FOR PUBLICATION
                                                          FILED
                                                        Nov 21 2012, 8:33 am


                                                               CLERK
                                                             of the supreme court,
                                                             court of appeals and
                                                                    tax court




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

JAMES H. VOYLES, JR.                          GREGORY F. ZOELLER
TYLER D. HELMOND                              Attorney General of Indiana
Voyles Zahn & Paul
Indianapolis, Indiana                         ELLEN H. MEILAENDER
                                              Deputy Attorney General
                                              Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

TYLER A. WHITE,                               )
                                              )
     Appellant-Defendant,                     )
                                              )
            vs.                               )       No. 90A04-1111-CR-621
                                              )
STATE OF INDIANA,                             )
                                              )
     Appellee-Plaintiff.                      )


                    APPEAL FROM THE WELLS CIRCUIT COURT
                    The Honorable Brian D. Hutchison, Special Judge
                            Cause No. 90C01-0910-MR-1



                                  November 21, 2012


                            OPINION - FOR PUBLICATION


NAJAM, Judge
                                  STATEMENT OF THE CASE

        Tyler White appeals his conviction for murder following a jury trial. He presents

the following issues for our review:

        1.       Whether the trial court erred when it found that certain testimony
                 was admissible under Evidence Rule 804(b)(5), the “forfeiture by
                 wrongdoing” hearsay exception.

        2.       Whether Indiana’s feticide enhancement statute, Indiana Code
                 Section 35-50-2-16, is unconstitutional.

        3.       Whether the trial court erred when it did not judicially supply a mens
                 rea element to the feticide enhancement statute.

        4.       Whether the trial court abused its discretion when it excluded
                 evidence that the victim had previously had a miscarriage, which
                 White proffered to support his defense to the feticide enhancement.

        We affirm.1

                           FACTS AND PROCEDURAL HISTORY

        White and Amy Meyer began dating in 2005, got married, and, in June 2008, Amy

gave birth to a son, M.W.             White was verbally abusive to Amy throughout their

relationship, and the couple separated shortly after M.W.’s birth. In July, Amy moved in

with her boyfriend, Lee Flueckiger. White filed for divorce shortly thereafter.2

        White and Amy shared custody of M.W. pending the provisional custody hearing,

which was scheduled for October 28, 2009. White continued his verbal abuse of Amy,

and he and Amy frequently argued regarding the parenting time schedule. Amy began

using her cell phone to record the custody exchanges, and she intended to use those


        1
            We heard oral argument in this case on September 25, 2012.
        2
          The State avers that Amy filed for divorce, but the dissolution pleadings submitted as evidence
at White’s trial show that White was the petitioner and Amy was the respondent.
                                                    2
recordings as evidence against White at the provisional custody hearing. During one

exchange when Flueckiger was present, White “pointed his finger at [Flueckiger] like he

was shooting a gun.” Transcript at 554. In March 2009, White purchased a handgun, and

he carried that gun on his person most of the time thereafter.

       On October 27, one day before the provisional custody hearing, Amy arrived at

White’s parents’ house, where White was living, to pick up M.W. White asked Amy

whether he could keep M.W. for an additional thirty minutes, but Amy denied that

request and told White that she wanted to leave with M.W. immediately. An argument

ensued, and White shot Amy twice in the abdomen. White then threw Amy’s cell phone

on the ground and shot it. White went inside and washed his hands before calling 911.

       When police arrived, they found two unloaded handguns on the ground near Amy.

One gun belonged to White, and the second gun was later determined to belong to

White’s close friend Matt Reinhard. Reinhard had reported that gun stolen in April 2009.

White told police that Amy had pointed a gun at him and that he had shot her in self-

defense. Paramedics arrived and found that Amy had no pulse. Attempts to resuscitate

her were unsuccessful, and Amy, who was eleven or twelve weeks pregnant at the time,

died of the gunshot wounds. The fetus died as a result of Amy’s death.

