[Cite as State v. Clemons, 2013-Ohio-3415.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                             HIGHLAND COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       : Case No. 12CA9
                               :
     vs.                       :
                               : DECISION AND JUDGMENT
ASTASIA CLEMONS,               : ENTRY
                               :
    Defendant-Appellant.       : Released: 07/24/13
_____________________________________________________________
                         APPEARANCES:

Conrad A. Curren and Carol Ann Curren, Greenfield, Ohio, for Appellant.

Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for
Appellee.

Elizabeth Cooke, Amna Akbar, Alyssa Bowerman, and Wondwosen
Woldegebriel, The Ohio State Legal Clinic, Columbus, Ohio, and Farah
Diaz-Tello, National Advocates for Pregnant Women, New York, New
York, for Amici Curiae.
_____________________________________________________________

McFarland, P.J.

        {¶1} Appellant, Astasia Clemons, appeals her conviction for

corrupting another with drugs after pleading no contest to the charge upon

the trial court’s denial of her motion to dismiss. On appeal, Appellant

contends that the trial court erred to her detriment when it denied her motion

to dismiss count one of the indictment. In light of our determination that the

allegations contained in the indictment did not constitute an offense under
Highland App. No. 12CA9                                                       2


Ohio criminal law, we conclude that the trial court erred in denying

Appellant’s motion to dismiss the indictment. As such, Appellant’s sole

assignment of error is sustained. Accordingly, the decision of the trial court

is reversed and Appellant’s conviction is vacated.

                                   FACTS

      {¶2} A review of the record reveals that on November 14, 2011,

Appellant gave birth to a child who, upon birth, tested positive for

marijuana, morphine an oxycodone. As a result, the child was transferred to

Dayton’s Children’s Hospital, where she was treated and released.

Appellant later informed a Children’s Services worker that she had ingested

Percocet, without a prescription, prior to giving birth, and had also used

marijuana throughout her pregnancy.

      {¶3} Based upon these events, on January 10, 2012, Appellant was

indicted on two counts of corrupting another with drugs, in violation of R.C.

2925.02(A)(1) and (A)(3), both second-degree felonies. Appellant appeared

for her arraignment without counsel and the court entered a plea of not guilty

on her behalf. Subsequently, on March 29, 2012, Appellant filed a motion to

dismiss both charges, claiming the charges were not valid based upon the

plain language of the statute. A hearing was held on the motion on April 4,

2012, after which the trial court granted Appellant’s motion to dismiss the
Highland App. No. 12CA9                                                          3


R.C. 2925.03(A)(3) charge only, based upon the fact that it appeared the

child had suffered no injury as a result of the drug exposure. The trial court

denied the motion as to the (A)(1) charge, which did not contain the element

of physical harm.

      {¶4} Appellant ultimately entered a plea of no contest to the R.C.

2925.02(A)(1) charge on April 6, 2011, and was sentenced to two years

imprisonment, which were stayed pending appeal.

                          ASSIGNMENT OF ERROR

“I.   THE TRIAL COURT ERRED TO THE DETRIMENT OF
      APPELLANT/DEFENDANT WHEN IT DENIED THE
      APPELLANT’S/DEFENDANT’S MOTION TO DISMISS COUNT
      ONE OF THE INDICTMENT.”

                             LEGAL ANALYSIS

      {¶5} In her sole assignment of error, Appellant contends that the trial

court erred to her detriment when it denied her motion to dismiss count one

of the indictment. “ ‘[A] motion to dismiss charges in an indictment tests

the [legal] sufficiency of the indictment, without regard to the quantity or

quality of evidence that may be produced by either the state or the

defendant.’ ” State v. Barcus, 133 Ohio App.3d 409, 414, 728 N.E.2d 420

(1999); quoting State v. Patterson, 63 Ohio App.3d 91, 95, 577 N.E.2d 1165

(1989). Thus, “when a defendant moves to dismiss, the proper determination

is whether the allegations contained in the indictment constitute offenses
Highland App. No. 12CA9                                                                                      4


under Ohio criminal law.” Id. If they do, it is premature for the trial court to

determine, in advance of trial, whether the state could satisfy its burden of

proof with respect to those charges. State v. Nihiser, 4th Dist. No. 03CA21,

2004-Ohio-4067, ¶ 9.

