Kilmon/Cruz v. State

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In the Circu it Court for T albot Cou nty Case Nos. 20-K-04-008022 and 20-K-05-008161 IN THE COURT OF APPEALS OF MARYLAND No. 91 September Term, 2005 ______________________________________ REGINA KILMON v. STATE OF MARYLAND _______________________________________ No. 106 September Term, 2005 ______________________________________ KELLY LYNN CRUZ v. STATE OF MARYLAND _______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. ______________________________________ Filed: August 3, 2006 Maryland Code, § 3 -204(a)(1) o f the Crim inal Law Article (CL ) makes it a misdeme anor for a p erson reck lessly to engage in conduct that creates a substantial risk of death or serious physical injury to another person. The question before us is whether the intentional ingestion of cocaine by a pregnant woman can form the basis for a conviction under that statute of the re ckless e ndang ermen t of the la ter-born child. T he answ er is no . BACKGROUND We deal here with two prosecutions in the Circuit Court for Talbot County. In Augus t, 2004, the State s Attorney filed a criminal information charging Regina Kilmo n with second degree child abuse, contributing to conditions that render a child delinquent, reckless endange rment, and possession of a controlled dangerous substance. All four charges were based on evidence that Ms. Kilmon had ingested cocaine while pregnant with her child, Andrew Kilmon. The reckless endangerment count charged that Ms. Kilmon, on or about the 3 rd day of June through the 4 th day of Jun e, 20 04, in Talb ot County, Maryland, did recklessly engage in conduct, to wit: using cocaine while pregnant with Andrew Kilmon that created a substantial risk of death and serious physical harm to Andrew Kilmon. In January, 2005, Ms. Kilmon entered a plea of guilty on the reckless endangerment count in exchange for the State s commitment to nol pros the other charges. At the hearing on the plea agreeme nt, the State s A ttorney offere d, in pertinent part, the following statement of facts in support of the guilty plea: On June the 3rd , 2004, th e Defendant . . . gave birth at the Easton Mem orial Hosp ital to a baby boy subsequently named Andrew W. Kilmon. At the time of the birth the baby weighed 5.5 pounds. The baby was tested through a drug screen which at the hospital which showed the presence of cocaine at the level of 675 nan ograms p er milliliter. . . [T]he m inimum s ensitivity level for cocain e is 300 na nogram s per milliliter. Th e State would have produced expert testimony that the result of using cocaine by a pregnant wom an . . . is as follows: that they are more likely to experience premature separation of the placenta, spontaneous abortion and premature delivery. That cocaine may cause blood clots to develop in the brain of the fetus. May also interfere with the development of the fetu s. And tha t low birth weight in bab[ies] born with cocaine in their system may lead to many health prob lems versu s normal siz e babies. T here wo uld be further testimony that the only source of cocaine in the bab y s system would have been that as derived from the blood stream of the mother prior to birth. . . . These events occurred in Talbot Coun ty. Upon that statemen t, and after ass uring itself that the plea of guilty was knowing and volu ntary, the court accepted the plea, found Ms. Kilmon guilty of reckless en dangerm ent, and sentenced her to four years in prison. M s. Kilmon filed an ap plication for leav e to appeal, which the Court of Special Appeals granted. Before any significant proceedings commenced in that court, however, we granted certiorari. In April, 2005, the State s Attorney filed a similar criminal information charging that Kelly Lynn Cruz, on or about the 13 th day of January, 2005, in Talbot County, Maryland, did recklessly enga ge in conduct, to wit: using co caine wh ile pregnant with Denadre Michael Thomas Cross that c reated a sub stantial risk of d eath and serious physical injury to Denadre Michael Thomas Cross. . . . As in Kilmon s case, the State also charged second degree child abuse, contributing to conditions that render a child delinquent, and possession of a -2- controlled dangerous substance but later entered a nol pros to those charge s. Cruz pled not guilty to the reckless endangerment charge but consented to proceed on an agreed statement of facts, which, in pertinent part, was as follows: On January 13th , 2005, the Defe ndant . . . was admitted to the Easton Mem orial Hosp ital . . . which is