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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION September 29, 2016 9:00 a.m.

v No. 332018 St. Joseph Circuit Court MELISSA LEE JONES, LC No. 15-019724-FC

Defendant-Appellant.

Before: M URRAY , P.J., and H OEKSTRA and B ECKERING , JJ.

P ER C URIAM

. Defendant, Melissa Lee Jones, pleaded guilty to first-degree c hild abuse, MCL 750.136b(2), and the trial court sentenced her to 3 to 10 years ’ imprisonment with credit for 208 days served. Defendant now app eals her conviction by leave granted. We agree with defendant’s argument that the first-degree child abuse statute does not apply to her conduct at issue, and thus, we vacate her conviction and sentence.

This case arises out of defendant ’s delivery of ababy who tes ted positive for methamphetamine at birth. After defendant gave birth, the hosp ital staff became concerned about the baby because he weighed less than four pounds, despit e being delivered at full term. The baby was weak, had trouble feeding, and required an IV to r eceive nutrition. Defendant did not participate in any prenatal care. CPS arrived at the hospi tal after being informed of the baby’s condition and that the baby tested positive for methamph etamine. After speaking with the CPS worker, defendant took out her IVs and left the hospita l with her boyfriend against the advice of hospital staff and ag ainst the recommendation of CPS. When police arrived at the hospital regarding the abandoned newborn, defendant had not com e back to the hospital for her baby. A court order subsequently placed the child under protec tion and prohibited contact with defendant.
Defendant was charged with chi ld abuse arising out of her pren atal conduct. During the plea hearing, the factual basis for her guilty plea was establi shed as follows:

[ The Court ]. I need you to tell me what you did that makes you guilty of the offence. It says that in January 29th, 2015 [sic] you were in the city of Sturgis, county of St. Joseph, sta te of Michigan, is that true?

[ Defendant ]. Yes-2- [ The Court ]. At that time, you did knowingl y or intentionally cause serious physical harm to a child. T ell me what happened?

[ Defendant ]. I was using in my pregnancy and my baby tested positive.

[ The Court ]. When was your baby born?

[ Defendant ]. The 28th at . . .

[ The Court ]. And . . .

[ Defendant ]. . . . 11:54, I think.

[ The Court ]. January 28th?

[ Defendant ]. Yes.

[ The Court ]. In Sturgis?

[ Defendant ]. Yes.

[ The Court ]. And they ran tests, is that correct?

[ Defendant ]. Uh-huh.

[ The Court ]. Yes?

[ Defendant ]. Yes.

[ The Court ]. And it tested positive for amphetamines and methamphetamines?

[ Defendant ]. Yes.

[ The Court ]. And then they tested you?

[ Defendant ]. Yes.

[ The Court ]. And you were also positive f or methamphetamines and amphetamines?

[ Defendant ]. Yes.

[ The Court ]. When had you last used befor e you delivered your child?

[ Defendant ]. I don’t—like five days before I was . . .

[ The Court ]. Five?-3- [ Defendant ]. Yeah.

[ The Court ]. Or less—was it less or was it five?

[ Defendant ]. I—I’m just guessing around five.

[ The Court ]. Okay. But you do admit that you consumed it knowing . . .

[ Defendant ]. Yes.

[ The Court ]. Okay. Are counsel satisfied tha t a factual basis has been established?

[ Prosecutor ]. Yes, Your Honor.

[ Defense Counsel ]. I am satisfied.

On appeal, defendant first argue s that the first-degree child abuse statute was improperly applied to her because a fetus is not included within the statu tory definition of “child,” and she therefore could not have caused harm to a “child” as required b y the statute simply by using methamphetamine during her pregnancy. We agree.
Defendant did not preserve this issue by challenging in the tr ial court the applicability of the first-degree child abuse statute to her conduct. See People v Metamora Water Serv, Inc , 276 Mich App 376, 382; 741 NW2d 61 (2007). Issues of statutory int erpretation are reviewed de