       Deputy Scott Holliday with the Wells County Sheriff’s Department arrested White

and transported him to the Wells County jail. Detective James Paxton advised White of

his Miranda rights, which White waived, and Detective Paxton proceeded to take White’s

statement. White maintained that Amy had pointed a gun at him and that he had shot her

in self-defense.


                                             3
       At the jail, White was placed in a padded room, as a precaution, while he was

being monitored for suicidal ideations. After two or three days, Diane Sweat, a registered

nurse working at the jail, examined White to determine whether he could be moved into

the jail’s general population. Guard Taneka Garrett was also present. In the course of

that interview, White, referring to Amy, said, “The bitch got what she deserved.” Id. at

407.

       The State charged White with murder. In preparing for trial, the parties asked the

trial court to conduct a hearing to determine the admissibility of certain evidence under

Evidence Rules 404(b) and 804(b)(5). The parties stipulated to the following evidence to

be analyzed by the trial court under Evidence Rule 804(b)(5):

       1.    Stephanie Dubach
             a.    Amy told Stephanie that:
                   i.    Tyler told Amy that he didn’t like her body (during
                         marriage)
                   ii.   He didn’t want the baby (prior to baby’s birth in June
                         2008)
                   iii.  Tyler said that Amy was a fucking whore (post-
                         separation)
                   iv.   Tyler told Amy that she was going to get what she
                         deserved (post-separation)
                   v.    She told Tyler that she was recording their meetings
                         (post-separation)
                   vi.   He repeated everything for the recording (post-
                         separation)
                   vii. When she went to pick up [M.W.] with Lee, Tyler
                         made his hand in the shape of a gun and pointed it at
                         them as if to shoot them (post-separation)

       2.    James Fryback
             a.    Amy told Jim that
                   i.    Tyler was “pushing her around”

       3.    Camy Bishop
             a.   Amy told Camy that
                                            4
           i.     Tyler had pushed her and hit her causing a bruise
                  (statement made May 2009 re: incident of 2007)
           ii.    That she was going to start recording exchanges (post-
                  separation)

4.   Hayley Murray
     a.    Amy told Hayley that:
           i.    When she went to pick up [M.W.] with Lee, Tyler
                 made his hand in the shape of a gun and pointed it at
                 them as if to shoot them (post-separation)
           ii.   Tyler said that he wanted to get a gun; and [sic] (post-
                 separation)
           iii.  Tyler said that he wanted to go into the woods with
                 just him and Amy (post-separation)
           iv.   She was recording exchanges (post-separation)

5.   Mike Meyer
     a.   Amy told Mike that:
          i.    She could only staying [sic] because she was pregnant
                (Spring 08?)
          ii.   Tyler would call her names and send her horrible texts
                (post-separation)
          iii.  She was recording exchanges (post-separation)
                1.     He was with her one time when she videotaped
                       exchange

6.   Tara Mattern
     a.    Amy told her that:
           i.     Tyler told her that “you will get what you deserve[”]
                  (post-separation)
           ii.    Amy told her that she was recording him

7.   Karen Kaehr
     a.    Amy told her that:
           i.    She was ready to move on (post-separation)

8.   Amber Toland
     a.   Amy told her that:
          i.    Showed her text messages where he called her names
                (post-separation)
          ii.   She was going to try to record him at exchanges (post-
                separation)

9.   Lee Fl[ue]ckiger
                                   5
               a.      Amy “confirmed” that Tyler made a gun motion (post-
                       separation)
               b.      Amy told him that:
                       i.     Tyler was verbally abusive to her (post-separation)
                       ii.    Tyler said that he was never to come on his property
                              (post-separation)
                       iii.   That she was recording exchanges (post-separation)
               c.      He heard recording of an exchange where Tyler
                       acknowledged he was being recorded (post-separation)[3]