located in Easton, Talbot Cou nty, Maryland. She was complaining of stomach pains. She then delivered a 3 pound 2 ounce b aby boy. Acco rding to hospital records she was approximately 29 weeks pregnant at the time . . . . To xico logy screening test was administered to the baby who tested positive for cocaine. The baby was then transported to Mercy H ospital in Baltimore which confirmed the toxicology results. Subsequently and while still at Easton Memorial Ms. Cruz was likewise tested for cocaine. She too tested positive . . . Ms. Cruz denied that she used cocaine and indicated that she had recently been around people who had used cocaine, which is why she believed she would have tested positive . All thes e even ts took p lace in T albot C ounty. The court denied Cruz s motion to dismiss for lack of sufficient evidence, stating that while the instrumentality of the risk of serious bodily injury to the baby may well have been launched prior to the birth of the child, the person suffering th e risk of serious bodily injury was the infant c hild afte r its birth. It found her guilty and impo sed a sentence of f ive years in prison, with two-and-a-half years suspended in favor of five years of supervised probation and drug treatment commencing on release from prison. Ms. C ruz appea led and, as in Kilmon s case, we granted certiorari prior to any proceedings in the Court of Special Appeals, to consider the common issue of whether ingesting cocaine while pregnant constitutes a violation of CL § 3-204(a)(1). -3- DISCUSSION We pointed out in Holbroo k v. State, 364 Md. 354, 365, 772 A.2d 1240, 1246 (2001), that [r]eckless endangerment is purely a statutory crime in M aryland. It exists an d is defined solely by CL § 3-204. Because the issue is therefore entirely one of statutory construction, it is necessary to determine whethe r, in enacting § 3-204(a )(1) and its relevant antecedents, the General Assembly intended that the statute include the conduct charged. As we most recently confirmed in Mackey v. Compass , 391 Md. 117, 141, 892 A.2d 479, 493 (2006), [i]f the statutory language in unambiguous when construed according to its ordinary and everyday meaning, then we give effect to the statute as written . . . . If, however, the statutory text reveals ambiguity, then the job of this Court is to resolve that ambiguity in light of the legislative intent, using all of the resources and tools of statutory construction at our disposal. Id., quoting, in part, from Price v. State, 378 Md. 378, 387, 835 A.2d 1221, 1226 ( 2003) . The relevant part of CL § 3-204, subsection (a)(1), makes it a misdemeanor for a person recklessly to engage in conduct that creates a substantial risk of death or serious physical injury to an other. B y anoth er, it obviously meant another person.1 Aware of the 1 CL § 3-204 was enacted as p art of the code revision rew riting of the entire crimina l code. See 2002 M d. Law s, ch. 26 . It replac ed wh at was f ormerl y Article 2 7, § 12A-2, subsection (a)(1), which spoke of a substantial risk of death or serious physical injury to another person. It is clear that no substantive change was intended by deletion of the noun person in ch. 26. Not only is there no indication of any such intent in the Revisor s Note to § 3-204, but § 13 of ch. 26 expressly states that it is the intention of (contin ued...) -4- Constitutional issues that may arise from regarding a fetus or embryo as a person, the State, in its briefs, makes clear its position that, for purposes of the convictions under § 3-204(a)(1), the person allegedly endangered by each appellant s conduct was not the fetus, but the child, after the child s live birth. The o ffense, in th is context, acc ording to the State, is that the prenatal ingestion of cocaine recklessly endangers the child immediately upon and after his or her live birth.2 The reckless endangerment statute was first enacted in Maryland in 1989 as Art. 27, § 120. See 1989 M d. Laws , ch. 469. A s we hav e pointed o ut on a num ber of occ asions, it was modeled after § 211.2 of the Model Penal Code, first proposed by the American Law Institute in 1962 . See Holbrook v. State, supra, 364 Md. at 365, 772 A.2d at 1246. The laterpublished Comm entary to § 211 .2 notes that sp ecific kinds of reckless conduct had 1 (...continued) the General Assembly that, except as expressly provided in this Act, this Act shall be construed as a nonsubstantive revision, and may not be otherwise construed to render any substan tive cha nge in th e crimin al law o f the Sta te. 2 In Kilmon, the State urges that [t]he clear legislative intent of the reckless endangerment statute encompasses Kilmon s conduct of using cocaine while pregnant and thereby endangering her newborn son, Andrew. State s Brief at 8. Except for the names, that statement is repeated in the brief filed in Cruz. State s Brief at 8. We need not rule here on the anomaly of that position. It would seem, however, that, although the ingestion of cocaine b y a pregnant w oman m ay well lead to s ome injury to th e fetus she is carrying, once the child is born and the umbilical cord is cut and expelled, she is no longer pregnant and no amount of cocaine that she then ingests or has previously ingested will get i nto the b loodstre am of the new born ch ild mere ly by virtue o f her ing estion o f it. In attempting to distinguish between the fetus prior to birth and the child after birth for purposes of person hood an d treat the afte r-born child as the perso n endang ered, the Sta te creates an arguable impediment to its ability ever to prove the necessary elements of the offense. -5- previously been ma de criminal in various States everything fro m reckless driving to shooting at an airplane to placing an obstruction on railway tracks and that § 211.2 was intended to replace the haphazard coverage of prior law with one comprehensive provision that reaches any kind of conduct that places or m ay place anoth er person in danger o f death or serious bodily injury. M ODEL P ENAL C ODE AND C OMMENTARIES, P ART II (1980) at 19596. We have tend ed to construe the Maryland statute in that manner as well. In Minor v. State, 326 Md. 436, 443, 605 A.2d 138, 141 (1992), we held that guilt under the statute does not depend on whether the defendant actually intended that his reckless conduct create a substantial risk of death or serious injury, but whether his conduct, viewed objectively, was so reckless as to constitute a gross dep arture from the standard of conduct that a law-abiding person would observe, and thereby create the substantial risk that the statute was designed to punish . In State v. Pagotto , 361 Md. 528, 549, 762 A.2d 97, 108 (2000), we confirmed the further point made in Minor that the statute was aimed at deterring the commission of potentia lly harmf ul cond uct bef ore an in jury or dea th occu rs. Unq uestiona bly, the proscription against recklessly endangering conduct is, and was intended to be, a broad one. Whether it was intended to include conduct of a pregnant woman that might endanger in some way the child she is carrying is not so clear, however, as that brings into play some important policy-laden considerations not relevant with respect to acts committed by third persons. -6- In support of its argument that the statute should be read as including that conduct, the State observes th at an injury com mitted wh ile a child is still in utero can produce criminal liability if the child is la ter born alive and, citing Williams v . State, 77 Md. App. 411, 550 A.2d 722 (1 988), aff d, 316 Md. 677, 561 A.2d 216 (1989), notes that the Legislature was cogniz ant of th at prece pt whe n it first en acted th e reckle ss enda ngerm ent law . In Williams, the defendant shot an arrow at an intended victim. The arrow struck instead a bystander who was nine months pregnant and who died from a massive loss of blood caused by the wound. Her child was born alive but died shortly after birth as a derivative result of the mother s blood loss. In an opinion filed in December, 1988 just before commencement of the 1989 legislative session, at which the reckless endangerment statute was first enacted the Court of Special Appeals concluded that the defenda nt could lawfully be convic ted of two counts of manslaughter, one for the death of the mother and the other fo r the dea th of the child. The court began by observing that manslaughter is a common law crime in Maryland and that Article 5 of the Maryland D eclaration of Rights gu arantees to the inhabitants of the State the comm on law o f Englan d that existed on July 4, 177 6, subject, of course, to modification by statute and by this Cou rt. There being no r elevant statuto ry enactmen ts or pronoun cements from this Court on the partic ular issue, the C ourt of Sp ecial App eals looked to the state of the law in Eighteenth Century England and discovered two divergent views one first enunciated by Edward Coke and the other by Matthew Hale. Both men had served -7- as Lord Chief Justice of the King s Bench and both had authored oft-cited commentaries on English common law. Coke is perhaps most famous (other than for