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State v. Geiser

April 2, 2009

STATE OF NORTH DAKOTA, PLAINTIFF AND APPELLEE
v.
MICHELLE GEISER A/K/A MICHELLE BEHLES, DEFENDANT AND APPELLANT



Appeal from the District Court of McLean County, South Central Judicial District, the Honorable Thomas J. Schneider, Judge.

The opinion of the court was delivered by: Kapsner, Justice.

REVERSED AND REMANDED.

[¶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, 492 S.E.2d 777, 780 (S.C. 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 Co. v. Gail Wachter 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(1)(b), N.D.C.C., states for the purposes of this section, "`[c]hild' means an individual who is ...


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