Wednesday, February 08, 2012
Ind. Decisions - COA issues opinion in Bei Bei Shuai case
In Bei Bei Shuai v. State, a 31-page,, 2-1 opinion, Judge May writes:
Bei Bei Shuai appeals the denial of her motion for bail and writ of habeas corpus ("the Bail Appeal") and the denial of her motion to dismiss the charges against her ("the Dismissal Appeal"). She raises numerous issues, two of which we find dispositive:
1. Whether the trial court abused its discretion when it denied Shuai bail because the proof was evident and presumption was strong that she committed murder; and
2. Whether the trial court erred when it denied Shuai's motion to dismiss.
We reverse in part, affirm in part, and remand. * * *
After the parties presented evidence at a hearing, the trial court found: "Based upon the evidence presented, the Court finds the proof of guilt is evident and the presumption of guilt is strong." (emphasis in original). The court therefore denied Shuai's request to be released on bail. We disagree with the trial court's decision. The defense presented sufficient evidence to rebut the presumption that Shuai is guilty, and the trial court therefore abused its discretion by denying Shuai's motion for bail. Accordingly, we reverse and remand for determination of bail. * * *
Because the charging information was not deficient, the plain language of the statute applies to Shuai's actions, and Shuai has not demonstrated common law immunity for pregnant women who harm their own fetuses, we cannot say the trial court abused its discretion when it denied Shuai's motion to dismiss. We accordingly affirm that denial.
Conclusion. Because Shuai rebutted the presumption of guilt required to hold her without bail, we reverse the denial of her motion for bail and remand for determination of the amount of bail. However, as the charging information was sufficient to apprise Shuai of the charges against her, the murder statute is unambiguous and its plain language encompasses her alleged actions, and she does not have immunity from prosecution, we affirm the denial of her motion to dismiss and remand for further proceedings.
Reversed in part, affirmed in part, and remanded.
NAJAM, J., concurs.
RILEY J., concurs in part and dissents in part with separate opinion. [which begins, at p. 23 of 31] While I agree with the majority‘s decision to reverse and remand for determination of Shuai's bail, I respectfully disagree with its denial of Shuai's motion to dismiss. Based on the facts and charging information before me, I would dismiss both the murder and attempted feticide Counts as charged by the State.
 The dissent believes holding Shuai's actions are covered by the feticide statute would result in the criminalization of pregnant women who smoke, drink, or take "over-the counter (sic) cold remedies and sleep aids." (Slip op. at 8.) However, the feticide statute provides the actor must terminate a human pregnancy knowingly, with the "intention other than to produce a live birth or to remove a dead fetus." IC 35-42-1-6. Thus, the hypothetical situations the dissent presents would not be criminalized unless the additional element of intent was present. There is evidence Shuai had such intent.
Posted by Marcia Oddi on February 8, 2012 11:23 AM
Posted to Ind. App.Ct. Decisions