admonishing King James that even he was not above the law) as the author of The First Part of the Institutes of the Laws of England (1628). Hale authored Pleas of the Crown (1678 ), History of the Pleas of the Crown (1736-39), and History of the Common Law of England (1713). Coke wrote t hat, if a p erson a ssaulted a pregn ant wo man a nd, as a result, killed the unborn child, it was not murder, but that, if the child w as born alive and then died from the injuries inflicted, it was murder, f or in the law it [the child] is ac counted a reasonab le creature in rerum natura, when it is born alive . . . and so was the law holden in Bracton s time. 3 Coke, INSTITUTES * 50 (1648), quoted in Williams v. State, supra, 77 Md. App. at 418, 550 A.2d at 725. The Williams court characterized Coke s view as the born alive rule. Hale believed otherwise that it was not homicide, whether the child was killed in utero or died af ter being born al ive. See 1 Hale, P LEAS OF THE C ROWN 433 (1 736). After surveying the writings of later English and American comme ntators Stephens, Blackstone, Hawkins, Warren, and Wharton and the decisions of some English and American courts, the Court of Special Appeals adopted Coke s view and held that when a child is born alive b ut subsequ ently dies as a resu lt of injury sustained in utero the death of the child is homicide. Id. at 420, 550 A.2d at 726. By affirmin g the interm ediate appellate court s decision in Williams v. State, supra, 316 Md. 677, 561 A.2d 216, we ultimately sustained that view, though not until after the -8- 1989 enactmen t. The impo rtance of th e case, from the State s pe rspective, is that the born alive rule enunc iated by the Co urt of Spe cial Appeals was before th e Legislatu re when it considered and enacted the reckless endangerment statute, and that the General Assembly therefore likely intended to engraft tha t rule into the statute. In making the reckless endangerment of another person criminal, says the State, the Legislature must have intended to mirror the common law view of manslaughter and also criminalize conduct committed by anyone, i ncludin g a preg nant w oman , that reck lessly end angers the later- born ch ild. The appellants respond that acceptance of the born alive rule with respect to the common law relating to homicides th at arise from acts comm itted by others does not inform whether the L egislatur e inte nded CL § 3-2 04(a )(1) t o criminalize conduct com mitte d by a pregnant woman tha t might endanger the child she is carrying. The statute itself, though certainly broad in its language, does not specifically address that question. In the absence of any direct evide nce of leg islative intent in th is regard, either clear or implicit from the language of the statute, we look for other relevant indications, and there are some very cogent ones. Notwithstanding occasional flights of fancy that may test the proposition, the law necessarily and correc tly presumes th at Legislatures act reasonably, knowingly, and in pu rsuit of sens ible p ublic policy. When there is a legitimate issue of interpretation, therefore, co urts are required, to the extent possible, to avoid construing a statute in a manner th at would produce farfetched, absurd, or illogical results which would not likely have been intended -9- by the e nact ing b ody. Stated simply and in the affirmative, courts must attempt to construe statutes in a comm on sense m anner. W e have lon g and con sistently held to that vi ew. See, most recently, Gilmer v . State, 389 Md. 656, 663, 887 A.2d 549, 553 (2005); Comp troller v. Citicorp, 389 M d. 156, 169 , 884 A.2d 112, 120 (2005); Moore v. State, 388 Md. 446, 453, 879 A.2 d 1111, 1 115 (200 5); Cain v. Sta te, 386 Md. 320, 328, 872 A.2d 681, 686 (2 005). Keeping in mind that recklessness, not intention to injure, is the key element of the offense, if, as the State u rges, the statute is read to app ly to the effect of a pregnant woman s conduct on the child she is carrying, it could well be construed to include not just the ingestion of unlawful controlled substances but a whole host of intention al and con ceivably reckless activity that could not possibly h ave been within the contemplation of the Legislature everything from becoming (or remaining) pregnant with knowledge that the child likely will have a genetic disorder that may cause serious disability or death, to the continued use of legal drugs that are contraindicated during pregnancy, to consuming alcoholic beverages to excess, to smoking, to not maintaining a proper and sufficient