Date: 07-23-2016

Case Style: Purvi Patel v. State of Indiana

Case Number: 71A04-1504-CR-166

Judge: Crone

Court: COURT OF APPEALS OF INDIANA

Plaintiff's Attorney:

Ellen H. Meilaender

Defendant's Attorney:

Joel Schumm

Lawrence C. Marshall

*Laura Paul*

*Jill E. Adams*

*Melissa Mikesell*

*Grace B. Atwater *

*Julie D. Cantor *

*Linda L. Pence *

*Lynn M. Paltrow*

*Cynthia Soohoo *

*Sandra L. Blevins *

Description: Consistent with our well-settled standard of appellate review, we recite the
relevant facts most favorable to the jury’s verdicts. Patel was born in the United
States to immigrants from India in September 1980. She lived in a home in
Granger with her parents and paternal grandparents, and she managed Moe’s, a
restaurant in Mishawaka owned by her father. In approximately August 2012,
Patel became involved in a sexual relationship with a married man2 and did not
use birth control. She did not mention the relationship to her parents, but she
did share some details of the relationship via text messages with a friend from
Michigan, medical assistant Felicia “Fay” Turnbo. Tr. A at 814.3
[7] On April 15, 2013, thirty-two-year-old Patel texted Turnbo, “[C]ramps coming
n going, my cycle is changing completely due to all the stress I been under lately
so not sure when my period is coming but still feeling the pain[.]” State’s Ex.
47 at 4. On April 19, she stated, “Man I’m cramping again…my period been so
funny the last 2 mths cuz of my stress[.…] I spot n then stop. But cramps come
n go…the cramps r the worst part.” Id.
[8] Just over a month later, on May 21, Patel stated, “I keep cramping bad but then
my period won’t start, driving me crazy! [….] It’s been like this for 2 weeks
1 We heard oral argument on May 23, 2016. We thank the parties for their presentations. 2 See State’s Ex. 47 at 2 (mentioning man’s wife). 3 The trial was recorded by two court reporters, and the second reporter started renumbering the transcript at page 1. We refer to the first part of the transcript as “Tr. A” and the second part as “Tr. B.”
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now […] tired of the pain[.]” Id. Turnbo replied, “U might wanna go to the
Dr[.]” Id. Patel responded, “[D]on’t like docs lol! I think it’s cuz of all the
stress my body been goin thru physically n mentally[.]” Id.
[9] Two weeks later, on June 4, Patel told Turnbo that she had not had an appetite
“for a while now” and indicated that she thought that she might be pregnant,
but she “hope[d] not!!!!!!!!!” Id. at 5, 6. Turnbo asked, “Have u missed?” Id. at
6. Patel replied, “I been cramping like crazy tho for weeks now so I’m hoping
its cuz of stress[.]” Id. Turnbo responded, “Take a test!!!!!” Id. Patel stated,
“Hoping it all just goes away lol[.]” Id.
[10] On June 10, Patel took a pregnancy test. She informed Turnbo that it “didn’t
even take a min[ute] for it to show” that she was pregnant and that “[m]y Fam
would kill me n him[.]” Id. at 8. Patel stated, “U already know I can’t have
it[.]” Id. Turnbo stated, “Now first we gotta get u to a dr. This may b[e]
something that ur body is deciding on its own[.…] U can go to the urgent care
place even and tell them that u took a test and it shows positive but u r
cramping bad and spotting. They will do an ultrasound and let u know then we
will go from there[.]” Id. at 8-9. Patel stated, “I rather not even go to a
doc…just wanna get it over with[.]” Id. at 9. Turnbo replied, “I understand
that but for ur health u should go to a dr first.” Id.
[11] On June 16, Patel told Turnbo, “Btw I just realized today I’ve missed 2.” Id. at
11. Turnbo replied, “You need to go to Dr. first[.]” Id. Patel stated, “Yeah I
think we need to go this week[.]” Id. Instead of going to a doctor, however,
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Patel performed a “good bit” of online research on medications for terminating
pregnancies. Id. at 15. On June 19, Turnbo told Patel that a clinic in South
Bend had “the pill for that” and estimated its cost at “between 300-400 or
something like that.” Id. at 12. Patel replied, “But it’s only within 60 days…I
might be over that[.]” Id. Later that day, Patel ordered mifepristone and
misoprostol4 online from a Hong Kong pharmacy for $72 and had the package
shipped to Moe’s so “no one [would] know[.]” Id. On June 27, Patel
“vent[ed]” to Turnbo that she wanted her boyfriend and “the baby outta [her]
life[.]” Id. at 14.
[12] On July 1, Patel told Turnbo, “My package came[.]” Id. On July 3, Patel
stated that she would wait until after she returned from a trip to Chicago to take
the medications because she “[didn’t] wanna be in pain cramping all weekend
while [she had to] meet with vendors[.]” Id. at 15. One week later, on July 10,
Patel told Turnbo that, in accordance with her online research, she would take
one mifepristone pill that morning and two misoprostol pills one to three days
later, and “if it doesn’t work then 2 more [misoprostol] after 4 hrs[.] If this
4 According to OB/GYN Dr. Kelly McGuire, mifepristone, also known as RU-486, is a “progesterone antagonist” most commonly used for “first trimester abortions” and is “approved […] up until 49 days of gestation[,]” presumably by the FDA. Tr. B at 550. It “attack[s] the placental tissue and by attacking the placental tissue, it indirectly would kill the baby.” Id. Misoprostol, also known as cytotec, is “used to cause uterine contractions” and “induce labor[.]” Id. at 551. In response to a question from the State, Dr. McGuire testified that only a doctor may administer or prescribe misoprostol. Id. at 581-82. He was not asked the same question about mifepristone.
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doesn’t work then we will have to take a trip[.]” Id. At 10:34 a.m., Patel told
Turnbo that she had taken the mifepristone.
[13] At 5:22 p.m. on July 11, Patel told Turnbo that she had taken two misoprostol
pills. Over the next two days, Patel experienced “horrible cramps” and
intermittent bleeding. Id. at 17. On the evening of July 12, Patel told Turnbo
that she would take another misoprostol pill the following evening “to give it
extra time[.]” Id. at 20. That same evening, Patel visited a webpage entitled
“National Abortion Federation: Abortion after Twelve Weeks.” State’s Ex.
50. At 3:44 p.m. on July 13, Patel told Turnbo that she had “[b]een home in
bed since” 12:30 p.m. State’s Ex. 47 at 20. At 7:07 p.m., Patel told Turnbo that
she was trying to go to the hospital “but [couldn’t] get off the bed to get
dressed[.]” Id. at 21. Turnbo promptly replied, “U need to go.” Id. At 7:37
p.m., Turnbo asked Patel, “R u going to go?” Id. At 7:42 p.m., Patel replied,
“Want to but can’t drive.” Id.
[14] At 8:11 p.m., Patel told Turnbo, “Just lost the baby[.]” Id. Less than three
minutes later, Patel stated, “Imma clean up my bathroom floor n then go to
Moes[.]” Id. Turnbo asked, “Was it still a clot or starting to form?” Id. Patel
replied, “Starting to form a lil[.] More so big clots tho[.]” Id. In fact, Patel had
delivered a baby boy measuring thirty-one centimeters (approximately one foot)
long and weighing 660 grams (slightly less than one and a half pounds).
[15] Patel cut the umbilical cord and placed the baby in a plastic shopping bag
containing bathroom trash and an airline boarding pass with Patel’s name. She
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was unable to remove “a piece of the cord hanging from [her]” and “ke[pt]
bleeding thru her clothes[,]” so she drove herself to St. Joseph Regional Medical
Center in Mishawaka. Id. at 21, 22. En route, she stopped at Moe’s and put
the bag containing the baby into a dumpster.
[16] At 9:23 p.m., Patel was admitted to the emergency room (“ER”) with “a
substantial amount of bleeding” and “an umbilical cord hanging out of the
vaginal area.” Tr. A at 316. She continued to exchange texts with Turnbo
throughout the evening. Patel told the ER staff that she had been ten to twelve
weeks pregnant, had missed two menstrual periods, and had “just passed clots.”
Id. at 354. Based on the size of the umbilical cord and a physical examination
of Patel, however, OB/GYN Dr. Tracy Byrne estimated that Patel had been
twenty-eight to thirty weeks along, and OB/GYN Dr. Kelly McGuire estimated
that she had been at least twenty-five or twenty-six weeks “or beyond.” Id. at
521. Both doctors determined that “there had to have been a baby” and
questioned Patel, who finally acknowledged that she had given birth to a baby
and stated that she had put it in a paper bag and placed it in a dumpster behind
a Target store. Id. at 355. Because “[i]t was a warm night and based on the size
