STATE OF NORTH DAKOTA IN THE SUPREME COURT
|State of North Dakota,|
|Kimberlie Nicole Lamon,||District Court No.: 53-2012-CR-01597|
|Defendant-Appellee,||Supreme Court No.: 20120386|
|Chelsea Hettich,||District Court No.: 53-2012-CR-00763|
|Defendant-Appellee,||Supreme Court No.: 20120365|
|Alexis Stegall,||District Court No.: 53-2011-CR-02379|
|Defendant-Appellee,||Supreme Court No.: 20120362|
APPEAL FROM THE DISMISSALS OF COMPLAINTS FOR CHILD ENDANGERMENT AGAINST KIMBERLIE LAMON, CHELSEA HETTICH, AND ALEXIS STEGALL THE HONORABLE JOSHUA B. RUSTAD AND
DAVID W. NELSON PRESIDING.
BRIEF OF THE APPELLANT,
STATE OF NORTH DAKOTA
|Nathan Kirke Madden #06518|
|Assistant State's Attorney|
|P.O. Box 2047|
|Williston, ND 58802-2047|
|(701) 577 4577|
|Attorney for Appellant,|
|State of North Dakota|
|Table of Contents|
|Table of Contents i|
|Table of Authorities ii|
|Statement of the Issues 1|
|Statement of the Case .. 2 7|
|Statement of the Facts .. 8 11|
|Standard of Review .. 12 13|
|Law and Argument .. 14 51|
|Conclusion ... 52 53|
|Table of Authorities|
|North Dakota Cases:|
|State v. $44,140 U.S., 2012 ND 176, 820 N.W.2d 697 .. 13|
|State v. Bell, 2000 ND 58, 608 N.W.2d 232 ... 41, 49|
|State v. Geiser, 2009 ND 36, 763 N.W.2d 469 ... 12, 17, 18, 19,||29|
|State v. Eide, 2012 ND 129, 818 N.W.2d 711 . 12|
|North Dakota Statutes:|
|N.D.C.C. §19-03.1-22.2 .... 14, 17, 24|
|N.D.C.C. §19-03.1-22.2 18|
Statement of the Issues
[¶1] I. The District Court erred in dismissing the charges of Child Endangerment against Lamon, Hettich, and Stegall.
Statement of the Case
[¶2] As this is a consolidated set of appeals, the State will separate out each of the underlying cases in this section to lay out the procedural history of each.
[¶3] On July 3, 2012, Lamon was charged with Endangerment of a Child, Class-C Felony, which occurred on June 23, 2012. Lamon filed a motion to dismiss on August 27, 2012. The State responded noting that because there was a live birth, there was child endangerment. The Court granted Lamon's motion in Doc. No. 19.
[¶4] On April 4, 2012, Hettich was charged with two counts of Endangerment of a Child, Class-C Felony, which occurred on March 24, 2012. Hettich filed a motion to dismiss on August 22, 2012. The State responded noting that because there was a live birth, there was child endangerment. The Court granted Hettich's motion in Doc. No. 25.
[¶5] On December 29, 2011, Stegall was charged with Endangerment of a Child, Class-C Felony, which occurred on December 28, 2011. Stegall was also charged with Ingestion of a Controlled Substance, Class-A Misdemeanor arising from the same events.
[¶6] Over the course of these matters, Stegall failed to appear for court, and her original attorney withdrew. When she was arrested roughly three months later, a new attorney was appointed. Originally, the deadline for filing motions in this matter was March 16, 2012. Due to Stegall's failure to appear, she received the benefit of being able to file a motion to dismiss on August 17, 2012.
[¶7] The State's response included differentiation from Geiser due to the presence of a life-birth, and that Stegall's motion deadline had already passed, and she should not receive additional benefits for absconding. Ultimately, the Court granted Stegall's motion.
Statement of the Facts
[¶8] As with the Statement of the Case, the State will separate out each of the underlying case.
[¶9] Lamon was charged with Endangerment of a Child, because she gave birth to a baby on June 23, 2012, which tested positive for methamphetamine. The child was born alive, and continued to be exposed to methamphetamine due to Lamon's ingestion of the controlled substance.
[¶10] Hettich was charged with two counts of Endangerment of a Child, because she gave birth to two babies on March 24, 2012, which tested positive for methamphetamine. The children were born alive, and continued to be exposed to methamphetamine due to Hettich's ingestion of the controlled substance.
[¶11] Stegall was charged with Endangerment of a Child, because she gave birth to a baby on December 28, 2011 which tested positive for methamphetamine. The child was born alive, and continued to be exposed to methamphetamine due to Stegall's ingestion of the controlled substances.
Standard of Review
[¶12] The State submits that the appropriate standard of review in this matter is a de novo standard, with regard to the application of the definition of "child." E.g. State v. Eide, 2012 ND 129, 818 N.W.2d 711. The District Court correctly found that there were live-births in these cases, and that the resulting child(ren) tested positive for methamphetamine. As such, the only question left is whether such live-born babies who continue to suffer from the effects of continuing methamphetamine exposure caused by the various defendants' actions qualify as "children" as set forth in State v. Geiser, 2009 ND 36, 763 N.W.2d 469.
