author: BROWN, Judge.

text:
    Robert D. DAVIS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 11A01-1204-CR-251.
    Court of Appeals of Indiana.
    Nov. 21, 2012.

      Robert D. Davis, Carlisle, IN, Appellant Pro Se.
    Gregory F. Zoeller, Attorney General of Indiana, Joseph Y. Ho, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BROWN, Judge.

Robert D. Davis, pro se, appeals the trial court’s denial of his motion to correct erroneous sentence. Davis raises one issue which we revise and restate as whether the trial court erred by denying his motion to correct erroneous sentence. We affirm.

The relevant facts follow. In 1992, the State charged Davis with eight counts. On March 2, 1994, the trial court found Davis guilty of Count II, possession of a schedule II drug as a class D felony, Count III, dealing in marijuana as a class D felony, and Count IV, possession of marijuana as a class D felony. On April 20, 1994, the court sentenced Davis to three years for each count. The court stated: “counts 3 and 4 shall be merged for sentencing and shall run concurrently with that term of imprisonment imposed on count 2, and count 2 shall be consecutively to counts 3 and 4.” Appellee’s Appendix at 1. A chronological case summary entry states that “counts 3 and 4 merged for sentencing and run concurrently with term imposed on Co. 2 and Co. 2 consecutively to cos. 3 and 4.” Appellant’s Appendix at 5.

On direct appeal, this court sua sponte addressed the entry of a judgment of conviction and imposition of sentence on the lesser included offense of possession of marijuana. Davis v. State, 642 N.E.2d 987, 990 (Ind.Ct.App.1994). The court held that “[i]n the double jeopardy context, a second conviction is an additional punishment even if that conviction results in a sentence which runs concurrent with the first conviction.” Id. The court stated that “the proper remedy is to remand to the trial court for a new sentencing order which vacates the conviction and sentence on the lesser count.” Id. The court concluded: “Judgment affirmed but the cause is remanded with instructions to vacate the judgment of conviction and sentence on the lesser offense of possession of marijuana.” Id.

On January 26, 1995, Davis appeared by counsel at a hearing, and the court entered an order vacating Davis’s conviction and sentence for Count IV, possession of marijuana as a class D felony.

On December 15, 2011, Davis filed a pro se motion to correct erroneous sentence. Davis argued that his sentence was erroneous because the trial court failed to follow the instructions of the Court of Appeals, his presence with counsel was necessary at the January 26, 1995 hearing, and he was entitled to be resen-tenced under the laws in effect at that time. On March 28, 2012, the court denied Davis’s motion to correct erroneous sentence.

The issue is whether the trial court erred by denying Davis’s motion. Davis appears to argue that the court erred by failing to enter a new sentencing order instead of merely amending the previous sentencing order. Davis also argues that his presence was required at the January 26, 1995 hearing. Davis argues that “it is uncontroverted that neither [he] nor counsel was present when [his] sentence was corrected,” and that “[t]he proper remedy is to reimpose the order correcting the sentence in [his] presence with counsel.” Appellant’s Brief at 7. Davis also argues that Ind.Code § 35-50-1-2 was amended in 1994 and that this amendment should have limited the trial court’s consecutive sentencing.

The State argues that Davis’s arguments require this court to consider matters outside the face of the sentencing order and that a motion to correct erroneous sentence is inappropriate. The State asserts that Davis’s arguments are without merit even assuming that a motion to correct erroneous sentence is appropriate. The State also contends that because “this Court did not disturb the trial court’s judgment in any other respects, [Davis’s] personal presence was not required and the trial court’s January 26, 1995, Sentencing Order complied with this Court’s instructions.” Appellee’s Brief at 5.

We review a trial court’s decision on a motion to correct erroneous sentence only for an abuse of discretion. Fry v. State, 939 N.E.2d 687, 689 (Ind.Ct.App.2010). An abuse of discretion occurs when the trial court’s decision is against the logic and effect of the facts and circumstances before it. Myers v. State, 718 N.E.2d 783, 789 (Ind.Ct.App.1999).