of the umbilical cord[,]” Dr. McGuire “thought that [they] could find a baby
that was far enough along that could still be alive” and left the hospital to
search for it. Id. at 549.
[17] Law enforcement officers were notified and searched a dumpster behind the
Target store, to no avail. Patel was asked for more specific information
regarding the baby’s location, and she ultimately revealed that she had put the
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baby in a plastic bag and placed it in a dumpster to “the left of Target,” which is
near Moe’s. Id. at 366. Officers searched dumpsters in that area and finally
found the plastic bag containing Patel’s baby at 12:06 a.m.
[18] At that point, Dr. McGuire had been participating in the search for
approximately thirty to forty-five minutes. When he was informed that the
baby had been found nearby, he went to the scene and removed the baby from
the bag, which “was sealed shut from the blood.” Id. at 542. “The baby was
cold and lifeless” but “was an otherwise normal, healthy appearing baby” with
no signs of trauma. Id. at 544. His “rough estimate” was that “the baby was
about 30 weeks along[,]” and he would have expected a baby at that
developmental stage to exhibit “movement, possibly crying” upon birth. Id. at
546, 548. He believed that the baby was viable “[d]espite the fact that it was not
born in a hospital setting[.]” Id. at 549.
[19] An ultrasound revealed that Patel’s uterus was full of blood. She underwent
surgery to remove the placenta5 and was interviewed by police at the hospital.
Patel stated that she had always had irregular menstrual cycles and had taken a
pregnancy test three weeks ago after missing a couple periods. She stated that
she was suffering from cramps in her bedroom and felt a strong urge to urinate,
and that “everything came out” on the bathroom floor “like [she] had no
5 Pathologist Dr. Bobbie Sutton testified that the placenta weighed 231 grams, which “falls right in that mean placental weight or average placental weight for about 26 to 27 weeks gestational age which is right at about the end of the second to early third trimester.” Tr. B at 90.
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control over it” before she reached the toilet. State’s Ex. 62 (video of
interview). She stated that the baby did not cry after delivery and that she did
not attempt CPR because it was not moving. She claimed that she tried to
“open the baby’s mouth and move it, and it was just a small little limpless
body.” Id. Patel also claimed that she had taken only pain medication, that the
pregnancy was the result of a “random hookup,” and that she had been
“excited” about having a baby. Id.
[20] A search warrant was obtained for Patel’s house. Police found blood on her
bedroom floor and bathroom floor as well as on a towel, a bath mat, and a pair
of underwear. DNA testing on blood samples taken from the boarding pass
and the bath mat indicated that the baby could not be excluded as one of the
two contributors to the samples. On Patel’s iPad, police found a customer
service email from InternationalDrugMart.com, from which a detective was
able to order and receive one mifepristone pill and four misoprostol pills
without a prescription. State’s Exs. 49, 53, 54.
[21] Forensic pathologist Dr. Joseph Prahlow performed an autopsy on Patel’s baby,
which revealed no external or internal abnormalities. Based on various weights
and measurements of the body and organs, as well as an examination of the
organs both inside the body and under a microscope, Dr. Prahlow concluded
that the baby was of approximately twenty-five weeks gestation, “more likely
than not” was born alive, and had breathed after it was born. Tr. B at 411. For
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purposes of this appeal, Patel has stipulated that the baby was born alive.6 The
umbilical cord showed no abnormalities, and the baby showed no signs of
maceration (breaking down of tissue after death in utero) or decomposition.
According to Dr. Prahlow, the manner of death was homicide, and the possible
mechanisms of death were “extreme prematurity” coupled with a lack of
essential medical care, hypothermia or hyperthermia due to the baby’s inability
to regulate its body temperature, loss of blood due to the severed umbilical
cord, or asphyxia from being placed in a plastic bag or from items inside the bag
that could cover its mouth and nose. Tr. A at 1015, 957. Dr. Prahlow was
unable “to draw even a very, very small amount [of the baby’s blood] into a test
tube for toxicology purposes[,]” which he attributed to the umbilical cord being
severed and “not clamped off or tied off in any way.” Id. at 929-30. He
testified that “[a]s long as the heart is beating and moving blood, then bleeding
can occur. Once the heart stops […] beating, then the blood loss would be very
minimal.” Id. at 934.
6 Amici The Innocence Network and Dr. Gregory J. Davis challenge Dr. Prahlow’s conclusion that Patel’s baby was born alive, focusing primarily on the reliability of the lung flotation test performed during the autopsy. Dr. Prahlow acknowledged that the test is “necessarily unreliable all by itself” but stated that it “can be part of an entire equation that leads to a conclusion that a baby breathed after birth.” Tr. A at 947. He testified that the baby’s lungs were “spongy,” “felt like they had air in them, just touching them,” and “substantially filled” the “pleural spaces” in the chest cavity, which “is an indication that there is air in the lungs.” Id. at 939. He further testified that “the bronchioles or the air tubes as well as the alveoli, the air [sacs], were consistent microscopically with being aerated as well.” Id. at 948. According to Dr. Prahlow, the baby’s lungs also contained “fairly large blood vessels” that were “filled with blood,” which occurs when a baby breathes. Tr. B at 396-97. And finally, he testified that he had “done [his] share” of autopsies of “discarded newborn infants […] over the years” and that this was “the first case” where he “felt confident enough in [his] findings to say [he believed] that this baby was born alive, meaning that it breathed.” Tr. A at 1024. Because Patel does not challenge the admissibility of Dr. Prahlow’s testimony and has stipulated that her baby was born alive, the amici’s argument is moot.
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[22] On July 17, 2013, the State charged Patel with class A felony neglect of a
dependent, alleging that she failed to provide any medical care to her baby
immediately after its birth, which resulted in its death. In August 2014, the
State amended the charging information to add a charge of class B felony
feticide, alleging that Patel knowingly terminated her pregnancy with the
intention other than to produce a live birth or to remove a dead fetus. A jury
trial was held from January 23 to February 3, 2015. The jury found Patel guilty
as charged. In March 2015, the trial court sentenced Patel to thirty years of
imprisonment for neglect of a dependent, with twenty years executed and ten
years suspended, and a concurrent executed term of six years for feticide. Patel
now appeals her convictions but does not challenge the appropriateness of her
sentence.7 Additional facts will be provided as necessary.
Discussion and Decision
Section 1 – The State failed to prove beyond a reasonable doubt that Patel committed class A felony neglect of a dependent.
[23] In July 2013, when the relevant events occurred, the neglect statute read in
pertinent part as follows:
7 See Ind. Appellate Rule 7(B) (“The Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.”).
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(a) A person having the care of a dependent, whether assumed voluntarily or because of a legal obligation, who knowingly or intentionally:
(1) places the dependent in a situation that endangers the dependent’s life or health;
…
commits neglect of a dependent, a Class D felony.
(b) However, the offense is:
…
(3) a Class A felony if it is committed under subsection (a)(1) … by a person at least eighteen (18) years of age and results in the death of a dependent who is less than fourteen (14) years of age[.]
Ind. Code § 35-46-1-4. A class D felony carries a sentencing range of six
months to three years, with an advisory sentence of one and a half years. Ind.
Code § 35-50-2-7. A class A felony carries a sentencing range of twenty to fifty
years, with an advisory sentence of thirty years. Ind. Code § 35-50-2-4.
[24] The charging information alleged that Patel,