       10.     Paul Wickey
               a.    Amy told him that:
                     i.    Naples[, Florida] incident – threw drink in her face
                           (statement made in 2008 re: 2006 incident)
                     ii.   Tyler called her names (post-separation)
                     iii.  That she was recording exchanges (post-separation)

Appellant’s App. at 588-89. Following a hearing, the trial court ruled that all of the

evidence included in the joint stipulation was admissible at trial. In particular, the trial

court found that:

       1.     The State of Indiana demonstrated by a preponderance of the
       evidence that Amy White is unavailable to testify as the result of the
       defendant engaging in wrongdoing that was intended to and did procure her
       unavailability for the purpose of preventing her from attending or testifying
       at a hearing; therefore, the statements made by Amy White as set forth in
       the Stipulation of Statements Subject to 804(b)(5) Analysis are admissible
       as an exception to hearsay.

       2.     Each of the acts and/or statements as set forth in the Stipulation of
       Statements Subject to 804(b)(5) Analysis and as set forth in the Evidence of
       Agreement of the Parties and Stipulation of the Parties as to Evidence of
       404(b) Material is admissible as being probative of the defendant’s motive
       and intent at the time of the offense alleged and the probative value of the
       evidence set forth therein is not substantially outweighed by the danger of
       unfair prejudice, confusion of the issues, misleading the jury, or by
       consideration of undue delay, or needless presentation of cumulative
       evidence.


       3
          Flueckiger’s testimony that White made a shooting gesture towards Flueckiger and that he had
heard a recording of White’s acknowledgement that Amy was recording the custody exchanges was not
hearsay. See Ind. Rule of Evidence 801(d)(2).
                                                  6
Appellant’s App. at 703.

       In January 2011, the State filed a second count, feticide. And in May, the State

filed a Notice of Intent to Seek Enhanced Penalty Based Upon Termination of Human

Pregnancy under Indiana Code Section 35-50-2-16 (the “feticide enhancement statute”).

The State then dismissed the feticide count.

       The jury trial was bifurcated between the murder count and the feticide

enhancement. The jury found White guilty of murder and, in the second phase of the

trial, the jury found that the State had proved beyond a reasonable doubt that the murder

had caused the death of Amy’s fetus. The trial court entered judgment accordingly and

imposed a sentence of sixty years for murder, enhanced by ten years for the feticide

enhancement, for an aggregate executed sentence of seventy years. This appeal ensued.

                            DISCUSSION AND DECISION

                           Issue One: Evidence Rule 804(b)(5)

       White first contends that the trial court “misapplied” Evidence Rule 804(b)(5), the

“forfeiture by wrongdoing” hearsay exception.         Evidence Rule 804(b) enumerates

exceptions to the hearsay rule where a declarant is unavailable as a witness, and Rule

804(b)(5) permits a “statement offered against a party that has engaged in or encouraged

wrongdoing that was intended to, and did, procure the unavailability of the declarant as a

witness for the purpose of preventing the declarant from attending or testifying.” White

maintains that the State did not prove by a preponderance of the evidence that his purpose

in shooting Amy was to prevent her from testifying.

       “[Indiana Evidence Rule 804(b)(5)] was not in the original Evidence Rules, but


                                               7
was adopted by amendment effective [July 1,] 2009.” Robert L. Miller, Jr., 13 Indiana

Practice § 804.205 at 144 (3d Ed. 2011 pocket part). In 2008, prior to the adoption of

Rule 804(b)(5), this court held that “a party, who has rendered a witness unavailable for

cross-examination through a criminal act, including homicide, may not object to the

introduction of hearsay statements by the witness as being inadmissible under the Indiana

Rules of Evidence.” Roberts v. State, 894 N.E.2d 1018 (Ind. Ct. App. 2008), trans.

denied.   But Rule 804(b)(5) goes further and requires that the party procured the

unavailability of the declarant for the purpose of preventing the declarant from attending

or testifying.   Because there is no reported Indiana case addressing the rule, the

application of the rule to the circumstances in this case is an issue of first impression.

