Ankrom v. State (Ex parte Ankrom)

152 So.3d 397

Ex Parte Hope Elisabeth ANKROM.

(In re Hope Elisabeth Ankrom

v.State of Alabama).

Ex parte Amanda Helaine Borden Kimbrough.

(In re Amanda Helaine Borden Kimbrough

v.State of Alabama).

1110176

1110219.

Supreme Court of Alabama.

Jan. 11, 2013.

Rehearing Denied in no. 1110176 Dec. 13, 2013.

Paul Young, Enterprise; and Carmen F. Howell, Enterprise, for petitioner Hope Elisabeth Ankrom.

Jake Watson of Watson Graffeo PC, Huntsville; and Brian White of White & Oakes, LLC, Decatur, for petitioner Amanda Helaine Borden Kimbrough.

Luther Strange, atty. gen., and John C. Neiman, Jr., deputy atty. gen., and Cecil G. Brendle, Jr. (1110176), and Michael G. Dean (1110219), asst. attys. gen., for respondent.

Allison Neal, Montgomery, for American Civil Liberties Union of Alabama Foundation; and Alexa Kolbi–Molinas, New York, New York, for ACLU Reproductive Freedom Project, for amici curiae American Civil Liberties Union of Alabama Foundation and the American Civil Liberties Union, in support of the petitioners.

Kathryn A. King, Cullman, for amicus curiae Alabama Criminal Defense Lawyers Association, in support of the petitioners.

Lisa W. Borden of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Birmingham, for amicus curiae State Representative Patricia Todd, in support of the petitioners.

Mary Bauer, Southern Poverty Law Center, Montgomery; Tamar Todd, Drug Policy Alliance, Berkeley, California; and Emma S. Ketteringham and Lynn M. Paltrow, National Advocates for Pregnant Women, New York, New York, for amici curiae Southern Poverty Law Center, Drug Policy Alliance, and the National Advocates for Pregnant Woman, in support of the petitioners.

A. Eric Johnston, Birmingham; and Mathew D. Staver, Liberty Counsel, Maitland, Florida, for amicus curiae Liberty Counsel, in support of the respondent.

Mary Bauer, Southern Poverty Law Center, Montgomery; Tamar Todd, Drug Policy Alliance, Berkeley, California; and Emma S. Ketteringham and Lynn M. Paltrow, National Advocates for Pregnant Women, New York, New York, for amici curiae American Academy of Addiction Psychiatry, American Medical Women's Association, American Nurses Association, The Alabama Women's Resource Network, American Society of Addiction Medicine, Global Lawyers and Physicians, Institute for Health and Recovery, International Center for Advancement of Addiction Treatment of the Beth Israel Medical Center Baron Edmond de Rothschild Chemical Dependency Institute, National Asian Pacific American Women's Forum, National Association of Nurse Practitioners in Women's Health, National Association of Social Workers, National Association of Social Workers–Alabama Chapter, National Council on Alcoholism and Drug Dependence, Inc., National Latina Institute for Reproductive Health, National Organization for Women–Alabama, National Perinatal Association, National Women's Health Network, National Women's Law Center, Our Bodies Ourselves, Southern Center for Human Rights, Sheila Blume, MD, Wendy Chavkin, MPH, MD, Nancy Day, MPH, PhD, Deborah A. Frank, MD, Leslie Hartley Gise, MD, Stephen R. Kandall, MD, and Linda Worley, MD, in support of the petitioners.

Mary Bauer, Montgomery; Tamar Todd, Drug Policy Alliance, Berkeley, California; and Emma S. Ketteringham and Lynn M. Paltrow, National Advocates for Pregnant Women, New York, New York, for amici curiae All Our Lives and Experts in Treatment of Addiction in Women, in support of the petitioners (and also joining in the brief filed on behalf of The American Academy of Addiction Psychiatry et al.).

Opinion

PARKER, Justice.

Hope Elisabeth Ankrom and Amanda Helaine Borden Kimbrough (“the petitioners”) each petitioned this Court for a writ of certiorari to review the Court of Criminal Appeals' decisions in their cases. We granted the petitions and consolidated these cases, each of which presents the same issue of first impression for this Court's consideration: Whether the term “child” as used in § 26–15–3.2, Ala.Code 1975 (“the chemical-endangerment statute”), includes an unborn child. Concluding that it does and that the Court of Criminal Appeals reached the correct decision in both cases, we affirm the judgments of the Court of Criminal Appeals.

I. Facts and Procedural History

The Court of Criminal Appeals recounted the facts of Ankrom's case as follows in its opinion:

“At the guilty-plea hearing, the parties stipulated to the following facts:

“ ‘On January 31, 2009, the defendant, Hope Ankrom, gave birth to a son, [B.W.], at Medical Center Enterprise. Medical records showed that [Ankrom] tested positive for cocaine prior to giving birth and that the child tested positive for cocaine after birth.