[¶13] In regard to erroneous factual conclusions, the standard of review would be the clearly erroneous standard, which looks to see if the finding is based on an erroneous view of the law, if no evidence exists to support the finding, or if, on the entire record, the reviewing court is left with a definite and firm conviction that trial court made a mistake. State v. $44,140.00 U.S., 2012 ND 176, 820 N.W.2d 697.
Law and Argument
[¶14] The crime of child endangerment under N.D.C.C. §19-03.1-22.2 requires that "a person knowingly or intentionally causes or permits a child  to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia as defined in subsection 1"
[¶15] Before turning to the individual cases, the State presents the following scenario to better explain the situation in these cases. Assuming, for the sake of example, that methamphetamine stays in the body approximately four (4) days, and that Robert injects Steve, a new born, with methamphetamine on Monday. On Monday, Robert causes Steve to be exposed to methamphetamine. On Tuesday, Robert causes Steve to be exposed to methamphetamine. On Wednesday, Robert causes Steve to be exposed to methamphetamine. On Thursday, Robert causes Steve to be exposed to methamphetamine. It is only by Friday that Robert has stopped causing Steve to be exposed to methamphetamine, as Steve's system should have finally purged it.
[¶16] In the above-referenced example there is no question that Robert endangered Steve by causing him to be exposed to methamphetamine. The State submits that a similar analysis applies to the actions of a mother which causes her child to continue to be exposed to methamphetamine after birth.
These cases present children as defined by Geiser.
[¶17] In Geiser, this Court noted that when a fetus is unborn, there is no child for the mother to endanger under §19-03.1-22.2. Geiser, 2009 ND 36, 763 N.W.2d 469. The Court determined that because a "child" is determined from the first minute of the date of birth, and there was no live-born child, that any in utero exposure was not child endangerment where there was no "child" to have the first minute of his/her birth date.
[¶18] Geiser integrated various definitions for "child" that came from both the Uniform Controlled Substances Act, N.D.C.C. Chap. 19-03.1 and N.D.C.C. §14-10-01. Specifically, this Court noted that N.D.C.C. §14-10-01 requires a "child's" age "be calculated from the first minute of the day on which persons are born to the same minute of the corresponding day completing the period of minority." Geiser at ¶20.
[¶19] Consequently, as the fetus in Geiser was never live-born, there was no first minute of the day of birth, and there was no "child" to endanger. Specifically this Court noted that the child was unborn, and therefore the mother was not subject to charges for crimes against the fetus. Id. at ¶¶18-19.
[¶20] Here, each of these cases presents a different scenario. In each case, one, or more, child(ren) were live-born to each defendant. At least one child born to every defendant tested positive for the presence of one, or more, controlled substances following live-birth. From the "first minute of the day on which" they were born, each of those children were exposed to one, or more, controlled substances due to the actions of their respective mothers.
[¶21] There were no third-party sources of the controlled substances, and the only source of controlled substances was each child's mother. This exposure continued through the birthing process, and into the first stages of life.
[¶22] In each case, the defendant's ingestion of controlled substances was the sole and continuing cause of their respective children's post-partum exposure to controlled substances.
[¶23] Here, under the definition set forth in Geiser, each case presents a child; that is a person under the age of eighteen years, as measured from the first minute of the day on which he/she is born and the corresponding minute at the age of majority. Geiser at ¶20.
[¶24] Consequently, the "child" requirement of N.D.C.C. §19-03.1-22.2 is present in each case.
These cases present controlled substances.
[¶25] There appears to be no question that methamphetamine is a controlled substance per N.D.C.C. Chapt. 19-03.1, and the issue was not contested below.
These cases present the knowing permitting or causing of contact with controlled substances.
[¶26] As noted above, each defendant gave birth to one, or more, child(ren) who tested positive for controlled substances; specifically methamphetamine. The children were born into a controlled environment, and no third-party sources of methamphetamine were postulated by the defense.
[¶27] The transfer of controlled substances in utero from mother to child has not been disputed below. There seems to be no contention that at least one baby born to each defendant was positive for controlled substances.
[¶28] The entire issue presented by the defense in these cases was that the defendants did not expose a "child" to controlled substances. Each defendant contends that her actions caused exposure while the child was still unborn, and therefore, she did not commit the offense of child endangerment.
[¶29] There is a simple reason that Geiser did not address the question of live-born children; that was not before the Court. Geiser at ¶2 (Geiser's drug overdose caused stillbirth). There never was a live-born child in Geiser, and the only question before it was whether an unborn fetus was a "child." The State submits that this matter is demonstrated by the Court's focus on N.D.C.C. Chapt. 12.1-17.1.
[¶30] Consequently, the defendants' reliance on the lack of differentiation between a stillborn fetus and live-born baby in Geiser is without merit. The State also respectfully submits that the District Court's reliance on such claims set forth in the defendants' reply briefs was erroneous.
[¶31] The District Court in Lamon's case stated: "The Court further agrees with Defendant that there are no allegations that Defendant knowingly or intentionally caused, or permitted her child to be exposed to, to ingest or inhale, or to have contact with a controlled substance, chemical substance, or drug paraphernalia, following John Doe's birth."
