## Facts

- Janet S. Wade gave birth to her son, T.L.W., on August 21, 2005.
- The next day, both Wade and the newborn tested positive for marijuana and methamphetamine.
- The State charged Wade by felony information with first-degree child endangerment under Mo. Rev. Stat. § 568.045.1, alleging she created a substantial risk to the life, body, or health of “a child less than seventeen years old” by using illegal drugs during pregnancy.
- The circuit court dismissed the charge without prejudice, ruling the statute could not be applied to parental conduct involving an unborn child.
- The State appealed; Wade argued the appellate court lacked jurisdiction because a dismissal without prejudice is generally not final.
- The State contended the dismissal was appealable because it practically ended the case as charged; the State conceded it could not amend the information to cure the defect and identified no alternative charge based on the same allegations.

## Issues

1. Whether the appellate court had jurisdiction to review a dismissal without prejudice that effectively terminated prosecution on the charged offense.
2. Whether Mo. Rev. Stat. § 568.045.1 (first-degree child endangerment) applies to a mother’s prenatal drug use on the theory that an “unborn child” is a “child less than seventeen years old.”

## Decision

- The court held it had appellate jurisdiction because the dismissal, though labeled “without prejudice,” had the practical effect of terminating the prosecution as charged.
- The court affirmed the dismissal of the felony information.
- The court held that § 568.045.1 does not apply to prenatal conduct toward an unborn child because the statutory term “child less than seventeen years old” does not include an unborn child.

## Legal Principles

- A dismissal without prejudice may be treated as a final, appealable judgment when it has the practical effect of terminating the litigation in the form pleaded and cannot be cured by amendment.
- Criminal statutes are construed according to their text; courts may not expand a statute by adding terms the legislature did not include.
- The phrase “a child less than seventeen years old” is read in its ordinary sense and, absent express language, does not include a fetus or unborn child.
- When the legislature intends to cover unborn children, it can do so expressly; the absence of such language in a criminal statute weighs against extending the statute to prenatal conduct.
- Any statutory ambiguity in defining criminal liability is resolved against the State and in favor of the accused (strict construction/rule of lenity and fair-notice concerns).

## Conclusion

The Missouri Court of Appeals affirmed dismissal of a first-degree child endangerment charge based on prenatal drug use, holding that § 568.045.1 applies only to conduct creating risk to a born “child less than seventeen years old,” and that any decision to criminalize prenatal conduct must come from the legislature through explicit statutory language.


State v. Wade, 232 S.W.3d 663 (Mo. Ct. App. W.D. 2007)