novo. People v Wambar , 300 Mich App 121, 124; 831 NW2d 891 (2013). “Whether conduct falls within the statutory scope of a criminal statute is a que stion of law that is reviewed de novo on appeal.” People v Rutledge , 250 Mich App 1, 4; 645 NW2d 333 (2002). However, unpreserved issues are reviewed fo r plain error affecting subst antial rights. People v Carines
, 460 Mich 750, 763-764; 597 NW2d 130 (1999). On plain-error rev iew, the burden is on the defendant to establish (1) “erro r”; (2) that was “plain,” meani ng “clear or obvious”; (3) and that caused prejudice, meaning “that the error affected the outcome of the lower court proceedings.” Id . at 763. “[O]nce a defendant satisfies these three requiremen ts, an appellate court must exercise its discretion in deciding whether to reverse,” but “[ r]eversal is warranted only when the plain, forfeited error resulted i n the conviction of an actuall y innocent defendant or when an error seriously affect[ed] the fairnes s, integrity or public reputati on of judicial proceedings independent of the defendant’s innocence.” Id . (quotation marks and citation omitted).
In eliciting a factual basis from defendant during the plea co lloquy, the trial court clearly focused on defendant’s prenatal methamphetamine use and the fac t that the baby tested positive for methamphetamines and amphetamines to support the first-degr ee child abuse conviction. No other facts of alleged harm to th e baby were introduced, and no facts were introduced of conduct toward the baby after birth. T hus, the factual basis to suppor t defendant’s guilty plea rested solely on defendant’s prenatal conduct. Therefore, the questio n before us is one of first impression, namely, whether a mother’s prenatal drug use can support a conviction for firstdegree child abuse where the statute requires the victim to be a “child” and does not specifically include fetuses within the statutory definition of “child.”-4- The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. People v Peltola , 489 Mich 174, 181; 803 NW2d 140 (2011). “The statute’s words are the most reliable indicator of the Legislat ure’s intent and should be interpreted based on their ordina ry meaning and the context wit hin which they are used in the statute.” People v Lowe , 484 Mich 718, 721-722; 773 NW2d 1 (2009). If the statutory l anguage is unambiguous, then the statute is applied as written. People v Borchard-Ruhland , 460 Mich 278, 284; 597 NW2d 1 (1999). “Only where the statutory languag e is ambiguous may a court properly go beyond the words of the statute to ascertain legisl ative intent.” People v Phillips
, 469 Mich 390, 395; 666 NW2d 657 (2003) (quotation marks and cit ation omitted). “If the statute defines a term, that definition controls.” People v Wiggins , 289 Mich App 126, 128; 795 NW2d 232 (2010). “Further, the language must be applied as wri tten, and nothing should be read into a statute that is not within the manifest intent of the Legislature as indicated by the act itself.” People v Lange , 251 Mich App 247, 253-254; 650 NW2d 691 (2002) (citations omi tted). “It is well settled that crimina l statutes are to be strictly c onstrued, absent a legislative statement to the contrary.” People v Boscaglia , 419 Mich 556, 563; 357 NW2d 648 (1984).
MCL 750.136b(2) states that “[a] person is guilty of child abu se in the first degree if the person knowingly or intentionally causes serious physical or se rious mental harm to a child.” Under this statute, a “ ‘[c]hild’ means a person who is less than 18 years of age and is not emancipated by operation of law a s provided in section 4 of 196 8 PA 293, MCL 722.4.” MCL 750.136b(1)(a) (emphasis added). The definition of “person” th at appears in MCL 750.136b serves to define the person committing the abuse rather than th e victim. See MCL 750.136b(1)(d) (“ ‘Person’ means a child’s parent or guardian o r any other person who cares for, has custody of, or has authority over a child regardless of the length of time that a child is cared for, in the custody of, or subject to the authority of that per son.”). MCL 750.136b makes no reference to fetuses or to conduct that harms a fetus. Further more, neither the definition of “child” nor the definition of “ person” found in the statute spe cifically includes fetuses.
The fact that the Legislature did not include fetuses within e ither definition in the childabuse statute is in accord with other statutory definitions of “person,” which consistently omit any reference to fetuses. For example, the definition section of the Michigan Penal Code, MCL 750.1 et seq ., merely includes the following definition for the term “perso n”: “The words ‘person’, ‘accused’, and similar words include, unless a contra ry intention appears, public and private corporations, copartne rships, and unincorporated or vol untary associations.” MCL 750.10. Similarly, the Michigan Code of Criminal Procedure, MC L 760.1 et seq ., states: “ ‘Person’, ‘accused’, or a similar word means an individual or, unless a contrary intention appears, a public or private co rporation, partnership, or uninc orporated or voluntary association.” MCL 761.1(a).
There does not appear to be any caselaw specifically addressin g whether a mother’s drug use during pregnancy may form the basis for a first-degree chil d abuse prosecution on the theory that such drug use harms the fetus . However, this Court previ ously considered the question of “whether an unborn but admittedly viable fetus is a ‘person’ as that word is used in the-5- [negligent homicide] statute[, MCL 750.324 1 ]” in People v Guthrie , 97 Mich App 226, 229; 293 NW2d 775 (1980). In Guthrie , we noted: “The killing of an unborn child was not a homicide at common law for the reason that the fetus was not considered a ‘ person’ or ‘a reasonable creature in being’ before its birth. It was necessary that the child be ‘born alive’ and exist independently of its mother’s body before it co uld be considered a ‘person’.” Id . at 229 (citation omitted). Essentially, to be “born alive” means that the fetus has been “ totally expelled from the mother and show[n] a clear sign of indepe ndent vitality, such as respi ration, although resp iration was not strictly required.” Id . at 230 (citation omitted). Alte rnatively, “[i]n the United S tates the ‘born alive’ requirement has come to mean that the fetus be fully bro ught forth and establish an ‘independent circulation’ befo re it can be considered a human b eing.” Id

