Patel v. State

• Decision Date: 22 July 2016
• Docket Number: No. 71A04–1504–CR–166.,71A04–1504–CR–166.
• Citation: 60 N.E.3d 1041
• Parties: Purvi PATEL, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

60 N.E.3d 1041

Purvi PATEL, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 71A04–1504–CR–166.

Court of Appeals of Indiana.

July 22, 2016.

Joel Schumm, Appellate Clinic, Indiana University, Robert H. McKinney School of Law, Indianapolis, IN, Lawrence C. Marshall, Stanford Law School, Stanford, CA, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

Laura Paul, Indianapolis, IN, Jill E. Adams, Melissa A. Mikesell, Center on Reproductive Rights and Justice, University of California, Berkeley, School of Law Berkeley, CA, Attorneys for Amici Curiae, Asian Pacific American Women's Forum and Center on Reproductive Rights and Justice at the University of California, Berkeley, School of Law, et al.

Grace B. Atwater, Kammen & Moudy, Indianapolis, IN, Attorney for Amicus Curiae Asian–American and Pacific Islander Organizations in Support of Appellant.

Julie D. Cantor, Santa Monica, CA, Linda L. Pence, Pence Hensel LLC, Indianapolis, IN, Attorney for Amici Curiae The Innocence Network and Dr. Gregory J. Davis.

Lynn M. Paltrow, National Advocates for Pregnant Women New York, NY, Katherine D. Jack, Law Office of Katherine Jack, Greenfield, IN, Attorney for Amici Curiae National Advocates for Pregnant Women and Experts in Public Health, Health Advocacy, and Bioethics.

Cynthia Soohoo, International Women's Human Rights Clinic, City University of New York Law School, Long Island City, NY, Sandra L. Blevins, Betz + Blevins, Indianapolis, IN, Attorney for Amici Curiae International Women's Human Rights Clinic, Amnesty International, and The Center for Reproductive Rights.

CRONE

, Judge.

Case Summary

[1] 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.

[2] 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.

[3] 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.

[4] 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.

[5] As for the feticide conviction, we hold that the legislature did not intend for the feticide statute to apply to illegal abortions or to be used to prosecute women for their own abortions. Therefore, we vacate Patel's feticide conviction.

Facts and Procedural History ¹

[6] 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 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, 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 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. Tess 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 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...