[Cite as State v. Clemons, 2013-Ohio-3415.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

HIGHLAND COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No. 12CA9 

 : 

 vs. : 

 : DECISION AND JUDGMENT 

ASTASIA CLEMONS, : ENTRY

 : 

 Defendant-Appellant. : Released: 07/24/13 

_____________________________________________________________ 

APPEARANCES:

Conrad A. Curren and Carol Ann Curren, Greenfield, Ohio, for Appellant. 

Anneka P. Collins, Highland County Prosecutor, Hillsboro, Ohio, for 

Appellee. 

Elizabeth Cooke, Amna Akbar, Alyssa Bowerman, and Wondwosen 

Woldegebriel, The Ohio State Legal Clinic, Columbus, Ohio, and Farah 

Diaz-Tello, National Advocates for Pregnant Women, New York, New 

York, for Amici Curiae. 

_____________________________________________________________ 

 

McFarland, P.J. 

{¶1} Appellant, Astasia Clemons, appeals her conviction for 

corrupting another with drugs after pleading no contest to the charge upon 

the trial court’s denial of her motion to dismiss. On appeal, Appellant 

contends that the trial court erred to her detriment when it denied her motion 

to dismiss count one of the indictment. In light of our determination that the 

allegations contained in the indictment did not constitute an offense under 
Highland App. No. 12CA9 2

Ohio criminal law, we conclude that the trial court erred in denying 

Appellant’s motion to dismiss the indictment. As such, Appellant’s sole 

assignment of error is sustained. Accordingly, the decision of the trial court 

is reversed and Appellant’s conviction is vacated. 

FACTS 

{¶2} A review of the record reveals that on November 14, 2011, 

Appellant gave birth to a child who, upon birth, tested positive for 

marijuana, morphine an oxycodone. As a result, the child was transferred to 

Dayton’s Children’s Hospital, where she was treated and released. 

Appellant later informed a Children’s Services worker that she had ingested 

Percocet, without a prescription, prior to giving birth, and had also used 

marijuana throughout her pregnancy. 

{¶3} Based upon these events, on January 10, 2012, Appellant was 

indicted on two counts of corrupting another with drugs, in violation of R.C. 

2925.02(A)(1) and (A)(3), both second-degree felonies. Appellant appeared 

for her arraignment without counsel and the court entered a plea of not guilty 

on her behalf. Subsequently, on March 29, 2012, Appellant filed a motion to 

dismiss both charges, claiming the charges were not valid based upon the 

plain language of the statute. A hearing was held on the motion on April 4, 

2012, after which the trial court granted Appellant’s motion to dismiss the 
Highland App. No. 12CA9 3

R.C. 2925.03(A)(3) charge only, based upon the fact that it appeared the 

child had suffered no injury as a result of the drug exposure. The trial court 

denied the motion as to the (A)(1) charge, which did not contain the element 

of physical harm. 

{¶4} Appellant ultimately entered a plea of no contest to the R.C. 

2925.02(A)(1) charge on April 6, 2011, and was sentenced to two years 

imprisonment, which were stayed pending appeal. 

ASSIGNMENT OF ERROR 

“I. THE TRIAL COURT ERRED TO THE DETRIMENT OF 

APPELLANT/DEFENDANT WHEN IT DENIED THE 

APPELLANT’S/DEFENDANT’S MOTION TO DISMISS COUNT 

ONE OF THE INDICTMENT.” 

LEGAL ANALYSIS 

{¶5} In her sole assignment of error, Appellant contends that the trial 

court erred to her detriment when it denied her motion to dismiss count one 

of the indictment. “ ‘[A] motion to dismiss charges in an indictment tests 

the [legal] sufficiency of the indictment, without regard to the quantity or 

quality of evidence that may be produced by either the state or the 

defendant.’ ” State v. Barcus, 133 Ohio App.3d 409, 414, 728 N.E.2d 420 

(1999); quoting State v. Patterson, 63 Ohio App.3d 91, 95, 577 N.E.2d 1165 

(1989). Thus, “when a defendant moves to dismiss, the proper determination 

is whether the allegations contained in the indictment constitute offenses 
Highland App. No. 12CA9 4

under Ohio criminal law.” Id. If they do, it is premature for the trial court to 

determine, in advance of trial, whether the state could satisfy its burden of 

proof with respect to those charges. State v. Nihiser, 4th Dist. No. 03CA21, 

2004-Ohio-4067, ¶ 9. 

{¶6} Appellate review of a trial court's decision regarding a motion to 

dismiss involves a mixed question of law and fact. State v. Staffin, 4th Dist. 