diet, to avoiding p roper and available pre natal med ical care, to failin g to wear a seat belt w hile driving, to violating o ther traffic law s in ways that c reate a substantial risk of producing or exacerbating personal in jury to her child, to e xercising too much or too little, indeed to engaging in virtually any injury-prone a ctivity that, should a n injury occur, m ight reason ably be expecte d to endan ger the life or safety of the ch ild. Such ord inary things as sk iing or horseback riding could produce crimin al liability. If the State s p osition we re to prevail, -10- there would seem to be no clear basis for categorically excluding any of those activities from the ambit of the statute; criminal liability would depend almost entirely on how aggressive, inventive, and persuasive any particular prosecutor might be. Confirming the strong in ference th at the Gen eral Assem bly did not intend CL § 3204(a)(1) to include a ny of this kind of self-indu ced activity, includ ing the ingestion of controlled substance s, is the mann er in which they actually dealt w ith that kind o f activity when they cho se to de al with it . In the same 1989 session that produced the initial enactment of the reckless endangerment law, Ho use Bill 809 was introduced. That bill would have expanded the definition of abuse to include the physical dependency of a newborn infant on any controlled dangero us substan ce for the p urposes o f the Fam ily Law Artic le provisions requiring reporting and investigation of suspected child abuse. The bill was opposed by the Secretary of Hum an Reso urces, the A merican C ivil Liberties Union (ACLU), and the Foster Care R eview Board , and it die d in the H ouse Ju diciary C omm ittee. In 1990, a number of bills were introduced on the subject, taking differing approaches. House Bill 1233 would have gone a step further; it would have included physical injury to an unborn child resulting from the use by the child s mother during pregnancy of a controlled dangerous substan ce as c riminal c hild abu se. House Bill 689 was similar, except that (1) it referred to physical injury to the child, rather than to an unborn child, (2) it would have made that conduct a felony, and (3) it exempted women who participated in a drug abuse -11- treatment program and subsequently abstained from using any controlled substance. House Bill 1101 an d Senate Bill 662 w ould have expanded the definition of both child in need of assistance under the Juvenile Causes law and neglect under the Family Law Article provisions requiring the reporting and investigation of child neglect, to include prenatal fetal expos ure to a c ontrolle d subst ance. All of those bills died in the House Judiciary Committee. The files on H.B.1233 and H.B.689 reveal opposition by the Department of Human Services. The Department observed (1) that it was often difficult to establish a cau se-and-effect relationship be tween a wo man s drug use and injuries to the fetus, (2) in most cases, a woman s use of drugs durin g pregnancy is the result of her ina bility to control her a ddiction, the a bsence o f adequa te treatment programs, or her lack of awareness of the possible effects of her drug use on the fetus, and (3) in those States where criminal sanctions exist for drug use by pregnant women, the data did not indicate an y decrease in th e numbe r of drug-u sing pregn ant wom en. It is noteworthy that the opposition to those bills that would have established crim inal l iabil ity, from both State a gencies an d private gro ups that dealt with the problem of drug-addicted pregnant wome n and bab ies, was no t that the bills w ere unnec essary becau se criminal liability already existed under the re ckless end angerme nt law, but that the approach they emb race d wa s not good public p olicy. House Bill 1101 and Se nate Bill 662 garnered more support, because they offered the prospect of serv ices for drug-a ddicted babies . The problem seemed to be the anticipated cost -12- of providing those services. In a post-session letter to the Secretary of Health and Mental Hygiene, the chairman of the Judiciary Committee urged that the Secretary reconvene a Drug Addicted Babies Task Force created in 1989 and promised that legislation would be forthcoming. One or both approaches were before the Legislature in succeeding years in 1991, 1992, 1995, 1996, and 1997. In 1997, by 1997 Md. Laws, ch. 367 and 368, the Legislature opted to address the problem in a tri-partite civil context. It first attached to the definition of a child in need of assistance