                                                                  FILED BY CLERK
                          IN THE COURT OF APPEALS                     SEP 24 2009
                              STATE OF ARIZONA                        COURT OF APPEALS
                                DIVISION TWO                            DIVISION TWO




THE STATE OF ARIZONA,                     )
                                          )          2 CA-CR 2008-0157
                              Appellee,   )          DEPARTMENT B
                                          )
                  v.                      )          OPINION
                                          )
REGINA MARIE LOCKWOOD,                    )
                                          )
                             Appellant.   )
                                          )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                              Cause No. CR-20054806

                        Honorable Charles S. Sabalos, Judge
                        Honorable John S. Leonardo, Judge

                                   REVERSED


Terry Goddard, Arizona Attorney General
 By Kent E. Cattani and Alan L. Amann                                        Tucson
                                                              Attorneys for Appellee

Natasha Wrae                                                                 Tucson
                                                              Attorney for Appellant


V Á S Q U E Z, Judge.
¶1            After a jury trial, Regina Lockwood was convicted of conspiring to conceal or

abandon a human body in violation of A.R.S. § 13-2926. The trial court suspended

imposition of sentence and placed her on three years’ probation. On appeal, Lockwood

argues the fetal remains at issue in this case do not constitute a “dead human body” for

purposes of the statute and, absent any evidence of a live birth, her conviction must be

reversed. For the reasons that follow, we reverse Lockwood’s conviction and vacate her

probationary term.

                          Factual and Procedural Background

¶2            Because this case presents a purely legal question, we include only those facts

necessary for an understanding of that issue.1 In October 2005, police officers searched the

backyard of the house occupied by Lockwood and her boyfriend, Nicholi Grimm, in response

to a report that a fetus had been buried there. They found an intact fetus that Lockwood

admitted she had miscarried the previous month and Grimm had buried. Pursuant to § 13-

2926, Lockwood was charged with conspiracy to commit abandonment or concealment of

a dead human body, a class five felony.




       1
       The legal question we address here is limited to whether the legislature intended § 13-
2926 to apply to fetal remains. Nothing in this opinion purports to address any broader
questions, such as when life begins, that may be evoked by this issue.

                                              2
¶3             Lockwood moved to dismiss, contending the remains of a stillborn fetus did

not constitute a human body under § 13-2926.2 At a hearing on the motion, the state

conceded it could not prove the remains had resulted from a live birth but argued the statute

covered “what someone does with a fetus, stillborn or not, in any stage of development.”

The trial court denied Lockwood’s motion and stayed the proceedings to allow her to file a

petition for special action in this court. After hearing oral argument, we declined to accept

jurisdiction. At a subsequent pretrial hearing, the trial court determined that the issue

whether a fetus was a human body for purposes of the statute was not “a jury question . . .

[but] a legal question for the Court of Appeals.” It therefore instructed the jury that “the

baby in this case was a dead human body.” Lockwood was convicted and placed on

probation as noted above.3 This appeal followed.

                                          Discussion

¶4             We review issues of statutory interpretation de novo. State v. Ontiveros, 206

Ariz. 539, ¶ 8, 81 P.3d 330, 332 (App. 2003). “Our goal in interpreting statutes is to

ascertain and give effect to the intent of our legislature,” and the plain language of the statute



       2
       Section 13-2926(A) provides: “It is unlawful for a person to knowingly move a dead
human body or parts of a human body with the intent to abandon or conceal the dead human
body or parts.”
       3
        Pursuant to a plea agreement, Grimm pled guilty to attempted abandonment or
concealment of a human body and was placed on probation for three years. Because the jury
found Lockwood guilty as charged, it did not consider whether she was guilty of failing to
report a death pursuant to A.R.S. § 11-593, which the trial court characterized as a lesser-
included offense.

                                                3
is the best and most reliable indicator of that intent. State v. Garcia, 219 Ariz. 104, ¶ 6, 193

P.3d 798, 800 (App. 2008). In construing the criminal law, we must take account of “a

criminal defendant’s constitutional right to due process: ‘The first essential of due process

is fair warning of the act which is made punishable as a crime.’” Vo v. Superior Court, 172

Ariz. 195, 200, 836 P.2d 408, 413 (App. 1992), quoting Keeler v. Superior Court, 470 P.2d

617, 626 (Cal. App. 1970); see also A.R.S. § 13-101(2) (declaring public policy of state and

general purpose of criminal code to “give fair warning of the nature of the conduct

proscribed”). “When the meaning of a statute is unclear or subject to more than one

interpretation, the rule of lenity requires us to resolve any ambiguity in favor of the

defendant.” Reinesto v. Superior Court, 182 Ariz. 190, 192, 894 P.2d 733, 735 (App. 1995).