No. 07CA2967, 2008-Ohio-338, ¶ 6 (reviewing a dismissal on speedy-trial 

grounds), citing State v. Pinson, 4th Dist. No. 00CA2713, 2001 WL 301418 

(Mar. 16, 2001). We accord due deference to the trial court's findings of fact 

if supported by competent, credible evidence; however, we independently 

review whether the trial court properly applied the law to the facts of the 

case. Id.; citing State v. Thomas, 4th Dist. No. 06CA825, 2007-Ohio-5340, ¶ 

8. Thus, our role is limited to conducting a de novo review of the trial 

court's application of the law to the stipulated facts. State v. Taylor, 4th Dist. 

No. 05CA19, 2005-Ohio-6378, ¶ 10 (dealing with a motion to suppress).1

{¶7} A court interpreting a statute must look to the language of the 

statute to determine legislative intent. State v. Osborne, 4th Dist. No. 05 

CA2, 2005-Ohio-6610, ¶ 18. Courts should give effect to the words of the 

statute and should not modify an unambiguous statute by deleting or 

 

1

 Although there were no “stipulated facts” per se, counsel for both the State and Appellant referred to 

certain facts below that appeared to be agreed upon relating to the child’s toxicology results after birth and 

Appellant’s drug use during pregnancy. 
Highland App. No. 12CA9 5

inserting words; that is, we have no authority to ignore the plain and 

unambiguous language of a statute under the guise of statutory 

interpretation. State v. McDonald, 4th Dist. No. 04CA2806, 2005-Ohio-3503, 

¶ 11. In interpreting a criminal statute, courts must construe the statute 

strictly against the state and liberally in favor of the accused. R.C. 

2901.04(A); State v. Gray, 62 Ohio St.3d 514, 515, 584 N.E.2d 710 (1992). 

“The interpretation of a statute or ordinance is a question of law, which we 

review de novo.” State v. Frey, 166 Ohio App.3d 819, 2006-Ohio-2452, 853 

N.E.2d 684, ¶ 9. 

{¶8} Appellant was originally indicted on two counts of corrupting 

another with drugs, in violation of R.C. 2925.02(A)(1) and (A)(3), based 

upon the fact that she gave birth to a child who was drug dependent at birth 

by virtue of Appellant’s drug use during pregnancy. As set forth above, the 

indictment on the (A)(3) charge was dismissed based upon the belief that the 

child did not suffer any physical harm as a result, but the trial court refused 

to dismiss the indictment on the (A)(1) charge, which did not contain 

physical harm as an element. As a result, Appellant pled no contest to 

corrupting another with drugs in violation of R.C. 2925.02(A)(1), which 

provides that: 

“(A) No person shall knowingly do any of the following: 
Highland App. No. 12CA9 6

(1) By force, threat, or deception, administer to another or 

induce or cause another to use a controlled substance[.]” 

The word “another” is not defined within the statute, nor does a definition of 

“another” appear in the definitions section of R.C. 2925. In fact, like the 

trial court, we were unable to find a definition for the word “another;” 

however, we agree with the trial court’s common sense reversion to the word 

“person” to determine the meaning of the word “another” within the context 

of this statute. 

{¶9} As such, we look to the general provisions of R.C. Chapter 29 

wherein R.C. 2901.01 “Definitions” defines the word “person” in section 

(B)(1)(a) as follows: 

“(B)(1)(a) Subject to division (B)(2) of this section, as used in 

any section contained in Title XXIX of the Revised Code that 

sets forth a criminal offense, “person” includes all of the 

following: 

(i) An individual, corporation, business trust, estate, trust, 

partnership, and association; 

(ii) An unborn human who is viable. 

(b) As used in any section contained in Title XXIX of the 

Revised Code that does not set forth a criminal offense, 
Highland App. No. 12CA9 7

“person” includes an individual, corporation, business trust, 

estate, trust, partnership, and association. 

(c) As used in division (B)(1)(a) of this section: 

(i) “Unborn human” means an individual organism of the 

species Homo sapiens from fertilization until live birth. 

(ii) “Viable” means the stage of development of a human fetus 

at which there is a realistic possibility of maintaining and 

nourishing of a life outside the womb with or without 

temporary artificial life-sustaining support. 