a presumption that a child is not receiving ordinary and proper care and attention if the child was born addicted to or dependent on cocaine, heroin, or a derivative of either, or was born with a significant presence of those drugs in his or her blood. That circum stance cou ld be taken into account by a Juvenile Court in deciding whether the child is in n eed of ass istance. Sec ond, the bills a mended the law pe rtaining to the termination of parenta l rights to add th at circumsta nce, plus the parent s ref usal to participate in a drug treatment prog ram, as a consideration in determining whether termina tion is in th e child s best inte rest. Fina lly, the Legislature required the Departments of Human Resources and Health and Mental Hygiene to develop and implement pilot drug intervention programs for the mothers of children who were born drug-exposed. As part of that intervention program, the Department of Human Resources was required to file a child in need of assistance petition on behalf of a child who was born drug-exposed if the mother failed to complete drug -13- treatment and she and the father were unable to provide adequate care for the child. See Maryland Code, § 3-818 of the Cts. & Ju d. Proc. A rticle and §§ 5-323(d)(3 )(ii) and 5-7 06.3 of the F amily La w Art icle. In the 2004 session, Senate Bill 349 and House B ill 802, both captioned as the U nborn Victims of Violence A ct, were introduced. A mong other pro visions dealing with m urder, manslaug hter, and ass ault, they would have defined the term another, as used in CL § 3204(a)(1), to include a n unborn child, thereby m aking it a crim inal offen se recklessly to create a substantial risk of death or serious physical injury to an unborn child. There was no exemption for the conduct of th e child s mother, other than in the context of a legal abortion. Neithe r bill pass ed. See also House Bill 520 (2004), which also failed. In 2005, the Legislature, in a m ore limited version of the 2004 bills, extended the law of murder and manslaughter to permit a prosecution for the murder or manslaughter of a viable f etus. See 2005 Md. Laws, ch. 546, enacting CL § 2-103. The statute provides that such a prosecu tion is warra nted only if the defendant intended to cause the death of or serious physical injury to the viable fetus or wantonly or recklessly disregarded the likelihood that the defendant s action would cause death or serious physical injury to the fetus. There are at least two important differe nces between the 2005 enactment and the failed 2004 bills. First, the 2005 Act did not encomp ass the reck less endan germent s tatute but dea lt only with unlawful homic ides. At least equally significant, and perhaps more so, the Legislature was careful, in § 2-103(f), to make clear that [n]othing in this section applies to an act or failure -14- to act of a pregnant woman with regard to her own fetus. That provision was added to the bill specifically to allay concerns expressed by the Secretary of Health and Mental Hygiene, the ACLU, and the National Organization for Women that, absent such a provision, women might be subject to prosecution for not accessing available pre natal care or c ausing the d eath of a f etus by reason of reckless behavior during pregnancy, including a drug overdose. The ACLU letter pointedly observed: Without such a clarification, the bill could encourage the policing of pregnancy by those attempting to control the conduct of pregnant women. All of the woman s conduct during and perhaps even before pregnancy could become subject to judicial scrutiny . . . . All of her conduct could be second-guessed in a court of law if something tragically happens to her viable f etus. This sixteen-year history, from 1989 to 2005, shows rather clearly that, although a pregnant woman, like anyone else, may be prosecuted for her own possession of controlled dangerous substances, the General Assembly, despite being importuned on numerous occasions to do so, has chosen not to impose additional criminal penalties for the effect that her ingestion of those substances might have on the child, either before or after bir th. It has consistently rejected pro posals that would have allow ed such c onduct to constitute murder, manslaughter, child abuse, or reckless en dangerm ent. In doing so, the Leg islature obvio usly gave credence to the evidence presented to it that criminalizing the ingestion of controlled substances in effec t criminalizing drug add iction for this one segment of the population, pregnant women was not the proper approach to the