who is more than eighteen (18) years old, and having the care of a dependent, did knowingly place that dependent in a situation that endangered the dependent’s life or health by failing to provide any medical care for that dependent immediately after
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the dependent’s birth, resulting in the death of that dependent, who was less than fourteen (14) years old.
Appellant’s App. at 201. To establish that Patel knowingly placed her
dependent in a dangerous situation, the State was required to prove that she
was “aware of a high probability” that she was doing so. Ind. Code § 35-41-2
2(b).
Section 1.1 – Standard of review
[25] Patel asserts that the State failed to present sufficient evidence to sustain her
conviction. “When reviewing the sufficiency of the evidence to support a
conviction, we consider only the probative evidence and reasonable inferences
supporting the verdict.” Miller v. State, 916 N.E.2d 193, 198 (Ind. Ct. App.
2009), trans. denied (2010). “We do not reweigh the evidence or judge the
credibility of the witnesses, and we respect the jury’s exclusive province to
weigh conflicting evidence.” Keller v. State, 987 N.E.2d 1099, 1117 (Ind. Ct.
App. 2013), trans. denied. Accordingly, when confronted with conflicting
evidence, we consider it most favorably to the jury’s verdict. See Miller, 916
N.E.2d at 198. “To sustain a conviction under a sufficiency of the evidence
challenge, there must be sufficient evidence on each material element of the
offense.” Ferrell v. State, 746 N.E.2d 48, 51 (Ind. 2001). We will “affirm the
conviction unless no reasonable factfinder could find the elements of the crime
proven beyond a reasonable doubt. The evidence need not overcome every
reasonable hypothesis of innocence.” Miller, 916 N.E.2d at 198-99 (citation
omitted).
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[26] “Although this standard of review is deferential, it is not impossible, nor can it
be.” Galloway v. State, 938 N.E.2d 699, 709 (Ind. 2010). Article 7, Section 6 of
the Indiana Constitution guarantees “in all cases an absolute right to one
appeal.” “An impossible standard of review under which appellate courts
merely ‘rubber stamp’ the fact finder’s determinations, no matter how
unreasonable, would raise serious constitutional concerns because it would
make the right to an appeal illusory.” Id. “While we seldom reverse for
insufficient evidence, in every case where that issue is raised on appeal we have
an affirmative duty to make certain that the proof at trial was, in fact, sufficient
to support the judgment beyond a reasonable doubt.” Bean v. State, 818 N.E.2d
148, 150 (Ind. Ct. App. 2004). “[T]he evidence is sufficient if an inference may
reasonably be drawn from it to support the verdict.” Pickens v. State, 751 N.E.2d
331, 334 (Ind. Ct. App. 2001). “‘A reasonable inference of guilt must be more
than a mere suspicion, conjecture, conclusion, guess, opportunity, or scintilla.’”
Willis v. State, 27 N.E.3d 1065, 1068 (Ind. 2015) (quoting Mediate v. State, 498
N.E.2d 391, 393 (Ind. 1986)) (alteration in Willis omitted).
Section 1.2 – The State presented sufficient evidence for a jury to find that Patel was subjectively aware that the baby was born alive.
[27] Regarding the specific elements of the neglect charge, Patel concedes that she
was over eighteen years old and that her baby was less than fourteen years old
and born alive and therefore a dependent for purposes of the neglect statute. See
Herron v. State, 729 N.E.2d 1008, 1010 (Ind. Ct. App. 2000) (holding that an
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unborn child is not a dependent for purposes of the neglect statute), trans. denied.
Her sufficiency argument proceeds from our supreme court’s holding in Armour
v. State that “the level of culpability required when a child neglect statute
requires knowing behavior is that level where the accused must have been
subjectively aware of a high probability that he placed the dependent in a
dangerous situation.” 479 N.E.2d 1294, 1297 (Ind. 1985). Thus, Patel
contends, the first question that must be answered is whether the State
presented sufficient evidence “to support a finding (even by inference) that [she]
had actual awareness there was a live infant.” Appellant’s Br. at 18; see Fout v.
State, 575 N.E.2d 340, 342 (Ind. Ct. App. 1991) (“Normally a defendant’s
subjective awareness requires resort to inferential reasoning to ascertain a
mental state.”).
[28] We conclude that it did. The evidence most favorable to the jury’s verdict
establishes that the baby took at least one breath and that its heart was beating
after delivery and continued to beat until all of its blood had drained out of its
body. See Tr. A at 958, 929-30, 934 (Dr. Prahlow’s testimony). It is true, as
Patel states, that Dr. Prahlow acknowledged that there was no way to
determine how many breaths the baby took. Id. at 1017. But Dr. McGuire
testified that, based on his observations of the baby and his training and
experience, he would have expected it to exhibit “signs of life upon birth” such
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as “movement, possibly crying.” Id. at 548.8 Patel notes that Dr. McGuire
estimated that the baby was of approximately thirty weeks gestation and never
opined whether a baby of twenty-five weeks gestation (per Dr. Prahlow’s
estimate) would exhibit signs of life. It was exclusively within the jury’s
province to credit Dr. McGuire’s testimony regarding the baby’s gestational age
and attributes based on his observations, training, and experience. Cf. Robinson
v. State, 894 N.E.2d 1038, 1042 (Ind. Ct. App. 2008) (affirming class A felony
neglect conviction and finding sufficient evidence that baby was born alive
based on doctors’ testimony “and all of the evidence relied upon by these
experts”).
8 Patel asserts that Dr. McGuire testified that “only neonatologists have the expertise to testify about these first moments following birth of a severely premature infant.” Appellant’s Br. at 21 n.5 (citing Tr. A at 510, 564). Dr. McGuire actually stated, “[W]hen we deliver the babies as obstetricians, we deliver the babies and in these premature cases, then we’re going to hand them off to a neonatologist for care and then we’ll follow along to find out how the babies did[.]” Tr. A at 510. He also stated that a question regarding the treatment “issues” presented by a baby of twenty-four weeks gestation would be “better directed to a neonatologist.” Id. at 564. In any event, Patel did not object to Dr. McGuire’s testimony on this basis at trial and therefore has waived any claim of error on appeal. See Lanham v. State, 937 N.E.2d 419, 423 (Ind. Ct. App. 2010) (“The failure to object at trial to the admission of evidence results in waiver of that issue on appeal.”).
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[29] Patel also cites testimony that allegedly proves that the baby would have bled to
death in less than a minute through the severed umbilical cord.9 The State
points out that “this would have occurred only after the cord was cut and not
clamped, so it did not necessarily occur in the baby’s first minute of life.”
Appellee’s Br. at 23 n.9. There is no indication that anyone other than Patel cut
the cord, and we agree with the State that “it defies credulity to suppose that
[Patel] was oblivious” to a foot-long baby “exiting from her body[.]” Id. at 24.
In fact, Patel told the police that she tried to open the baby’s mouth, from
which the jury could have found that she got a good look at the baby up close.10
And the jury could have considered Patel’s false statements to Turnbo and
others regarding her pregnancy, delivery, and disposal of the baby as evidence