       Evidence Rule 804(b)(5) is patterned on the federal rule, Federal Evidence Rule

804(b)(6), and we look to federal case law for guidance in interpreting and applying this

hearsay exception. In United States v. Dhinsa, 243 F.3d 635, 653-54 (2nd Cir. 2001),

cert. denied, 534 U.S 897 (2001), the Court of Appeals for the Second Circuit explained

the forfeiture by wrongdoing hearsay exception as follows:

       prior to finding that a defendant waived his confrontation rights with
       respect to an out-of-court statement by an actual or potential witness
       admitted pursuant to Rule 804(b)(6), the district court must hold an
       evidentiary hearing outside the presence of the jury in which the
       government has the burden of proving by a preponderance of the evidence
       that (1) the defendant (or party against whom the out-of-court statement is
       offered) was involved in, or responsible for, procuring the unavailability of
       the declarant “through knowledge, complicity, planning or in any other
       way;” and (2) the defendant (or party against whom the out-of-court
       statement is offered) acted with the intent of procuring the declarant’s
       unavailability as an actual or potential witness. See Fed. R. Evid. 804(b)(6)
       advisory committee note to subdivision (b)(6) (adopting the preponderance
       of the evidence standard required under Fed. R. Evid. 104(a) “in light of the
       behavior the new Rule 804(b)(6) seeks to discourage”); accord [U.S. v.]
                                              8
       Houlihan, 92 F.3d [1271,] 1280 [(1st Cir. 1996)] (“We . . . hold that when a
       person who eventually emerges as a defendant (1) causes a potential
       witness’s unavailability (2) by a wrongful act (3) undertaken with the
       intention of preventing the potential witness from testifying at a future trial,
       then the defendant waives his right to object on confrontation grounds to
       the admission of the unavailable declarant’s out-of-court statements at
       trial.”). The government need not, however, show that the defendant’s sole
       motivation was to procure the declarant’s absence; rather, it need only show
       that the defendant “was motivated in part by a desire to silence the
       witness.” Houlihan, 92 F.3d at 1279[.] As Rule 804(b)(6) and our prior
       precedents do not require such a finding of sole motivation, we decline to
       read one into the rule. “Further, in order to avoid the admission of facially
       unreliable hearsay, the district court should undertake a balancing of
       probative value against prejudicial effect in accordance with Fed. R. Evid.
       403.” [U.S. v.]Miller, 116 F.3d [641,] 668 [(1997)] (internal quotation
       marks omitted). “The district court’s findings after a hearing will not be
       disturbed unless they are clearly erroneous, and we are particularly hesitant
       to disturb the court’s determinations when they are based on its evaluation
       of the credibility of witnesses.” [U.S. v.]Thai, 29 F.3d [785,] 814 [(1994)].

(Some emphases added). Here, the parties agree that a preponderance of the evidence

standard applies. See also Indiana Practice § 804.205 (2011 pocket part at 144).

       Following a hearing, the trial court found that the State had proven by a

preponderance of the evidence that Amy was unavailable to testify at White’s murder

trial “as the result of the defendant engaging in wrongdoing that was intended to and did

procure [Amy’s] unavailability for the purpose of preventing her from attending or

testifying at a hearing[.]”4 Appellant’s App. at 702. And the trial court found that the

probative value of the 804(b)(5) evidence outweighed the danger of unfair prejudice to

White by its admission. Because the only evidence submitted for the trial court’s review

at the admissibility hearing was by a paper record, including the stipulation of evidence

for the trial court’s consideration, we are in the same position as the trial court and