¶5            In Vo, Division One of this court considered whether the first-degree murder

statute then in effect, which prohibited causing the death of a “human being,” was applicable

to the death of a fetus caused by the shooting death of its mother. 172 Ariz. at 198, 836 P.2d

at 411. Reviewing “the way in which the legislature has referred to a fetus in other sections

of the criminal code” and “noncriminal areas of Arizona statutory law in which the

legislature has protected unborn children,” the court concluded that “the legislature did not

intend a fetus to constitute a ‘person’ for all purposes.” 4 Id. at 201-02, 836 P.2d at 414-15.



       4
       Vo noted critical distinctions between the question of criminal law presented in that
case and the tort issues involved in Summerfield v. Superior Court, 144 Ariz. 467, 698 P.2d
712 (1985), which held a viable fetus is a person under Arizona’s wrongful death statute.
Vo, 172 Ariz. at 205-06, 836 P.2d at 418-19. In particular, courts do “not have the power to
expand the criminal law through evolving common law principles.” Id. at 206, 836 P.2d at

                                               4
The court noted that, “where the legislature intends to protect the unborn, it does so by

specific reference to a fetus.” Id. at 202, 836 P.2d at 415. See, e.g., A.R.S. § 13-1103(A)

(prohibiting manslaughter of a “person” and of an “unborn child” in different subsections);

A.R.S. § 36-329 (providing separately for death certificate for fetal death); A.R.S. § 36-

2301.01(D) (defining “viable fetus” not as “human being” but as “unborn offspring of human

beings that has reached a [specified] state of fetal development”). Thus, the court held that,

in the absence of any express language indicating the legislature intended to encompass the

killing of a fetus, the statute could not be so interpreted. Vo, 172 Ariz. at 201-02, 836 P.2d

at 414-15.

¶6             The court also noted that “perhaps the time has come to reexamine the

protections afforded unborn children under Arizona’s criminal law in light of the scientific

advances in the areas of obstetrics and forensics.” Id. Nonetheless, it recognized that it

could not “expand the scope of a crime by judicial decision to punish a defendant for an act

that was not criminal when it was performed” and that “any expansion of the law in this area

is the prerogative of the Arizona legislature, not of the courts.” Id. at 200, 202, 836 P.2d at

413, 415.

¶7            The reasoning in Vo remains sound and informs our consideration of whether

the legislature intended the terms “dead human body” and “dead human remains,” as used




419. Because neither party relies on Summerfield, however, we do not address those
distinctions further.

                                              5
in § 13-2926, to include the remains of a fetus that was not born alive. See State v. Cotton,

197 Ariz. 584, ¶ 11, 5 P.3d 918, 921 (App. 2000) (distinguishing death of fetus from “death

of a child who had been born”). We generally “presume that the legislature is aware of

existing case law when it passes a statute.” State v. Aro, 188 Ariz. 521, 524, 937 P.2d 711,

714 (App. 1997). And, since Vo was decided, our legislature has continued to indicate in

express statutory language when it intends certain provisions to apply to a fetus.

¶8            Indeed, in 2005—the same year the legislature enacted § 13-2926—it also

adopted Senate Bill 1051, “Offenses Against Unborn Children,” which amended seven

criminal statutes to encompass acts committed against fetuses and set penalties for such

offenses. See Ariz. Sess. Laws 2005, ch. 188, § 7. These statutes included the first-degree

murder statute at issue in Vo, A.R.S. § 13-1105, to which the legislature added the offense

of “caus[ing] the death of an unborn child.” In contrast, however, in enacting § 13-2926 the

legislature did not include the body of an unborn child or fetus.

¶9            We recognize fetal remains are indisputably of human origin and not alive.

