Hicks v. State (Ex parte Hicks)

153 So.3d 53

Ex parte Sarah Janie Hicks.

(In re Sarah Janie HICKS

v.STATE of Alabama).

1110620.

Supreme Court of Alabama.

April 18, 2014.

Carmen F. Howell, Enterprise, for petitioner.

Luther Strange, atty. gen., John C. Neiman, Jr., deputy atty. gen., and Michael G. Dean, asst. atty. gen., for respondent.

Opinion

PARKER, Justice.

Sarah Janie Hicks petitioned this Court for a writ of certiorari to review the Court of Criminal Appeals' judgment affirming her conviction, following a guilty plea, for chemical endangerment of a child for exposing her unborn child to a controlled substance, in violation of Alabama's chemical-endangerment statute, § 26–15–3.2(a)(1), Ala.Code 1975. We granted her petition, and we now affirm the judgment of the Court of Criminal Appeals and hold that the use of the word “child” in the chemical-endangerment statute includes all children, born and unborn, and furthers Alabama's policy of protecting life from the earliest stages of development.

I. Facts and Procedural History

The Court of Criminal Appeals set forth the relevant facts and procedural history in its unpublished memorandum in Hicks v. State, 153 So.3d 52 (Ala.Crim.App.2011), as follows:

“Hicks appeals from her conviction, following a guilty plea, for chemical endangerment of a child, a violation of § 26–15–3.2(a)(1), Ala.Code 1975. Hicks was sentenced to three years' imprisonment; the sentence was suspended and Hicks was placed on supervised probation for one year. Court costs and fees were assessed.

“Section 26–15–3.2, Ala.Code 1975, provides:

“ ‘(a) A responsible person commits the crime of chemical endangerment of exposing a child to an environment in which he or she does any of the following:

“ ‘(1) Knowingly, recklessly, or intentionally causes or permits a child 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.’

“The indictment charged:

“ ‘The Grand Jury of said County charges that before the finding of this indictment that, Sarah Janie Hicks; whose name is to the Grand Jury otherwise unknown, did knowingly, recklessly, or intentionally cause or permit a child, to-wit; [J.D.], 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), Against the Peace and Dignity of the State of Alabama.’

“Concisely, the State charged that Hicks ingested cocaine while pregnant with J.D. and that that resulted in J.D. testing positive for the presence of cocaine in his body at the time of his birth. Documents in the record suggest that, since his birth, J.D. is ‘doing fine.’ Hicks filed a pretrial motion to dismiss the indictment in which she asserted: 1) that the plain language of § 26–15–3.2(a)(1) reflects that the legislature intended for the statute to apply to a child and not to a fetus, i.e., an unborn child and that, therefore, her conduct in ingesting cocaine while pregnant did not constitute the offense of the chemical endangerment of a child; 2) that Hicks was denied due process because, although the statute as written is not vague, the statute, as applied to Hicks's conduct, is impermissibly vague because the statute provides no notice that it encompasses exposing a fetus, i.e., an unborn child, to a controlled substance; 3) that the State has violated the doctrine of separation of powers because it is the duty of the legislature and not a district attorney to proscribe criminal offenses, and the legislature recently declined to criminalize prenatal conduct that harms a fetus, i.e., an unborn child; and 4) that Hicks is being denied equal protection because the State is seeking to punish, as a class, women who abuse drugs while pregnant, whereas, a man may father a child while abusing drugs and not be prosecuted under the statute.

“On November 19, 2009, a hearing was conducted at which Hicks and the State presented arguments addressing the assertions in Hicks's motion to dismiss. At the conclusion of arguments, the trial court asserted that the motion to dismiss seemed ‘based on factual arguments' and questioned whether the assertions in the motion would ‘be more applicable for a motion for a judgment of acquittal at the end of the State's case.’ The trial court asked the parties to explain ‘[h]ow does this Court reach out and dismiss an indictment that is a valid indictment?’ Hicks argued that ‘it's a question of law, not a question of fact whether a child includes the term “fetus” ’ and ‘there's no crime that's been committed based on the set of circumstances alleged in that indictment.’ The State responded that, as the trial court stated, ‘if the indictment is valid, it then becomes ... a question of fact; and, therefore, it cannot be dismissed on a motion to dismiss the indictment when the indictment is correct on its face and is a valid indictment.’ After the hearing, on November 30, 2009, the trial court entered a written order denying the motion to dismiss stating: ‘Upon consideration of the pleadings and arguments presented at hearing, it is ordered that the Motion to Dismiss the Indictment filed by [Hicks] is denied.’