9 Dr. Prahlow testified that a baby the size of Patel’s would have approximately twenty-five to fifty milliliters of blood in its body (roughly the volume of a shot glass) and that a person could go into shock and die after rapidly losing twenty-five percent of his blood. Tr. A at 932, 992. Patel’s counsel questioned Dr. Prahlow about the “rate of blood flow through the umbilical cord[.]” Id. at 976. Counsel stated that he “looked it up in an article called Fetal Circulation …. in a magazine called Prenatal Diagnosis[,]” which purportedly gave a rate of thirty-five milliliters per minute for a fetus of twenty weeks gestation, and asked Dr. Prahlow if that “sound[ed] about right[.]” Id. Dr. Prahlow replied, “I have no reason to doubt that but I’d probably like to look at the article, et cetera.” Id. at 977. Dr. Prahlow ultimately testified that he was not familiar with that publication and did not “have any independent verification” that it was relied on by professionals. Id. at 982. In her brief, Patel cites several facts and figures regarding fetal blood circulation and blood loss that were not presented to the jury at trial. Appellant’s Br. at 18-19 n.3. Cf. Jackson v. Virginia, 443 U.S. 307, 318 (1979) (“[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.”) (emphasis added). The State also relies on extrarecord sources regarding fetal viability in its brief. Appellee’s Br. at 28. 10 For this reason, Patel’s reliance on Taylor v. State, 28 N.E.3d 304 (Ind. Ct. App. 2015), trans. denied, is misplaced. In Taylor, the State failed to prove that the mother subjectively became aware that her sleeping one-year-old son needed medical care before he died. See id. at 309 (“In this instance, the jury simply was not provided evidence that Taylor inflicted an injury, was present when injury was inflicted, heard the infliction of injury, or saw manifestations of an injury necessitating medical care. Although Taylor conceivably or hypothetically could have seen an injury of such severity that immediate medical care would be warranted, there is no evidence that she did so.”).
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of guilty knowledge that the baby was born alive. See Grimes v. State, 450
N.E.2d 512, 521 (Ind. 1983) (“Any testimony tending to show an accused’s
attempt to conceal implicating evidence or to manufacture exculpatory
evidence may be considered by the trier of fact as relevant since revealing a
consciousness of guilt.”). In sum, Patel’s argument on this point is an invitation
to reweigh evidence, draw inferences, and reassess witness credibility in her
favor, which we may not do.11 The State presented sufficient evidence for a jury
to find that Patel was subjectively aware that the baby was born alive.
Section 1.3 – The State presented sufficient evidence for a jury to find that Patel endangered her baby by failing to provide medical care.
[30] Next, Patel contends that the State failed to prove beyond a reasonable doubt
that she actually endangered the baby by failing to provide any medical care
immediately after its birth. “To endanger is to bring into danger.” State v.
Downey, 476 N.E.2d 121, 123 (Ind. 1985). “The placement must itself expose
the dependent to a danger which is actual and appreciable.” Id. “When there
11 Patel claims that she had a “hazy eye” and “staggered into the bathroom” during the birthing process. Appellant’s Br. at 19, 20. Yet she fails to acknowledge that she was able to text a running commentary to Turnbo, cut the umbilical cord, attempt to clean the bathroom floor, drive herself to Moe’s, dispose of the baby, and drive herself to the ER. Moreover, Dr. George Drew testified that Patel did not “appear to be in danger of passing out or comatose” when she arrived at the ER. Tr. A at 339. Patel also claims that she “believed she was only 10- to 12-weeks pregnant” and thus “there is no reason to assume that she would have immediately inspected … what she was sure was a 10- to 12-week-old undeveloped fetus.” Appellant’s Br. at 20. Although the jury is always free to disregard a self-serving claim, Patel’s text messages indicating that her menstrual patterns had been abnormal since February, her acknowledgement in June that she could have been pregnant for over sixty days, her perusal of a webpage entitled “Abortion after Twelve Weeks,” and her false statements to Turnbo and others provide affirmative evidence to the contrary.
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are symptoms from which the average layperson would have detected a serious
problem necessitating medical attention, it is reasonable for the jury to infer that
the defendant knowingly neglected the dependent.” Mitchell v. State, 726
N.E.2d 1228, 1240 (Ind. 2000), abrogated on other grounds by Beattie v. State, 924
N.E.2d 643 (Ind. 2010).
[31] More specifically, Patel asserts that
the prosecution needed to prove, as an objective matter, the Information’s allegation that by not “providing medical care immediately following the birth of the dependent,” [she] exposed the baby to danger—i.e., enhanced the risk the baby would die. And it had to prove, as a subjective matter, that [she] had actual awareness of that risk.
Appellant’s Br. at 22.
[32] The evidence favorable to the jury’s verdict was sufficient for a reasonable
factfinder to conclude that Patel’s failure to provide medical care actually
endangered her significantly premature baby, who weighed less than two
pounds and was bleeding from its severed umbilical cord.12 Patel’s argument
that the State failed to prove that she was actually aware of the danger is yet
another invitation to reweigh the evidence, which we must decline. The State
12 Patel cites no authority for her suggestion that the State was required to prove, for purposes of establishing endangerment, that the medical care would “have made any difference.” Appellant’s Br. at 22. Neither the neglect statute nor caselaw imposes such a requirement.
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presented sufficient evidence for a jury to find that Patel endangered her baby
by failing to provide medical care.
Section 1.3 – The State failed to prove beyond a reasonable doubt that Patel’s failure to provide medical care resulted in the baby’s death.
[33] By proving that Patel endangered her baby by failing to provide medical care
after its birth, the State established that she committed neglect of a dependent as
a class D felony. But to convict Patel of a class A felony, the State also had the
burden to prove beyond a reasonable doubt that her failure to provide medical
care resulted in the baby’s death. We agree with Patel that the State failed to
carry this burden.
[34] This Court has not been called upon to interpret the phrase “results in the death
of a dependent” for purposes of the neglect statute, but caselaw suggests, and
both parties agree, that this language implicates proximate causation. See Abney
v. State, 766 N.E.2d 1175, 1177-78 (Ind. 2002) (defendant was convicted of
operating motor vehicle while intoxicated, a class C felony if it “results in the
death of another person”; court held that “the State must prove the defendant’s
conduct was a proximate cause of the victim’s injury or death” and rejected
lesser standard of “contributing cause”); Mallory v. State, 563 N.E.2d 640, 643
(Ind. Ct. App. 1990) (defendant was convicted of class B felony neglect of a
dependent resulting in serious bodily injury, i.e., death; court held that evidence
was sufficient to establish that “the death of the dependent arose as a
consequence of” defendant’s deprivation of support), trans. denied (1991). In the
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civil context, our supreme court has explained that, “[a]t a minimum,
proximate cause requires that the injury would not have occurred but for the
defendant’s conduct.” Paragon Family Rest. v. Bartolini, 799 N.E.2d 1048, 1054
(Ind. 2003). Thus, the State was required to prove beyond a reasonable doubt
that the baby’s death would not have occurred but for Patel’s failure to provide
medical care immediately after its birth. See WAYNE R. LAFAVE, SUBSTANTIVE
CRIMINAL LAW § 6.2(d) (2d ed.) (“Legal or ‘proximate’ cause, at the very least,
requires a showing of ‘but for’ causation: but for the omission the victim would
not have died. Failure on the part of a parent to call a doctor for a sick child
may often make the parent criminally liable for the child’s death; but only if the
doctor could have saved it, not if it would have died in spite of medical
attention. It is apparent that this is a matter which often is not susceptible of
easy proof, and convictions have sometimes been reversed because of what the
appellate court viewed as less than adequate proof of causation.”) (footnotes
omitted).
[35] In Bergmann v. State, 486 N.E.2d 653 (Ind. Ct. App. 1985), the defendants’ nine
month-old daughter contracted bacterial meningitis and died approximately
eleven days later. The defendants never sought medical care and were
convicted of reckless homicide and class B felony neglect of a dependent. At
trial, the State asked the coroner whether, “within the bounds of reasonable
medical certainty,” the child would have died if she had been “timely medically
treated.” Id. at 657. The coroner opined that the child “would have had a very
good chance” of surviving if “she had timely treatment”; that she “had no
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chance of survival without medical treatment”; and that “early treatment in