An inmate who believes he has been erroneously sentenced may file a motion to correct the sentence pursuant to Ind.Code § 35-38-1-15. Neff v. State, 888 N.E.2d 1249, 1250-1251 (Ind.2008). Ind.Code § 35-38-1-15 provides:

If the convicted person is erroneously sentenced, the mistake does not render the sentence void. The sentence shall be corrected after written notice is given to the convicted person. The convicted person and his counsel must be present when the corrected sentence is ordered. A motion to correct sentence must be in writing and supported by a memorandum of law specifically pointing out the defect in the original sentence.

In Robinson v. State, the Indiana Supreme Court noted that a motion to correct erroneous sentence is available only when the sentence is “erroneous on its face.” 805 N.E.2d 783, 786 (Ind.2004) (citations omitted). The Court emphasized that “a motion to correct an erroneous sentence may only arise out of information contained on the formal judgment of conviction. ...” Neff, 888 N.E.2d at 1251 (citing Robinson, 805 N.E.2d at 793-794). A motion to correct sentence may only be used to correct sentencing errors that are clear from the face of the judgment imposing the sentence in light of the statutory authority. Robinson, 805 N.E.2d at 787. Claims that require consideration of the proceedings before, during, or after trial may not be presented by way of a motion to correct erroneous sentence. Id. Sentencing claims that are not facially apparent “may be raised only on direct appeal and, where appropriate, by post-conviction proceedings.” Id. “Use of the statutory motion to correct sentence should thus be narrowly confined to claims apparent from the face of the sentencing judgment, and the ‘facially erroneous’ prerequisite should ... be strictly applied....” Id.

Even assuming that Davis may argue in a motion to correct erroneous sentence that the trial court’s January 26, 1995 order did not follow the instructions of this court, we observe that the court’s order vacated the judgment of conviction and sentence on Count IV, possession of marijuana as a class D felony, which was the instruction of this court in its opinion on direct appeal.

With respect to Davis’s argument that “it is uncontroverted that neither [he] nor counsel was present when [his] sentence was corrected,” Appellant’s Brief at 7, we observe that the court’s January 26, 1995 order stated that Davis appeared by counsel. In support of his argument that his presence was necessary at the January 26, 1995 hearing, Davis cites Ind.Code § 35-38-1-15.

The Indiana Supreme Court has addressed a trial court’s responsibility when a criminal ease is remanded for a new sentencing order. Specifically, the Court has held:

Unless this Court specifically directs otherwise, a trial court’s responsibility in that circumstance is to produce a new sentencing order that responds to the concerns this Court has raised. Depending upon the nature of those concerns, this responsibility may be discharged by the trial court (1) issuing a new sentencing order without taking any further action; (2) ordering additional briefing on the sentencing issue and then issuing a new order without holding a new sentencing hearing; or (3) ordering a new sentencing hearing at which additional factual submissions are either allowed or disallowed and then issuing a new order based on the presentations of the parties.

O’Connell v. State, 742 N.E.2d 943, 952-953 (Ind.2001) (emphases added). Thus, based upon the nature of the concerns raised by this court in Davis’s direct appeal, we cannot say that a new sentencing hearing was required. We also observe that Davis would not have been entitled to present additional evidence before the court entered its January 26, 1995 order. Moreover, Ind.Code § 35-38-1-15 “is applicable only when a defendant files a motion to correct an erroneous sentence.” Ousley v. State, 807 N.E.2d 758, 760 (Ind.Ct.App.2004). Thus, Ind.Code § 35-38-1-15 is not applicable here because the court’s January 26, 1995 order followed this court’s decision and not a motion to correct erroneous sentence. We cannot say that the court erred on this basis.

To the extent that Davis argues that he was entitled to be resentenced under the laws in effect at the time of the resentenc-ing and that the amendment in 1994 of Ind.Code § 35-50-1-2 should have limited the trial court’s authority with respect to consecutive sentencing, we observe that the version of Ind.Code § 35-50-1-2 prior to the 1994 amendment provided in part that “the court shall determine whether terms of imprisonment shall be served concurrently or consecutively.” In 1994, the statute was amended to provide:

[T]he court shall determine whether terms of imprisonment shall be served concurrently or consecutively.... However, except for murder and felony convictions for which a person receives an enhanced penalty because the felony resulted in serious bodily injury if the defendant knowingly or intentionally caused the serious bodily injury, under IC 35-50-2-8 and IC 35-50-2-10, to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the presumptive sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.

Pub.L. No. 164-1994, § 1 (eff. July 1, 1994).

