## Facts

- Regina Kilmon ingested cocaine while pregnant and later delivered a child who tested positive for cocaine at birth.
- The State charged Kilmon with multiple offenses, including reckless endangerment under Md. Code, Crim. Law § 3-204, based on prenatal cocaine use alleged to create a substantial risk of death or serious physical injury to the child.
- Kilmon pleaded guilty to reckless endangerment in exchange for dismissal of the remaining charges and appealed the applicability of § 3-204 to prenatal drug use.
- Kelly Lynn Cruz, in a separate prosecution on similar facts, was convicted of reckless endangerment based on cocaine use during pregnancy that allegedly endangered her child after birth.
- The Court of Appeals of Maryland granted review and consolidated the appeals to decide whether § 3-204 reaches prenatal conduct directed at a fetus or later-born child.

## Issues

1. Whether a pregnant woman’s intentional ingestion of cocaine during pregnancy can constitute reckless endangerment of the later-born child under Md. Code, Crim. Law § 3-204.
2. Whether the statutory requirement of a substantial risk of death or serious physical injury “to another” encompasses a child with respect to conduct occurring before the child’s birth.
3. Whether expanding § 3-204 to cover prenatal drug use is a matter of judicial interpretation or legislative action.

## Decision

- The court reversed both convictions for reckless endangerment.
- The court held that § 3-204 does not criminalize a pregnant woman’s prenatal ingestion of cocaine on the theory that it endangers a later-born child.
- The court concluded that applying § 3-204 to prenatal drug use would extend the statute beyond its text, purpose, and legislative history.
- The court emphasized that if prenatal conduct is to be criminalized in this manner, it must be done through clear legislative enactment rather than judicial construction.

## Legal Principles

- Reckless endangerment in Maryland is a purely statutory offense, defined and limited by Md. Code, Crim. Law § 3-204.
- Section 3-204 targets reckless conduct creating a substantial contemporaneous risk of death or serious physical injury “to another,” not prenatal conduct whose effects are asserted after birth.
- Courts will not enlarge a general criminal statute to cover pregnancy-related conduct absent clear legislative intent, particularly where such an interpretation would carry broad policy consequences.

## Conclusion

Maryland’s reckless endangerment statute does not permit prosecution of a pregnant woman for prenatal cocaine use on the theory that it created a substantial risk of serious harm to a later-born child; such criminal liability requires explicit legislative authorization.


Kilmon v. State, 394 Md. 168, 905 A.2d 306 (Md. 2006)