                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

VIRGINIA DENISE WYCHE,                NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D15-4797

STATE OF FLORIDA,

      Appellee.


_____________________________/

Opinion filed November 6, 2017.

An appeal from the Circuit Court for Duval County.
Mark Hulsey, Judge.

Andy Thomas, Public Defender, Victor Holder, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Sharon S. Traxler, Assistant Attorney General,
Tallahassee, for Appellee.




LEWIS, J.

      Virginia Denise Wyche, Appellant, challenges her convictions and sentences

for second-degree murder of an unborn quick child and attempted second-degree

murder of the unborn child’s mother, raising eleven issues, only the first of which
merits discussion. Appellant argues that her second-degree murder conviction

cannot be legally sustained because under the common law born alive rule, an

unborn child is not a human being within the meaning of Florida’s homicide statute,

section 782.04(2), Florida Statutes (2013). We reject Appellant’s argument for the

reasons that follow and affirm her convictions and sentences in all other respects

without further discussion.

      In this tragic case, on April 23, 2014, twenty-five to twenty-six weeks into her

pregnancy, the mother was shot with a .22-caliber revolver in the abdomen by

Appellant, her friend, over a dispute involving the naming of the unborn quick child,

with the bullet striking the unborn quick child and causing multiple injuries to the

unborn child. While the mother survived the gunshot wound, the unborn quick child

was not born alive and died as the result of the gunshot wound. Following trial, the

jury found Appellant guilty as charged of attempted second-degree murder of the

mother and guilty of second-degree murder of the unborn quick child. Thus, the

issue we must resolve is whether the common law born alive rule has been abrogated

by the Florida Legislature so as to allow Appellant’s second-degree murder

conviction to stand under section 782.04(2). Given that this issue presents a pure

question of law and turns on statutory interpretation, our review is de

novo. See Townsend v. R.J. Reynolds Tobacco Co., 192 So. 3d 1223, 1225 (Fla.

2016).

                                          2
      Section 782.04(2), Florida Statutes (2013), defines second-degree murder as

“[t]he unlawful killing of a human being, when perpetrated by any act imminently

dangerous to another and evincing a depraved mind regardless of human life,

although without any premeditated design to effect the death of any particular

individual.” Under the common law born alive rule, “the killing of a fetus was not

homicide unless the child was born alive and then expired as a result of the injuries

previously sustained.” State v. Gonzalez, 467 So. 2d 723, 725 (Fla. 3d DCA

1985); see also Knighton v. State, 603 So. 2d 71, 72 (Fla. 4th DCA 1992); State v.

McCall, 458 So. 2d 875, 876 (Fla. 2d DCA 1984). 1

      The Florida Legislature enacted section 782.09, Florida Statutes, commonly

referred to as the feticide statute, in 1868. Ch. 1868-1637, § 10, Laws of Fla.

Through September 2005, the feticide statute provided that “[t]he willful killing of

an unborn quick child, by any injury to the mother of such child which would be

murder if it resulted in the death of such mother, shall be deemed manslaughter.” §

782.09, Fla. Stat. (2005). Effective October 2005, the feticide statute was amended

to provide that the unlawful killing of an unborn quick child shall be deemed



1
 Cf. State v. Ashley, 701 So. 2d 338, 339-42 (Fla. 1997) (noting the born alive rule,
and holding that an expectant mother cannot be criminally charged with the death of
her born alive child resulting from self-inflicted injuries during the third trimester of
pregnancy because the common law immunity from prosecution for the pregnant
woman was not abrogated by sections 390.001, 782.04, and 782.07, Florida Statutes
(1993)).
                                           3
manslaughter or murder in the same degree as that which would have been

committed against the mother if the act had resulted in her death. Ch. 2005-119, §

2, Laws of Fla. At the time of Appellant’s offenses, the feticide statute set forth:

      (1) The unlawful killing of an unborn quick child, by any injury to the
      mother of such child which would be murder if it resulted in the death
      of such mother, shall be deemed murder in the same degree as that
      which would have been committed against the mother. Any person,
      other than the mother, who unlawfully kills an unborn quick child by
      any injury to the mother:

             ....

