[Cite as State v. Bales, 2013-Ohio-4957.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                      :   Hon. Sheila G. Farmer, J.
                                               :   Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :   Case No. 13CA5
                                               :
JASMINE S. BALES (AKA COSNER)                  :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Knox County Court of
                                                   Common Pleas, Case No. 12CR09-
                                                   0131



JUDGMENT:                                          REVERSED AND VACATED




DATE OF JUDGMENT ENTRY:                            October 31, 2013




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

JOHN C. THATCHER                                   JOHN A. DANKOVICH
KNOX CO. PROSECUTOR                                KNOX CO. PUBLIC DEFENDER
JOSEPH D. SAKS                                     One Public Square
117 East High St., Suite 234                       Mount Vernon, OH 43050
Mount Vernon, OH 43050
Knox County, Case No.13CA5                                                                 2

Delaney, J.

       {¶1} Appellant Jasmine S. Bales (aka Cosner) appeals from the March 15,

2013 judgment entry of the Knox County Court of Common Pleas overruling her motion

to dismiss her indictment upon one count of corrupting another with drugs. Appellee is

the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} The facts of this case are not in dispute. Appellant is a heroin addict

presently in recovery. On August 18, 2012, while still in the throes of her addiction,

appellant gave birth to a son. The infant tested positive for narcotics and opiates and

suffered respiratory distress at birth, in addition to other complications, necessitating his

transfer to Nationwide Children’s Hospital. He still suffers consequences of appellant’s

prenatal heroin use, including asthma and a suppressed immune system, and is not

presently in his mother’s custody.

       {¶3} Appellant was charged by indictment with one count of corrupting another

with drugs pursuant to R.C. 2925.02(A)(3), a felony of the second degree, and one

count of child endangering pursuant to R.C. 2919.22(A), a felony of the third degree.

Appellee later dismissed Count Two of the indictment. Appellant entered a plea of not

guilty to Count One and the matter was scheduled for trial by jury.

       {¶4} Appellant filed a Motion to Dismiss Count One, corrupting another with

drugs, arguing an unborn child is not a legal person and a drug-addicted mother cannot

be prosecuted for a violation of R.C. 2919.22 with respect to her unborn child pursuant

to State v. Gray, 62 Ohio St.3d 514, 584 N.E.2d 710 (1986). The trial court held an oral
Knox County, Case No.13CA5                                                                            3


hearing and overruled appellant’s Motion to Dismiss Count One by Judgment Entry on

January 30, 2013.

        {¶5} Appellant entered a plea to one amended count of attempted corrupting

another with drugs in violation of R.C. 2923.02(A) and R.C. 2925.02(A)(3), a felony of

the third degree. The trial court requested a presentence investigation. On March 15,

2013, appellant was sentenced to a term of 3 years of community control, including 120

days in the Knox County Jail,1 successful completion of a community-based correctional

facility program, and a six-month suspension of her operator’s license. The trial court

suspended the mandatory $5,000 fine.

        {¶6} Appellant now appeals from the March 15, 2013 sentencing entry of the

trial court.

                                   ASSIGNMENT OF ERROR

        {¶7} “I. THE TRIAL COURT ERRED IN FAILING TO DISMISS PURSUANT

TO STATE V. GRAY.”

                                             ANALYSIS

        {¶8} Appellant argues the trial court erred in declining to dismiss the indictment

for one count of corrupting another with drugs. For the following reasons, we agree,

and therefore we reverse the decision of the trial court and vacate appellant’s conviction

upon Count One of the indictment. We note the State opposed appellant’s arguments

in its brief but at oral argument conceded appellant’s conviction upon one count of

attempted corrupting another with drugs must be reversed.



1
 This jail term is concurrent with a jail term imposed in an unrelated case appellant was also sentenced
upon, State of Ohio v. Jasmine S. Bales, Knox County Court of Common Pleas Case No. 12CR06-0068.
Appellant entered pleas of no contest to two counts of possession of heroin in that case.
Knox County, Case No.13CA5                                                                 4


       {¶9} A motion to dismiss in the criminal context tests the sufficiency of the

charging document without regard to the quantity or quality of the evidence which may

eventually be produced by appellee. State v. Patterson, 63 Ohio App.3d 91, 95, 577

N.E.2d 1165, 1167 (1989); State v. Davis, 5th Dist. Stark No.2004-CA-00202, 2005-

Ohio-494, ¶ 36. A pre-trial motion to dismiss cannot reach the merits or substance of the

allegations as there is no equivalent of the civil rules' summary judgment procedure in

the criminal arena. State v. Riley, 12th Dist. Butler No. CA2001-04-095, 2001-Ohio-

8618, 2002 WL 4484, *2. Therefore, pre-trial motions to dismiss “can only raise matters

that are capable of determination without a trial on the general issue.” Id. at 4; see, also,

Patterson, supra, 63 Ohio App.3d at 95. We review a trial court's decision on a motion

to dismiss pursuant to a de novo standard of review. State v. Brown, 5th Dist. Stark

No.2007CA00129, 2008-Ohio-4087, ¶ 21, citing State v. Merritt, 5th Dist. Richland No.

