OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Tyler White appeals his conviction for murder following a jury trial. He presents the following issues for our review:

We affirm.1

FACTS AND PROCEDURAL HISTORY

White and Amy Meyer began dating in 2005, got married, and, in June 2008, Amy gave birth to a son, M.W. White was verbally abusive to Amy throughout their relationship, and the couple separated shortly after M.W.'s birth. In July, Amy moved in with her boyfriend, Lee Flueckiger. White filed for divorce shortly thereafter.2

White and Amy shared custody of M.W. pending the provisional custody hearing, which was scheduled for October 28, 2009. White continued his verbal abuse of Amy, and he and Amy frequently argued regarding the parenting time schedule. Amy began using her cell phone to record the custody exchanges, and she intended to use those recordings as evidence against White at the provisional custody hearing. During one exchange when Flueckiger was present, White "pointed his finger at [Flueckiger] like he was shooting a gun." Transcript at 554. In March 2009, White purchased a handgun, and he carried that gun on his person most of the time thereafter.

On October 27, one day before the provisional custody hearing, Amy arrived at White's parents' house, where White was living, to pick up M.W. White asked Amy whether he could keep M.W. for an additional thirty minutes, but Amy denied that request and told White that she wanted to leave with M.W. immediately. An argument ensued, and White shot Amy twice in the abdomen. White then threw Amy's cell phone on the ground and shot it. White went inside and washed his hands before calling 911.

When police arrived, they found two unloaded handguns on the ground near Amy. One gun belonged to White, and the second gun was later determined to belong to White's close friend Matt Reinhard. Reinhard had reported that gun stolen in April 2009. White told police that Amy had pointed a gun at him and that he had shot her in self-defense. Paramedics arrived and found that Amy had no pulse. Attempts to resuscitate her were unsuccessful, and Amy, who was eleven or twelve weeks pregnant at the time, died of the gunshot wounds. The fetus died as a result of Amy's death.

Deputy Scott Holliday with the Wells County Sheriff's Department arrested White and transported him to the Wells County jail. Detective James Paxton advised White of his Miranda rights, which White waived, and Detective Paxton proceeded to take White's statement. White maintained that Amy had pointed a gun at him and that he had shot her in self-defense.

At the jail, White was placed in a padded room, as a precaution, while he was being monitored for suicidal ideations. After two or three days, Diane Sweat, a registered nurse working at the jail, examined White to determine whether he could be moved into the jail's general population. Guard Taneka Garrett was also present. In the course of that interview, White, referring to Amy, said, "The bitch got what she deserved." Id. at 407.

The State charged White with murder. In preparing for trial, the parties asked the trial court to conduct a hearing to determine the admissibility of certain evidence under Evidence Rules 404(b) and 804(b)(5). The parties stipulated to the following evidence to be analyzed by the trial court under Evidence Rule 804(b)(5):

Appellant's App. at 588-89. Following a hearing, the trial court ruled that all of the evidence included in the joint stipulation was admissible at trial. In particular, the trial court found that:

Appellant's App. at 703.

In January 2011, the State filed a second count, feticide. And in May, the State filed a Notice of Intent to Seek Enhanced Penalty Based Upon Termination of Human Pregnancy under Indiana Code Section 35-50-2-16 (the "feticide enhancement statute"). The State then dismissed the feticide count.

The jury trial was bifurcated between the murder count and the feticide enhancement. The jury found White guilty of murder and, in the second phase of the trial, the jury found that the State had proved beyond a reasonable doubt that the murder had caused the death of Amy's fetus. The trial court entered judgment accordingly and imposed a sentence of sixty years for murder, enhanced by ten years for the feticide enhancement, for an aggregate executed sentence of seventy years. This appeal ensued.