Generally, courts must sentence defendants under the statute in effect at the time the defendant committed the offense. Palmer v. State, 679 N.E.2d 887, 892 (Ind.1997). When, however, the legislature enacts an ameliorative amendment without including a specific savings clause, the new statute will apply to all those sentenced after its effective date. Id. When a court sentences a defendant before the effective date of an ameliorative amendment, the new statute does not apply unless the legislature expressly designates that the new statute applies retroactively. Id. If an appellate court remands for a technical correction of a sentence, and not for re-sentencing, the general rule, that the court sentences the defendant under the statute in effect at the time the defendant committed the offense, applies. Id.

Even assuming, without deciding, that the 1994 amendment applied at the time that the court entered its order on January 26, 1995, Davis does not develop a cogent argument with respect to how the 1994 amendment would have affected his sentence. Moreover, to the extent that Davis suggests that the trial court’s ability would have been limited by the 1994 amendment, such a conclusion would require a determination of whether Davis’s offenses were closely related in time, place, and circumstance and the specific facts underlying each count. As noted abové, a motion to correct erroneous sentence is “available only to correct sentencing errors clear from the face of the judgment.” Robinson, 805 N.E.2d at 794. Thus, Davis’s argument is not properly presented by way of a motion to correct erroneous sentence. As a result, we cannot say that the trial court abused its discretion by denying Davis’s motion. See Jackson v. State, 806 N.E.2d 773, 774 (Ind.2004) (holding that the trial court properly denied the defendant’s motion to correct erroneous sentence and noting that a motion to correct erroneous sentence is available only to correct sentencing errors clear from the face of the judgment); Bauer v. State, 875 N.E.2d 744, 746 (Ind.Ct.App.2007) (noting that the defendant’s claims required consideration of matters in the record outside the face of the judgment and accordingly they are not the types of claims that are properly presented in a motion to correct erroneous sentence), trans. denied.

For the foregoing reasons, we affirm the denial of Davis’s motion to correct erroneous sentence.

Affirmed.

FRIEDLANDER, J., and PYLE, J., concur.

      . Specifically, the court's order stated:
      Court ... finds that judgment of conviction imposed on Count 4, Possession of Marijuana, a Class D felony is now vacated and said sentence was ordered to run concurrently to all other sentences, now vacates said sentence)!] In all other respects courts [sic] previous order shall remain in full force and effect.
      Appellee's Appendix at 2.

      . Cf. Saylor v. State, 765 N.E.2d 535, 560 (Ind.2002) (addressing petitioner’s argument that his appellate counsel rendered ineffective assistance for not raising the issue that he was not allowed the opportunity to present evidence at the time the trial court entered its new sentencing order imposing the death penalty where the Indiana Supreme Court had previously entered an order remanding the cause to the trial court with instructions to reconsider its sentencing order because it appeared the trial court had improperly relied upon victim impact evidence and holding that defendant was entitled to be present in that circumstance), reh’g granted and rev’d on other grounds, 808 N.E.2d 646 (Ind.2004).

      . Davis cites Collier v. State, 572 N.E.2d 1299 (Ind.Ct.App.1991), trans. denied. In Collier, Danny Collier was resentenced after a direct appeal in which the Indiana Supreme Court had remanded for a statement of reasons for sentencing and a specification of which felony was being enhanced by the habitual offender penalty. 572 N.E.2d at 1300-1301 (citing Collier v. State, 498 N.E.2d 1219, 1221 (Ind.1986)). On appeal from the denial of his petition for post-conviction relief, Collier raised the issue of whether he was denied due process of law when the trial court resen-tenced him on remand after his direct appeal without him or his counsel being present. Id. The court observed that it was uncontroverted that neither Collier nor his counsel was present when his sentence was corrected. Id. at 1303. The court cited Ind.Code § 35 — 38—1— 15 and held that the proper remedy for this defect was to remand to the trial court with instructions to reimpose the order correcting the sentence in the defendant's presence. Id. Collier is distinguishable in that here the CCS indicates that Davis's counsel was present and because the remand by this court did not order the trial court to provide a statement of reasons for sentencing. Additionally, the Indiana Supreme Court has clarified that a new sentencing hearing was not required. See Taylor v. State, 840 N.E.2d 324, 342 (Ind.2006) (holding that when a case is remanded for a new sentencing order the trial court may discharge the responsibility by issuing a new sentencing order without taking any further action or ordering additional briefing on the sentencing issue and then issuing a new order without holding a new sentencing hearing) (citing O'Connell, 742 N.E.2d at 953).

