Najam, J.
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 recordings as evidence against White at the provisional custody hearing.
. . . .
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
Following a hearing, the trial court ruled that all of the evidence included in the joint stipulation was admissible at trial.
. . . .
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 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. . . . 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. . . . . .
(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[.]” [Footnote omitted.] Appellant’s App. at 702. . . . .
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.
. . .
. . . 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. . . . And we hold that the probative value of the 804(b)(5) evidence outweighed the danger of unfair prejudice to White.
KIRSCH, J., and MAY, J., concur.