.
We held in Guthrie that a fetus did not come within the meaning of the word “pers on” for purposes of the negligent homicide statute, and we affirmed the dismissal of the negligent homicide charge against the defendant. Id . at 233, 237-238. In reaching this conclusion, we compared the negligent homicide statute with two statutes that specifically criminalized certain acts of harming unborn fetuses, the assaultive abortion statute , MCL 750.322, 2 and the manslaughter by abortion statute, MCL 750.323, 3 reasoning:
When the Legislature enacted the negligent homicide statute in 1921 and reenacted it in 1931, the “born al ive” rule was awell understo od and accepted rule of law. At that time and in subsequent years, the Legisla ture had the opportunity to include unborn fetuses in the statute, but did n ot do so. The Legislature has, however, enacted the assaultive abortion and m anslaughter abortion statutes cited earlier in this opinion. Both statutes specifically refer to fetal deaths. The fact that the Legislature would refer to a fetus in two statutes

1 MCL 750.324 was repealed by 2008 PA 463, § 2, effective Octobe r 31, 2010. When Guthrie was decided, the statute provided in relevant part, “ Any person who , by the operation of any vehicle . . . at an immoderate rate of speed or in a careless, reckless or negligent manner, but not willfully or wantonly, shall cause the death of another , shall be guilty of a misdemeanor . . . .” Guthrie , 97 Mich App at 228- 229, citing MCL 750.324 (e mphasis added by Guthrie Court). The Guthrie Court analyzed whether the term “person” included a “fetus” be cause it noted that the use of the word “another” in the statute “refers back to the wo rd ‘person.’ ” Id . at 229.

2 MCL 750.322 states in relevant part, “The wilful killing of an unborn quick child by any injury to the mother of such child, which would be murder if it result ed in the death of such mother, shall be deemed manslaughter.” See also Guthrie , 97 Mich App at 231 n 2, quoting MCL 750.322.

3 MCL 750.323 states in relevant part, “Any person who shall adm inister to any woman pregnant with a quick child any medicine, drug or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, shall, in c ase the death of such child or of such mother be thereby produced, be guilty of manslaughter.” S ee also Guthrie , 97 Mich App at 231 n 3, quoting MCL 750.323.-6- but not in the negligent homicide statute is strongly persuasive that the Legislature did not intend t hat a viable fetus is a “pe rson” within the meaning of that term in the statute . [ Id . at 233 (emphasis added).]
We expressed reservations with the born alive rule but nonethel ess recognized that the task of defining criminal conduct belongs to the Legislature:
Although we find that the “born alive” rule is archaic and shou ld be abolished in prosecutions brought under the neg ligent homicide statute, the abolition of the rule is a matter for action by th e Legislature. For this Court to interpret the statute to include unborn viable fetuses as persons would usurp the Leg islature’s traditional power of defining what acts shall be criminal and w ould be contrary to the decisions from other jurisdi ctions cited herein. Respectfu lly, we urge the Legislature to make the necessa ry amendments to the statute. [ Id . at 237-238.]