      . Our ruling today does not impact whatever right Davis may have to seek post-conviction relief.


source: Caselaw Access Project

author: NAJAM, Judge.

license: Public Domain

text:
    Tyler A. WHITE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 90A04-1111-CR-621.
    Court of Appeals of Indiana.
    Nov. 21, 2012.

      James H. Voyles, Jr., Tyler D. Helmond, Voyles Zahn & Paul, Indianapolis, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   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:

1. Whether the trial court erred when it found that certain testimony was admissible under Evidence Rule 804(b)(5), the “forfeiture by wrongdoing” hearsay exception.
2. Whether Indiana’s feticide enhancement statute, Indiana Code Section 35-50-2-16, is unconstitutional.
3. Whether the trial court erred when it did not judicially supply a mens rea element to the feticide enhancement statute.
4. Whether the trial court abused its discretion when it excluded evidence that the victim had previously had a miscarriage, which White proffered to support his defense to the feticide enhancement.

We affirm.

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.

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 MW. 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. Rein-hard 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 Sheriffs 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):

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”
3. Camy Bishop
a. Amy told Camy that
i. Tyler had pushed her and hit her causing a bruise (statement made May 2009 re: incident of 2007)
ii. That she was going to start recording exchanges (post-separation)
4. Hayley Murray
a. Amy told Hayley that:
i. 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)
ii. Tyler said that he wanted to get a gun; and [sic] (post-separation)
iii. Tyler said that he wanted to go into the woods with just him and Amy (post-separation)
iv. She was recording exchanges (post-separation)
5. Mike Meyer
a.Amy told Mike that:
i. She could only staying [sic] because she was pregnant (Spring 08?)
ii. Tyler would call her names and send her horrible texts (post-separation)
iii. She was recording exchanges (post-separation)
1. He was with her one time when she videotaped exchange
6. Tara Mattern
a. Amy told her that:
i. Tyler told her that “you will get what you deserve[”] (post-separation)
ii. Amy told her that she was recording him
7. Karen Kaehr
a. Amy told her that:
i.She was ready to move on (post-separation)
8. Amber Toland
a. Amy told her that:
i. Showed her text messages where he called her names (post-separation)
ii.She was going to try to record him at exchanges (post-separation)
9. Lee Fl[ue]ekiger
a. Amy “confirmed” that Tyler made a gun motion (post-separation)
b. Amy told him that:
i. Tyler was verbally abusive to her (post-separation)
ii. Tyler said that he was never to come on his property (post-separation)
iii. That she was recording exchanges (post-separation)
c. He heard recording of an exchange where Tyler acknowledged he was being recorded (post-separation) []
10. Paul Wickey
a. Amy told him that:
i. Naples[, Florida] incident— threw drink in her face (statement made in 2008 re: 2006 incident)
ii. Tyler called her names (post-separation)
iii. That she was recording exchanges (post-separation)

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:

1. The State of Indiana demonstrated by a preponderance of the evidence that Amy White is unavailable to testify as the result of the defendant engaging in wrongdoing that was intended to and did procure her unavailability for the purpose of preventing her from attending or testifying at a hearing; therefore, the statements made by Amy White as set forth in the Stipulation of Statements Subject to 804(b)(5) Analysis are admissible as an exception to hearsay.
2. Each of the acts and/or statements as set forth in the Stipulation of Statements Subject to 804(b)(5) Analysis and as set forth in the Evidence of Agreement of the Parties and Stipulation of the Parties as to Evidence of 404(b) Material is admissible as being probative of the defendant’s motive and intent at the time of the offense alleged and the probative value of the evidence set forth therein is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by consideration of undue delay, or needless presentation of cumulative evidence.

Appellant’s App. at 708.