DISCUSSION AND DECISION

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

White first contends that the trial court "misapplied" Evidence Rule 804(b)(5), the "forfeiture by wrongdoing" hearsay exception. Evidence Rule 804(b) enumerates exceptions to the hearsay rule where a declarant is unavailable as a witness, and Rule 804(b)(5) permits a "statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness for the purpose of preventing the declarant from attending or testifying." White maintains that the State did not prove by a preponderance of the evidence that his purpose in shooting Amy was to prevent her from testifying.

"[Indiana Evidence Rule 804(b)(5) ] was not in the original Evidence Rules, but 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, 122 S.Ct. 219, 151 L.Ed.2d 156 (2001), the Court of Appeals for the Second Circuit explained the forfeiture by wrongdoing hearsay exception as follows:

(Some emphases added). Here, the parties agree that a preponderance of the evidence standard applies. See also Indiana Practice § 804.205 (2011 pocket part at 144).

Following a hearing, the trial court found that the State had proven by a preponderance of the evidence that Amy was unavailable to testify at White's murder trial "as the result of the defendant engaging in wrongdoing that was intended to and did procure [Amy's] unavailability for the purpose of preventing her from attending or testifying at a hearing[.]"4 Appellant's App. at 702. And the trial court found that the probative value of the 804(b)(5) evidence outweighed the danger of unfair prejudice to White by its admission. Because the only evidence submitted for the trial court's review at the admissibility hearing was by a paper record, including the stipulation of evidence for the trial court's consideration, we are in the same position as the trial court and "therefore are able to independently assess" the evidence relevant to the Rule 804(b)(5) determination "without invading the province" of the trial court. See Bunch v. State, 964 N.E.2d 274, 293 (Ind.Ct.App. 2012), trans. denied; see also State v. Bisard, 973 N.E.2d 1229, 1237 (Ind.Ct.App. 2012), trans. pending. We note, however, following the federal case law, that a clearly erroneous standard of review would apply where a trial court considers evidence by live testimony. See Dhinsa, 243 F.3d at 654.

Again, White contends that the State failed to prove by a preponderance of the evidence that White procured Amy's unavailability for the purpose of preventing her from testifying. The State asserted two arguments on this issue at the admissibility hearing. First, the State alleged that White killed Amy to prevent her from testifying at his murder trial. Second, the State alleged that White killed Amy to prevent her from testifying at the provisional custody hearing, which was scheduled for the day after the shooting. We hold that the preponderance of the evidence supports a determination that White killed Amy to prevent her from testifying at the provisional custody hearing. Accordingly, we need not address the State's first theory.

In support of his contention that White did not kill Amy to prevent her from testifying at the provisional custody hearing, White asserts that such a theory "ma[kes] no sense." Brief of Appellant at 12. White points out that the hearing was "provisional" and would not have been the final custody determination. Id. And White states that there was no evidence that he had wanted to continue the hearing. Finally, White maintains that "unlike an essential witness in a criminal case, [White] could not automatically prevail in the provisional custody hearing by killing Amy. To the contrary, shooting [M.W.]'s mother would almost certainly result in [M.W.'s] placement somewhere else." Id. at 12-13. We are not persuaded.

The State presented ample evidence that White and Amy had fought bitterly over custody of M.W. since their separation. Immediately preceding the shooting, White had requested an additional thirty minutes of parenting time with M.W., which Amy denied. An argument ensued, which ended with White shooting and killing Amy. In her petition for a provisional custody order, Amy had requested full custody of M.W. pending the final decree. At the 804(b)(5) hearing, the State presented evidence that Amy had been using her cell phone to record custody exchanges to use at the provisional custody hearing and that White was aware of those recordings. Moreover, during his statement to police after the shooting, White admitted that he had "mocked" Amy just prior to the shooting because she had frequently pointed out his conduct that would "look bad" for him "in court." State's Exhibit 13. And the State maintains that, had White prevailed in his claim of self-defense, White would likely have been granted full custody of M.W.

