Mathias, J.
In April 2023, Nicholas A. Blackburn, with fentanyl and a fentanyl metabolite in his blood, crashed his vehicle into the back of Brittany Wilson’s vehicle in Muncie. Wilson was twenty to twenty-four weeks pregnant at the time. The crash killed Wilson. At the emergency room, doctors observed that Wilson’s unborn child had a heartbeat but was in distress; they performed an emergency C-section and immediately transported the child to neonatal specialists. However, the child died soon afterward.
The State charged Blackburn in relevant part with two counts of Level 4 felony causing death when operating a vehicle with a schedule I or II controlled substance or its metabolite in his blood, with one count based on Wilson’s death and the other based on the death of her child. Following the jury’s verdict of guilty on both counts, Blackburn raises the following two issues for our review: Whether the trial court abused its discretion when it admitted the analysis of his blood draw into evidence. Whether the State presented sufficient evidence to show that Blackburn caused the death of another “person” based on the death of Wilson’s child.
We conclude that the trial court did not err in the admission of the evidence. We also conclude that the State presented sufficient evidence from which a reasonable fact-finder could conclude that Wilson’s child was a person. We therefore affirm his convictions.
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We first address Blackburn’s argument that the trial court erred when it admitted the analysis of his blood draw into evidence.
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Indiana Code section 9-30-7-3(a) requires a law enforcement officer to “offer a portable breath test or chemical test to any person who the officer has reason to believe operated a vehicle that was involved in a fatal accident or an accident involving serious bodily injury.” Subsection (a)(2) of that statute adds: “If . . . the results of a portable breath test do not indicate the presence of alcohol but the law enforcement officer has probable cause to believe the person is under the influence of a controlled substance or another drug” the officer “shall offer a chemical test to the person.” I.C. § 9-30-7-3(a)(2) (emphasis added). As we have explained, subsection (a)(2) is about “compel[ling] law enforcement officers not to conclude their investigation when they receive a negative portable breath test result and also have probable cause to believe that the driver is under the influence of something other than alcohol.” Pedigo v. State, 146 N.E.3d 1002, 1011-12 (Ind. Ct. App. 2020), trans. denied. Nothing about the statute as a whole “prohibits a law enforcement officer from offering a subsequent chemical test” if a portable breath test is offered first and returns a negative result. Id. at 1011 (emphasis in original).
There is no question that Deputy Milholland had reason to believe that that statute applied to Blackburn. There is no question that she informed Blackburn of that statute. And, while she first offered Blackburn a portable breath test that returned negative results for alcohol intoxication, there is also no question that Blackburn then twice consented to a chemical test by way of the blood draw.
Nonetheless, relying on a panel opinion from our Court in Hannoy v. State, Blackburn contends that Deputy Milholland needed probable cause that he was under the influence of a controlled substance before she could offer him a chemical test. 789 N.E.2d 977 (Ind. Ct. App.), aff’d on reh’g, 793 N.E.2d 1109 (Ind. Ct. App. 2003), trans. denied. Blackburn is incorrect.
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Further, Blackburn does not discuss the Pedigo panel’s analysis of section 9-30-7-3, which makes clear that an officer can always ask a driver to submit to a chemical test. 146 N.E.3d at 1011-12. As that is what Deputy Milholland did here, and as Blackburn expressly consented to the blood draw, the trial court properly admitted the results of the blood draw into evidence.
We thus turn to Blackburn’s argument that the State failed to present sufficient evidence to support his conviction resulting from the death of Wilson’s child.
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Indiana Code section 9-30-5-5(a)(2) makes it a Level 4 felony when a person causes the death “of another person” when operating a vehicle with a schedule I or II controlled substance or its metabolite in the person’s blood. In relevant part, a “[p]erson” means “an individual.” I.C. § 9-13-2-124. The parties agree that, at least for our purposes, an “individual” must mean that Wilson’s child was “viable.” Appellant’s Br. at 14-16; Appellee’s Br. at 13.
Our Court has previously recognized that
by definition, a viable fetus is an “individual.” Indeed, the viability of the fetus proves its status as a separate and distinct entity. . . . [O]ur legislature has defined the term “viability” to mean “the ability of a fetus to live outside the mother’s womb.” I.C. § 16-18-2-365. A viable fetus is a fetus that can live independently from its mother. Thus, our legislature has made it an act of murder for a person to knowingly or intentionally kill a fetus that has attained viability. See Ind. Code § 35-42-1-1(4) [(2005)].
Horn v. Hendrickson, 824 N.E.2d 690, 700 (Ind. Ct. App. 2005) (emphasis added; footnote omitted).