The Legislature later addressed this concern, although not by expanding the definition of “person” or by abolishing the “ born alive” requirement. MCL 75 0.90e 4 provides:
If a person operates a motor vehicle in a careless or reckless manner, but not willfully or wantonly, that is the proximate cause of an accide nt involving a pregnant individual and the accident results in a miscarriage o r stillbirth by that individual or death to the embryo or fetus , the person is guilty of a misdemeanor punishable by imprisonment for not more than 2 years or a fine of not more than $2,000.00, or both. [Emphasis added.]

The Legislature has also added further protection for fetuses b y criminalizing other acts that result in harm to an embryo or f etus. For example, MCL 750.90aprovides:
If a person intentionally comm its conduct proscribed under sect ions 81 to 89 [which involve various types of assault offenses] against a pre gnant individual, the person is guilty of a felony punishable by imprisonment for life or any term of years if all of the following apply:
(a) The person intended to cause a miscarriage or stillbirth by that individual or death or great bodily harm to the embryo or fetus , or acted in wanton or willful disregard of the likelihood that the natural tendency of the pe rson’s conduct is to cause a miscarriage or stillbirth or death or great bodily harm to the embryo or fetus

. (b) The person’s conduct resulted in a miscarriage or stillbirt h by that individual or death to the embryo or fetus . [Emphasis added; see also MCL 750.90b (also

4 Enacted by 1998 PA 238, e ffective January 1, 1999.-7- using the language “embryo or fetus” to criminalize conduct aga inst a pregnant individual that harms the fetus).]
Additionally, in the Infant Pr otection Act, MCL 750.90g, a “liv e infant” is defined as a “person.” MCL 750.90g(2) 5 states in relevant part:
(2) The legislature finds all of the following:
(a) That the constitution and laws of this nation and this stat e hold that a live infant completely expelled from his or her mother’s body is recognized as a
person with constitutional and leg al rights and protection.
(b) That a live infant partially outside his or her mother is neither a fetus nor potential life, but is a person

.
* * *
(6) As used in this section:
(a) “Live infant” means a human fetus at any point after any part of the fetus is known to exist outside of the mother’s body and has 1 or more of the following:
(i) A detectable heartbeat.
(ii) Evidence of spontaneous movement.
(iii) Evidence of breathi ng. [Emphasis added.]

In People v Hardy , 188 Mich App 305; 469 NW2d 50 (1991), we addressed a factual scenario similar to the instant case, where a mother’s criminal charges arose out of her use of

5 In WomanCare of Southfield, PC v Granholm , 143 F Supp 2d 849, 855 (ED Mich 2001), the United States District Court for the Eastern District of Michig an held that MCL 750.90g is unconstitutional because the statute “fails to contain an adequ ate exception to protect the mental and/or physical health of the pregnant woman.” However, WomanCare concerned the constitutionality of the Infant Protection Act, codified at MCL 750.90g, as a regulation of abortion. See WomanCare , 143 F Supp 2d at 852, 854-855. The court did not specificall y address the question of whether a fetus is a person. See id . While the United States District Court for the Eastern District of Michigan enjoined the State o f Michigan “from enforcing any provision of [MCL 750.90g], WomanCare , 143 F Supp 2d at 855, the definitions in MCL 750.90g(2)(a) and (b) nevertheless illustrate the Legislature’s clear intent that some degree of existence outside the mother is required to meet the statutory definition of a “person.” Furthermore, “[l]ower federal court decisions are not binding o n this Court, but may be considered on the basis of their persuasive analysis.” People v Fomby , 300 Mich App 46, 50; 831 NW2d 887 (2013).-8- drugs while pregnant. In Hardy , the defendant’s baby tested positive for cocaine metabolites, and the defendant “admitted to police that she smoked crack—a d erivative of crystallized cocaine—less than thirteen hours before giving birth.” Hardy , 188 Mich App at 307. The defendant was charged with s econd-degree child abuse, 6 based on “allegations that defendant ingested cocaine while she was pregnant, causing serious physic al harm to her minor child,” and delivery of less than fifty grams of a mixture containing cocai ne, 7 based on the theory that “once ingested the cocaine was transmitted from defendant’s system th rough the umbilical cord during the period after the baby had passed through the birth canal un til the umbilical cord was severed after birth.” Id . The circuit court had granted the defendant’s motion to quas h regarding seconddegree child abuse, “reason[ing] that there was insufficient ev idence that defendant’s ingestion of cocaine, while pregnant, caused serious physical harm to her child,” but the circuit court had denied defendant’s motion to quash t he charge for delivery of c ocaine. Id . at 308.