         {¶6} Appellate review of a trial court's decision regarding a motion to

dismiss involves a mixed question of law and fact. State v. Staffin, 4th Dist.

No. 07CA2967, 2008-Ohio-338, ¶ 6 (reviewing a dismissal on speedy-trial

grounds), citing State v. Pinson, 4th Dist. No. 00CA2713, 2001 WL 301418

(Mar. 16, 2001). We accord due deference to the trial court's findings of fact

if supported by competent, credible evidence; however, we independently

review whether the trial court properly applied the law to the facts of the

case. Id.; citing State v. Thomas, 4th Dist. No. 06CA825, 2007-Ohio-5340, ¶

8. Thus, our role is limited to conducting a de novo review of the trial

court's application of the law to the stipulated facts. State v. Taylor, 4th Dist.

No. 05CA19, 2005-Ohio-6378, ¶ 10 (dealing with a motion to suppress).1

         {¶7} A court interpreting a statute must look to the language of the

statute to determine legislative intent. State v. Osborne, 4th Dist. No. 05

CA2, 2005-Ohio-6610, ¶ 18. Courts should give effect to the words of the

statute and should not modify an unambiguous statute by deleting or
1
 Although there were no “stipulated facts” per se, counsel for both the State and Appellant referred to
certain facts below that appeared to be agreed upon relating to the child’s toxicology results after birth and
Appellant’s drug use during pregnancy.
Highland App. No. 12CA9                                                           5


inserting words; that is, we have no authority to ignore the plain and

unambiguous language of a statute under the guise of statutory

interpretation. State v. McDonald, 4th Dist. No. 04CA2806, 2005-Ohio-3503,

¶ 11. In interpreting a criminal statute, courts must construe the statute

strictly against the state and liberally in favor of the accused. R.C.

2901.04(A); State v. Gray, 62 Ohio St.3d 514, 515, 584 N.E.2d 710 (1992).

“The interpretation of a statute or ordinance is a question of law, which we

review de novo.” State v. Frey, 166 Ohio App.3d 819, 2006-Ohio-2452, 853

N.E.2d 684, ¶ 9.

      {¶8} Appellant was originally indicted on two counts of corrupting

another with drugs, in violation of R.C. 2925.02(A)(1) and (A)(3), based

upon the fact that she gave birth to a child who was drug dependent at birth

by virtue of Appellant’s drug use during pregnancy. As set forth above, the

indictment on the (A)(3) charge was dismissed based upon the belief that the

child did not suffer any physical harm as a result, but the trial court refused

to dismiss the indictment on the (A)(1) charge, which did not contain

physical harm as an element. As a result, Appellant pled no contest to

corrupting another with drugs in violation of R.C. 2925.02(A)(1), which

provides that:

      “(A) No person shall knowingly do any of the following:
Highland App. No. 12CA9                                                       6


       (1) By force, threat, or deception, administer to another or

       induce or cause another to use a controlled substance[.]”

The word “another” is not defined within the statute, nor does a definition of

“another” appear in the definitions section of R.C. 2925. In fact, like the

trial court, we were unable to find a definition for the word “another;”

however, we agree with the trial court’s common sense reversion to the word

“person” to determine the meaning of the word “another” within the context

of this statute.

       {¶9} As such, we look to the general provisions of R.C. Chapter 29

wherein R.C. 2901.01 “Definitions” defines the word “person” in section

(B)(1)(a) as follows:

       “(B)(1)(a) Subject to division (B)(2) of this section, as used in

       any section contained in Title XXIX of the Revised Code that

       sets forth a criminal offense, “person” includes all of the

       following:

       (i) An individual, corporation, business trust, estate, trust,

       partnership, and association;

       (ii) An unborn human who is viable.

       (b) As used in any section contained in Title XXIX of the

       Revised Code that does not set forth a criminal offense,
Highland App. No. 12CA9                                                      7


      “person” includes an individual, corporation, business trust,

      estate, trust, partnership, and association.