      (b) Which would be murder in the second degree if it resulted in the
      mother's death commits murder in the second degree . . . .

§ 782.09, Fla. Stat. (2013) (defining “unborn quick child” as a “viable fetus”)

(emphasis added).2

      “Under our rules of statutory construction, a statute will not displace the



2
  Effective October 2014, the feticide statute was amended to criminalize the killing
of an “unborn child,” which is defined as “a member of the species Homo sapiens,
at any stage of development, who is carried in the womb.” § 782.09(1), (5), Fla.
Stat. (2014); § 775.021(5)(e), Fla. Stat. (2014). Also effective October 2014, a new
rule of construction was added to section 775.021, Florida Statutes (2014), which
provides in part as follows:

      (5) Whoever commits an act that violates a provision of this code or
      commits a criminal offense defined by another statute and thereby
      causes the death of, or bodily injury to, an unborn child commits a
      separate offense if the provision or statute does not otherwise
      specifically provide a separate offense for such death or injury to an
      unborn child.

                                          4
common law unless the legislature expressly indicates an intention to do

so.” Kitchen v. K-Mart Corp., 697 So. 2d 1200, 1207 (Fla. 1997) (citing Carlile v.

Game & Fresh Water Fish Comm’n, 354 So. 2d 362 (Fla. 1977)). “Unless a statute

unequivocally states that it changes the common law, or is so repugnant to the

common law that the two cannot coexist, the statute will not be held to have changed

the common law.” Thornber v. City of Fort Walton Beach, 568 So. 2d 914, 918 (Fla.

1990) (citations omitted); see also Townsend, 192 So. 3d at 1231; Webb v. Sch. Bd.

of Escambia Cty., 1 So. 3d 1189, 1190 (Fla. 1st DCA 2009). The 2013 version of

the feticide statute presents such a sequence of events.

      “The polestar of a statutory construction analysis is legislative intent.” W.

Fla. Reg’l Med. Ctr., Inc. v. See, 79 So. 3d 1, 8 (Fla. 2012). To discern legislative

intent, the court must first look to the plain and obvious meaning of the statute’s text,

which may be discerned from a dictionary. Id. at 9. If the statutory language is clear

and unambiguous, the court must apply that unequivocal meaning and may not resort

to the rules of statutory construction. Id. “Likewise, the ‘[a]dministrative

construction of a statute, the legislative history of its enactment, and other extraneous

matters are properly considered only in the construction of a statute of doubtful

meaning.’” Atwater v. Kortum, 95 So. 3d 85, 90 (Fla. 2012) (quoting Donato v.

Am. Tel. & Tel. Co., 767 So. 2d 1146, 1153 (Fla. 2000)) (emphasis in original). This

is so because the Legislature is assumed to know the meaning of the words used in

                                           5
the statute and to have expressed its intent through the use of the words. Dadeland

Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216, 1225 (Fla. 2006).

      The clear and unambiguous language of the feticide statute provides that the

killing of an unborn quick child may constitute murder, which is in direct conflict

with the common law rule requiring the fetus to be born alive. As such, the

Legislature has expressed a clear intent to recognize an unborn quick child as a

human being entitled to the protection of Florida’s homicide statute. Therefore, we

hold that the Legislature has abrogated the common law born alive rule by enacting

the 2013 version of the feticide statute as the two cannot coexist.

      We     recognize    that   our    holding    appears    to      be   in   conflict

with Knighton, McCall, and Gonzalez. In Knighton, the Fourth District affirmed the

appellant’s conviction for third-degree murder of a fetus that was born alive, unlike

the unborn quick child in the instant case, but subsequently died due to the injuries

the appellant inflicted on the mother upon concluding that the fetus was a human

being under the common law born alive rule because she was born alive. 603 So.

2d at 72-73. Significantly, the court rejected the appellant’s argument that the born

alive rule has been abrogated by the feticide and termination of pregnancy statutes

and “suggest[ed] . . . [the rule’s] continued viability in the absence of any statutory

definition of ‘human being.’” Id. at 73.