cases of this type provides a 90-95% survival rate.” Id. On appeal, the
defendants dismissed this opinion as “speculation,” but we stated that it “was
probative evidence because it was based upon reasonable medical certainty.”
Id. And in Brown v. State, 770 N.E.2d 275 (Ind. 2002), the State elicited
testimony from a doctor that the victim’s “chances for survival were good had
she received prompt medical treatment” after her father fractured her skull with
a wooden paddle. Id. at 281. The court affirmed the victim’s mother’s neglect
conviction, holding that “overwhelming evidence” proved that the victim
“would still be alive had she received [medical treatment] promptly.” Id.
[36] Patel observes that the State failed to elicit similar testimony from its medical
experts in this case. The State chastises Patel for “deliberately induc[ing] the
premature delivery of her baby” with no “medical supervision and in a setting
where there would be no [neonatal intensive care unit] or medical help
available for the child.” Appellee’s Br. at 28, 29. But these considerations are
invalid under Herron, in which we stated that the plain language of the neglect
statute “contemplates only acts that place one who is a dependent at the time of
the conduct at issue in a dangerous situation – not acts that place a future
dependent in a dangerous situation.” 729 N.E.2d at 1011.13 The State also
criticizes Patel for cutting the umbilical cord “without first calling 911 or
13 Indeed, the jury in this case was instructed that “[t]o be guilty of Neglect of a Depend[e]nt the conduct alleged must be based on acts committed by the Defendant that occurred after the birth of the child.” Appellant’s App. at 277 (emphasis added).
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otherwise seeking medical advice.” Appellee’s Br. at 29. However, the State
charged Patel with neglect based on her failure to provide medical care, not her
affirmative act of cutting the umbilical cord. “It is a denial of due process of
law to convict an accused of a charge not made.” Hazlett v. State, 229 Ind. 577,
583, 99 N.E.2d 743, 745 (1951).
[37] In an attempt to bridge the evidentiary gap, the State points to Dr. McGuire’s
testimony that “it was ‘absolutely’ possible that the baby could have survived
even though not born in a hospital,” as well as Dr. Byrne’s testimony that a
baby of twenty-four weeks gestation would “have a better chance of survival
with medical intervention”14 and Dr. Prahlow’s testimony that “the baby’s
lungs were sufficiently developed to be capable of respiration” and that he
“found no abnormalities or problems in his examination of the baby.” Id. at 29,
30 (quoting Tr. A at 549). However, none of the witnesses testified as to how
quickly any medical care could have been provided or whether it could have
changed the outcome. At most, the foregoing testimony establishes only a
possibility that Patel’s baby would not have died but for Patel’s failure to
14 The State notes that Dr. Byrne testified that the survival rate for a baby of twenty-four weeks gestation was “much higher” than forty percent, Tr. A at 479, but he clarified that this statistic is for hospital births. Id. at 480. Dr. Byrne also testified that “[s]ometimes babies” of twenty-three to twenty-five weeks gestation “will need help with breathing and they’ll need to be ventilated. Sometimes they’ll need medication to start out in terms of to boost their heart rate. It all depends.” Id. at 481. The State elicited no testimony regarding how quickly such treatment could have been provided or whether it could have made any difference in this case. By contrast, Patel’s expert, forensic pathologist Dr. Shaku Teas, testified that, based on her evaluation of the baby’s lung development, it “would not [have been] possible” to “even get the child to a hospital or have an ambulance arrive before it expired[.]” Tr. B at 305.
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provide medical care immediately after its birth.15 As such, it falls short of
satisfying the State’s burden of proving guilt with respect to this element beyond
a reasonable doubt. See Willis, 27 N.E.3d at 1068 (a reasonable inference of
guilt must be more than mere conjecture).
[38] Courts in other states have confronted similar evidentiary shortfalls regarding
causation and reached similar conclusions. See, e.g., Commonwealth v. Pugh, 969
N.E.2d 672, 688 (Mass. 2012) (reversing mother’s involuntary manslaughter
conviction following unassisted home breech birth: “Speculation that the baby
might have survived if the defendant had summoned medical help does not
satisfy the Commonwealth’s burden of proving causation beyond a reasonable
doubt because that the baby might have survived with proper care …
engender[s] considerable doubt as to what actually happened.”) (citation and
quotation marks omitted); State v. Muro, 695 N.W.2d 425, 432 (Neb. 2005)
(finding evidence insufficient to support mother’s conviction for child abuse
resulting in death where medical experts could not say that survival was
probable with immediate treatment for victim’s skull fracture: “The State
proved only the possibility of survival with earlier treatment. Such proof is
insufficient to satisfy even the lesser civil burden of proof by a preponderance of
15 In fact, the State failed to establish that Patel’s baby would have had even a fifty-percent chance of survival if she had provided medical care immediately after its birth. Cf. Mayhue v. Sparkman, 653 N.E.2d 1384, 1387 (Ind. 1995) (“Where a patient’s illness or injury already results in a probability of dying greater than 50 percent, an obvious problem appears. No matter how negligent the doctor’s performance, it can never be the proximate cause of the patient’s death. Since the evidence establishes that it is more likely than not that the medical problem will kill the patient, the disease or injury would always be the cause-in-fact.”).
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the evidence.”). In Ex parte Lucas, 792 So. 2d 1169 (Ala. 2000), the Supreme
Court of Alabama reversed a mother’s murder conviction premised on her
failure to provide medical services to her child:
The crucial issue is not whether Lucas had a duty to provide her injured child with medical treatment or whether she breached that duty. The evidence is sufficient to establish that Lucas, as the child’s mother, at some point owed a duty to seek medical treatment for her child. The evidence is arguably sufficient to establish that, at some point, Lucas breached her duty by failing to seek medical treatment sooner than she finally sought it. The compelling issue on the merits before this Court, however, is whether the evidence establishes that Lucas’s breach of duty caused her son’s death. Does the evidence establish that but for Lucas’s failure to seek prompt medical treatment for her son, her son’s life would have been saved or extended? Neither the emergency room pediatrician … nor the forensic pathologist … testified that the child would have lived or lived longer if he had received medical treatment promptly after he was battered. They were the State’s only medical experts.
Id. at 1171 (citation omitted).
[39] We are faced with a comparable lack of evidence here. Based on the foregoing,
we conclude that the State failed to prove beyond a reasonable doubt that
Patel’s failure to provide medical care resulted in her baby’s death. Therefore,
we vacate Patel’s conviction for class A felony neglect of a dependent and
remand to the trial court with instructions to enter judgment of conviction for
class D felony neglect of a dependent and resentence her accordingly.
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Section 2 – Indiana’s feticide statute does not apply to Patel’s conduct.
[40] In July 2013, the feticide statute read as follows:
A person who knowingly or intentionally terminates a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus commits feticide, a Class B felony. This section does not apply to an abortion performed in compliance with:
(1) IC 16-34; or (2) IC 35-1-58.5 (before its repeal).
Ind. Code § 35-42-1-6. A class B felony carries a sentencing range of six to
twenty years, with an advisory sentence of ten years. Ind. Code § 35-50-2-5.
[41] The charging information alleged in pertinent part,
Between the 9th day of July 2013, and July 13, 2013, … [Patel] did knowingly terminate a human pregnancy, to-wit: her own pregnancy, by ingesting the medication mifepristone and/or misoprostol, or equivalent medication under generic or alternate brand name, with the intention other than to produce a live birth or to remove a dead fetus, and the conduct of [Patel] was not an abortion performed in compliance with I.C. 16-34.