      (c) As used in division (B)(1)(a) of this section:

      (i) “Unborn human” means an individual organism of the

      species Homo sapiens from fertilization until live birth.

      (ii) “Viable” means the stage of development of a human fetus

      at which there is a realistic possibility of maintaining and

      nourishing of a life outside the womb with or without

      temporary artificial life-sustaining support.

      (2) Notwithstanding division (B)(1)(a) of this section, in no

      case shall the portion of the definition of the term “person” that

      is set forth in division (B)(1)(a)(ii) of this section be applied or

      construed in any section contained in Title XXIX of the Revised

      Code that sets forth a criminal offense in any of the following

      manners:

      ***

      (b) In a manner so that the offense is applied or is construed as

      applying to a woman based on an act or omission of the woman

      that occurs while she is or was pregnant and that results in any

      of the following:
Highland App. No. 12CA9                                                        8


      (i) Her delivery of a stillborn baby;

      (ii) Her causing, in any other manner, the death in utero of a

      viable, unborn human that she is carrying;

      (iii) Her causing the death of her child who is born alive but

      who dies from one or more injuries that are sustained while the

      child is a viable, unborn human;

      (iv) Her causing her child who is born alive to sustain one or

      more injuries while the child is a viable, unborn human;

      (v) Her causing, threatening to cause, or attempting to cause, in

      any other manner, an injury, illness, or other physiological

      impairment, regardless of its duration or gravity, or a mental

      illness or condition, regardless of its duration or gravity, to a

      viable, unborn human that she is carrying.” (Emphasis added).

Thus, based upon the definitions provided in R.C. 2901.01, it is clear that

Appellant’s unborn child was a person, even while in utero before its birth.

The trial court reached this same result in determining whether Appellant’s

child was a “person” or “another,” for purposes of R.C. 2925.02(A) at the

time of Appellant’s drug use.

      {¶10} However, as set forth above, R.C. 2901.01 contains exceptions

or limits to the manner in which the word “person” can be “applied or
Highland App. No. 12CA9                                                         9


construed” in a situation involving a pregnant woman and her viable, unborn

child. Specifically, R.C. 2901.01 (B)(2)(b)(i)-(v) essentially protects

conduct by a woman during her pregnancy that might or does result in the

injury, illness, impairment or death of her child, either before or after its

birth. Thus, based upon a plain reading of the statute, a woman cannot be

criminally prosecuted for her conduct during pregnancy that results in harm

to her child.

       {¶11} Much like the parties, this Court has been unable to locate any

other case in Ohio where a woman was convicted of a crime for actions

taken during pregnancy that affected her unborn child. Although Appellant

directs our attention to State v. Hade, 6th Dist. No. OT-07-037, 2008-Ohio-

1859, our review of that case reveals that although Hade was indicted for a

violation of R.C. 2925.02(A)(4)(a), she was ultimately not convicted of that

offense. Instead she pled guilty to drug possession and child endangering.

Id. at ¶ 2.

       {¶12} Which leads to the next topic of discussion that has been

highly debated both below and on appeal, i.e. whether or not the Supreme

Court of Ohio’s holding in State v. Gray, supra, has any applicability to the

case sub judice. In Gray, the Court held that “[a] parent may not be

prosecuted for child endangerment under R.C. 2919.22(A) for substance
Highland App. No. 12CA9                                                       10


abuse occurring before the birth of the child.” Gray at syllabus.

Admittedly, Gray involved a different statute, child endangering, which

supposes a certain relationship existing between a parent and a child, which

is not present in R.C. 2925.02. However, we find its reasoning to be

applicable nonetheless. For instance, as reasoned in Gray, “[t]he 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.” Gray at 516. (Internal citations

omitted).

      {¶13} Further, we agree with the sentiment of the Gray Court, which

acknowledged the growing problem of prenatal drug use. Id. at 517-518.

