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[W] Bailey v. State7/12/2005
v. State, 140 S.W.3d 39, 44 (Mo. banc 2004). The motion court's findings and conclusions will be deemed clearly erroneous only if, after reviewing the record, this Court is left with the definite and firm impression that a mistake has been made. Id.
A. Person under Section 565.020.1
Bailey claims that an unborn child is, as a matter of law, not a person under the first-degree murder statute and, therefore, there was no factual basis for charging him with murdering the unborn child. We disagree.
In State v. Rollen, this Court concluded that the legislature's statement in section 1.205.2 that life begins at conception means that an unborn child must be a person for purposes of felony murder in the second degree. 133 S.W.3d 57, 63 (Mo. App. E.D. 2003). We also held that this conclusion "does not change depending on the degree of the criminal killing, e.g., first-degree murder, second-degree murder, or involuntary manslaughter." Id. (citingState v. Holcomb, 956 S.W.2d 286, 290 (Mo. App. W.D. 1997) (unborn child is a person for purposes of first-degree murder); State v Knapp, 843 S.W.2d 345, 350 (Mo. banc 1992) (unborn child is a person for purposes of involuntary manslaughter); and Conner v. Monkem Company, Inc., 898 S.W.2d 89, 92 (Mo. banc 1995) (non-viable unborn child is a person for purposes of wrongful death)); see also State v. Kenney, 973 S.W.2d 536, 545 (Mo. App. W.D. 1998) (unborn child is a person for the purposes of the first degree assault), overruled on other grounds by State v. Withrow, 8 S.W.3d 75, 80 (Mo. banc 1999). Bailey argues that this conclusion is at odds with Roe v. Wade, 410 U.S. 113 (1973), Webster v. Reproductive Health Services, 492 U.S. 490 (1989),and Article III, Section 28 of the Missouri Constitution. But these very arguments were rejected by this Court in Rollen, and Bailey does not present any persuasive reasons for overturning that decision. See 133 S.W.3d at 63-64. We choose to follow Rollen and the other Missouri precedent cited above, which establish that an unborn child is a person for purposes of first-degree murder.
Bailey also asserts that the unborn child in this case was not viable and that a non-viable fetus should be treated differently than a viable fetus for purposes of the homicide statutes. But, as the above precedent also establish, section 1.205.2 is a canon of interpretation to be read in pari materia with all Missouri statutes and it directs "that the time of conception and not viability is the determinative point at which the legally protectable rights, privileges, and immunities of an unborn child should be deemed to arise." Connor, 898 S.W.2d at 92 (emphasis added). Under this directive, we cannot base our interpretation of the term "person" in the homicide statutes on the viability of the unborn child. See also Holcomb, 956 S.W.2d at 290 (rejecting contention that State must allege viability in first-degree murder charge).
B. Deliberation
Bailey also claims that, even if the unborn child is considered a person for purpose of first-degree murder, there was no factual basis as to the deliberation element of that crime. We disagree.
"The court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea." Rule 24.02(e). A factual basis exists if the defendant understands the facts presented at the guilty plea proceeding and those facts establish the commission of the charged crime. DeClue v. State, 3 S.W.3d 395, 397-98 (Mo. App. E.D. 1999). Every element of the crime need not be explained to the defendant, as long as he understands the nature of the charge. State v. Taylor, 929 S.W.2d 209, 217 (Mo. banc 1996). A factual basis
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