People v. Lage, Court of Appeals No.: 08CA0617 (Colo. App. 5/28/2009)

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The People of the State of Colorado, Plaintiff-Appellant, v. Logan Lester Lage, Defendant-Appellee.

Court of Appeals No.: 08CA0617

Court of Appeals of Colorado, Division II

May 28, 2009

Mesa County District Court No. 07CR1826, Honorable Richard T. Gurley, Judge.

ORDER AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Peter G. Hautzinger, District Attorney, Tammy Eret, Chief Deputy District Attorney, Mark Hand, Deputy District Attorney, Grand Junction, Colorado, for Plaintiff-Appellant

Douglas K. Wilson, Colorado State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellee.

Opinion by: JUDGE ROY

The People appeal the trial court's order dismissing homicide and other charges against defendant, Logan Lester Lage, arising out of the injury to an unborn child who, following a live birth, died from the injury. We affirm in part, reverse in part, and remand the case for further proceedings.

Defendant, while being pursued at a high rate of speed by a police officer, switched into the oncoming traffic lane to pass another vehicle, resulting in a head-on collision with a vehicle driven by a woman who was then eight and one-half months pregnant. There was an eighty percent abruption of the placenta, which required an emergency cesarean section. The child was delivered alive, but died one hour and nine minutes later. The autopsy report stated:

The death of this infant was a direct consequence of asphyxia due to placental abruption due to blunt force trauma to the abdomen sustained while this otherwise healthy term infant was alive. The infant was resuscitated at delivery but subsequently expired as a consequence of the prolonged asphyxia. In consideration of the circumstances and the findings of the postmortem examination the manner of death is classified as homicide.

Defendant was charged with eighteen counts, seven of which arose out of the injury or death of the child, to wit: (1) extreme indifference first degree murder, § 18-3-102(1)(d), C.R.S. 2008, a class one felony; (2) reckless child abuse resulting in death, § 18-64-01(1)(a), (7)(a)(I), C.R.S. 2008, a class two felony; (3) driving under the influence vehicular homicide, § 18-3-106(1)(b)(I), C.R.S. 2008, a class three felony; (4) reckless vehicular homicide, § 18-3-106(1)(a), C.R.S. 2008, a class four felony; (5) deadly vehicular eluding, § 189-116.5, C.R.S. 2008, a class three felony; (6) deadly careless driving, § 42-4-1402, C.R.S. 2008, a class one misdemeanor traffic offense; and (7) driving under the influence vehicular assault alleging serious bodily injuries to the unborn child, § 18-32-05(1)(b), C.R.S. 2008.

Defendant filed a motion to dismiss the counts listing the unborn child as the victim, arguing that an unborn child is not a "person" or "child" within the meaning of the applicable statutes at the time the injuries were inflicted. After receiving briefs from both parties and following a preliminary hearing, the trial court granted defendant's motion as to all charges relating to the unborn child. This appeal followed.

I. The Homicide Counts

As to the homicide charges, the trial court relied on section 18-3-101, C.R.S. 2008, which states, in pertinent part:

As used in this part 1 [homicide and related offenses, §§ 18-3-101 to -107], unless the context otherwise requires:

(1) "Homicide" means the killing of a person by another.

(2) "Person", when referring to the victim of a homicide, means a human being who had been born and was alive at the time of the homicidal act.

(Emphasis added.)

Extreme indifference first degree murder, § 18-3-102(1)(d) (person causes death of another); reckless vehicular homicide, § 183-106(1)(a) (person causes death of another); and driving under the influence vehicular homicide, § 18-3-106(1)(b)(I) (person causes the death of another), are all part 1 offenses to which the definitions in section 18-3-102(2) apply.

The trial court stated:

The plain language of the definition [of a "person"] could not be any clearer. To qualify as a "person," three conditions must [be] obtain[ed] at the time of the homicidal act: (1) the victim is a human being; (2) the victim has already been born; (3) the victim is still alive.

(Emphasis in original.)