As set forth in Gray verbatim:

      “ ‘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.’ [People v. Hardy,

      supra, 188 Mich.App. 305, 310, 469 N.W.2d 50 (1991).] The

      Ohio Legislature currently has before it S.B. No. 82, which, if

      passed, would create the new crime of prenatal child neglect
Highland App. No. 12CA9                                                                               11


        [2]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.” Id.; see also In re Baby Boy Blackshear, 90 Ohio

        St.3d 197, 736 N.E.2d 462, FN 2 (2000) (finding that a

        newborn child with a positive toxicology screen is per se an

        abused child for purposes of R.C. 2151.031(D), but noting that

        the court must liberally construe the applicable statute in favor



2
 Originally denoted as FN3 in Gray, the Supreme Court was referring to then pending draft version of R.C.
2919.221, which prohibited actions by pregnant women which would cause their children to be “drug
exposed at birth.”
Highland App. No. 12CA9                                                       12


         of the accused, as opposed to a criminal case, where the court

         must strictly construe the statute against the state).

However, our research indicates that neither this proposed legislation, nor

any other similar legislation has ever been passed. Although Appellee

indicates that R.C. 2925.02, as it currently exists, was the legislature’s

answer to the growing problem of prenatal drug use, our review of the plain

language of the statute, coupled with our review of the legislative history

related thereto does not lead us to that conclusion. Further, a review of

pending legislation regarding this statute contained in S.B. No. 329, dated

April 17, 2012, reveals no addition or clarification that this offense does, in

fact, encompass conduct of a pregnant woman in relation to her unborn

child.

         {¶14} Here, the State argued and the trial court concluded that

because R.C. 2925.02(A)(1) did not contain an element of physical harm,

that the exceptions to the definition of “person” under R.C. 2901.01 did not

apply, and that Appellant could be prosecuted for the crime. Based upon the

foregoing, however, we disagree. Instead we find the plain language of R.C.

2925.02, read in conjunction with the definitions and exceptions thereto

contained in R.C. 2901.01, do not support the application of the statute to the

facts sub judice. Further, we find merit to Appellant’s argument that it is
Highland App. No. 12CA9                                                            13


“incongruous” to disallow prosecution for a woman’s conduct during

pregnancy that results in harm to her unborn child, while allowing

prosecution for conduct that does not harm her child. “Such a result would

be absurd, and ‘[i]t is presumed that the legislature does not intend absurd

results.’ O'Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889

N.E.2d 505, ¶ 56, citing State ex rel. Haines v. Rhodes (1958), 168 Ohio St.

165, 5 O.O.2d 467, 151 N.E.2d 716, paragraph two of the syllabus.” Widen

v. Pike Cty., 187 Ohio App.3d 510, 2010-Ohio-2169, 932 N.E.2d 929, ¶ 23.

      {¶15} Based upon the foregoing reasoning and the absurd result that

we reach if we apply the definitions contained in R.C. 2901.01 to permit

prosecution for maternal conduct that results in no harm to the unborn child,

while protecting maternal conduct that actually results in harm or threatened

harm to the child, we sustain Appellant’s sole assignment of error. In

reaching this result, we acknowledge and agree with the concerns mentioned

in State v. Gray, supra, regarding the growing problem of prenatal, or

maternal, drug use.

      {¶16} Nonetheless, based upon the language of the statute as it exists

at this time, as well as the absence of any legislative action in this area since

the time in which State v. Gray, supra, was decided, we are constrained to

find that the trial court failed to correctly apply the law to the facts of this
Highland App. No. 12CA9                                                    14


case. As such, we conclude that the trial court erred in denying Appellant’s

motion to dismiss this portion of the indictment and, thus, we sustain

Appellant’s sole assignment of error. Accordingly, the decision of the trial

court is reversed and Appellant’s conviction is vacated.

                             JUDGMENT REVERSED AND VACATED.
Highland App. No. 12CA9                                                                     15


                                   JUDGMENT ENTRY

       It is ordered that the JUDGMENT BE REVERSED AND VACATED and
Appellant recover costs from Appellee.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Highland
County Common Pleas Court to carry this judgment into execution.

         IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Exceptions.

Harsha, J. & Abele, J.: Concur in Judgment Only.


                                                       For the Court,

                                                       BY:     _______________________
                                                               Matthew W. McFarland
                                                               Presiding Judge




                                 NOTICE TO COUNSEL

        Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.
