No. 15-0021 - State v. Louk                                                  FILED
                                                                           May 27, 2016
                                                                             released at 3:00 p.m.
                                                                           RORY L. PERRY, II CLERK
                                                                         SUPREME COURT OF APPEALS
LOUGHRY, J., dissenting:                                                      OF WEST VIRGINIA




              Olivia Ann Vangeline Louk was eleven days old when she died as a result of

her mother’s neglect. West Virginia Code § 61-8D-4a provides that the mother’s conduct

constitutes a felony punishable by a three-to-fifteen-year term of imprisonment. Yet, the

majority, undoubtedly persuaded by the amici, has decided that no crime was committed

because the neglect occurred before Olivia was born. While it is certainly not unusual for

this Court to be presented with intensely emotional issues, this case in particular amplifies

the Court’s challenge to render justice in the face of facts that touch upon deeply personal

and diversely-held beliefs. Our role in this case was the same as it is in all others: to apply

the law in accordance with our established principles of jurisprudence. The majority’s result-

oriented analysis proves, however, that it allowed policy implications and social ramifications

to play a role in its decision. The rule of law commanded one outcome in this case–affirming

the petitioner’s conviction. Because the majority has utterly disregarded the plain language

of West Virginia Code § 61-8D-4a and vacated the petitioner’s conviction, I dissent.



              It is undisputed that Olivia was born alive on June 12, 2013, and subsequently

died as a result of her mother’s injection of methamphetamine into her bloodstream just



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hours before Olivia was born. While Olivia was delivered by emergency Cesarean section,

the treating physician testified that the pregnancy was “full term.”1 There is no evidence that

Olivia had a congenital defect that would have otherwise prohibited her from living a normal,

healthy life. Olivia only lived eleven days because the methamphetamine injection caused

her mother to suffer respiratory distress that inevitably deprived Olivia of oxygen for a

significant period of time resulting in irreversible brain damage. There is no question that

Olivia’s death was caused by her mother’s decision to neglect her child’s welfare, a fact that

her mother readily acknowledged. When asked if she considered Olivia’s welfare when she

took the illegal drug, the petitioner confessed, “I didn’t and I should have.” She attributed

her behavior to “stupidity.”



                West Virginia Code § 61-8D-4a provides that “if any parent . . . shall neglect

a child under his or her care, custody or control and by such neglect cause the death of said

child, then such parent . . . shall be guilty of a felony.” West Virginia Code § 61-8D-1(2)

defines “child” as “any person under eighteen years of age not otherwise emancipated by

law.” This Court has long held that “[w]hen a statute is clear and unambiguous and the

legislative intent is plain, the statute should not be interpreted by the courts, and in such case

it is the duty of the courts not to construe but to apply the statute.” Syl. Pt. 5, State v.

General Daniel Morgan Post No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959).

       1
        The petitioner’s medical records indicate she was scheduled to undergo a Cesarean
section on June 26, 2013.

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There is no ambiguity concerning the application of the relevant statutory provisions to the

facts of this case. At the age of eleven days, Olivia was a child within the meaning of W.Va.

Code § 61-8D-1(2), and she died as a result of neglect by her mother.



               Rather than apply the law as written by the Legislature, the majority chose to

focus on the fact that the neglect that caused Olivia’s death occurred before she was born.

Under the plain language of the statute, this fact is immaterial. West Virginia Code § 61-8D­

4a contains no requirement that the neglect that causes death be inflicted on the child after

birth. Moreover, our common law provides that if a “child is born alive, and dies by reason

of injuries received in the womb, or in the act of birth, the person who deliberately inflicted

those injuries may be guilty of murder.” State ex rel. Atkinson v. Wilson, 175 W.Va. 352,

353, n.3, 332 S.E.2d 807, 808, n.3 (1984) (quoting 4 S. Stephen, Commentaries on the Laws

of England 58 (1914)). Referred to as the “born alive” rule, this common law has been a part

of our jurisprudence since West Virginia first became a State in 1863. In Adkinson, this

Court was confronted with the opportunity to extend the “born alive” rule to the death of an

unborn child. Recognizing that only the Legislature has the authority to change the common

law, this Court refused to alter the “born alive” rule to create criminal liability for the murder

of a viable unborn child. Id. at 356, 332 S.E.2d 812.




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              West Virginia Code § 2-1-1 provides that the common law of England “shall

continue in force” unless altered by the West Virginia Legislature. Accordingly, this Court

has held that “‘“[t]he common law is not to be construed as altered or changed by statute,

unless legislative intent to do so be plainly manifested.” Shifflette v. Lilly, 130 W.Va. 297,

43 S.E.2d 289 [1947].’ Syllabus Point 4, Seagraves v. Legg, 147 W.Va. 331, 127 S.E.2d 605

(1962).” Syl. Pt. 4, State ex rel. Van Nguyen v. Berger, 199 W.Va. 71, 483 S.E.2d 71 (1996).

There is no evidence that the Legislature intended to alter the application of the common law

“born alive” rule through its statutory definition of “child” in West Virginia Code § 61-8D­

1(2).



              In construing a statute, we “presume[] that the legislators who drafted and

passed it were familiar with all existing law applicable to the subject-matter, whether

constitutional, statutory, or common, and intended the statute to harmonize completely with

the same and aid in the effectuation of the general purpose and design thereof, if its terms are

consistent therewith.” Syl. Pt. 5, in part, State v. Snyder, 64 W.Va. 659, 63 S.E. 385 (1908).