Appellant’s App at 219-20.
[42] As a preliminary matter, we address Patel’s contention that the feticide statute
is inapplicable to her because it requires the death of a fetus. The plain wording
of the statute indicates otherwise. See Herron, 729 N.E.2d at 1010 (“[I]t is just as
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important to recognize what a statute does not say as it is to recognize what it
does say. A court may not read into a statute that which is not the expressed
intent of the legislature.”). Patel’s argument relies primarily on the dictionary
definition of feticide, i.e., “the act of causing the death of a fetus.” Merriam
Webster Online Dictionary, http://www.merriam-webster.com/dictionary/
feticide (last visited June 30, 2016). But the statute merely defines the crime
and labels it feticide, in apparent disregard of that definition. The State
correctly observes that “Indiana does not define the crime of feticide as ‘the
killing of a fetus’” and that “[a] live birth undeniably constitutes a termination
of a pregnancy.” Appellee’s Br. at 49, 50. “[W]hen a government entity’s
intent reveals that a word is used in a manner different from its common
dictionary definition, the common dictionary definition must be disregarded.”
Bd. of Dirs. of Bass Lake Conservancy Dist. v. Brewer, 839 N.E.2d 699, 702 (Ind.
2005) (citation and quotation marks omitted). Another panel of this Court has
recognized that “the language of the [feticide] statute could lead to many
possibly absurd outcomes.” Shuai v. State, 966 N.E.2d 619, 629 n.15 (Ind. Ct.
App. 2012), trans. denied. In this case, the apparently absurd outcome is a
woman being convicted under both the neglect of a dependent statute, which
requires a live infant, and the feticide statute, which does not require a dead
infant.
Section 2.1 – Standard of review
[43] Patel raises several additional challenges to the applicability of the feticide
statute, most of which involve statutory interpretation. “The interpretation of a
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statute is a legal question, which we review de novo.” Ashley v. State, 757
N.E.2d 1037, 1039 (Ind. Ct. App. 2001). “The first and often last step in
interpreting a statute is to examine the language of the statute. We will not,
however, interpret a statute that is clear and unambiguous on its face.” Id. at
1040 (citation omitted). “Our role on appeal is to interpret and apply the
statute, and absent some ambiguity, we may not substitute language that is not
there.” Id.
[44] “[D]etermining legislative intent is foremost in construing any statute and,
wherever possible, this court will give deference to that intent.” Alvers v. State,
489 N.E.2d 83, 88 (Ind. Ct. App. 1986), trans. denied. “The best evidence of
legislative intent is surely the language of the statute itself, and courts strive to
give the words in a statute their plain and ordinary meaning.” Prewitt v. State,
878 N.E.2d 184, 186 (Ind. 2007). “Indispens[a]ble to ascertaining the
legislature’s intent is a consideration of the goals sought to be achieved and the
reasons and policy underlying a statute. Consequently, it is necessary to view a
statute within the context of the entire act, rather than in isolation, when
construing the statute.” Alvers, 489 N.E.2d at 88 (citation omitted).
[45] Penal statutes, such as those at issue here, must be strictly construed against the
State. Id. at 89. “Criminal statutes cannot be enlarged by construction,
implication, or intendment beyond the fair meaning of the language used.”
Herron, 729 N.E.2d at 1010. “Even though an act may fall within the spirit of a
statute, it will not constitute a crime unless it is also within the words of the
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statute.” Id. “However, [criminal] statutes must not be construed so narrowly
as to exclude cases fairly covered thereby.” Alvers, 489 N.E.2d at 89.
Section 2.2 – The legislature did not intend for the feticide statute to apply to illegal abortions.
[46] As mentioned above, the feticide statute provides in pertinent part that it “does
not apply to an abortion performed in compliance with … IC 16-34[.]” Ind.
Code § 35-42-1-6. Title 35 of the Indiana Code, in which the feticide statute
appears, is entitled Criminal Law and Procedure. Title 16 is entitled Health,
and Article 16-34 is entitled Abortion. Indiana Code Section 16-18-2-1 defines
abortion for purposes of Title 16 as “the termination of human pregnancy with
an intention other than to produce a live birth or to remove a dead fetus. The
term includes abortions by surgical procedures and by abortion inducing
drugs.”16 Indiana Code Section 16-34-2-1(a) provides that “[a]bortion shall in
all instances be a criminal act, except when performed under” certain specified
16 Indiana Code Section 16-18-2-1.6 defines “abortion inducing drug” in pertinent part as “a medicine, drug, or substance prescribed or dispensed with the intent of terminating a clinically diagnosable pregnancy with the knowledge that the termination will, with reasonable likelihood, cause the death of the fetus.”
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circumstances. Patel effectively concedes that the termination of her pregnancy
was an abortion that was not performed under those circumstances.17
[47] Nevertheless, she asserts that the feticide statute “is simply not the law that
governs unlawful abortions; rather, unlawful abortions are governed by the
Unlawful Abortion Statute, Ind. Code § 16-34-2-7, which defines various
offenses and sentences for abortions proscribed by law.” Appellant’s Br. at 30.
She claims that this matter was resolved by the Indiana Supreme Court in Baird
v. State, 604 N.E.2d 1170 (Ind. 1992), cert. denied (1993), in which the defendant
strangled his wife, who was six months pregnant. The fetus apparently died in
utero. Baird was convicted of murder and feticide. On appeal, he argued that
the feticide statute “was enacted to punish those who perform illegal abortions
and cannot reasonably be applied to a crime in which the sole act was the
killing of a pregnant woman and in which there was no evidence that the
defendant intended to harm the fetus.” Baird, 604 N.E.2d at 1189. Our
supreme court disagreed:
17 Because we resolve this issue on other grounds, we need not address Patel’s argument that applying the feticide statute to women who choose abortions would violate the Indiana and U.S. Constitutions, an argument that she raises for the first time in this appeal. We do note, however, that the Indiana Supreme Court recently expressed its “view that judicial intervention to address constitutional claims for the first time at the appellate level is not appropriate, especially … where for the most part Appellants’ claims are dependent on potentially disputed facts.” Layman v. State, 42 N.E.3d 972, 976 (Ind. 2015). Also, in Clinic for Women, Inc. v. Brizzi, 837 N.E.2d 973 (Ind. 2005), the court left open the question of whether Article 1, Section 1 of the Indiana Constitution confers the right to an abortion. And in Planned Parenthood of Southeastern Pennsylvania v. Casey, the U.S. Supreme Court confirmed “the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health.” 505 U.S. 833, 846 (1992).
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The feticide statute is contained in chapter 1 of article 42, Homicide, and its language exempts legal abortions. The chapter which contains the provisions regulating abortion is I.C. 35-158.5. Section 4 of that chapter makes it a Class C felony to knowingly or intentionally perform an abortion not expressly provided for in that chapter (or a Class A misdemeanor for a physician who performs an abortion intentionally or knowingly in violation of section 2(1)(C) or section 2.5 of that chapter). A proper construction of the feticide statute, therefore, requires that it be viewed not as an illegal abortion statute, but as an extension of the laws of homicide to cover the situation in which the victim is not a “human being” as defined by I.C. 35-41-1-14 (an individual who has been born and is alive), but a fetus.
Id.
[48] Today, the feticide statute is still contained in Chapter 1 of Article 42,
Homicide, and its language still exempts legal abortions. But in 1993, after our
supreme court decided Baird, our legislature recodified the provisions regulating
abortion under Chapter 16-34-2, entitled Requirements for Performance of