We reversed in Hardy , stating, “We are not persuaded that a pregnant woman’s use of cocaine, which might result in the postpartum transfer of cocai ne metabolites through the umbilical cord to her infant, is the type of conduct that the L egislature intended to be prosecuted under the delivery-of-c ocaine statute . . . .” Id . at 308, 310. Judge R EILLY ’s concurrence noted that “[t]he term ‘deliver’ is defined in MCL 333.7105(1) as the actual, constructive, or attempted transfer of a controlled substance from one person to another ,” and addressed the definition of “person.” Id . at 311-312 (R EILLY , J., concurring; cita tion omitted). Judge R EILLY reasoned:

Nonetheless, we have no histori cal or scientific basis to determine that the Legislature intended to protect a n unborn fetus against the pre gnant mother’s use of narcotics, which is not proscr ibed by the controlled substan ces act, when it enacted laws regulating the possession or distribution of controlled substances. The defendant may properly have been charged with possession of cocaine when she admitted to smoking crack. However, the use of controlled substances by a pregnant woman, without more, does not support the additional c harge of delivery to another while the fetus is still in utero. [ Id . at 312-313.]

Here, it is clear from the statutory language that a fetus is not a “child” for purposes of the first-degree child abuse statute. See Borchard-Ruhland , 460 Mich at 284. Neither the definition of “child” in the child abuse statute, nor the gener al definition of “person” in the Michigan Penal Code make any reference to fetuses. MCL 750.136 b(1)(a); MCL 750.10. And the Legislature has consistently refrained from expanding the d efinition of per son to include fetuses. See, e.g., Guthrie , 97 Mich App at 233; MCL 750.136b(1)(a); MCL 750.136(1)(d); MCL 750.10; MCL 761.1(a). Rather, when the Legislature has cre ated protection for fetuses, it has done so by clearly and specifically including embryo, fetus , unborn quick child, or other similar term in the statutory la nguage instead of by including fetuses within the statutory

6 MCL 750.136b(3).

7 MCL 333.7401(2)(a)(iv).-9- definition of a “person.” See, e.g., MCL 750.90a; MCL 750.90b; MCL 750.90e; MCL 750.322; MCL 750.323.
For example, when addressing our concern expressed in Guthrie about the lack of protection in the negligent homici de statute for harmed fetuses , the Legislature responded, not by modifying the definition of person, but by creating a statute s pecifically protecting fetuses. See MCL 750.90e. “When the Legislature acts in a certain subject a rea, it is presumed that the Legislature is aware of existing judicial interpretations of wo rds and phrases within that subject area.” Lange , 251 Mich App at 255. The course of action chosen by the Legi slature with respect to MCL 750.90e suggests that it did not disagree with our Guthrie holding that the statutory definition of “person” did not include fetuses, even though the Legislature was nonetheless willing to criminalize the conduct at issue when it resulted in harm to a fetus. See Lange , 251 Mich App at 255 (“The Legislature’s silence when using terms pr eviously interpreted by the courts suggests agreement with the courts’ construction.”). Ad ditionally, in the Infant Protection Act, the Legislature made clear that the definition of “person” includes “a live infant partially outside his or her mother” but that a live infant partially out side the mother “is neither a fetus nor a potential life.” MCL 750.90g(2)(b).