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:

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 declar-ant “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. See Fed.R.Evid. 804(b)(6) advisory committee note to subdivision (b)(6) (adopting the preponderance of the evidence standard required under Fed.R.Evid. 104(a) “in light of the behavior the new Rule 804(b)(6) seeks to discourage”); accord [U.S. v.] Houlihan, 92 F.3d [1271,] 1280 [ (1st Cir.1996) ] (“We ... hold that when a person who eventually emerges as a defendant (1) causes a potential witness’s unavailability (2) by a wrongful act (3) undertaken with the intention of preventing the potential witness from testifying at a future trial, then the defendant waives his right to object on confrontation grounds to the admission of the unavailable declarant’s out-of-court statements at trial.”). 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. “Further, in order to avoid the admission of facially unreliable hearsay, the district court should undertake a balancing of probative value against prejudicial effect in accordance with Fed.R.Evid. 403.” [U.S. v.] Miller, 116 F.3d [641,] 668 [ (1997) ] (internal quotation marks omitted). “The district court’s findings after a hearing will not be disturbed unless they are clearly erroneous, and we are particularly hesitant to disturb the court’s determinations when they are based on its evaluation of the credibility of witnesses.” [U.S. v.] Thai, 29 F.3d [785,] 814 [ (1994) ].

(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[.]” 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. 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:

(a)The [Sjtate may seek, on a page separate from the rest of the charging instrument, to have a person who allegedly committed or attempted to commit murder under IC 35-42-1-1(1) or IC 35-42-1-1(2) sentenced to an additional fixed term of imprisonment if the [Sjtate can show beyond a reasonable doubt that the person, while committing or attempting to commit murder under IC 35-42-1-1(1) or IC 35-42-1-1(2), caused the termination of a human pregnancy.
(b) If the person is convicted of the murder or attempted murder in a jury trial, the jury shall reconvene to hear evidence in the enhancement hearing. If the trial was to the court, or the judgment was entered on a guilty plea, the court alone shall hear evidence in the enhancement hearing.
(c) If the jury (if the hearing is by jury) or the court (if the hearing is to the court alone) finds that the [Sjtate has proved beyond a reasonable doubt that the person, while committing or attempting to commit murder under IC 35-42-1-1(1) or IC 35-42-1-1(2), caused the termination of a human pregnancy, the court shall sentence the person to an additional fixed term of imprisonment of not less than six (6) or more than twenty (20) years.
(d) A sentence imposed under this section runs consecutively to the underlying sentence.
(e) For purposes of this section, prosecution of the murder or attempted murder under IC 35-42-1-1(1) or IC 35-42-1-1(2) and the enhancement of the penalty for that crime does not require proof that:
(1) the person committing or attempting to commit the murder had knowledge or should have had knowledge that the victim was pregnant; or
(2) the defendant intended to cause the termination of a human pregnancy.

(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 feti-cide enhancement statute “violates constitutional and historical legal protections” because of the absence of a mens rea element. 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 Moris-sette, 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:

Indiana courts have consistently supported the proposition that “[t]he nature and extent of penal sanctions are primarily legislative considerations.... ” Person v. State, 661 N.E.2d 587, 593 (Ind.App.1996), trans. denied,n Our separation of powers doctrine requires we take a highly restrained approach when reviewing legislative prescriptions of punishments. While legislative decisions do not completely escape review, “judicial review of a legislatively sanctioned penalty is very deferential.” Person, 661 N.E.2d at 593 (citing Conner [v. State], 626 N.E.2d [803,] 806 [(Ind.1993) ]). We will not disturb the legislative determination of the appropriate penalty for criminal behavior except upon a showing of clear constitutional infirmity. Steelman [v. State ], 602 N.E.2d [152,] 160 [ (Ind.Ct.App.1992) ]. As the court stated in Person, “When considering the constitutionality of a statute, we begin with the presumption of constitutional validity, and therefore the party challenging the statute labors under a heavy burden to show that the statute is unconstitutional.” 661 N.E.2d at 592 (citing Jackson v. State, 634 N.E.2d 532, 535 (Ind.App.1994)). A court is not at liberty to set aside the legislative determination as to the appropriate penalty merely because it seems too severe. Conner, 626 N.E.2d at 806; Clark v. State, 561 N.E.2d 759 (Ind.1990).

(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

pregnancy is similar to the infirmity or age of the victim in that the defendant’s knowledge of these circumstances is not necessary for them to qualify as aggravating. To be sure, knowledge of the victim’s vulnerability adds to the culpability of the perpetrator, but aggravating circumstances turn on the consequences to the victim as well as the culpability of the defendant. This understanding of aggravating circumstances comports with the Black’s Law Dictionary definition of aggravation: “[a]ny circumstance attending the commission of a crime ... which increases its guilt or enormity or adds to its injurious consequences.”