Therefore, the legislature’s use of the terms “dead human body” and “dead human remains”

arguably supports the intuitive conclusion that the statute encompasses fetuses. However,

such an interpretation could lead to absurd and potentially unconstitutional results. See

Hernandez v. Lynch, 216 Ariz. 469, ¶ 13, 167 P.3d 1264, 1268 (App. 2007). Section 13-

2926 does not specify a gestational age of fetal development at which the statute is effective,

unlike other statutes that expressly apply to fetuses. See § 36-329 (requiring fetal death



                                              6
certificate only when death occurs after at least twenty weeks’ gestation or if fetus weighs

more than 350 grams). And we cannot presume the legislature intended to criminalize a

woman’s failure to report a miscarriage to the authorities in the very early stages of

pregnancy.5 See State v. Petrak, 198 Ariz. 260, ¶ 10, 8 P.3d 1174, 1178 (in construing

statute, we avoid reaching absurd result). Indeed, such an interpretation raises an issue of

the statute’s constitutionality. See Ariz. Const. art. 2, § 8 (recognizing right to privacy). “[I]f

possible, this court construes statutes to avoid rendering them unconstitutional” and “to avoid

unnecessary resolution of constitutional issues.” Hayes v. Cont’l Ins. Co., 178 Ariz. 264,

272-73, 872 P.2d 668, 676-77 (1994). Furthermore, as noted above, to the extent there is any

ambiguity, under the rule of lenity, we must resolve it in favor of the defendant. See

Reinesto, 182 Ariz. at 192, 894 P.2d at 735. We therefore conclude the legislature did not

intend this particular statute to apply to the remains of a fetus. Accord Vo, 172 Ariz. at 202,

836 P.2d at 415.

¶10            The state concedes that, in Vo and elsewhere, “[t]he words ‘person’ and

‘human being’ have been held . . . not to include unborn children.” But it nonetheless argues

these words are “much narrower” than the terms “dead human body,” “parts of a human

body,” and “human remains” in § 13-2926. When referring to a body, however, the




       5
        We are not persuaded by the state’s contention at oral argument that the scienter
requirement of the statute would limit it to the later stages of pregnancy. A woman can know
she has had a miscarriage at any stage of fetal development, including the first trimester. See
Gardner v. Pawliw, 696 A.2d 599, 601 (N.J. 1997).

                                                7
legislature has also expressly indicated when it intends its use of the term to include a dead

fetus. For example, A.R.S. § 11-593 makes it a misdemeanor to fail under certain

circumstances to report “the existence of a body” resulting from “the death of a human being

including a fetal death.”

¶11           Nor are we persuaded by the state’s argument, based on the statute providing

for fetal death certificates, that “fetal deaths are on equal footing with regular human deaths.”

The statute providing for death certificates in connection with “human remains,” A.R.S.

§ 36-325, requires “a funeral establishment or responsible person who takes possession of

the human remains” to submit the death certificate. In contrast, the fetal death certificate

statute, § 36-329, applies only to certain fetal deaths as noted above and requires “a hospital,

abortion clinic, physician or midwife” to submit the certificate.6 Moreover, § 36-329 does

not refer to the “body” or “remains” of a fetus but to “the product of human conception.”

¶12           Like the court in Vo, we must limit our review to the specific issue presented

in the case before us; contrary to Lockwood’s suggestion, it is not necessary for us to address

the question of when life begins. Vo, 172 Ariz. at 202, 836 P.2d at 415. Because the state

concedes there was no evidence of a live birth, the sole issue here is whether the legislature

intended § 13-2926 to apply to fetal remains. In the absence of any language in the statute

clearly evincing such an intention, and construing any ambiguity in favor of the defendant,


       6
        Furthermore, although a death certificate may be submitted to either “a local registrar,
a deputy local registrar or the state registrar,” § 36-325(A)(3), a fetal death certificate can
only be submitted to the state registrar, § 36-329(A).

                                               8
we must conclude that it did not.7 See Vo, 172 Ariz. at 202, 836 P.2d at 415; Reinesto, 182

Ariz. at 192, 894 P.2d at 735. Regardless of the merits of extending the statute to encompass

such remains, “Arizona is a ‘code state,’ and this court is legislatively precluded from

creating new crimes by expanding the common law through judicial decision.” Vo, 172 Ariz.

at 204, 836 P.2d at 417; see A.R.S. § 13-103. Thus, “any expansion of the law in this area

is the prerogative of the Arizona legislature, not of the courts.” Vo, 172 Ariz. at 202, 836

P.2d at 415.

                                        Disposition

¶13            For the reasons stated, we reverse Lockwood’s conviction and vacate the

probationary term imposed by the trial court.




                                                ____________________________________
                                                GARYE L. VÁSQUEZ, Judge

CONCURRING:


____________________________________
PETER J. ECKERSTROM, Presiding Judge


____________________________________
J. WILLIAM BRAMMER, JR., Judge




       7
       Because we find Lockwood could not be convicted under § 13-2926 as a matter of
law, we need not address the secondary issues she raises on appeal. See Vo, 172 Ariz. at 206,
836 P.2d at 419.

                                             9