[¶32] It is worth noting that the District Court determined stated: "Kimberli Lamon gave birth to John Doe, a juvenile who tested positive for methamphetamine."
[¶33] First, the State respectfully submits that this is an erroneous factual conclusion. The information presented in the matter demonstrates that John Doe (Lamon) was continuing to have contact with controlled substances after birth. John Doe tested positive for controlled substances after birth; the positive drug test is an obvious showing of continuing post-partum exposure. The defense did not content that John Doe's body was spontaneously creating methamphetamine following his birth. Since John Doe was not being given methamphetamine by hospital staff, there is only one source of the continuing presence of methamphetamine; that being Kimberlie Lamon.
[¶34] As such, the holding is against the totality of the information presented to the court, and is even against the Court's own finding that John Doe was born positive for methamphetamine
[¶35] Second, the State respectfully submits that this is an erroneous legal conclusion. Child endangerment requires a person to knowingly or intentionally cause or permit a child to be exposed to controlled substances.. The very act of Lamon ingesting controlled substances in close proximity to child birth, permitted or caused John Doe to be exposed to a controlled substance following birth.
[¶36] The District Court had previously noted that John Doe had tested positive for methamphetamine who tested positive for methamphetamine post-birth. This is clearly not a case, such as Geiser, with a stillborn fetus.
[¶37] It is unclear why the District Court reached the decision it did. First, the Court noted that John Doe was born alive. Then it noted that John Doe tested positive for methamphetamine, which occurred after Doe was live-born. After finding those facts, the Court then proceeded to hold that Lamon did not knowingly or intentionally cause or permit John Doe to be exposed to methamphetamine.
[¶38] The language in Judge Nelson's dismissal of this matter tracks that in Lamon and Stegall. Therefore, for the sake of brevity, the State incorporates its arguments as noted above.
[¶39] The State notes that the District Court's conclusion in this matter with regard to exposure to methamphetamine was the same as with Lamon. Consequently, for the sake of brevity, the State incorporates its arguments as noted above.
[¶40] There was one issue not addressed by the District Court when it granted Stegall's motion to dismiss. That issue was whether by absconding, Stegall received bonus rights including the allowance of a second period of time to file motions.
[¶41] While the State had not located Bell at the time it filed its response, the argument set forth in its response tracks this case. In Bell, the Court applied the "fugitive dismissal rule" to an appeal filed by Bell after he escaped from custody. State v. Bell, 2000 ND 58, 608 N.W.2d 232.
[¶42] Here, Stegall's case was originally subject to a scheduling order which set a motions deadline of March 16, 2012. March 16, 2012 had come and gone when the State filed its motion to revoke bond for failing to comply with bond conditions, and failing to appear as ordered, which was dated March 30, 2012.
[¶43] No motions had been filed by Stegall prior to the March 16, 2012 motion filing deadline.
[¶44] At some point during the month of March of 2012, Stegall absconded. She was finally arrested on July 6, 2012, after giving law enforcement a false name, which turned out to be the name of another wanted individual.
[¶45] The originally scheduled trial date of May 16, 2012 came and went while Stegall was on the run.
[¶46] While Stegall was on the run, Attorney Wilhelm withdrew. Once she was recaptured, Attorney Fernstrom was appointed.
[¶47] On July 30, 2012, Attorney Fernstrom filed the motion to dismiss. This motion was a full four (4) months after the deadline to file motions. There was no new scheduling order regarding a new time to file motions. In essence, the motion was incredibly untimely, and should have been denied on that basis.
[¶48] However, Stegall received a bonus from her completely ignoring the Court's directives; a bonus unavailable to those defendants who comply with the Court's directives. She was able to get additional bites at the apple by absconding. It is also worth noting that she was able to even change her court appointed counsel by absconding.
[¶49] The State submits that those who abscond in violation of court orders should not be able to get additional bonus opportunities. This is similar to the fugitive dismissal doctrine noted in Bell. Bell, 2000 ND 58, 608 N.W.2d 232.
[¶50] Stegall made no reply whatsoever to the fact that the motion was incredibly untimely, and that Stegall had made no showing that she was entitled to the additional bonus opportunity due to her absconding.
[¶51] As of July 30, 2012, Stegall had been able to change her court appointed counsel, and obtain an additional four (4) months to file motions all because she decided to abscond.
[¶52] As each defendant in these cases gave live-birth to one or more children, the "child" requirement is present. As each child was born positive for methamphetamine, the controlled substance requirement is present. As there were no third-party introductions of methamphetamine, each defendant was the sole source in each respective case. As each defendant had ingested methamphetamine, each defendant was the continuing cause of the respective children's exposure to methamphetamine.
[¶53] Therefore, the State respectfully requests that this Court reverse the District Court's dismissal of the child endangerment charges.
|Dated this 30th day of November, 2012.|
|/s/ Nathan Kirke Madden|
|Nathan K. Madden #06518|
|Assistant State's Attorney|
|P.O. Box 2047|
|Williston, ND 58802-2047|
|(701) 577 4577|