(2) Notwithstanding division (B)(1)(a) of this section, in no 

case shall the portion of the definition of the term “person” that 

is set forth in division (B)(1)(a)(ii) of this section be applied or 

construed in any section contained in Title XXIX of the Revised 

Code that sets forth a criminal offense in any of the following 

manners: 

* * * 

(b) In a manner so that the offense is applied or is construed as 

applying to a woman based on an act or omission of the woman 

that occurs while she is or was pregnant and that results in any 

of the following: 
Highland App. No. 12CA9 8

(i) Her delivery of a stillborn baby; 

(ii) Her causing, in any other manner, the death in utero of a 

viable, unborn human that she is carrying; 

(iii) Her causing the death of her child who is born alive but 

who dies from one or more injuries that are sustained while the 

child is a viable, unborn human; 

(iv) Her causing her child who is born alive to sustain one or 

more injuries while the child is a viable, unborn human; 

(v) Her causing, threatening to cause, or attempting to cause, in 

any other manner, an injury, illness, or other physiological 

impairment, regardless of its duration or gravity, or a mental 

illness or condition, regardless of its duration or gravity, to a 

viable, unborn human that she is carrying.” (Emphasis added).

Thus, based upon the definitions provided in R.C. 2901.01, it is clear that 

Appellant’s unborn child was a person, even while in utero before its birth. 

The trial court reached this same result in determining whether Appellant’s 

child was a “person” or “another,” for purposes of R.C. 2925.02(A) at the 

time of Appellant’s drug use. 

{¶10} However, as set forth above, R.C. 2901.01 contains exceptions 

or limits to the manner in which the word “person” can be “applied or 
Highland App. No. 12CA9 9

construed” in a situation involving a pregnant woman and her viable, unborn 

child. Specifically, R.C. 2901.01 (B)(2)(b)(i)-(v) essentially protects 

conduct by a woman during her pregnancy that might or does result in the 

injury, illness, impairment or death of her child, either before or after its 

birth. Thus, based upon a plain reading of the statute, a woman cannot be 

criminally prosecuted for her conduct during pregnancy that results in harm 

to her child. 

{¶11} Much like the parties, this Court has been unable to locate any 

other case in Ohio where a woman was convicted of a crime for actions 

taken during pregnancy that affected her unborn child. Although Appellant 

directs our attention to State v. Hade, 6th Dist. No. OT-07-037, 2008-Ohio1859, our review of that case reveals that although Hade was indicted for a 

violation of R.C. 2925.02(A)(4)(a), she was ultimately not convicted of that 

offense. Instead she pled guilty to drug possession and child endangering. 

Id. at ¶ 2. 

{¶12} Which leads to the next topic of discussion that has been 

highly debated both below and on appeal, i.e. whether or not the Supreme 

Court of Ohio’s holding in State v. Gray, supra, has any applicability to the 

case sub judice. In Gray, the Court held that “[a] parent may not be 

prosecuted for child endangerment under R.C. 2919.22(A) for substance 
Highland App. No. 12CA9 10

abuse occurring before the birth of the child.” Gray at syllabus. 

Admittedly, Gray involved a different statute, child endangering, which 

supposes a certain relationship existing between a parent and a child, which 

is not present in R.C. 2925.02. However, we find its reasoning to be 

applicable nonetheless. For instance, as reasoned in Gray, “[t]he statutory 

and regulatory scheme in Ohio strongly indicates that where the concerns of 

the unborn are at issue, the legislature and administrative bodies have 

referred to the unborn specifically.” Gray at 516. (Internal citations 

omitted). 

{¶13} Further, we agree with the sentiment of the Gray Court, which 

acknowledged the growing problem of prenatal drug use. Id. at 517-518. 

As set forth in Gray verbatim: 

“ ‘The Legislature is an appropriate forum to discuss public 

policy, as well as the complexity of prenatal drug use, its effect 

upon an infant, and its criminalization.’ [People v. Hardy, 

supra, 188 Mich.App. 305, 310, 469 N.W.2d 50 (1991).] The 

Ohio Legislature currently has before it S.B. No. 82, which, if 

passed, would create the new crime of prenatal child neglect 
Highland App. No. 12CA9 11

[

2

]to handle situations such as those at bar. ‘ “A court should 

not place a tenuous construction on [a] statute to address a 

problem to which the legislative attention is readily directed 

and which it can readily resolve if in its judgment it is an 

appropriate subject of legislation.” ’ Hardy, quoting People v. 

Gilbert (1982), 414 Mich. 191, 212–213, 324 N.W.2d 834, 844. 