       4
          White makes no argument under the confrontation clause of the Sixth Amendment to the
United States Constitution. Accordingly, the United States Supreme Court’s holding in Giles v. State,
554 U.S. 353 (2008), which applies to a deceased declarant’s testimonial statements, is inapposite here.
                                                   9
“therefore are able to independently assess” the evidence relevant to the Rule 804(b)(5)

determination “without invading the province” of the trial court. See Bunch v. State, 964

N.E.2d 274, 293 (Ind. Ct. App. 2012), trans. denied; see also State v. Bisard, 973 N.E.2d

1229, 1237 (Ind. Ct. App. 2012), trans. pending. We note, however, following the

federal case law, that a clearly erroneous standard of review would apply where a trial

court considers evidence by live testimony. See Dhinsa, 243 F.3d at 654.

       Again, White contends that the State failed to prove by a preponderance of the

evidence that White procured Amy’s unavailability for the purpose of preventing her

from testifying. The State asserted two arguments on this issue at the admissibility

hearing. First, the State alleged that White killed Amy to prevent her from testifying at

his murder trial. Second, the State alleged that White killed Amy to prevent her from

testifying at the provisional custody hearing, which was scheduled for the day after the

shooting. We hold that the preponderance of the evidence supports a determination that

White killed Amy to prevent her from testifying at the provisional custody hearing.

Accordingly, we need not address the State’s first theory.

       In support of his contention that White did not kill Amy to prevent her from

testifying at the provisional custody hearing, White asserts that such a theory “ma[kes] no

sense.” Brief of Appellant at 12. White points out that the hearing was “provisional” and

would not have been the final custody determination. Id. And White states that there

was no evidence that he had wanted to continue the hearing. Finally, White maintains

that “unlike an essential witness in a criminal case, [White] could not automatically

prevail in the provisional custody hearing by killing Amy. To the contrary, shooting


                                            10
[M.W.]’s mother would almost certainly result in [M.W.’s] placement somewhere else.”

Id. at 12-13. We are not persuaded.

       The State presented ample evidence that White and Amy had fought bitterly over

custody of M.W. since their separation. Immediately preceding the shooting, White had

requested an additional thirty minutes of parenting time with M.W., which Amy denied.

An argument ensued, which ended with White shooting and killing Amy. In her petition

for a provisional custody order, Amy had requested full custody of M.W. pending the

final decree. At the 804(b)(5) hearing, the State presented evidence that Amy had been

using her cell phone to record custody exchanges to use at the provisional custody

hearing and that White was aware of those recordings. Moreover, during his statement to

police after the shooting, White admitted that he had “mocked” Amy just prior to the

shooting because she had frequently pointed out his conduct that would “look bad” for

him “in court.” State’s Exhibit 13. And the State maintains that, had White prevailed in

his claim of self-defense, White would likely have been granted full custody of M.W.

       Thus, a preponderance of the evidence supports a reasonable inference that

White’s intent in killing Amy was, at least in part, to keep her from testifying against him

at the provisional custody hearing, which was to take place the next day. The evidence

shows that the couple’s custody battle was the source of the ongoing conflict between

them. The fact that the conflict escalated one day before a custody hearing is substantial

evidence of White’s intent when he shot Amy. Contrary to White’s assertion on appeal,

it is entirely plausible, if not likely, that had White succeeded in his self-defense to the

murder charge, White, as the only surviving biological parent, would have been granted


                                            11
sole custody of M.W.5 Under Evidence Rule 804(b)(5), because White was at least

partially motivated to kill Amy to prevent her from testifying at the provisional custody

hearing, the trial court properly allowed the challenged hearsay evidence.                     See A.J.

Stephani & Glen Weissenberger, Weissenberger’s Indiana Evidence Courtroom Manual,

320 (2012-13 ed.) (Evidence Rule 804(b)(5) hearsay exception applies where offering

party shows party engaged in wrongdoing that resulted in witness’s unavailability and

that one purpose was to cause the witness to be unavailable at trial). And we hold that

the probative value of the 804(b)(5) evidence outweighed the danger of unfair prejudice

to White.