As we reasoned in Guthrie , the Legislature’s specific use of the terms fetus, embryo, or unborn quick child in some statute s without including such term inology in the definition of “child” in the child abuse statute “is strongly persuasive that the Legislature did not intend that a viable fetus is a [“child”] within the meaning of that term in the statute.” See Guthrie , 97 Mich App at 233. Moreover, just as we determined in Hardy that the Legislature did not intend for the crime of delivering cocaine to incorporate a mother’s prenatal drug use, here it does not appear, based on the statutory definition of “child” and its lack of a reference to fetuses, that the Legislature intended for the firs t-degree child abuse statute t o be used as the vehicle for prosecuting a mother who abuses drugs while pregnant. See Hardy , 188 Mich App at 308, 310; id . at 311-313 (REILLY , J., concurring). To interpret the definition of “child” in M CL 750.136b(1)(a) to extend to fetuses would be to wrongly read a term into the statute that “is not within the manifest intent of the Legislature as indicated by t he act itself.” See Lange , 251 Mich App at 253-254.
Therefore, because a fetus is not a “child” for purposes of th e first-degree child abuse statute, defendant cannot be gui lty of first-degree child abuse based solely on the fact that she used methamphetamine while she was pregnant, and the trial cour t erred by accepting her guilty plea. See MCR 6.302(D)(1); People v Adkins , 272 Mich App 37, 38; 724 NW2d 710 (2006)(indicating that the factua l basis for a plea is inadequa te if the finder of fact cannot properly convict the defendant on t he facts elicited at the ple a hearing).
Thus, defendant has established plain error affecting her subs tantial rights. Defendant has shown error because the statute of conviction did not apply to her conduct. See Carines , 460 Mich at 763. This error was plain because, as discussed above, the statutory language of MCL 750.136b(2) makes clear that the statute applies to acts that h arm a “child” but not to acts that harm a fetus; the statute does not make a mother’s prenatal dru g use a criminal offense. See Carines , 460 Mich at 763. The error prejudiced defendant because she would not have been convicted of first-degree child abuse but for the statute’s err oneous application to her conduct. See id . Finally, relief is justified in this case because the error resulted in the conviction of an-10- individual who was “actually innocent” of the conduct proscribe d by MCL 750.136b(2) and allowing such a conviction to sta nd would “seriously affect[] t he fairness, integrity or public reputation of judicial proceedings independent of the defendant ’s innocence.” See Carines , 460 Mich at 763 (quotation marks and citation omitted).
Defendant also argues that she received ineffective assistance of counsel based on defense counsel’s failure to object to the applicability of MCL 750.136b(2). However, this issue is now moot. “An issue is moot when an event occurs that rende rs it impossible for the reviewing court to fashion a remedy to the controversy.” People v Cathey , 261 Mich App 506, 510; 681 NW2d 661 (2004). “Normally, the remedy for ineffectiv e assistance of counsel is a new trial.” People v Gridiron , 190 Mich App 366, 370; 475 NW2d 879, amended 439 Mich 880 (1991). Here, having determined that defendant’s conviction sh ould be vacated because the statute of conviction did not a pply to the conduct on which the conviction was based, there is no further remedy that is available based on a claim of ineffectiv e assistance of counsel. Thus, defendant’s ineffective assistance of counsel claim is moot and need not be addressed. See Cathey , 261 Mich App at 510; People v Sours , ___ Mich App ___, ___; ___ NW2d ___ (Docket No. 326291, issued May 10, 2016); slip op at 3 (“This Court gen erally does not decide moot issues.”).
We hold that a fetus is not a “child” for purposes of MCL 750. 136b. Therefore, defendant’s prenatal methamphetamine use, on which her convicti on was based, did not support a conviction of first-degree child abuse and her conviction and sentence must be vacated.

We vacate defendant’s conviction and sentence. We do not reta in jurisdiction.

/s/ Joel P. Hoekstra /s/ Jane M. Beckering