‘[I]f a legally cognizable duty on the part of pregnant women to 

their developing fetuses is to be recognized, the decision must 

come from the legislature only after thorough investigation, 

study and debate.’ Stallman v. Youngquist (1988), 125 Ill.2d 

267, 280, 126 Ill.Dec. 60, 66, 531 N.E.2d 355, 361. The 

legislature is now undertaking the thorough investigation 

necessary to resolve this important and troubling social 

problem.” Id.; see also In re Baby Boy Blackshear, 90 Ohio 

St.3d 197, 736 N.E.2d 462, FN 2 (2000) (finding that a 

newborn child with a positive toxicology screen is per se an 

abused child for purposes of R.C. 2151.031(D), but noting that 

the court must liberally construe the applicable statute in favor 

 

2

 Originally denoted as FN3 in Gray, the Supreme Court was referring to then pending draft version of R.C. 

2919.221, which prohibited actions by pregnant women which would cause their children to be “drug 

exposed at birth.” 
Highland App. No. 12CA9 12

of the accused, as opposed to a criminal case, where the court 

must strictly construe the statute against the state). 

However, our research indicates that neither this proposed legislation, nor 

any other similar legislation has ever been passed. Although Appellee 

indicates that R.C. 2925.02, as it currently exists, was the legislature’s 

answer to the growing problem of prenatal drug use, our review of the plain 

language of the statute, coupled with our review of the legislative history 

related thereto does not lead us to that conclusion. Further, a review of 

pending legislation regarding this statute contained in S.B. No. 329, dated 

April 17, 2012, reveals no addition or clarification that this offense does, in 

fact, encompass conduct of a pregnant woman in relation to her unborn 

child. 

{¶14} Here, the State argued and the trial court concluded that 

because R.C. 2925.02(A)(1) did not contain an element of physical harm, 

that the exceptions to the definition of “person” under R.C. 2901.01 did not 

apply, and that Appellant could be prosecuted for the crime. Based upon the 

foregoing, however, we disagree. Instead we find the plain language of R.C. 

2925.02, read in conjunction with the definitions and exceptions thereto 

contained in R.C. 2901.01, do not support the application of the statute to the 

facts sub judice. Further, we find merit to Appellant’s argument that it is 
Highland App. No. 12CA9 13

“incongruous” to disallow prosecution for a woman’s conduct during 

pregnancy that results in harm to her unborn child, while allowing 

prosecution for conduct that does not harm her child. “Such a result would 

be absurd, and ‘[i]t is presumed that the legislature does not intend absurd 

results.’ O'Toole v. Denihan, 118 Ohio St.3d 374, 2008-Ohio-2574, 889 

N.E.2d 505, ¶ 56, citing State ex rel. Haines v. Rhodes (1958), 168 Ohio St. 

165, 5 O.O.2d 467, 151 N.E.2d 716, paragraph two of the syllabus.” Widen 

v. Pike Cty., 187 Ohio App.3d 510, 2010-Ohio-2169, 932 N.E.2d 929, ¶ 23. 

{¶15} Based upon the foregoing reasoning and the absurd result that 

we reach if we apply the definitions contained in R.C. 2901.01 to permit 

prosecution for maternal conduct that results in no harm to the unborn child, 

while protecting maternal conduct that actually results in harm or threatened 

harm to the child, we sustain Appellant’s sole assignment of error. In 

reaching this result, we acknowledge and agree with the concerns mentioned 

in State v. Gray, supra, regarding the growing problem of prenatal, or 

maternal, drug use. 

{¶16} Nonetheless, based upon the language of the statute as it exists 

at this time, as well as the absence of any legislative action in this area since 

the time in which State v. Gray, supra, was decided, we are constrained to 

find that the trial court failed to correctly apply the law to the facts of this 
Highland App. No. 12CA9 14

case. As such, we conclude that the trial court erred in denying Appellant’s 

motion to dismiss this portion of the indictment and, thus, we sustain 

Appellant’s sole assignment of error. Accordingly, the decision of the trial 

court is reversed and Appellant’s conviction is vacated. 

 JUDGMENT REVERSED AND VACATED. 
Highland App. No. 12CA9 15

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE REVERSED AND VACATED and 

Appellant recover costs from Appellee. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the Highland 

County Common Pleas Court to carry this judgment into execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL 

HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it 

is temporarily continued for a period not to exceed sixty days upon the bail previously 

posted. The purpose of a continued stay is to allow Appellant to file with the Supreme 

Court of Ohio an application for a stay during the pendency of proceedings in that court. 

If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 

sixty day period, or the failure of the Appellant to file a notice of appeal with the 

Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of 

the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court 

of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of 

the date of such dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

Exceptions. 

Harsha, J. & Abele, J.: Concur in Judgment Only. 

 For the Court, 

 BY: _______________________ 

 Matthew W. McFarland 

 Presiding Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing with 

the clerk.