“On December 7, 2009, Hicks filed a Motion to Declare the Statute Unconstitutional that presented arguments similar to those in her motion to dismiss. It does not appear that the trial court ruled on this motion.

“On January 11, 2010, before entering a guilty plea, Hicks expressly reserved the right to appeal the issues presented in her motion to dismiss. Then, pursuant to a plea agreement, Hicks pleaded guilty to the chemical endangerment of a child as charged in the indictment. She was sentenced to three years' imprisonment; the sentence was suspended, and Hicks was placed on supervised probation for one year.”

(References to the record omitted.)

The Court of Criminal Appeals, relying on its opinion in Ankrom v. State, 152 So.3d 373 (Ala.Crim.App.2011), affirmed the trial court's judgment, stating:

“Hicks contends on appeal, as she did in the trial court, that the plain language of the statute is clear and unambiguous, and ‘the statute [ (§ 26–15–3.2(a)(1) ) ] does not mention unborn children or fetuses.’ (Hicks's brief, at p. 11.) Thus, Hicks argues, the term ‘child’ in § 26–15–3.2 should not be construed to include an unborn child or fetus. Hicks argues that the settled rules of statutory construction require this Court to construe the term ‘child’ as not including an unborn child or fetus. Specifically, she argues: (1) that the rule of lenity requires criminal statutes to be strictly construed in favor of the accused; (2) that the legislative history of the statute and the Alabama Legislature's failure to amend § 26–15–3.2 to specifically state that the statute applies to a fetus shows that the legislature did not intend for the statute to apply to the prenatal exposure of unborn children to controlled substances; and (3) that the majority of our sister states have refused to allow women to be prosecuted criminally for conduct occurring during pregnancy. Hicks also presented constitutional challenges to § 26–15–3.2 : (1) the State's application of the statute is violative of the separation-of-powers doctrine; and (2) as applied to her, the statute is void for vagueness and violative of due process.

“Recently, in Ankrom v. State, 152 So.3d 373 (Ala.Crim.App.2011), a case involving virtually identical facts as the facts in this case, this Court held that the plain language of § 26–15–3.2 was clear and unambiguous and that the plain meaning of the term ‘child’ in § 26–15–3.2 included an unborn child or viable fetus. Ankrom v. State, 152 So.3d at 385 (‘[T]he plain meaning of the term “child,” as found in § 26–15–3.2, Ala.Code 1975, includes a viable fetus.’). This Court also noted that because the plain language of the statute was clear and no statutory construction was necessary, the rule of lenity was inapplicable, the fact that subsequent attempts to amend § 26–15–3.2 to include an unborn child within the definition of ‘child’ did not pass the legislature was irrelevant, and holdings from courts in other jurisdictions were either distinguishable from the facts in Ankrom or unpersuasive.

“Applying the holding in Ankrom to this case, Hicks's argument that the plain meaning of the term ‘child’ in § 26–15–3.2 does not include an unborn child or fetus must fail, given that it has already been rejected by this Court.

Moreover, because this Court found no ambiguity in the statute, Hicks's constitutional challenges fail.

“Based on the foregoing, the judgment of the trial court is affirmed.”

On February 24, 2012, Hicks petitioned this Court for a writ of certiorari. On April 6, 2012, we granted her petition; we now affirm the judgment of the Court of Criminal Appeals.

II. Standard of Review

“We review questions of statutory construction and interpretation de novo, giving no deference to the trial court's conclusions.” Pitts v. Gangi, 896 So.2d 433, 434 (Ala.2004) (citing Greene v. Thompson, 554 So.2d 376 (Ala.1989) ).

III. Discussion

Hicks was convicted of violating § 26–15–3.2, Ala.Code 1975 (“the chemical-endangerment statute”), by causing her unborn child to be exposed to, to ingest or inhale, or to have contact with a controlled substance. The chemical-endangerment statute provides:

“(a) A responsible person commits the crime of chemical endangerment of exposing a child to an environment in which he or she does any of the following:

“(1) Knowingly, recklessly, or intentionally causes or permits a child 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. A violation under this subdivision is a Class C felony.

“(2) Violates subdivision (1) and a child

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