The Missouri Western District Court of Appeals on Tuesday overturned the involuntary manslaughter conviction of a Miller County woman in the death of a baby born in 2009, ruling that a woman who gives birth without medical attention is not committing a crime.

In the unanimous opinion written by Judge Gary Witt, the court ruled that the Johnson County jury that convicted Emily Usnick should not have convicted her because the state failed to prove she acted recklessly or with criminal intent.

“Where even the experts were unable to determine within a reasonable degree of medical certainty a clear cause of death we cannot say that a lay juror would be able to make a determination that this death was caused by a criminal act as opposed to natural causes,” Witt wrote.

Prosecutors charged Usnick with second-degree murder, alleging she was guilty because she gave birth unattended, failed to seek medical attention after giving birth and enclosed the body in a plastic bag. The jury did not convict on the murder charge but did convict Usnick, 43, of involuntary manslaughter in July 2017 in a trial moved to Johnson County on a change of venue.

The case presented a new situation to the appeals court that had never been considered before – whether giving birth without medical care present can be the basis of a crime.

“Usnick correctly argues (and the State does not contest) that there is no duty imposed on expectant mothers to have a medically attended birth, at the risk of criminal prosecution,” Witt wrote. “Many mothers voluntarily choose to give birth at home without medical assistance and others don't make that conscious choice but the unpredictability of child birth forces them to give birth wherever they may happen to be when the natural process results in birth before they can reach medical assistance.”

Usnick, 43, was convicted in July 2017 in a trial moved to Johnson County on a change of venue. She was living at the home of an uncle in St. Elizabeth, which was also home to her 15-year-old son and three others, when she gave birth in January 2009.

In the statement of facts in the case, Witt wrote that Usnick home alone when her water broke and went into the bathroom, where she delivered the baby into the toilet. After delivering the placenta, she told investigators, it took her several minutes to recover from the shock. She picked up the baby, she said.

“She wasn't moving, wasn't breathing,” Usnick said in a statement to investigators. “I was so scared. I pulled the waste paper basket closer to me and laid her in the top of it.”

Usnick wrapped the baby in a plastic bag and put it in the trunk of a car that was not working. The body was discovered when law enforcement executed a search warrant for drugs at the home. Usnick first denied knowledge of the baby but admitted it was her child and admitted she had smoked methamphetamine and marijuana the night before giving birth.

“In explaining why she did not seek medical attention, Usnick testified that her car was broken down, that she did not have minutes on her cell phone to call for help and, even if her cell phone had been available, there was inconsistent cell service at that house,” Witt wrote.

During the trial, prosecutors presented evidence she had sent text messages the evening of the birth and there was an ambulance substation three-quarters of a mile away.

Prosecutors charged Usnick with second-degree murder, alleging she was guilty because she gave birth unattended, failed to seek medical attention after giving birth and enclosing the baby in a plastic bag. The charges did not allege that she drowned the baby. The jury did not convict her on the murder charge, instead convicting her of involuntary manslaughter.

Phillip Zeeck, one of the Polsinelli law firm attorneys who worked on the case, declined to comment on the outcome Tuesday. He wrote in an email that the firms’ argument in its court briefs was its statement on the case.

“Emily’s unattended birth was not recklessness; it was beyond her control,” the brief states. “She did not choose to go into labor when no one else was home. This argument effectively criminalizes having an unattended birth.”

An autopsy performed by Boone Count Medical Examiner Carl Stacy determined the baby was alive in the uterus prior to birth, a finding supported by a toxicology test that found a “potentially lethal” dose of methamphetamine in the baby’s blood and liver.

The autopsy found the baby died of a lack of oxygen but the charges did not specify that the baby drowned or that methamphetamine caused her death.

“Dr. Stacy opined that had the baby been born in a hospital or in the presence of someone with medical training the baby could have been resuscitated,” Witt wrote.

That did not prove, however, that the baby could have been saved if Usnick had called for medical help if she had been able to do so, Witt wrote.

“Because there was no evidence to support a finding that immediately summoning medical assistance after the birth would have prevented Baby Usnick's death, there was insufficient evidence to submit this to the jury as a cause of Baby Usnick's death,” Witt wrote.

Usnick was sentenced to five years in prison on involuntary manslaughter and a concurrent five-year sentence for drug possession. Her appeal did not contest that sentence. She is currently being held in the Chillicothe Correctional Center.

The state Attorney General’s Office, which handled the case on appeal, did not provide a comment on the case by press time.

rkeller@columbiatribune.com

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