State v. Geiser

2009 ND 36, 763 N.W.2d 469, 2009 N.D. LEXIS 57, 2009 WL 866221
CourtNorth Dakota Supreme Court
DecidedApril 2, 2009
Docket20080120
StatusPublished
Cited by11 cases

This text of 2009 ND 36 (State v. Geiser) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Geiser, 2009 ND 36, 763 N.W.2d 469, 2009 N.D. LEXIS 57, 2009 WL 866221 (N.D. 2009).

Opinions

KAPSNER, Justice.

[¶ 1] Michelle Geiser (“Geiser”) appeals from a district court order denying her motion to dismiss the charge of endangerment of a child. We hold the district court erred by concluding the charge of endangerment of a child applies to an unborn child. We reverse and remand to allow Geiser the opportunity to withdraw her guilty plea to the charge of endangerment of a child.

I.

[¶ 2] On or about September 24, 2007, Geiser allegedly overdosed on prescription drugs. At this time, she was approximately 29 weeks pregnant. Geiser was taken by ambulance to Medcenter One in Bismarck, North Dakota. The State asserts the alleged overdose resulted in the demise of the unborn child.

[¶3] The State charged Geiser with the following offenses, alleging they occurred on or about September 24, 2007: possession of a controlled substance in violation of N.D.C.C. § 19-03.1-23; ingesting a controlled substance in violation of N.D.C.C. § 19-03.1-22.3; and endangerment of a child or vulnerable adult in violation of N.D.C.C. § 19-03.1-22.2.

[¶ 4] Geiser filed a motion to dismiss the charge of endangerment of a child or vulnerable adult. Geiser asserted the term “child” means an individual under the age of eighteen years and does not include an unborn child. The State resisted Geiser’s motion. The State contended the term “child” includes a viable unborn child.

[¶ 5] The district court denied Geiser’s motion to dismiss. In its order, the district court relied on Hopkins v. McBane, 359 N.W.2d 862, 865 (N.D.1984), in which this Court held a wrongful-death action may be brought against one whose tortious conduct causes the death of a viable unborn child. The district court also relied on Whitner v. State of South Carolina, 328 S.C. 1, 492 S.E.2d 777, 780 (1997), in which the Supreme Court of South Carolina determined a viable fetus is a person for the purpose of a statute proscribing child abuse. The district court noted Whitner is the minority view opinion and held:

Because North Dakota has recognized a viable unborn child as a human being or person which has life, it would be inconsistent to construe a viable unborn child as a human being or person for the purposes of imposing civil liability while refusing to give it a similar classification in the criminal context.

Geiser entered a conditional plea of guilty to the charge of endangerment of a child or vulnerable adult under N.D.R.Crim.P. 11(a)(2), reserving her right to appeal the district court’s denial of her motion to dismiss.

II.

[¶ 6] The issue before this Court is whether the charge of endangerment of a child or vulnerable adult applies to an unborn child. This issue is one of statutory interpretation. “The interpretation of a statute is a question of law, fully reviewable on appeal.” Grey Bear v. N.D. Dep’t of Human Servs., 2002 ND 139, ¶ 7, 651 N.W.2d 611 (quoting Olander Contracting [471]*471Co. v. Gail Waehter Invs., 2002 ND 65, ¶ 43, 643 N.W.2d 29).

[¶ 7] The State charged Geiser under N.D.C.C. § 19-03.1-22.2(2), which provides:

Unless a greater penalty is otherwise provided by law, a person who knowingly or intentionally causes or permits a child or vulnerable adult to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in subsection 1, is guilty of a class C felony.

Section 19 — 03.1—22.2(l)(b), N.D.C.C., states for the purposes of this section, “ ‘[c]hild’ means an individual who is under the age of eighteen years.”

A.

[¶ 8] When interpreting statutes, this Court has a duty to ascertain the Legislature’s intent. Singha v. N.D. State Bd. of Medical Examiners, 1998 ND 42, ¶ 16, 574 N.W.2d 838 (citing County of Stutsman v. State Hist. Soc’y, 371 N.W.2d 321, 325 (N.D.1985)). “The Legislature’s intent initially must be sought from the language of the statute as a whole.” Id. (citing County of Stutsman, 371 N.W.2d at 325). This Court construes the words in a statute in their plain, ordinary, and commonly understood sense. N.D.C.C. § 1-02-02; Singha, 1998 ND 42, ¶ 16, 574 N.W.2d 838 (citing County of Stutsman, 371 N.W.2d at 327).

[¶ 9] The State contends, “a plain reading of the statute supports a finding that a ‘child’ includes the child at issue in this case and if the [Legislature disagrees [it has] every ability to say so.” Section 19-03.1 — 22.2(l)(b), N.D.C.C., provides “ ‘[cjhild’ means an individual who is under the age of eighteen years.” Rather than a “plain reading” of the statute, the State is urging an interpretation that is more expansive than the definition of a “child” contained in the plain language of N.D.C.C. § 19-03.1-22.2(l)(b). We, therefore, review extrinsic evidence to further interpret and construe the statute and determine whether that expansive interpretation is consonant with legislative intent.

B.

[¶ 10] One type of extrinsic evidence we use to interpret statutes is legislative history. State v. Leppert, 2003 ND 15, ¶ 16, 656 N.W.2d 718 (citing County of Stutsman, 371 N.W.2d at 325). The legislative history of N.D.C.C. § 19-03.1-22.2 does not indicate that the Legislature intended the statute to apply to unborn children. Hearing on H.B. 1351 Before the House Judiciary Comm., 58th N.D. Legis. Sess. (Jan. 22, 2003).

[¶ 11] The legislative history explains N.D.C.C. § 19-03.1-22.2 was modeled after a Utah statute. Hearing on H.B. 1351 Before the Joint Senate and House Judiciary Comms., 58th N.D. Legis. Sess. (Jan. 22, 2003) (testimony of Jonathan Byers, Assistant Attorney General). Utah’s child endangerment statute provides: “ ‘Child’ means the same as that term is defined in Subsection 76-5-109(1)(a).” Utah Code Ann. § 76-5-112.5(1)(b). Section 76-5-109(1)(a), Utah Code Ann., states: “ ‘Child’ means a human being who is under 18 years of age.” While the Utah Court of Appeals and Supreme Court of Utah have discussed Utah’s child endangerment statute, neither court has analyzed whether the statute applies to an unborn child. See State v. Gallegos, 2007 UT 81, ¶ 9, 171 P.3d 426; State v. Nieberger, 2006 UT App. 5, ¶¶ 8, 9, 128 P.3d 1223, overruled by Gallegos, 2007 UT 81, 171 P.3d 426; State v. Draper, 2006 UT App. 6, ¶ 1, 128 P.3d 1220; State v. Atencio, 2004 UT App. 93, ¶¶ 2, 7, 89 P.3d 191.

[472]*472G.

[¶ 12] This Court has held: “When the plain language of a statute is not ‘transparent,’ our codified rules of statutory interpretation direct us to look to the Code itself in determining the meaning of statutory terms.” N. X-Ray Co., Inc. v. State ex rel. Hanson, 542 N.W.2d 733, 735 (N.D. 1996) (citing N.D.C.C. § 1-02-02). We review other provisions of the code to assist in the interpretation of N.D.C.C. § 19-03.1-22.2(l)(b).

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Cite This Page — Counsel Stack

Bluebook (online)
2009 ND 36, 763 N.W.2d 469, 2009 N.D. LEXIS 57, 2009 WL 866221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-geiser-nd-2009.