problem and had, in fact, proved ineffective in other States in deterring either that conduct or addiction generally on the part -15- of pregnant women. It deliberately opted, instead, to deal with the problem by providing drug treatment programs for pregnant women and using the child in need of assistance and termination of parental rights remedies if the women failed to take advantage of the treatment programs and, as a result, were unable to provide proper care for the child. Given the exemption added to the 2005 legislation, it would be an anomaly, indeed, if the law were such that a pregnant woman who, by ingesting drugs, recklessly caused the death of a viable fetus would suffer no criminal liability for manslau ghter but, if the child was born alive and did not die, cou ld be impriso ned for fiv e years for reck less endan germent. A non-fatal injury resulting from reckless conduct would be culpable; a fatal injury resulting from the same reckless conduct would not be. Maryland is not t he o nly State to address this issue. These kinds of cases prosecutions for reckless endangerment, child abuse, or distribution of controlled substances based on a pregnant woman s ingestion of a controlled dangerous substance, or, in some cases, excessive amounts of alcohol have arisen in other States, and the overwhelming majority of courts th at have co nsidered th e issue hav e conclud ed that those crimes do not encompass that kind of activ ity. Indeed, only one State So uth Carolin a has so f ar held to the contrary. See gene rally James G. Ho dge, Jr., Prosecution of Mother for Prenatal Substance Abuse Based on Endangerment of or Deliver y of Contr olled Subs tance to C hild, 70 A.L.R .5th 461 (1999 ) and C arol So vinski, The Criminalization of Maternal Substance -16- Abuse: A Quick Fix to a Compelx Problem, 25 PEPP. L. R EV. 107 (1997). 3 In conformance with this nearly universal view, but most particularly in light of the way in which th e Maryland General A ssembly has c hosen to deal with the problem, we hold that it was not the legislative intent that CL § 3-204(a)(1 ) apply to prenatal drug ingestion by a pregnan t woman . We theref ore reverse the judgm ents entered by the Circuit C ourt. JUDGMENTS IN NOS. 91 (KILMON ) AND 106 (C RUZ) 3 For spe cific ho ldings, see Johnson v. Florida, 602 So.2 d 1288 (F la. 1992) (statu te prohibiting delivery of controlled substance to person under 18 not applicable to ingestion of controlled substance prior to giving birth) and cf. State v. Ashley, 701 So.2d 338 (Fla. 1997) (confirming Johnson); State v. Gray, 584 N.E .2d 710 (O hio 1992 ) (statute prohibiting creation of substantial risk to health or safety of child not applicable to abuse of drugs d uring preg nancy); State v. Aiwohi, 123 P.3d 1210, 1214 (Hawaii 2005) (manslaughter statute not applicable; court recognizes that overwhelming majority of jurisdictions co nfronted w ith the prosec ution of a m other for h er own p renatal con duct, causing h arm to the su bsequen tly born child, refu se to perm it such prose cutions ); Com. v. Welch, 864 S.W .2d 280 (K y. 1993) (legislatu re did not inte nd child ab use statute to apply to prena tal self-abuse that caused drugs to be transmitted th rough um bilical cord to child); Sheriff v. Encoe, 885 P.2d 596 (Nev. 1994) (child endangerment statute does not apply to transmission of illegal substances from mother to newborn through umbilical cord); Reinesto v. Superior Court, 894 P.2d 733 (Ariz. App. 1995) (child abuse statute not applicable); Reyes v. Superior Court, 75 Cal. A pp.3d 21 4 (Cal. Ap p. 1977) (c hild endange rment statute not applica ble); People v. Hardy, 469 N.W.2d 50 (Mich. App. 1991) (statute prohibiting delivery of cocaine did not apply to transmission of cocaine through u mbilical cord from mo ther to child); People v . Morab ito, 580 N.Y.S.2d 843 (City Ct. 1992 ) (child enda ngermen t statute not ap plicable to tha t circumstan ce); Collins v. State, 890 S.W .2d 893 (T ex. App . 1994) (reck less injury statute no t applicable); State v. Deborah J.Z., 596 N.W .2d 490 (W is. App. 19 99) (reckles s injury statute not a pplicable to ingestio n of ex cessive amou nt of alc ohol du ring pre gnanc y causing injury to ch ild). Comp are Whitn er v. State, 492 S .E.2d 7 77 (S.C . 1997) , cert. denied, 523 U.S. 1145, 118 S. Ct. 1857, 240 L. Ed.2d 1104 (1998) (holding that woman could be prosecuted for endan gering fetus b y prenata l substan ce abu se). -17- REVERSED; TALBOT COUNTY TO PAY THE COSTS IN EACH CASE. -18-

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