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State v. Deborah J.Z.5/26/1999
APPEAL from an order of the circuit court for Racine County: DENNIS J. BARRY, Judge. Reversed.
Deborah J.Z. appeals from an order denying her motion to dismiss the information the State filed against her for attempted first-degree intentional homicide and first-degree reckless injury contrary to §§ 939.32, 940.01 and 940.23(1), Stats. Deborah argues that the State did not establish at the preliminary hearing that it had probable cause to charge her with these crimes. She contends that her alleged act of consuming alcohol while pregnant does not satisfy the statutes' requirement that the act be perpetrated against another "human being." We are persuaded that the term "human being" as used in §§ 940.01 and 940.23(1) was not intended to refer to an unborn child and that Deborah's prenatal conduct does not constitute attempted first-degree intentional homicide and first-degree reckless injury. Therefore, we reverse.
FACTS
One week before her due date, Deborah was drinking in a local tavern when she believed she was going to have her baby. Deborah's mother came and took her to St. Luke's Hospital for medical treatment. At the hospital, Deborah was uncooperative, belligerent at times and very intoxicated. Her blood alcohol concentration exceeded 0.30%. Deborah allegedly told a nurse that "if you don't keep me here, I'm just going to go home and keep drinking and drink myself to death and I'm going to kill this thing because I don't want it anyways." Deborah also expressed fear about the baby's race, an abusive relationship she was in and the pain of giving birth.
After consulting with her physician, Deborah consented to a cesarean section and gave birth to a baby girl, M.M.Z. At birth, M.M.Z. was extremely small, she had no significant subcutaneous fat and her physical features-mild dysmorphic abnormalities-presented fetal alcohol effects. M.M.Z.'s blood alcohol level was 0.199% at birth. After a few weeks, M.M.Z. was gaining weight, had no significant jaundice and was able to tolerate temperature outside the incubator. Consequently, she was discharged to a foster family.
On June 10, 1996, the State filed a criminal complaint against Deborah charging her with attempted first-degree intentional homicide and first-degree reckless injury. See §§ 939.32, 940.01, 940.23(1), Stats. After a preliminary hearing, the circuit court found probable cause to charge Deborah and bound her over for trial. The State filed a two-count information to which Deborah pled not guilty. Deborah brought a motion to dismiss which was denied. We accepted Deborah's petition to review the non-final order denying her motion to dismiss the information for lack of probable cause at the preliminary examination.
DISCUSSION
Deborah argues that the State's allegations against her do not constitute a criminal offense. She objects to the circuit court's decision to bind her over for trial because she contends that the State failed to establish probable cause at the preliminary hearing that she committed the charged crimes. See § 970.03(1), Stats. In other words, Deborah asserts that it is not reasonable or plausible that she committed either crime . See State v. Dunn, 121 Wis.2d 389, 398, 359 N.W.2d 151, 155 (1984). Her primary contention is that the plain language of the statutes under which she was charged does not apply to the conduct in question because both statutes require that the conduct must be directed toward a "human being." She adds that the statutes define "human being" as "one who has been born alive," so her unborn child is not covered by either statute. See § 939.22(16), Stats.
The question presented by this appeal-whether an unborn child
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