            Issue Two: Constitutionality of the Feticide Enhancement Statute

        Indiana Code Section 35-50-2-16 provides:

        (a) The [S]tate may seek, on a page separate from the rest of the charging
        instrument, to have a person who allegedly committed or attempted to
        commit murder under IC 35-42-1-1(1) or IC 35-42-1-1(2) sentenced to an
        additional fixed term of imprisonment if the [S]tate can show beyond a
        reasonable doubt that the person, while committing or attempting to
        commit murder under IC 35-42-1-1(1) or IC 35-42-1-1(2), caused the
        termination of a human pregnancy.

        (b) If the person is convicted of the murder or attempted murder in a jury
        trial, the jury shall reconvene to hear evidence in the enhancement hearing.
        If the trial was to the court, or the judgment was entered on a guilty plea,
        the court alone shall hear evidence in the enhancement hearing.

        (c) If the jury (if the hearing is by jury) or the court (if the hearing is to the
        court alone) finds that the [S]tate has proved beyond a reasonable doubt
        that the person, while committing or attempting to commit murder under IC
        35-42-1-1(1) or IC 35-42-1-1(2), caused the termination of a human


        5
          Moreover, it is irrelevant whether White, intending to shoot and kill Amy, had considered the
consequences of his actions beyond preventing Amy from testifying against him at the provisional
hearing. In other words, we reject White’s contention that this theory “made no sense” in light of White’s
argument that M.W. would likely be placed with someone other than White after the shooting.
                                                   12
         pregnancy, the court shall sentence the person to an additional fixed term of
         imprisonment of not less than six (6) or more than twenty (20) years.

         (d) A sentence imposed under this section runs consecutively to the
         underlying sentence.

         (e) For purposes of this section, prosecution of the murder or attempted
         murder under IC 35-42-1-1(1) or IC 35-42-1-1(2) and the enhancement of
         the penalty for that crime does not require proof that:

                (1) the person committing or attempting to commit the
                murder had knowledge or should have had knowledge that the
                victim was pregnant; or

                (2) the defendant intended to cause the termination of a
                human pregnancy.

(Emphases added).

         Here, the State presented evidence that Amy was pregnant at the time of the

shooting and that her death caused the death of the fetus. And the jury found that the

State had proved beyond a reasonable doubt that White, “while committing or attempting

to commit Murder, did cause the termination of a human pregnancy.” Appellant’s App.

at 996.      Accordingly, pursuant to Indiana Code Section 35-50-2-16, the trial court

enhanced White’s sixty-year sentence by ten years, for an aggregate sentence of seventy

years.

         On appeal, White contends that the feticide enhancement statute “violates

constitutional and historical legal protections” because of the absence of a mens rea

element.6 Brief of Appellant at 16. In support of that contention, White points out that “a

culpable state of mind has long been recognized as an essential hallmark of criminal

         6
          As the State points out, White does not specify any constitutional provision to support his
contention on this issue in his brief on appeal, contrary to the requirement of Indiana Appellate Rule
46(A)(8)(a). White’s failure notwithstanding, we consider the historical context of the feticide
enhancement statute.
                                                 13
justice.”   Id. at 17.   But he acknowledges that “a consensus and comprehensive

constitutional application of mens rea has remained elusive.” Id. at 18. White then

examines case law where offenses lacking a mens rea element were challenged, but he

identifies no clear precedent to support his contention here. Indeed, in Morissette v.

United States, 342 U.S. 246, 260 (1952), the United States Supreme Court was unwilling

to “delineate a precise line or set forth comprehensive criteria for distinguishing between

crimes that require a mental element and crimes that do not.” And White acknowledges

that since Morissette, the Supreme Court “has done little to clarify the constitutional

contours of mens rea as a due process requirement.” Brief of Appellant at 19. Neither

does White address the fact that the crime of which he was convicted, murder, does have

a mens rea element and that the additional sentence of feticide was merely an

enhancement to his sentence for the murder conviction.

