Taylor

Certified for Partial Publication. [*]

Harold Wayne Taylor (appellant) killed Patty Fansler and the 11-to-13 week-old fetus she was carrying. He did not know Ms. Fansler was pregnant, nor was her pregnancy apparent. Do these facts support an inference of implied malice sufficient to sustain a second degree fetal murder conviction? They do not, and accordingly we reverse that conviction for insufficient evidence but affirm the conviction of second degree murder of Ms. Fansler.

Appellant met Ms. Fansler in the spring of 1997. They dated and then lived together in Calpella, along with Ms. Fansler's three children. They separated in July 1998; Ms. Fansler moved out. Christy Trotter, Ms. Fansler's niece, helped her move. Trotter heard appellant threaten to kill Ms. Fansler and anyone close to her if she left him. According to Betty Sanchez, Ms. Fansler's life-long friend, appellant wanted to "get back" with Ms. Fansler. He told Sanchez he could not handle the breakup, everything reminded him of her, and if he could not have her, "nobody else could."

The two spent New Year's Eve together. On January 1, 1999, [1] Lakeport Police Department Sergeant Brad Rasmussen…