Thus, a preponderance of the evidence supports a reasonable inference that White's intent in killing Amy was, at least in part, to keep her from testifying against him at the provisional custody hearing, which was to take place the next day. The evidence shows that the couple's custody battle was the source of the ongoing conflict between them. The fact that the conflict escalated one day before a custody hearing is substantial evidence of White's intent when he shot Amy. Contrary to White's assertion on appeal, it is entirely plausible, if not likely, that had White succeeded in his self-defense to the murder charge, White, as the only surviving biological parent, would have been granted sole custody of M.W.5 Under Evidence Rule 804(b)(5), because White was at least partially motivated to kill Amy to prevent her from testifying at the provisional custody hearing, the trial court properly allowed the challenged hearsay evidence. See A.J. Stephani & Glen Weissenberger, Weissenberger's Indiana Evidence Courtroom Manual, 320 (2012-13 ed.) (Evidence Rule 804(b)(5) hearsay exception applies where offering party shows party engaged in wrongdoing that resulted in witness's unavailability and that one purpose was to cause the witness to be unavailable at trial). And we hold that the probative value of the 804(b)(5) evidence outweighed the danger of unfair prejudice to White.

Issue Two: Constitutionality of the Feticide Enhancement Statute

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

(Emphases added).

Here, the State presented evidence that Amy was pregnant at the time of the shooting and that her death caused the death of the fetus. And the jury found that the State had proved beyond a reasonable doubt that White, "while committing or attempting to commit Murder, did cause the termination of a human pregnancy." Appellant's App. at 996. Accordingly, pursuant to Indiana Code Section 35-50-2-16, the trial court enhanced White's sixty-year sentence by ten years, for an aggregate sentence of seventy years.

On appeal, White contends that the feticide enhancement statute "violates constitutional and historical legal protections" because of the absence of a mens rea element.6 Brief of Appellant at 16. In support of that contention, White points out that "a culpable state of mind has long been recognized as an essential hallmark of criminal justice." Id. at 17. But he acknowledges that "a consensus and comprehensive constitutional application of mens rea has remained elusive." Id. at 18. White then examines case law where offenses lacking a mens rea element were challenged, but he identifies no clear precedent to support his contention here. Indeed, in Morissette v. United States, 342 U.S. 246, 260, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the United States Supreme Court was unwilling to "delineate a precise line or set forth comprehensive criteria for distinguishing between crimes that require a mental element and crimes that do not." And White acknowledges that since Morissette, the Supreme Court "has done little to clarify the constitutional contours of mens rea as a due process requirement." Brief of Appellant at 19. Neither does White address the fact that the crime of which he was convicted, murder, does have a mens rea element and that the additional sentence of feticide was merely an enhancement to his sentence for the murder conviction.

White further observes that the "constitutional and historical implications for an absence of mens rea in a sentencing enhancement [are] also unclear." Id. at 20. Citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), White points out that "traditional due process protections, including the right to a jury determination, [are] applicable to any finding that expose[s] the defendant to greater punishment than that authorized by the jury's verdict." Brief of Appellant at 20-21. Still, White concedes that Apprendi "did not address the constitutional contours of mens rea in sentencing enhancements." Id. at 21.

In State v. Moss-Dwyer, 686 N.E.2d 109, 111-12 (Ind.1997), our supreme court set out our standard of review applicable to constitutional challenges to penal statutes:

(Emphasis added).

Here, the feticide enhancement statute expressly provides that neither a defendant's knowledge of his victim's pregnancy nor his intent to kill the fetus is required. Thus, the legislature's intent on this issue is clear, and the State need not prove a defendant's mens rea when it seeks a sentencing enhancement for feticide. Indeed, the principle underlying this statute derives from the nature and circumstances of the crime aggravator. In McCann v. State, 749 N.E.2d 1116, 1120 (Ind.2001), which was decided prior to the adoption of the feticide enhancement statute, our supreme court held that

(Emphasis added, citations omitted).

