Crone, J.
Thirty-two-year-old Purvi Patel managed her father’s restaurant in Mishawaka. A relationship with a restaurant employee resulted in her pregnancy. In June 2013, she purchased mifepristone and misoprostol online from a Hong Kong pharmacy and used those drugs to terminate the pregnancy at home. On the evening of July 13, she delivered a live baby of approximately twenty-five to thirty weeks gestation who died shortly after birth. She drove to the restaurant, put the baby in a nearby dumpster, and drove herself to the emergency room.
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. The State also charged Patel with class B felony feticide, alleging that she knowingly terminated her pregnancy with the intention other than to produce a live birth or to remove a dead fetus. A jury found her guilty as charged. 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.
On appeal, Patel argues that her neglect of a dependent conviction should be overturned because it is not supported by sufficient evidence. She also argues that her feticide conviction should be overturned because the feticide statute is either inapplicable or unconstitutional as applied to her.
As for the neglect conviction, we hold that the State presented sufficient evidence for a jury to find that Patel was subjectively aware that the baby was born alive and that she knowingly endangered the baby by failing to provide medical care, but that the State failed to prove beyond a reasonable doubt that the baby would not have died but for Patel’s failure to provide medical care. Therefore, we vacate Patel’s class A felony conviction 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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… 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 provide medical care immediately after its birth. 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).
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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.
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.
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. … Patel’s argument relies primarily on the dictionary definition of feticide, i.e., “the act of causing the death of a fetus.” … 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.” …
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… 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.” … 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) …
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.” … 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 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.
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Vacated and remanded.
Vaidik, C.J., and Bailey, J., concur.