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Holderman testified that an unborn child below twenty weeks of gestational age is usually considered “a non-viable baby if it is born.” Id. at 147. Holderman further testified that, “[a]nything above twenty weeks, if they are able to get that baby out, then it does have a chance of living . . . .” Id. (emphases added). Similarly, in his testimony, Dr. Hayes stated that a gestational age of twenty-four weeks or higher comes with “a good chance of survival,” with the chances becoming “much less” prior to twenty-four weeks. Id. at 193. But Dr. Hayes did not contradict Holderman’s testimony that, between twenty and twenty-four weeks of gestational age, the child “ha[s] a chance.” Id. at 147. Holderman further testified that the hospital to which Wilson was transported had “very good care for premature babies.” Id.
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A reasonable fact-finder could conclude from that evidence that Wilson’s child was viable at the time of the crash. The child was at least twenty weeks gestational age, which came with an undisputed chance of survival outside of the womb. The testimony was equally clear that nonviability means a gestational age below twenty weeks. And Wilson was transported to a hospital skilled in the care of premature babies. Thus, the State presented sufficient evidence to show that Wilson’s child was an individual under Indiana Code section 9-13-2-124.
Still, the dissent appears to conclude that clinical autopsy evidence or an explicit examination by a physician on a specific fetus’s development is required in order for the State to demonstrate that a prematurely born child is an “individual” under Indiana Code section 9-13-2-124. Certainly such evidence would be compelling. But to date, neither our Supreme Court nor the Indiana General Assembly has mandated that such evidence is required in order for a reasonable fact-finder to reach a conclusion on whether a prematurely born child is an “individual” under Indiana Code section 9-13-2-124.
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Finally, we address Blackburn’s and the dissent’s argument that the evidence is insufficient to support Blackburn’s conviction because a child’s “chance” at survival invites speculation as to whether the child could in fact live independently of the mother…. But the question for Blackburn is not the statutory definition of a “dependent”; it is the statutory definition of an “individual.” Indeed, Blackburn’s brief to our Court does not rely on neglect-of-a-dependent authority.
Moreover, we conclude that Blackburn and the dissent misunderstand the State’s evidence. The difference between viability and nonviability of a prematurely born child is having a chance of survival at all. To date, our best medical efforts for prematurely born but viable children only affect the odds of survival. See Tr. Vol. 2, pp. 147, 192-93. What matters for purposes of Blackburn’s conviction is not what the odds here were, but that there was any chance of the child’s survival at the time of Blackburn’s causative criminal conduct. And the evidence was clear and unambiguous that this child had a chance.
We therefore affirm Blackburn’s conviction for the death of Wilson’s child.
For all of these reasons, we affirm Blackburn’s convictions.
Affirmed.
Felix, J., concurs.
May, J., concurs in part and dissents in part with a separate opinion.
May, J., concurring in part and dissenting in part.
I concur with the majority’s determination regarding the admission of evidence, but I cannot concur with the majority’s conclusion that the State presented sufficient evidence of probative value to prove beyond a reasonable doubt that Wilson’s fetus had attained viability.
The parties and the majority seem to agree the State had an obligation to prove Wilson’s fetus had the capability of living independent of Wilson’s body. Slip op. at para. 19-20. The testimony in this case demonstrated a “theoretical chance of viability” exists for every fetus over twenty weeks of gestation. Because a theoretical chance of viability is not the same as the existence of viability, and because a theoretical chance that an element exists cannot constitute proof beyond a reasonable doubt, I must dissent.
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“It is well-settled that proof of guilt beyond a reasonable doubt does not exist where the evidence does no more than . . . establish a possibility or suspicion of guilt.” Wilson v. State, 455 N.E.2d 1120, 1122 (Ind. 1983) (citing Briscoe v. State, 388 N.E.2d 638 (Ind. Ct. App. 1979)). In Briscoe, our court held a “nonexclusive opportunity to commit the crime” is not enough to support of a conviction because it demonstrates only a possibility. Briscoe, 388 N.E.2d at 645. A theoretical chance of survival is similarly just a possibility of viability. The majority’s holding that a theoretical chance of survival constitutes proof of viability beyond a reasonable doubt is irreconcilable with Briscoe, which the majority does not cite and does not address. We similarly held that medical testimony establishing only a possibility that an element exists is insufficient to prove that element beyond a reasonable doubt in Patel v. State, 60 N.E.3d 1041, 1054 (Ind. Ct. App. 2016). Although the majority distinguishes Patel as a causation case, the underlying principle is not element-specific. The rule of law stated in Wilson applies without limitation to the type of element at issue: a possibility does not prove an element beyond a reasonable doubt. The majority offers no authority for the position that possibility-level evidence is insufficient for causation but sufficient for personhood, and caselaw forecloses that distinction.
Because the State did not prove beyond a reasonable doubt that Wilson’s fetus had the ability to live outside the mother’s womb – as opposed to a theoretical chance of doing so – I cannot vote to affirm Blackburn’s Level 4 felony conviction on Count 3. I respectfully dissent.