Moreover, “[o]ne of the axioms of statutory construction is that a statute will be read in

context with the common law unless it clearly appears from the statute that the purpose of

the statute was to change the common law.” Syl. Pt. 2, Smith v. West Virginia State Bd. of

Educ., 170 W.Va. 593, 295 S.E.2d 680 (1982). Given that there is no indication in either

West Virginia Code § 61-8D-4a or West Virginia Code § 61-8D-1(2) of legislative intent to



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abrogate the common law “born alive” rule, there is no basis to conclude that the petitioner

cannot be held criminally liable for Olivia’s death.



              Other “American courts . . . have in the absence of specific inclusive statutory

language unanimously refused to abandon th[e] born alive rule in criminal cases.” People

v. Bolar, 440 N.E.2d 639, 644 (Ill. App. Ct. 1982). Indeed, based on the “born alive” rule,

other jurisdictions have expressly held “it is not necessary that all of the elements of a

criminal offense be immediately satisfied at the time of the defendant’s conduct.” Cuellar

v. State, 957 S.W.2d 134, 139 (Tx. Ct. App. 1997). See also Ranger v. State, 290 S.E.2d 63,

66 (Ga. 1982) (affirming felony murder conviction based on evidence infant victim survived

twelve hours before dying as result of premature delivery caused by shooting of mother);

Jones v. Commonwealth., 830 S.W.2d 877, 879 (Ky. 1992) (upholding manslaughter

conviction because “the victim was a fetus when the criminal act occurred, but a person when

death occurred so the criminal act resulted in the death of person”); Williams v. Maryland,

561 A.2d 216, 219 (Md. 1989) (concluding “criminal infliction upon a pregnant woman of

prenatal injuries resulting in the death of her child after live birth may constitute

manslaughter” pursuant to common law “born alive” rule); New Jersey v. Anderson, 343

A.2d 505, 509 (N. J. Super. Ct. Law Div. 1975) (stating “fetuses which are the victims of a

criminal blow or wound upon their mother and are subsequently born alive, and thereafter

die by reason of a chain of circumstances precipitated by such blow or wound, may be



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victims of murder”); People v. Hall, 557 N.Y.S.2d 879, 883 (N.Y. App. Div. 1990) (finding

evidence established infant victim was born alive and thus was “person” within meaning of

homicide statutes).



              The majority’s reliance upon West Virginia Code § 61-2-30, known as the

Unborn Victims of Violence Act (“Act”), to support its conclusion that the “born alive” rule

has been abrogated is misplaced. The Act governs prosecution of persons who injure or

cause the death of unborn children by committing certain violent crimes set forth in Chapter

61, Article 2 of the West Virginia Code. As such, the Act serves to expand the common law

“born alive” rule to include unborn children.     The exemption for acts or omissions of

pregnant women set forth in the Act only applies to those crimes of violence set forth in

Chapter 61, Article 2 of the West Virginia Code. The exemption does not apply to the crime

committed by the petitioner–child neglect causing death.



              Holding the petitioner criminally liable for causing Olivia’s death does not

offend due process notions of fundamental fairness or render West Virginia Code § 61-8D-4a

impermissibly vague.     The majority’s conclusion that the petitioner could not have

reasonably known that she could be prosecuted for her prenatal conduct is absurd. The

petitioner engaged in criminal activity–the use of illegal drugs–and caused the death of her

child. It is common knowledge that use of illegal substances by pregnant mothers subjects



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their unborn children to a high risk of injury. The petitioner readily admitted she knew

injecting methamphetamine into her vein would put Olivia at risk. She simply chose to

completely disregard Olivia’s welfare. She should be held accountable for her actions.



              While the majority and amici insist that affirming the petitioner’s conviction

would result in future prosecutions of pregnant mothers who engage in lawful, low-risk

activities that are contraindicated during pregnancy and cause harm to their children, there

is no basis for that conclusion. In that regard, West Virginia Code § 61-8D-1(7) defines

“neglect” as “the unreasonable failure by a parent, guardian or custodian of a minor child to

exercise a minimum degree of care to assure the minor child’s physical safety or health.”

(emphasis added). This Court has observed that this definition is sufficient to “give[] a

person of ordinary intelligence fair notice that his or her contemplated conduct is prohibited

and it also provides adequate standards for adjudication.” Syl. Pt. 3, in part, State v.

DeBerry, 185 W.Va. 512, 408 S.E.2d 91 (1991) (emphasis added). The laundry list of legal

activities that the majority and amici claim may be subject to prosecution if the petitioner’s

conviction were affirmed simply does not correspond to the certainty of injury that results

from exposure to a controlled substance such as methamphetamine. More importantly, it is

this Court’s duty to apply the law as written and not to consider whether our decision will

yield prosecutions which militate against the various public policy concerns expressed by the




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amici. As the petitioner herself ardently insists, such determinations are reserved to the

Legislature.



               Judicial challenge “‘is not a license for courts to judge the wisdom, fairness,

or logic of legislative choices.’” MacDonald v. City Hosp., Inc., 227 W.Va. 707, 722, 715

S.E.2d 405, 420 (2011) (quoting Federal Communications Comm’n v. Beach

Communications, Inc., 508 U.S. 307, 313 (1993)). Therefore, it is not for this Court to speak

to whether it should or should not be a crime for a mother to engage in criminal activity

which injures a child in utero that is later born alive and subsequently dies–the law reveals

that it is–and thus ends this Court’s charge.



               Accordingly, I respectfully dissent. I am authorized to state that Justice

Workman joins in this dissent.




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