“ ‘Department of Human Resources worker Ashley Arnold became involved and developed a plan for the care of the child. During the investigation [Ankrom] admitted to Ashley that she had used marijuana while she was pregnant but denied using cocaine.

“ ‘Medical records from her doctor show that he documented a substance abuse problem several times during her pregnancy and she had tested positive for cocaine and marijuana on more than one occasion during her pregnancy.’

“On February 18, 2009, Ankrom was arrested and charged with chemical endangerment of a child. On August 25, 2009, the grand jury indicted Ankrom. The indictment stated that Ankrom ‘did knowingly, recklessly, or intentionally cause or permit a child, to-wit: [B.W.], a better description of which is to the Grand Jury otherwise unknown, to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in Section 13A–12–260 of the Code of Alabama, 1975, to-wit: Cocaine, in violation of Section [26–15–3.2(a)(1) ].’

“On September 25, 2009, Ankrom filed a motion styled as a ‘Motion to Dismiss Indictment.’ In that motion, after setting forth the facts, Ankrom argued that ‘[t]he plain language of [§ 26–15–3.2, Ala.Code 1975,] shows that the legislature intended for the statute to apply only to a child, not a fetus'; that ‘courts in other states which have enacted the same or similar chemical endangerment statutes have determined that such statutes do not apply to prenatal conduct that allegedly harms a fetus'; that ‘[t]he state's contention that the defendant violated this statute renders the law impermissibly vague, and therefore the rule of lenity applies'; that ‘[t]he legislature has previously considered amending the statute to include prenatal conduct that harms a fetus, and declined to do so’; that ‘the defendant has not been accorded due process because there was no notice that her conduct was illegal under this statute’; that ‘[t]he prosecution of pregnant women is a violation of the constitutional guarantee of Equal Protection’; and that ‘[p]rosecution of pregnant, allegedly drug-addicted women is against public policy for numerous moral and ethical reasons.’ The State responded to that motion on October 13, 2009. In the State's response, it agreed that on January 31, 2009, Ankrom gave birth to a son and that medical records showed that Ankrom tested positive for cocaine immediately prior to giving birth and that the child tested positive for cocaine after birth. Based on that conduct, the State argued that prosecution of Ankrom was proper under § 26–15–3.2, Ala.Code 1975. On October 15, 2009, the trial court denied Ankrom's motion.

“On April 1, 2010, Ankrom pleaded guilty to a violation of § 26–15–3.2(a)(1), Ala.Code 1975.”

Ankrom v. State, 152 So.3d 373, 375–76 (Ala.Crim.App.2011). Ankrom was sentenced to three years in prison, but her sentence was suspended and she was placed on probation for one year. Ankrom, 152 So.3d at 375.

In its unpublished memorandum in Kimbrough v. State , 114 So.3d 163 (Ala.Crim.App.2011) (table), the Court of Criminal Appeals recounted the facts of Kimbrough's case as follows:

“In September 2008, Amanda Helaine Borden Kimbrough was indicted for the chemical endangerment of a child that resulted in death, a violation of § 26–15–3.2(a)(3), Ala.Code 1975. The indictment stated:

“ ‘The grand jury of said county charge that, before the finding of the indictment, Amanda Helaine Borden Kimbrough, whose name is otherwise unknown to the Grand Jury than as stated, ... did knowingly, recklessly, or intentionally cause or permit a child, Timmy Wayne Kimbrough, to be exposed to, to ingest or inhale, or to have contact with a controlled substance, to wit: methamphetamine, and the exposure, ingestion, inhalation, or contact resulted in the death of Timmy Wayne Kimbrough, in violation of [§] 26–15–3.2 of the Code of Alabama [1975], against the peace and dignity of the State of Alabama.’

“Kimbrough, through retained counsel, filed several pretrial motions, including four motions to dismiss the indictment. In her motions to dismiss, Kimbrough alleged: (1) that the term ‘child’ in § 26–15–3.2 did not include an unborn child, and therefore, her conduct in smoking methamphetamine while pregnant did not constitute the offense of the chemical endangerment of a child; (2) that prosecuting her for violating § 26–15–3.2 for conduct that occurred during her pregnancy when, she says, that conduct did not constitute the offense of chemical endangerment of a child, violated the doctrine of separation of powers; (3) that interpreting the term ‘child’ in § 26–15–3.2 to include an unborn child rendered the statute void for vagueness and violated her due-process right to notice that her conduct was proscribed; and (4) that interpreting the term ‘child’ in § 26–15–3.2 to include an unborn child violated her right to equal protection under the law. The trial court denied the motions without comment.

“Kimbrough initially proceeded to trial; however, after the trial court denied her motion for a judgment of acquittal at the close of the State's case, Kimbrough reached a plea agreement with the State, and the jury was dismissed. Pursuant to the plea agreement, Kimbrough pleaded guilty to the chemical endangerment of a child as charged

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