| [1] | IN THE COURT OF APPEALS OF INDIANA |
| [2] | No. 71A03-9912-CR-444 |
| [3] | June 7, 2000 |
| [4] | IDETTE
HERRON, APPELLANT-DEFENDANT, V. STATE OF INDIANA, APPELLEE-PLAINTIFF. |
| [5] | APPEAL FROM THE ST. JOSEPH SUPERIOR COURT The Honorable John M.
Marnocha, Judge Cause No. 71D01-9906-DF-709 |
| [6] | For Publication Attorney For Appellant: Julie P. Verheye Mishawaka,
Indiana Attorneys For Appellee: Karen M. Freeman-wilson Attorney General
of Indiana Eileen Euzen Deputy Attorney General Indianapolis,
Indiana |
| [7] | The opinion of the court was delivered by: Mathias,
Judge |
| [8] | OPINION - FOR PUBLICATION |
| [9] | Idette Herron brings this interlocutory
appeal from the trial court's denial of her motion to dismiss the State's
criminal charge of neglect of a dependent. Herron presents
one issue for our review, which we restate as: whether an unborn child is
a dependent pursuant to Ind. Code § 35-46-1-4 (1998). |
| [10] | We reverse. |
| [11] | FACTS AND PROCEDURAL HISTORY |
| [12] | The State charged Herron with neglect of a dependent, a
Class D felony, based on her ingestion of cocaine between August of 1998
and March 18, 1999, while she was pregnant. Herron's child
was born on March 20, 1999 with cocaine present in his system.
Herron filed a motion to dismiss the charge, which the trial
court denied. The trial court certified its denial of
Herron's interlocutory motion to dismiss on November 8,
1999, and Herron filed a petition for interlocutory appeal
with this Court on December 2, 1999. We granted Herron's
petition on December 20, 1999. |
| [13] | DISCUSSION AND DECISION |
| [14] | Herron contends that the neglect of a dependent statute
does not apply to her drug use during pregnancy because an unborn child is
not a dependent. The relevant portion of IC 35-46-1-4, under which Herron
was charged, states: |
| [15] | (a) A person having the care of a dependent, whether assumed
voluntarily or because of a legal obligation, who knowingly or
intentionally: |
| [16] | (1) places the dependent in a situation that may endanger his life or
health; commits neglect of a dependent, a Class D felony. IC
35-46-1-4(a)(1). |
| [17] | "Dependent", as used in IC 35-46-1-4, is defined as "an unemancipated
person who is under eighteen (18) years of age," or "a person of any age
who is mentally or physically disabled." Ind. Code § 35-46-1-1(1998).
Responding to this question of first impression in Indiana, we must hold
that Indiana's criminal statutory definition of dependent does not include
an unborn child. |
| [18] | Interpretation of a statute is a pure question of law and we,
therefore, review the trial court's decision de novo. Mahowald v. State,
719 N.E.2d 421, 424 (Ind. Ct. App. 1999). To determine whether an unborn
child is a dependent, making Herron's cocaine use during
pregnancy a crime pursuant to IC 35-46-1-4, we turn to the rules of
statutory construction. |
| [19] | The primary goal in interpreting the meaning of a statute is to
determine and effectuate legislative intent. Woods v. State, 703 N.E.2d
1115, 1117 (Ind. Ct. App. 1998). To determine legislative intent, we look
to the plain language of the statute and attribute the common, ordinary
meaning to terms found in everyday speech. Id. Where the General Assembly
has defined a word, however, this court is bound by that definition. Rush
v. Elkhart County Plan Comm'n, 698 N.E.2d 1211, 1215 (1998), trans.
denied. Moreover, it is just as important to recognize what a statute does
not say as it is to recognize what it does say. Id. A court may not read
into a statute that which is not the expressed intent of the legislature.
Id. Criminal statutes cannot be enlarged by construction, implication, or
intendment beyond the fair meaning of the language used. Johnson v. State,
708 N.E.2d 912, 915 (Ind. Ct. App. 1999), trans. denied. Moreover,
criminal statutes are strictly construed against the State. Pennington v.
State, 426 N.E.2d 408, 410 (Ind. 1981). Even though an act may fall within
the spirit of a statute, it will not constitute a crime unless it is also
within the words of the statute. Id. |
| [20] | Where Indiana's General Assembly has previously sought to criminalize
conduct affecting unborn children, it has done so specifically. For
example, the crime of feticide is specifically defined in the Indiana Code
as the knowing or intentional termination of a human pregnancy "with an
intention other than to produce a live birth or to remove a dead fetus."
Ind. Code § 35-42-1-6 (1998). Indiana's murder statute also distinguishes
between the knowing or intentional killing of a human being and the
knowing or intentional killing of a fetus that has attained viability.
Ind. Code § 35-42-1-1 (1998). |
| [21] | In contrast, the General Assembly has defined "dependent" as an
unemancipated person who is under eighteen (18) years of age," or "a
person of any age who is mentally or physically disabled." IC 35-46-1- 1.
When considered in light of IC 35-42-1-6 and IC 35-42-1-1, this definition
may not be fairly read to include the unborn. |
| [22] | We recognize that in a civil context, for some time Indiana case law
has permitted recovery for injuries sustained by unborn children due to
the negligent or intentional acts of others. See, Cowe by Cowe v. Forum
Group, Inc., 575 N.E.2d 630, 636-37 (Ind. 1991); Walker v. Rinck, 604
N.E.2d 591, 594 (Ind. 1992). However, there is a vast difference between
the imposition of civil liability under common law theories and the
imposition of criminal liability. It is a well-settled rule in Indiana
that all crimes are statutory. State v. Lopez, 156 Ind. App. 379, 296
N.E.2d 918, 921 (1973). Conduct by a defendant, however reprehensible, is
not a crime unless the General Assembly has exercised its authority to
define it as such. |
| [23] | In its brief, the State appears to concede that an unborn child is not
a dependent under the General Assembly's definition. State's brief, p.6.
Nevertheless, the State argues that a mother may be prosecuted for acts
done prior to her child's birth if those acts ultimately endanger the
child after it is born, i.e., becomes a dependent. The State relies on
Fout v. State, 575 N.E.2d 340 (Ind. Ct. App. 1991), in support of this
proposition. |
| [24] | In Fout, we upheld a father's conviction for neglect of a dependent
based on his failure to seek medical treatment after his daughter was born
with symptoms that he had been previously warned would require prompt
medical attention. Id. at 342. We did not, as the State contends, uphold
the conviction based on the father's failure to heed pre-natal advice that
the mother be hospitalized. It was the father's failure to seek prompt
medical attention subsequent to his daughter's birth that served as the
basis for the State's charge and the father's conviction for neglect of a
dependent. |
| [25] | The State's argument based on Fout is, therefore, without merit. The
plain language of IC 35-46-1-4 contemplates only acts that place one who
is a dependent at the time of the conduct at issue in a dangerous
situation - not acts that place a future dependent in a dangerous
situation. We cannot expand the General Assembly's definition of a
dependent and, consequently, the intended application of the neglect of a
dependent statute, beyond the fair meaning of the words used. IC 35-
46-1-1 and IC 35-46-1-4 do not criminalize conduct that occurs prior to a
child's birth. |
| [26] | Reversed. |
| [27] | NAJAM, J., and FRIEDLANDER, J., concur. |