                                           6
      In McCall, the Second District affirmed the dismissal of the DWI

manslaughter and vehicular homicide charges relating to the death of an unborn child

upon holding that such crimes do not exist in Florida because an unborn child is not

a human being within the definitions of DWI manslaughter and vehicular homicide,

which require the death of a “human being,” in light of the common law born alive

rule. 458 So. 2d at 876. The court quoted the feticide statute, but stated that it did

not apply because the information did not allege the willful killing of the unborn

child or his mother, and “adopt[ed] the traditional interpretation of the words ‘human

being’ under the homicide statutes as meaning one who has been born alive.” Id. at

877. Conversely, in this case, the information tracked the language of the feticide

statute, in addition to the homicide statute.

      Finally, in Gonzalez, the Third District affirmed the dismissal of the

manslaughter charge against the appellant, a doctor who allegedly performed an

illegal abortion on a minor, upon holding that an unborn child is not a human being

within the meaning of the manslaughter statute in light of the common law born alive

rule. 467 So. 2d at 725-26. The court reasoned that the Legislature believed the

feticide and abortion statutes were adequate protections for the unborn; if the

Legislature chooses to expand the protections, it can expressly do so, such as by

amending the manslaughter statute to criminalize “the killing of a human being or

viable fetus”; the Legislature “has indicated it is capable of distinguishing between

                                           7
an unborn child and a person born alive since it has enacted statutes which

acknowledge this distinction”; and “[s]ince ‘human being’ is not defined in Florida

Statutes and until the Florida Legislature specifically changes it, the common law

definition controls.” Id. While the feticide statute in effect when the alleged illegal

abortion on the minor was performed on June 25, 1982, did not apply to the facts

of Gonzalez, as we previously stated, under the 2013 version of the feticide statute

that applies to the facts of this case, an unborn quick child is recognized as a human

being entitled to the protection of Florida’s homicide statute.

       We, therefore, affirm Appellant’s convictions and sentences and certify

conflict with Knighton, Gonzalez, and McCall to the extent our holding conflicts

with those decisions.

      AFFIRMED; CONFLICT CERTIFIED.

B.L. THOMAS, C.J., CONCURS; ROWE, J., CONCURS WITH OPINION.




                                          8
ROWE, J., concurring,

         A dispute that began over a Facebook post ended with the murder of an unborn

child. Markeisha Brooks, who was approaching the third trimester of her pregnancy,

asked her Facebook “friends”3 to suggest names for her baby. Virginia Denise

Wyche responded to the post in a profane and belligerent manner. Brooks decided

to visit Wyche at her home to attempt to resolve their disagreement in person.

However, after Brooks arrived at Wyche’s home, tensions between the two women

escalated. While standing less than an arm’s length away from Brooks, Wyche

pulled a .22-caliber revolver from her waistband and shot Brooks directly in the

womb. Brooks survived the bullet wound, but her unborn child did not. The bullet

entered the child’s abdomen and exited near the child’s right shoulder. Brooks

testified at trial that after the bullet entered her womb, she felt the last movements

of her child as the child died. The jury found Wyche guilty of attempted second-

degree murder of Brooks and guilty of second-degree murder of Brooks’s unborn

child.

         Wyche argues that she could not legally be convicted of second-degree



3
  “A Facebook friendship does not necessarily signify the existence of a close
relationship.” Chace v. Loisel, 170 So. 3d 802, 804 (Fla. 5th DCA 2014).
                                         9
murder of Brooks’s unborn child because under the common law “Born Alive” Rule,

an unborn child is not a human being within the meaning of Florida’s homicide

statute, section 782.04(2), Florida Statutes (2013). As explained in the majority

opinion, the Legislature abrogated the common law when it enacted the 2013 version

of the feticide statute, section 782.09, Florida Statutes, and expressed its clear intent

to give protection under the homicide statute to unborn human beings from the point

of viability. 4 Pursuant to the statute, a viable, unborn child is recognized as a human

being entitled to the protection under Florida’s homicide statute. I write to explain

why, even absent Legislative abrogation, the courts should abandon the “Born

Alive” Rule.