       White further observes that the “constitutional and historical implications for an

absence of mens rea in a sentencing enhancement [are] also unclear.” Id. at 20. Citing

Apprendi v. New Jersey, 530 U.S. 466 (2000), White points out that “traditional due

process protections, including the right to a jury determination, [are] applicable to any

finding that expose[s] the defendant to greater punishment than that authorized by the

jury’s verdict.” Brief of Appellant at 20-21. Still, White concedes that Apprendi “did not

address the constitutional contours of mens rea in sentencing enhancements.” Id. at 21.

       In State v. Moss-Dwyer, 686 N.E.2d 109, 111-12 (Ind. 1997), our supreme court

set out our standard of review applicable to constitutional challenges to penal statutes:

       Indiana courts have consistently supported the proposition that “[t]he nature
       and extent of penal sanctions are primarily legislative considerations . . . .”
                                             14
       Person v. State, 661 N.E.2d 587, 593 (Ind. App. 1996), trans. denied.[] Our
       separation of powers doctrine requires we take a highly restrained approach
       when reviewing legislative prescriptions of punishments. While legislative
       decisions do not completely escape review, “judicial review of a
       legislatively sanctioned penalty is very deferential.” Person, 661 N.E.2d at
       593 (citing Conner[v. State], 626 N.E.2d [803,] 806 [(Ind. 1993)]). We will
       not disturb the legislative determination of the appropriate penalty for
       criminal behavior except upon a showing of clear constitutional infirmity.
       Steelman[ v. State], 602 N.E.2d [152,] 160 [(Ind. Ct. App. 1992)]. As the
       court stated in Person, “When considering the constitutionality of a statute,
       we begin with the presumption of constitutional validity, and therefore the
       party challenging the statute labors under a heavy burden to show that the
       statute is unconstitutional.” 661 N.E.2d at 592 (citing Jackson v. State, 634
       N.E.2d 532, 535 (Ind. App. 1994)). A court is not at liberty to set aside the
       legislative determination as to the appropriate penalty merely because it
       seems too severe. Conner, 626 N.E.2d at 806; Clark v. State, 561 N.E.2d
       759 (Ind. 1990).

(Emphasis added).

       Here, the feticide enhancement statute expressly provides that neither a

defendant’s knowledge of his victim’s pregnancy nor his intent to kill the fetus is

required. Thus, the legislature’s intent on this issue is clear, and the State need not prove

a defendant’s mens rea when it seeks a sentencing enhancement for feticide. Indeed, the

principle underlying this statute derives from the nature and circumstances of the crime

aggravator. In McCann v. State, 749 N.E.2d 1116, 1120 (Ind. 2001), which was decided

prior to the adoption of the feticide enhancement statute, our supreme court held that

       pregnancy is similar to the infirmity or age of the victim in that the
       defendant’s knowledge of these circumstances is not necessary for them to
       qualify as aggravating. To be sure, knowledge of the victim’s vulnerability
       adds to the culpability of the perpetrator, but aggravating circumstances
       turn on the consequences to the victim as well as the culpability of the
       defendant. This understanding of aggravating circumstances comports with
       the Black’s Law Dictionary definition of aggravation: “[a]ny circumstance
       attending the commission of a crime . . . which increases its guilt or
       enormity or adds to its injurious consequences.”


                                             15
(Emphasis added, citations omitted).