Abortion; Criminal Penalties. We find this to be a strong indication of
legislative intent to draw an even clearer distinction between feticide and illegal
abortions.
[49] The successor to Indiana Code Section 35-1-58.5-4, Indiana Code Section 16
34-2-7, read as follows in July 2013:
(a) Except as provided in subsections (b) and (c), a person who knowingly or intentionally performs an abortion not expressly provided for in this chapter commits a Class C felony [punishable by two to eight years of imprisonment under Indiana Code Section 35-50-2-6]. Court of Appeals of Indiana | Opinion 71A04-1504-CR-166 | July 22, 2016 Page 33 of 42
(b) A physician who performs an abortion intentionally or knowingly in violation of section 1(a)(1)(C) or 4 of this chapter [requiring written consent of the woman’s parent or guardian] commits a Class A misdemeanor [punishable by up to one year of imprisonment under Indiana Code Section 35-50-3-2].
(c) A person who knowingly or intentionally performs an abortion in violation of section 1.1 of this chapter [requiring informed consent and fetal ultrasound] commits a Class A infraction [subject to a maximum judgment of $10,000 under Indiana Code Section 34-28-5-4].
(d) A woman upon whom a partial birth abortion is performed may not be prosecuted for violating or conspiring to violate section 1(b) of this chapter.[18]
Patel observes that if the feticide statute were to apply to unlawful abortions,
“each and every one of these would automatically constitute Feticide, a Class B
felony, punishable by 6-20 years imprisonment.” Appellant’s Br. at 31 (bold
emphasis omitted). She argues, “Thus, a prosecutor would have absolute
discretion to bring a Feticide charge and secure a sentence of up to 20 years, as
compared to an infraction, misdemeanor, or lesser-class felony as set forth in
the Unlawful Abortion Statute.” Id.
[50] We cannot conclude that this would be permissible under Baird. We
acknowledge that, unlike Patel’s baby, the victim’s fetus in Baird was not
18 Indiana Code Section 16-34-2-1(b) provides, “A person may not knowingly or intentionally perform a partial birth abortion unless a physician reasonably believes that: (1) performing the partial birth abortion is necessary to save the mother’s life; and (2) no other medical procedure is sufficient to save the mother’s life.”
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delivered alive or as the result of an abortion. But we read our supreme court’s
opinion in Baird as standing for the unremarkable proposition that illegal
abortions are governed by “the provisions regulating abortion” (now in Title
16), and not the feticide statute (still in Title 35). Since the legislature enacted
the feticide statute in 1979, it has been used to prosecute third parties who
knowingly terminate pregnancies by using violence against the expectant
mother without her consent.19 See, e.g., Shane v. State, 716 N.E.2d 391 (Ind.
1999) (shooting); Hicks v. State, 690 N.E.2d 215 (Ind. 1997) (shooting); Baird,
604 N.E.2d 1170 (strangulation); Perigo v. State, 541 N.E.2d 936 (Ind. 1989)
(beating with baseball bat); Abbott v. State, 535 N.E.2d 1169 (Ind. 1989)
(shooting).20 This is the first case that we are aware of in which the State has
used the feticide statute to prosecute a pregnant woman (or anyone else) for
19 Other courts “have recognized that the consent of the mother is the crucial element that distinguishes feticide from abortion.” Douglas Curran, Note, Abandonment and Reconciliation: Addressing Political and Common Law Objections to Fetal Homicide Laws, 58 Duke L.J. 1107, 1134 (2009). See, e.g., State v. Holcomb, 956 S.W.2d 286, 291-92 (Mo. Ct. App. 1997) (concluding that abortion statutes “assume the actual or apparent consent of the mother” and that fetal homicide statutes govern “unconsented (by the mother) killing of a preborn infant, in the context of a physical assault on the mother”), trans. denied; People v. Shum, 512 N.E.2d 1183, 1199-1200 (Ill. 1987) (concluding that feticide statute does not govern abortion but “seeks to protect a pregnant mother and her unborn child from the intentional wrongdoing of a third party”), cert. denied (1988). 20 In 2009, the legislature enacted a statute authorizing a sentencing enhancement of six to twenty years if the State “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.” Ind. Code § 35-50-2-16(a). “[E]nhancement 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.” Ind. Code § 35-50-2-16(d). This statute is further evidence of the legislature’s intent that feticide be viewed as a crime committed against a pregnant woman and not as a crime committed by a pregnant woman.
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performing an illegal abortion, as that term is commonly understood.21 We find
this to be an abrupt departure from the foregoing cases as well as the much
more recent Kendrick v. State, in which the State used the feticide statute to
prosecute a bank robber who shot a pregnant teller in the abdomen. 947
N.E.2d 509 (Ind. Ct. App. 2011), trans. denied, cert. denied (2012). In its
appellate brief in Kendrick, the State “ma[de] clear that the victim of feticide is
the mother (the one whose pregnancy has been terminated).” Id. at 514 n.7.
The State’s about-face in this proceeding is unsettling, as well as untenable
under Baird.
[51] Furthermore, we cannot conclude that the legislature intended for the specific
provisions and lesser penalties in Indiana Code Section 16-34-2-7 to be
subsumed by the general and more punitive feticide statute. See Riley v. State,
711 N.E.2d 489, 495 (Ind. 1999) (“[W]e do not presume that the legislature
intended language used in a statute to be applied illogically or to bring about an
unjust or absurd result[.]”); Alvers, 489 N.E.2d at 88 (noting that courts may
21 In Shuai, 966 N.E.2d 619, the defendant was charged with murder and attempted feticide after she ingested rat poison in an attempt to kill herself and her late-term fetus, which was delivered alive via caesarean section and later died as a result of the poison. On appeal from the denial of her motion to dismiss the charges, Shuai argued that the feticide statute was ambiguous as applied to her and that it did not apply to pregnant women in relation to their own fetuses. The majority explicitly rejected Shuai’s first argument and implicitly rejected the second. See id. at 629 (“Nor can we find the feticide statute ambiguous as applied here, as it is undisputed Shuai’s pregnancy was terminated when A.S. was born, and the State seems prepared to argue it was Shuai’s intent to end her pregnancy when she ingested rat poison.”). The State notes that the legislature has not amended the feticide statute since Shuai was decided and argues that this alleged acquiescence shows that the majority “correctly applied the feticide statute in accord with the legislative intent[,]” i.e., that it may apply “to a woman with regard to her own pregnancy[.]” Appellee’s Br. at 35. At its core, Shuai was a case of attempted suicide with the termination of a pregnancy as a collateral consequence. Because the majority did not specifically address whether the feticide statute applies to illegal abortions, we do not find Shuai persuasive or controlling here.
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“look beyond the statute’s language to the titles and headings of the statute” to
determine legislative intent). We find it significant that although the definition
of abortion in Title 16 and the definition of feticide in Title 35 are nearly
identical, only the former mentions surgical procedures and abortion-inducing
drugs. Also, we find it significant that the feticide statute does not say that it
applies to an abortion performed in violation of Chapter 16-34. See Herron, 729
N.E.2d at 1010 (“[I]t is just as important to recognize what a statute does not
say as it is to recognize what it does say. A court may not read into a statute
that which is not the expressed intent of the legislature.”).
[52] The State directs us to Indiana Code Section 16-34-2-3, which provides in
relevant part as follows:
(a) All abortions performed on and after the earlier of the time a fetus is viable or the time the postfertilization age of the fetus is at least twenty (20) weeks shall be:
(1) governed by section 1(a)(3) and 1(b) of this chapter;
(2) performed in a hospital having premature birth intensive care units, unless compliance with this requirement would result in an increased risk to the life or health of the mother; and
(3) performed in the presence of a second physician as provided in subsection (b).
