green by third amended Information in the District Court of Garfield County, Case No. CF-2017-274, with, inter alia, Child Neglect (Count 1), in violation of 21 O.S.Supp.2014, § 843.5(C).1 The State alleged in Count 1 that Green willfully or maliciously neglected her unborn child through her own failure or omission to protect the fetus from exposure to the use and/or possession of illegal drugs and/or other illegal activities while the unborn child was under the age of 18 and Green was a person responsible for the child's well-being.

The magistrate bound Green over on all charges, including Count 1. Green filed a motion to quash Count 1 on the legal ground that a fetus was not a "child" subject to protection under the child neglect statute. After various amendments to her motion and the filing of State responses, the Honorable Dennis Hladik, District Judge, held a hearing and granted Green's motion to quash Count 1.2 The State announced its intent to appeal the ruling in open court and perfected the instant appeal. Judge Hladik filed a written minute order memorializing his ruling. The State of Oklahoma identifies three overlapping issues for review:

(1) whether Oklahoma criminal law extends its protection to a human fetus;
(2) whether an unborn human offspring is a "child" for purposes of Title 21; and
(3) whether the district court abused its discretion in granting Green's motion to quash Count 1.

¶2 We reverse the district court's order for the reasons discussed below.


¶3 Green gave birth to a stillborn son sometime in the early spring of 2017.3 Police found the deceased infant, on April 9, 2017, inside a wooden box that had been placed in a construction dumpster outside Green's home. The medical examiner performed an autopsy on the deceased infant, who was in the early stages of generalized postmortem decomposition, and found no signs of traumatic injury. Toxicology screening revealed the presence of methamphetamine in the infant's system. The medical examiner opined the cause of death was methamphetamine toxicity, and the manner of death was homicide.4


¶4 The State challenges the district court's order sustaining Green's motion to quash Count 1. We exercise jurisdiction under 22 O.S.2011, § 1053(4).5 Generally in state appeals, we review a district court's ruling for an abuse of discretion.6 See State v. Haliburton, 2018 OK CR 28, ¶ 12, 429 P.3d 997, 1000. This case, however, does not involve a question of fact, but instead presents a question of law, namely whether an unborn fetus constitutes a "child under eighteen (18) years of age" within the protection of the child neglect statute, and ultimately whether the State may prosecute Green for child neglect because of her alleged methamphetamine use during pregnancy. Because the claim involves statutory interpretation only, our review is de novo . Truskolaski v. State, 2019 OK CR 4, ¶ 4, 458 P.3d 620, 621.

¶5 "The fundamental rule of statutory construction is to ascertain and give effect to the intention of the Legislature as expressed in the statute." Soto v. State, 2014 OK CR 2, ¶ 7, 326 P.3d 526, 527. We give statutory language its plain and ordinary meaning. King v. State, 2008 OK CR 13, ¶ 7, 182 P.3d 842, 844. In a minute order granting Green's motion to quash Count 1, the district court found the fact that the statute did not define the term "child" to explicitly include the unborn was dispositive:

This statute defines a child as a person under the age of 18. It would have been easy for the legislature to include in the definition additional terms such as conception, fetus or trimester if it had been their intent to apply this statute to the gestation period. For this court to apply this statute to a fertilized egg, zygote, embryo, fetus, or any of the months or trimesters of pregnancy would require it to legislate from the bench which is prohibited.

¶6 In its ruling, the district court analyzed the interplay of three statutory provisions: Oklahoma's criminal child neglect statute in Title 21, the definition of "neglect" in Title 10A which is the Children's Code, and the definition of "child" also in Title 10A. The first of these, 21 O.S.Supp.2014, § 843.5(C), reads as follows:

C. Any parent or other person who shall willfully or maliciously engage in child neglect shall, upon conviction, be punished by imprisonment in the custody of the Department of Corrections not exceeding life imprisonment, or by imprisonment in a county jail not exceeding one (1) year, or by a fine of not less than Five Hundred Dollars ($500.00) nor more than Five Thousand Dollars ($5,000.00), or both such fine and imprisonment. As used in this subsection, "child neglect" means the willful or malicious neglect, as defined by paragraph 47 of Section 1-1-105 of Title 10A of the Oklahoma Statutes, of a child under eighteen (18) years of age by another.

(emphasis added).

Thus, the child neglect criminal provision incorporates the definition of "neglect" from our civil Children's Code. Title 10A O.S.Supp.2016, § 1-1-105(47) reads:

"Neglect" means:
b. the failure or omission to protect a child from exposure to any of the following: (1) the use, possession, sale, or manufacture of illegal drugs....