The interpretation of statutes is a question of law subject to de novo review. Hendricks v. People, 10 P.3d 1231, 1235 (Colo. 2000). To determine the legislature's intent, we first look to the plain language of the statute. C.S. v. People, 83 P.3d 627, 634 (Colo. 2004). When reviewing the language of a statute, we read words and phrases in context and construe them according to their common usage. Klinger v. Adams County Sch. Dist., 130 P.3d 1027, 1031 (Colo. 2006) (citing People v. Yascavage, 101 P.3d 1090, 1093 (Colo. 2004)). If the statutory language is clear and unambiguous, we do not engage in further statutory analysis. Klinger, 130 P.3d at 1031. However, where the language is ambiguous, we may consider other aids to statutory construction, such as the consequences of a given construction, the end to be achieved by the statute, and legislative history. Id. A court also must presume that the legislature intended a just and reasonable result and avoid a statutory interpretation which leads to absurd results. People in Interest of A.R.M., 832 P.2d 1093 (Colo. App. 1992).

We agree with the trial court that section 18-3-101(2) is clear and unambiguous. As the trial court observed, in order for a child to be a "person" under the definition of that term, he or she must have been born and alive at the time of the homicidal act. That is the clear, plain, and unambiguous meaning of section 18-3-101(2). While here the child was alive at the time of defendant's alleged criminal acts, she had not been born. Therefore, she was not a "person" within the meaning of section 18-3-101(2) and, thus, cannot be the victim of a homicide or related crimes.

The prosecution, without citing, acknowledging, or discussing section 18-3-101(2) in the trial court or on appeal, urges us to follow case authority from other jurisdictions, primarily Cuellar v. State, 957 S.W.2d 134 (Tex. App. 1997), which we find unpersuasive in this context.

In Cuellar, the defendant was driving while intoxicated and his vehicle struck another vehicle driven by a woman who was seven and one-half months pregnant. Following the accident, the child was determined to be in distress; a cesarean section was performed; the child lived for approximately forty-three hours following the procedure; and the child died from a brain injury sustained in the accident.

The defendant was charged with "intoxication manslaughter" the elements of which, as pertinent there, were operating a motor vehicle, while intoxicated, and "by reason of that intoxication caus[ing] the death of another by accident or mistake." Tex. Penal Code Ann. § 49.08 (Vernon 1994). Texas defined "another" as "a person," which was defined to include "an individual," which in turn was defined as "a human being who has been born and is alive." Tex. Penal Code Ann. § 1.07(5), (38), (27) (Vernon 1994); see Cuellar, 957 S.W.2d at 137.

At the outset of its analysis, the majority in Cuellar recognized the distinction at issue here; that is, the phrase "has been born and is alive" had no temporal limitation. Unlike the Texas statute, our statute has a temporal limitation which speaks directly and clearly to the issue presented here, "at the time of the homicidal act."

The prosecution further urges us to follow a line of cases cited in Cuellar, including State v. Hammett, 384 S.E.2d 220 (Ga. Ct. App. 1989); People v. Bolar, 440 N.E.2d 639 (Ill. App. Ct. 1982); Jones v. Commonwealth, 830 S.W.2d 877 (Ky. 1992); State v. Soto, 378 N.W.2d 625 (Minn. 1985); and People v. Hall, 557 N.Y.S.2d 879 (N.Y. App. Div. 1990). These cases rely on the common law "born alive" doctrine that we will address subsequently in another context. However, we need not resort to the common law for a definition of "person" when the statute defining that term is clear and unambiguous.

Thus, we conclude that defendant could not be charged with a homicide under title 18, article 3, part 1 of our criminal code for the death of the child who was alive, but not yet born, at the time of the homicidal act. Therefore, the trial court did not err in dismissing the charges of extreme indifference first degree murder, reckless vehicular homicide, and under the influence vehicular homicide.

II. Non-Homicide Counts

The trial court also dismissed the charges of child abuse involving death, vehicular eluding involving death, careless driving resulting in death, and under the influence vehicular assault. These charges are not within the scope of section 18-3-101(2); therefore, they must be addressed separately.

A. In Pari Materia

The trial court extended the definition in section 18-3-101(2) to the other offenses, applying the doctrine of in pari materia. Perhaps the leading treatise on statutory construction, N.J. Singer and J.D.S. Singer, Sutherland on Statutes § 51:3 (2008), states, in part:

Statutes are considered to be in pari materia when they relate to the same person or thing, to the same class of persons or things, or have the same purpose or object.

The rule of in pari materia is generally used when there is some doubt or ambiguity in the wording of the statute under consideration. Characterization of the object or purpose is more important than characterization of subject matter in determining whether different statutes are closely enough related to justify interpreting one in light of the other.

Here, the trial court used an in pari materia analysis to determine whether a living but not born child can be a victim of crimes not included in title 18, article 3, part 1. We conclude that this aid to construction is not available here because of the explicit limitation on the application of the definitions contained in ...