      Moreover, the feticide enhancement statute is not an outlier. Indiana Code Section

35-50-2-9(b)(12) provides that a defendant who murders a child less than the age of

twelve can be punished by death regardless of the defendant’s knowledge of the victim’s

age. In Stevens v State, 691 N.E.2d 412, 432-33 (Ind. 1997), cert. denied, 525 U.S. 1021

(1998), our supreme court rejected the defendant’s contention that the State had to prove

his specific knowledge that the victim was under the age of twelve under Indiana Code

Section 35-50-2-9(b)(12), which is silent on whether such knowledge is required. The

court distinguished between Indiana Code Section 35-50-2-9(b)(6), which authorizes the

State to seek the death penalty or life imprisonment without parole where a defendant has

actual knowledge that his victim is a law enforcement officer, and Section 35-50-2-

9(b)(12). In particular, the court observed that “[s]uch a rule reflects the legislature’s

policies of both increased protection of young children and harsher punishment for those

who prey upon them.” Id. at 432-33.

      Here, the feticide enhancement statute reflects the legislature’s policies of both

increased protection of fetuses and harsher punishment for those who, by murdering a

pregnant woman, cause the death of a fetus. White has not satisfied his heavy burden to

show that the feticide enhancement statute is unconstitutional for lack of a mens rea

requirement.

                     Issue Three: Judicially-supplied Mens Rea

      White contends that a mens rea element “should have been judicially supplied” to

require his knowledge that Amy was pregnant when he shot her to qualify for the feticide


                                           16
enhancement.        Brief of Appellant at 23.     White maintains that “Indiana has long

recognized that mens rea may be required, ‘whether specified by the wording of the

statute or not.’” Id. (quoting Gregory v. State, 291 N.E.2d 67, 68 (Ind. 1973)). But each

of the precedents White relies on involves a statute that is silent on the issue of mens rea.

Here, as we have already discussed, the feticide enhancement statute expressly states that

no mens rea is required. We decline to add a mens rea requirement which the legislature

has specifically excluded from the statute. Accordingly, White’s contention on this issue

is without merit.

                              Issue Four: Excluded Evidence

       Finally, White contends that the trial court abused its discretion when it excluded

evidence that Amy had previously suffered a miscarriage. White intended to present that

evidence during the enhancement phase of his trial to support his defense theory that his

actions did not cause the death of Amy’s fetus. The State counters that the trial court

properly excluded that evidence as irrelevant, and we must agree.

       A trial court’s decision to admit or exclude evidence is reviewed for an abuse of

discretion. McVey v. State, 863 N.E.2d 434, 440 (Ind. Ct. App. 2007), trans. denied. An

abuse of discretion occurs if a trial court’s decision is clearly against the logic and effect

of the facts and circumstances before the court. Id. Here, when the State moved in

limine to exclude evidence of Amy’s prior miscarriage, White’s defense counsel stated,

“I have no problem with that[.]” Transcript at 764. But, in a subsequent side bar,

White’s defense counsel sought the trial court’s permission to ask the State’s expert

witness a question regarding Amy’s prior miscarriage, and the court denied that request.


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      On appeal, in support of his contention that he should have been permitted to raise

the issue of Amy’s prior miscarriage to show that she had a higher risk of miscarriage in

this case, White cites to a law review article. But White made no offer of proof to the

trial court, and, regardless, he has not shown that Amy’s prior miscarriage had “any

tendency to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would [have been] without the

evidence.” See Ind. Evidence Rule 401. We agree and cannot say that the trial court

abused its discretion when it excluded evidence of Amy’s prior miscarriage.

                                      Conclusion

      We hold that the trial court properly allowed hearsay testimony regarding

statements Amy had made to others prior to her death under Indiana Evidence Rule

804(b)(5). The preponderance of the evidence shows that White killed Amy, at least in

part, for the purpose of preventing her testimony at the provisional custody hearing. The

feticide enhancement statute, Indiana Code Section 35-50-2-16, is not unconstitutional.

Also, because the legislature expressly excluded a mens rea requirement from the feticide

enhancement statute, we will not judicially supply such a requirement. Finally, the trial

court did not abuse its discretion when it excluded evidence that Amy had previously

suffered a miscarriage.

      Affirmed.

KIRSCH, J., and MAY, J., concur.




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