Court: Baby killed in wreck not a ‘person’

A baby 8 1/2 months along in a mother’s womb isn’t a “person” under Colorado murder laws, according to the Colorado Court of Appeals.

In a 26-page ruling released Thursday, a three-member panel of judges upheld a decision last year from Mesa County District Judge Richard Gurley, who threw out a charge of first-degree murder with extreme indifference filed by District Attorney Pete Hautzinger in the case of 25-year-old Logan Lage.

“While here the child was alive at the time of defendant’s alleged criminal acts, she had not been born,” the Appeals Court said. “Therefore, she was not a ‘person’ within the meaning of (state murder laws).”

The court, however, said Gurley erred when he threw out a series of lesser, related charges.

“We’re pleased we can move forward with at least some of the counts,” Hautzinger said Thursday.

Specifically, the appellate court reinstated felony charges of child abuse resulting in death, vehicular eluding, careless driving causing death, and vehicular assault while driving under the influence.

Lage tested positive for methamphetamine and amphetamine the morning of Nov. 6, 2007, after a traffic accident that prosecutors allege caused the death of Lileigh Lehnen, the unborn daughter of Shea Lehnen of Collbran.

The Colorado State Patrol said Lage was fleeing a trooper at high speeds on Colorado Highway 65 after the trooper tried to stop him for speeding. When Lage’s Jeep tried to pass a truck on the narrow, two-lane roadway, the Jeep collided head-on with a vehicle driven by Shea Lehnen.

Doctors at St. Mary’s Hospital delivered Lehnen’s daughter via emergency cesarean section, but the child died within hours.

Mesa County Coroner’s Office pathologist Dr. Robert Kurtzman ruled the newborn’s death as a homicide directly attributed to the injuries suffered by her mother.

Hautzinger charged Lage with first-degree murder with extreme indifference. At the time charges were filed in November 2007, the prosecutor said he was prepared to call experts who could testify Lehnen’s child could have lived outside the womb at the time of the accident.

But the DA’s case was set back significantly in March 2008 with Gurley’s ruling. The judge repeatedly cited Colorado’s definition of “person” found in murder statutes: a human being who had been born and was alive at the time of the homicidal act.

“The plain language of the definition could not be any clearer,” Gurley wrote. “The only act in this case that could possibly qualify as the homicidal act occurred when the defendant drove on the wrong side of the road at high speed and collided with a vehicle being operated by Shea Lehnen.

“Lileigh Lehnen had not yet been born at this time.”

Appeals Court judges Arthur Roy and James Casebolt wrote Thursday’s majority decision.

‘CRIES OUT FOR NEW LEGISLATION’

While “person” has a specific definition under Colorado murder laws, Thursday’s opinion notes state law doesn’t do the same for other lesser criminal charges, such as careless driving resulting in death.

“… Colorado statutes outside the homicide context are ambiguous regarding coverage of the unborn,” Appeals Court Judge Sean Connelly wrote in a dissenting opinion.

“This is an area that cries out for new legislation,” Connelly continued. “Our General Assembly, unlike Congress and most state legislatures, has precluded homicide prosecutions for killing the unborn without specifically addressing if and how other criminal laws might apply.”

Hautzinger said he has no intention of appealing Thursday’s ruling to the Colorado Supreme Court. However, it might spur change. Hautzinger on Thursday raised the prospect of working with Western Slope lawmakers to craft so-called “fetal homicide” legislation for the next session.

It wasn’t clear whether the Colorado Public Defender’s Office would appeal Thursday’s ruling.

Lage, meanwhile, is serving a three-year term in state prison. Lage was sentenced last summer after being convicted of violating probation related to a 2006 drug case.

Lage at some point during the coming weeks will be returned to Mesa County for advisement on the four charges reinstated Thursday.


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