      The earliest cases under the common law of England held that a defendant

could not be convicted for killing an unborn child. Commonwealth v. Morris, 142


4
   In 2014, the Legislature amended the definition of “unborn child” to include any
“member[s] of the species Homo sapiens, at any stage of development, who is
carried in the womb.” §§ 782.09(1), (5), Fla. Stat. (2014); § 775.021(5)(e), Fla. Stat.
(2014). Thus, where a defendant’s actions end the life of an unborn child, the State
has rejected the viability framework employed in the context of abortion in favor of
providing the broadest protection of human life. The United States Supreme Court
has repeatedly held that “the State has legitimate interests from the pregnancy’s
outset in protecting the health of the woman and the life of the fetus.” See Gonzales
v. Carhart, 550 U.S. 124, 125 (2007) (emphasis added). When it comes to actions
by third parties that end the life of the unborn child, the viability of the unborn child
is “simply immaterial.” Smith v. Newsome, 815 F.2d 1386, 1388 (11th Cir. 1987);
see also State v. Merrill, 450 N.W.2d 318, 322 (Minn. 1990) (“Roe v. Wade protects
the woman’s right of choice; it does not protect, much less confer on an assailant, a
third-party unilateral right to destroy the fetus.”).

                                           10
S.W.3d 654, 656 (Ky. 2004). During the thirteenth century when the earliest

references to the Rule appear, knowledge of life in the womb was primitive and

medical science was not sufficiently advanced to allow a court or jury to determine

beyond a reasonable doubt whether a defendant’s actions or some unrelated event

was the cause of death of an unborn child. Id. at 657; see also Commonwealth v.

Cass, 467 N.E.2d 1324, 1328 (Mass. 1984). Instead, live birth was the required

evidentiary standard to prove that the child was alive at the time of the acts by the

defendant that resulted in the alleged homicide. Coke explained the “Born Alive”

Rule in this way:

      If a woman be quick with childe, and by a Potion or otherwise killeth it
      in her wombe; or if a man beat her, whereby the childe dieth in her
      body, and she is delivered of a dead childe, this is a great misprision,
      and no murder: but if the childe be born alive, and dieth of the Potion,
      battery, or other cause, this is murder: for in law it is accounted a
      reasonable creature, in rerum natura, when it is born alive.

Sir Edward Coke, Third Institute 50-51 (1644). Thus, the “Born Alive” Rule has

been frequently described as “an evidentiary principle that was required by the state

of medical science of the day.” Morris, 142 S.W.3d at 657 (quoting Clarke D.

Forsythe, Homicide of the Unborn Child: The Born Alive Rule and Other Legal

Anachronisms, 21 Val. U. L. Rev. 563, 586 (1987)).

      American courts first applied the “Born Alive” Rule in the late eighteenth

century. Morris, 142 S.W.3d at 657. Since that time, the Rule has been applied in

both civil and criminal actions. Id. In Florida, the “Born Alive” Rule has been relied
                                         11
upon in four reported decisions involving homicide convictions. See State v. Ashley,

701 So. 2d 338 (Fla. 1997) (holding that a pregnant woman who shot herself in the

abdomen during her third trimester and whose child was born alive was immune

from prosecution on grounds that the common law “Born Alive” Rule conferred

immunity on the pregnant woman); Knighton v. State, 603 So. 2d 71 (Fla. 4th DCA

1992) (affirming a murder conviction of a defendant who shot a pregnant woman in

the abdomen, fatally wounding her unborn child, where the child died shortly after

birth); State v. Gonzalez, 467 So. 2d 723 (Fla. 3d DCA 1985) (relying upon the “Born

Alive” Rule to affirm a trial court’s dismissal of a manslaughter charge brought

against a doctor who allegedly performed an illegal abortion on a minor, where the

child was not born alive); State v. McCall, 458 So. 2d 875 (Fla. 2d DCA 1984)

(holding that a viable, but unborn child could not be the victim of the crimes of

vehicular homicide or DWI manslaughter). In none of these decisions did the

reviewing courts consider the evidentiary purpose served by the Rule along with

whether that purpose has been undermined by modern-day advancements in medical

science and technology. The necessity for the Rule has long since passed, and

serving no purpose, the Rule should no longer be applied.