06 CA 10, 2007-Ohio-480.

       {¶10} Appellant was charged by indictment with one count of corrupting another

with drugs in violation of R.C. 2925.02(A)(3) due to the acknowledged fact she gave

birth to a drug-dependent infant whose condition was a result of her illegal drug use

during pregnancy.     She ultimately entered a plea of no contest to one count of

attempted corrupting another with drugs pursuant to R.C. 2923.02(A) and R.C.

2925.02(A)(3). The latter states in pertinent part, “No person shall knowingly * * * [b]y

any means, administer or furnish to another or induce or cause another to use a

controlled substance, and thereby cause serious physical harm to the other person, or

cause the other person to become drug dependent.”
Knox County, Case No.13CA5                                                              5


      {¶11} The issue in this case originates with the definition of “another.” “Another”

is not defined in the statute, or elsewhere in Chapter 2925. We note another court

which has weighed the same issue looked to the definition of “person” contained in R.C.

2901.01. State v. Clemons, 4th Dist. Highland No. 12CA9, 2013-Ohio-3415, --N.E.2d--,

¶ 9. R.C. 2901.01 (B)(1)(a) defines “person” in pertinent part:

                    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:

                    * * * *.

                    (ii) An unborn human who is viable.

                    * * * *.

                    (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
Knox County, Case No.13CA5                                                           6


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

                 the following manners:

                 (a) Except as otherwise provided in division (B)(2)(a) of this

                 section, in a manner so that the offense prohibits or is

                 construed as prohibiting any pregnant woman or her

                 physician from performing an abortion with the consent of

                 the pregnant woman, with the consent of the pregnant

                 woman implied by law in a medical emergency, or with the

                 approval of one otherwise authorized by law to consent to

                 medical treatment on behalf of the pregnant woman. An

                 abortion that violates the conditions described in the

                 immediately preceding sentence may be punished as a

                 violation of section 2903.01, 2903.02, 2903.03, 2903.04,

                 2903.05, 2903.06, 2903.08, 2903.11, 2903.12, 2903.13,

                 2903.14, 2903.21, or 2903.22 of the Revised Code, as

                 applicable. An abortion that does not violate the conditions

                 described in the second immediately preceding sentence,

                 but that does violate section 2919.12, division (B) of section

                 2919.13, or section 2919.151, 2919.17, or 2919.18 of the

                 Revised Code, may be punished as a violation of section

                 2919.12, division (B) of section 2919.13, or section

                 2919.151, 2919.17, or 2919.18 of the Revised Code, as

                 applicable. Consent is sufficient under this division if it is of
Knox County, Case No.13CA5                                                        7


                 the type otherwise adequate to permit medical treatment to

                 the pregnant woman, even if it does not comply with section

                 2919.12 of the Revised Code.

                 (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:

                 (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.
Knox County, Case No.13CA5                                                                8


       {¶12} In light of the above, we must arrive at the same conclusion as the Fourth

District, to wit, appellant’s unborn child was a “person;” and we must further concur with

the Court’s holding:

                       [R.]C. 2901.01 contains exceptions or limits to the manner in

                       which the word “person” can be “applied or 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.” Clemons, supra, 2013-Ohio-3415 at ¶ 10.

       {¶13} Appellant urges us to reverse the instant case on the basis of State v.

Gray, in which the Ohio Supreme Court held a parent may not be prosecuted for child

endangerment pursuant to R.C. 2919.22(A) due to substance abuse occurring before

the birth of the child. State v. Gray, 62 Ohio St.3d 514, 516, 584 N.E.2d 710 (1992).

Gray has only limited applicability to the instant case and the Court’s urging of the

Legislature to create a statute addressing prenatal child neglect has not yet come to

pass. Until the Legislature addresses this issue, corrupting another with drugs is not the

appropriate criminal offense for a mother under these circumstances.

       {¶14} We conclude appellant may not be convicted pursuant to R.C.

2925.02(A)(3) for actions taken during pregnancy which affected her unborn child.
Knox County, Case No.13CA5                                                         9


                                   CONCLUSION

      {¶15} The decision of the trial court is reversed and appellant’s conviction is
vacated.

By: Delaney, J. and

Hoffman, P.J.

Farmer, J., concur.



                                      HON. PATRICIA A. DELANEY




                                      HON. WILLIAM B. HOFFMAN



                                      HON. SHEILA G. FARMER
