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Washington v. Dunn

filed: May 28, 1996.

STATE OF WASHINGTON, APPELLANT,
v.
SELENA S. DUNN AKA O'BRIEN, RESPONDENT.



Appeal from SUPERIOR COURT GRANT COUNTY. Superior Court No: 93-1-00043-2. Date filed in Superior Court: 3/10/94. Superior Court Judge signing: EVAN SPERLINE.

Author: John A. Schultheis. Concurring: Dennis J. Sweeney & Ray E. Munson

Author: Schultheis

SCHULTHEIS, J. --Both Selena Dunn and her newborn child tested positive for cocaine. The State charged Ms. Dunn with second degree criminal mistreatment of her viable unborn child, citing RCW 9A.42.030(1)(a). After a

Knapstad*fn1 hearing, the trial court dismissed the charge and the State appeals, contending (1) the trial court did not follow the proper procedure in formulating the Knapstad order, and (2) the undisputed facts prove Ms. Dunn committed second degree criminal mistreatment. We affirm.

For the purposes of the Knapstad hearing and this review, the following facts are undisputed. On October 13, 1992, Ms. Dunn gave birth to a four-pound, nine-ounce female child. Both the mother and child tested positive for cocaine. On two previous trips to the doctor, one in March 1992 and the other in September 1992, the mother had tested positive for cocaine. The mother also admitted using heroin during her pregnancy.

During a prenatal consultation some months before the birth, Ms. Dunn's doctor advised her that continued cocaine use could damage the child's life. She was scheduled to begin drug treatment in October 1992, but never attended the program. At birth, the child was diagnosed with fetal intrauterine growth retardation and placenta abruptio.*fn2 Ms. Dunn's doctor attributed the premature birth, growth retardation and placenta abruptio to the cocaine use and stated that all these conditions were life threatening. By the time of the hearing, it had been discovered that the child was blind, and for the purposes of the hearing the court accepted the doctor's opinion that the blindness was related to the mother's ingestion of cocaine.

Soon after the birth, Child Protection Services (CPS) notified the Grant County Sheriff's Department of the child's exposure to cocaine. The child was placed with CPS and Ms. Dunn was charged on January 19, 1993, with

criminal mistreatment in the second degree, RCW 9A.42.030(1)(a).*fn3 In pertinent part, the information alleged that Ms. Dunn "did recklessly create an imminent and substantial risk of death or great bodily harm by taking cocaine during pregnancy after being warned by the doctor that it was harmful to the unborn child." Ms. Dunn moved to dismiss on the grounds that the undisputed facts did not establish a prima facie case of guilt. State v. Knapstad, 107 Wash. 2d 346, 729 P.2d 48 (1986). The trial court granted the motion and the State now appeals.

The State first challenges the order of dismissal on technical grounds, contending the trial court failed to comply with the procedural requirements of Knapstad hearing. In Knapstad, 107 Wash. 2d at 352, the Supreme Court noted that a trial court has inherent power to dismiss a criminal prosecution for insufficiency of the charge. In recognition of that power, the Knapstad court held that a trial court may entertain a pretrial motion to dismiss if there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt. Knapstad, 107 Wash. 2d at 356; State v. Johnson, 66 Wash. App. 297, 298, 831 P.2d 1137 (1992); State v. Brown, 64 Wash. App. 606, 610 n.4, 825 P.2d 350, review denied, 119 Wash. 2d 1009, 833 P.2d 387 (1992). The court's dismissal of the information is proper if no rational trier of fact could have found beyond reasonable doubt the essential elements of the crime. Knapstad, 107 Wash. 2d at 349; Johnson, 66 Wash. App. at 299.

The procedural requirements of a Knapstad hearing are not as stringent as urged by the State. Basically, the defendant "should" initiate the motion by a sworn affidavit that "must necessarily contain with specificity all ...


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