¶7 It is clear from the record that the district court also relied upon the definition of "child" found in this same section of the Children's Code, specifically Section 1-1-105(7), presumably because the definition of "neglect" makes reference to the term "child." This reasoning assumes, erroneously we think, that the Legislature intended to incorporate the Section 1-1-105(7) definition of "child" into Section 843.5(C). Just as the Legislature specifically referenced the definition of "neglect," so too would it have specifically incorporated the definition of "child," had it intended that both these definitions inform the criminal neglect statute. Section 843.5(C) makes no attempt to define the specific acts or omissions constituting child neglect, but rather it incorporates them by reference from the Children's Code. Conversely, Section 843.5(C) very plainly enumerates the class of persons protected as any "child under eighteen (18) years of age," and understandably makes no incorporation by reference to the Children's Code to define that class. There is therefore no need to borrow or incorporate further definition of whom this statute protects, and to assume that the Legislature intended to supplement this "child under eighteen (18) years of age" language from Section 843.5(C) with Title 10A's definition of child as "any unmarried person under eighteen (18) years of age" is dubious at best and leads to further ambiguity. "[T]he rules of statutory construction are intended as an aid to resolve doubts and not to create them." Ex parte Higgs , 1953 OK CR 160, 97 Okl. Cr. 338, 341, 263 P.2d 752, 756. We find that the Legislature did not intend that 21 O.S.Supp.2014, § 843.5(C) incorporate the definition of "child" found in 10A O.S.Supp.2016, § 1-1-105(7).7

¶8 Green maintains "[t]here is simply no doubt that the term ‘child’ from the Children's Code is incorporated by explicit reference" into the child neglect provisions of Title 21. On the contrary and as noted above, this is not at all clear. The only term explicitly incorporated by reference is "neglect," and because Section 843.5(C) explicitly refers to "a child under 18 years of age," grafting onto this the redundant language of the Children's Code definition of "child" results in superfluous language. "[R]ules of statutory interpretation require us to avoid any statutory construction which would render any part of a statute superfluous or useless." State ex rel. Mashburn v. Stice , 2012 OK CR 14, ¶ 11, 288 P.3d 247, 250 (quoting State v. Doak, 2007 OK CR 3, ¶ 7, 154 P.3d 84, 87 ).

¶9 In support of her position, Green directs us to Burns v. Alcala , 420 U.S. 575, 581, 95 S.Ct. 1180, 43 L.Ed.2d 469 (1975), and its language that "the word ‘child’ ... refer[s] to an individual already born, with an existence separate from its mother." In Burns, the United States Supreme Court considered the definition of "dependent child" under the federal Aid to Families With Dependent Children (AFDC) statute. Plaintiffs were pregnant women who claimed their unborn children were "dependent" children under the statute and therefore they were entitled to welfare benefits based upon the child before its birth. Analyzing the history and purpose of the AFDC program, the Supreme Court concluded that "dependent child" within that statute contained no entitlement to welfare benefits for children not yet born. Id. at 577-87, 95 S.Ct. 1180. Green also cites Starks v. State , 2001 OK 6, 18 P.3d 342 for the proposition that "child" under the Children's Code does not mean the same thing as fetus or unborn child. In that case, the Oklahoma Supreme Court held that the State could not take emergency custody of an unborn child whose mother was alleged to be using methamphetamine. Id. 2001 OK 6, ¶¶ 18-19, 18 P.3d at 347-48. Neither Burns nor Starks is helpful to the question before us. These decisions that the unborn are not to be counted for purposes of calculating welfare benefits under federal law, or that the State cannot assume physical custody of a fetus prior to its birth, do nothing to inform whether Oklahoma's criminal law protects an unborn child from the specific acts of neglect at issue here.

¶10 We must then look elsewhere to determine whether the stillborn fetus in this case is a "child under eighteen (18) years" as referenced in and protected by Oklahoma's child neglect statute, 21 O.S.Supp.2014, § 843.5(C). "To determine legislative intent we may look to each part of the statute, similar statutes,...

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    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
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    ...rule of statutory construction is to ascertain and give effect to the intention of the Legislature as expressed in the statute." State v. Green , 2020 OK CR 18, ¶ 5, 474 P.3d 886, 888 (quoting Soto v. State , 2014 OK CR 2, ¶ 7, 326 P.3d 526, 527 ). Additionally, we construe statutes accordi......
  • State v. Allen
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    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • May 20, 2021
    ...P.3d 149, 155 (internal quotation omitted). This Court gives statutory language its plain and ordinary meaning. Id.¶7 In State v. Green , 2020 OK CR 18, 474 P.3d 886, we interpreted Section 843.5(C) to include protection of an unborn child from child neglect. In Green , a toxicology report ......
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    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • May 20, 2021
    ...I respectfully dissent from publication of this opinion. As the opinion concedes, this case is "easily resolved" by Green v. State , 2020 OK CR 18, 474 P.3d 886. In Green , the Court held that the mother neglected her unborn child by exposing the child to dangerous drugs. In this case, the ......

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