      Medical experts in the twenty-first century possess exponentially more

knowledge about life inside the womb than did their counterparts living in the

thirteenth century when the “Born Alive” Rule originated.             With recent

                                        12
developments in medical technology and neonatal medicine such as sonography,

fetal heart monitoring, amniocentesis, and chorionic villus sampling, medical

experts can competently establish the point at which the unborn child is viable, as

well as the proximate cause of the death of the child. See Robert H. Blank, Emerging

Notions of Women’s Rights and Responsibilities During Gestation, 7 J. Legal Med.

411, 452 (1986); Carolyn J. Chackin, What Potent Blood: Non-Invasive Prenatal

Genetic Diagnosis and the Transformation of Modern Prenatal Care, 33 Am. J.L.

& Med. 9, 10-11 (2007). Because medical experts can offer reliable testimony on

viability and cause of death, the evidentiary necessity of the “Born Alive” Rule no

longer exists. See McCarty v. State, 41 P.3d 981, 986 (Okla. Crim. App. 2002) (“As

medical science continues to improve and viability comes at earlier and earlier stages

of the birth process, individuals should be, and will be, put on notice that their acts

which lead to the death of that unborn child, once the child has attained that level of

viability as determined by the medical evidence, can, and will, make them liable for

the taking of the life of that unborn child.”); see also Cass, 467 N.E.2d at 1328

(“Medical science now may provide competent proof as to whether the fetus was

alive at the time of a defendant’s conduct and whether his conduct was the cause of

death.”). Many states have already abandoned the “Born Alive” Rule, some through

legislation, others by judicial decision. See Hughes v. State, 868 P.2d 730, 731

(Okla. Crim. App. 1994) (abandoning the “Born Alive” Rule); State v. Horne, 319

                                          13
S.E.2d 703, 704 (S.C. 1984) (holding that a viable, unborn child is a “person” within

the statute defining murder as the killing of “any person”); see also Farley v. Smith,

466 S.E.2d 522, 528 n.13 (W. Va. 1995) (providing a list of the thirty-six

jurisdictions that permit tort recovery for the death of a viable, unborn child). Florida

should abandon the Rule, too.

      Moreover, the facts of this case amply demonstrate why the “Born Alive”

Rule is no longer required to assist the trier of fact in determining whether the unborn

child was alive at the time of the defendant’s acts that led to the alleged homicide

and whether the defendant caused the death of the unborn child. Brooks testified

that she felt her unborn child’s last movements, following the entry of the bullet into

her abdomen. The medical evidence established that Brooks was twenty-five to

twenty-six weeks pregnant at the time of the shooting. The medical examiner

testified that the child was viable. He explained that at twenty-five weeks, Brooks’s

child had between a fifty and an eighty percent chance of surviving, and at twenty-

six weeks, the survival rate would be between eighty and ninety percent. The

medical examiner testified that other than the trauma resulting from the fatal gunshot

wound, Brooks’s child was free of any pathology, abnormalities, or congenital

defects. He provided his expert opinion that Brooks’s child was capable of life and

that the child died because of the bullet that passed through the mother’s womb into

the child. Due to the medical and lay testimony in this case, the jury could determine

                                           14
beyond a reasonable doubt whether Brooks’s child was alive and viable when Wyche

shot Brooks and whether the shooting was the cause of the child’s death.

      Accordingly, I would affirm Wyche’s conviction for the second-degree

murder of Brooks’s unborn child. I join the majority in holding that the Legislature

abrogated the “Born Alive” Rule through its enactment of the feticide statute. But I

also conclude that the “Born Alive” Rule should no longer be applied in Florida

because the evidentiary basis for the Rule no longer exists. Developments in modern

medicine allow for experts to testify competently as to the health and development

of the unborn child and the cause of the child’s death. The medical evidence and

testimony presented in this case was more than sufficient for the jury to determine

beyond a reasonable doubt that Wyche’s gunshot to Brooks’s womb resulted in the

death of her viable, unborn child. Because Brooks’s unborn child was a human being

entitled to the protection under Florida’s homicide statute, Wyche’s conviction

should be affirmed.




                                        15