(b) An abortion may be performed after the earlier of the time a fetus is viable or the time the postfertilization age of the fetus is at least twenty (20) weeks only if there is in attendance a physician,
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other than the physician performing the abortion, who shall take control of and provide immediate care for a child born alive as a result of the abortion. During the performance of the abortion, the physician performing the abortion, and after the abortion, the physician required by this subsection to be in attendance, shall take all reasonable steps in keeping with good medical practice, consistent with the procedure used, to preserve the life and health of the viable unborn child. However, this subsection does not apply if compliance would result in an increased risk to the life or health of the mother.
(c) Any fetus born alive shall be treated as a person under the law, and a birth certificate shall be issued certifying the child’s birth even though the child may subsequently die, in which event a death certificate shall be issued. Failure to take all reasonable steps, in keeping with good medical practice, to preserve the life and health of the live born person shall subject the responsible persons to Indiana laws governing homicide, manslaughter, and civil liability for wrongful death and medical malpractice.
[53] The State contends that this statute
demonstrates that the legislature never intended all abortion attempts to be subject only to the unlawful abortion statute in Title 16. At the very least, under the circumstances of this case it is clear that the legislature did not intend the unlawful abortion statute to be the sole avenue of prosecution. The evidence shows that [Patel’s] baby was on or past the age of viability, [Patel] did not induce the termination of her pregnancy in a hospital with a premature birth intensive care unit or in the presence of a second physician who would be available to care for the baby, the baby was born alive, and [Patel] was the sole person responsible for failing to take any, much less all, reasonable steps to attempt to preserve his life and health. As such, she was subject to the Indiana laws governing homicide, which include the feticide statute.
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Appellee’s Br. at 45.
[54] Indiana Code Section 16-34-2-3(c) is the provision in Chapter 16-34-2 that most
closely addresses the circumstances of Patel’s abortion, i.e., the abortion of a
viable fetus that results in a live birth. But the phrases “physician performing
the abortion,” “good medical practice,” “medical malpractice,” and
“responsible persons,” as well as the wording of the statute as a whole, indicate
that the legislature intended for any criminal liability to be imposed on medical
personnel, not on women who perform their own abortions, which brings us to
Patel’s next argument.
Section 2.3 – The legislature did not intend for the feticide statute to apply to women who have abortions.
[55] Patel traces the history of abortion legislation in Indiana, noting that “the first
abortion statute in 1835 did not punish women who had abortions[.]”
Appellant’s Br. at 36.22 In 1881, the legislature enacted a misdemeanor statute23
22 See 1835 Ind. Acts ch. XLVII, § 3 (“That every person who shall wilfully administer to any pregnant woman, any medicine, drug, substance or thing whatever, or shall use or employ any instrument or other means whatever, with intent thereby to procure the miscarriage of any such woman, unless the same shall have been necessary to preserve the life of such woman, shall upon the conviction, be punished by imprisonment in the county jail any term of time not exceeding twelve months, and be fined any sum not exceeding five hundred dollars.”). 23 See 1894 Ind. Acts ch. 651, § 1997 (“Every woman who shall solicit of any person any medicine, drug, or substance or thing whatever, and shall take the same, or shall submit to any operation or other means whatever, with intent thereby to procure a miscarriage, except when by a physician for the purpose of saving the life of mother or child, shall be fined not more than $500 nor less than ten dollars, and imprisoned in the county jail not more than twelve months or less than 30 days, and any person who in any manner whatever unlawfully aids or assists any such woman to be a violation of this section, shall be liable to the same penalty.”).
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that punished women who had abortions, but it “was only applied to third
parties who performed or procured the miscarriage.” Shuai, 966 N.E.2d at 635
(Riley, J., dissenting). Patel also notes that in 1977, four years after the U.S.
Supreme Court legalized abortion in Roe v. Wade, 410 U.S. 113 (1973), the
legislature repealed the misdemeanor statute and also removed language from a
1973 statute that made it a crime for persons to knowingly aid or abet the
performance of an abortion. 1977 Ind. Acts ch. 335, §§ 21, 1.
[56] In a footnote in her brief, Patel asserts that “English common law afforded
pregnant women immunity from prosecution for their own abortions” and
notes that the Shuai majority rejected a similar assertion regarding the actions of
a pregnant woman against her own fetus. Appellant’s Br. at 40 n.11 (citing
Shuai, 966 N.E.2d at 631). Patel observes that we may decide the issue
differently, should we reach it, and claims that “[s]pace limitations preclude
offering arguments on that issue beyond the adoption by reference of Judge
Riley’s analysis” in her Shuai dissent. Id. This tangential reference to common
law immunity is insufficient to preserve the issue on appeal, especially since it
was not raised before the trial court. See Hape v. State, 903 N.E.2d 977, 997
(Ind. Ct. App. 2009) (stating that a party may not raise an argument for the first
time on appeal), trans. denied; see also Bigler v. State, 732 N.E.2d 191, 197 (Ind.
Ct. App. 2000) (“[A] party may not present an argument entirely by
incorporating by reference from a source outside the appellate briefs.”), trans.
denied. In any event, if common law immunity ever did exist in Indiana, it was
eliminated by the passage of the 1881 misdemeanor statute.
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[57] That being said, we are persuaded by Patel’s argument that the legislature’s
repeal of the 1881 statute and its amendment of the 1973 statute “evince an
unmistakable legislative decision not to prosecute a woman under the abortion
laws based on her own abortion.” Appellant’s Br. at 37. Moreover, as
mentioned above, the legislature has exempted pregnant women from
prosecution for having partial birth abortions, which are prohibited in most
circumstances. Ind. Code § 16-34-2-7. And just this year, the legislature
enacted a provision exempting pregnant women from prosecution for abortions
performed solely because of the fetus’s sex, race, color, national origin, or
ancestry, as well as for abortions performed solely because of certain fetal
disorders or disabilities, all of which have been prohibited. See Ind. Code § 16
34-4-9(b) (“A pregnant woman upon whom an abortion is performed in
violation of this chapter may not be prosecuted for violating or conspiring to
violate this chapter.”) (effective July 1, 2016).
[58] The State argues that these exemptions demonstrate “that the legislature knows
how to create an exception when it intends one. Tellingly, however, the
legislature has never included an exception in the feticide statute to prevent it
from being applied to the pregnant woman herself.” Appellee’s Br. at 35. We
think that it is illogical to presume that our legislators specifically exempted
pregnant women from prosecution for those types of abortion they found to be
most odious while allowing prosecution of pregnant women for other types of
abortions pursuant to the feticide statute. And given that the legislature
decriminalized abortion with respect to pregnant women only two years before
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it enacted the feticide statute, we conclude that the legislature never intended
the feticide statute to apply to pregnant women in the first place and therefore
never saw the need to create an exception. Accordingly, we vacate Patel’s
feticide conviction.

Outcome:

We vacate Patel’s convictions for class A felony neglect of a dependent and feticide. We remand to the trial court with instructions to enter judgment of conviction for class D felony neglect of a dependent and resentence Patel accordingly. Vacated and remanded.

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