Moreover, the feticide enhancement statute is not an outlier. Indiana Code Section 35-50-2-9(b)(12) provides that a defendant who murders a child less than the age of twelve can be punished by death regardless of the defendant's knowledge of the victim's age. In Stevens v. State, 691 N.E.2d 412, 432-33 (Ind.1997), cert. denied, 525 U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998), our supreme court rejected the defendant's contention that the State had to prove his specific knowledge that the victim was under the age of twelve under Indiana Code Section 35-50-2-9(b)(12), which is silent on whether such knowledge is required. The court distinguished between Indiana Code Section 35-50-2-9(b)(6), which authorizes the State to seek the death penalty or life imprisonment without parole where a defendant has actual knowledge that his victim is a law enforcement officer, and Section 35-50-2-9(b)(12). In particular, the court observed that "[s]uch a rule reflects the legislature's policies of both increased protection of young children and harsher punishment for those who prey upon them." Id. at 432-33.

Here, the feticide enhancement statute reflects the legislature's policies of both increased protection of fetuses and harsher punishment for those who, by murdering a pregnant woman, cause the death of a fetus. White has not satisfied his heavy burden to show that the feticide enhancement statute is unconstitutional for lack of a mens rea requirement.

Issue Three: Judicially-supplied Mens Rea

White contends that a mens rea element "should have been judicially supplied" to require his knowledge that Amy was pregnant when he shot her to qualify for the feticide enhancement. Brief of Appellant at 23. White maintains that "Indiana has long recognized that mens rea may be required, `whether specified by the wording of the statute or not.'" Id. (quoting Gregory v. State, 259 Ind. 652, 291 N.E.2d 67, 68 (1973)). But each of the precedents White relies on involves a statute that is silent on the issue of mens rea. Here, as we have already discussed, the feticide enhancement statute expressly states that no mens rea is required. We decline to add a mens rea requirement which the legislature has specifically excluded from the statute. Accordingly, White's contention on this issue is without merit.

Issue Four: Excluded Evidence

Finally, White contends that the trial court abused its discretion when it excluded evidence that Amy had previously suffered a miscarriage. White intended to present that evidence during the enhancement phase of his trial to support his defense theory that his actions did not cause the death of Amy's fetus. The State counters that the trial court properly excluded that evidence as irrelevant, and we must agree.

A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. McVey v. State, 863 N.E.2d 434, 440 (Ind.Ct.App.2007), trans. denied. An abuse of discretion occurs if a trial court's decision is clearly against the logic and effect of the facts and circumstances before the court. Id. Here, when the State moved in limine to exclude evidence of Amy's prior miscarriage, White's defense counsel stated, "I have no problem with that[.]" Transcript at 764. But, in a subsequent side bar, White's defense counsel sought the trial court's permission to ask the State's expert witness a question regarding Amy's prior miscarriage, and the court denied that request.

On appeal, in support of his contention that he should have been permitted to raise the issue of Amy's prior miscarriage to show that she had a higher risk of miscarriage in this case, White cites to a law review article. But White made no offer of proof to the trial court, and, regardless, he has not shown that Amy's prior miscarriage had "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would [have been] without the evidence." See Ind. Evidence Rule 401. We agree and cannot say that the trial court abused its discretion when it excluded evidence of Amy's prior miscarriage.

Conclusion

We hold that the trial court properly allowed hearsay testimony regarding statements Amy had made to others prior to her death under Indiana Evidence Rule 804(b)(5). The preponderance of the evidence shows that White killed Amy, at least in part, for the purpose of preventing her testimony at the provisional custody hearing. The feticide enhancement statute, Indiana Code Section 35-50-2-16, is not unconstitutional. Also, because the legislature expressly excluded a mens rea requirement from the feticide enhancement statute, we will not judicially supply such a requirement. Finally, the trial court did not abuse its discretion when it excluded evidence that Amy had previously suffered a miscarriage.

Affirmed.

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