(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 “[sjuch 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.

      . We heard oral argument in this case on September 25, 2012.

      . The State avers that Amy filed for divorce, but the dissolution pleadings submitted as evidence at White's trial show that White was the petitioner and Amy was the respondent.

      . Flueckiger's testimony that White made a shooting gesture towards Flueckiger and that he had heard a recording of White’s acknowl-edgement that Amy was recording the custody exchanges was not hearsay. See Ind. Rule of Evidence 801(d)(2).

      . White makes no argument under the confrontation clause of the Sixth Amendment to the United States Constitution. Accordingly, the United States Supreme Court’s holding in Giles V. State, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008), which applies to a deceased declarant's testimonial statements, is inapposite here.

      . Moreover, it is irrelevant whether White, intending to shoot and kill Amy, had considered the consequences of his actions beyond preventing Amy from testifying against him at the provisional hearing. In other words, we reject White’s contention that this theory "made no sense” in light of White’s argument that M.W. would likely be placed with someone other than White after the shooting.

      . As the State points out, White does not specify any constitutional provision to support his contention on this issue in his brief on appeal, contrary to the requirement of Indiana Appellate Rule 46(A)(8)(a). White's failure notwithstanding, we consider the historical context of the feticide enhancement statute.


text:
    Romero LESLIE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A04-1203-CR-135.
    Court of Appeals of Indiana.
    Nov. 21, 2012.

      Danielle L. Gregory, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Romero Leslie appeals his conviction for dealing in cocaine, as a Class B felony, following a jury trial. Leslie presents two issues for our review:

1. Whether the trial court committed fundamental error when it denied Leslie’s request that the court dismiss a juror who, during a recess, had been standing near Leslie and defense counsel while they were discussing trial strategy.
2. Whether the trial court abused its discretion when it replaced a juror with an alternate juror after deliberations had begun.
We affirm.

FACTS AND PROCEDURAL HISTORY

On June 19, 2011, the State charged Leslie with dealing in cocaine, as a Class A felony, and possession of cocaine, as a Class B felony. Prior to trial, the State moved to amend the charging information to allege that Leslie had committed dealing in cocaine, as a Class B felony, and possession of cocaine, as a Class D felony, and the trial court granted that motion. In the course of the trial, during a recess, a juror, Kim Shiflette, left the jury room unaccompanied and walked into a hallway outside the courtroom in violation of the bailiffs instructions. Shiflette was standing in the hallway near Leslie, who was conversing with his defense counsel about trial strategy, for approximately five to ten seconds before Leslie and his defense counsel observed her and stopped talking.

The bailiff reported the incident to the Commissioner, who asked Leslie’s defense counsel for details about Shiflette’s encounter with Leslie and his defense counsel. The following colloquy ensued:

THE COURT: Okay ma’am we were just on break here. And it was my understanding that Mr. Smith [bailiff] had checked on you folks [jury] and asked if anybody needed to — if anybody needed anything or needed to go outside and smoke or anything like that. He indicated that everyone said no. He shut the door. He said that he went to the hallway, and at which time he saw Mr. Moore [defense counsel] and his client talking privately and then he saw you. So apparently you left the jury room. Correct?
JUROR SHIFLETTE: That’s correct.
THE COURT: Okay, without permission.
JUROR SHIFLETTE: I guess so. Not wanting to do anything bad, but yes.
THE COURT: Okay, so we are not going to do that again. Right?
JUROR SHIFLETTE: Absolutely not.
THE COURT: Okay. Well let me ask you this, when you left the jury room, and you went out into the hallway did you see Mr. Moore?
JUROR SHIFLETTE: I—
THE COURT: Mr. Moore the defense attorney?
JUROR SHIFLETTE: I remember seeing her but I don’t remember seeing him.
THE COURT: Okay, okay. So you saw Miss Coleman who is also defense attorney here?
JUROR SHIFLETTE: The blonde, yeah.
THE COURT: Okay. And you saw her. Did you see anybody else?
JUROR SHIFLETTE: I mean there were other people out there but I don’t know who.
THE COURT: Okay.
JUROR SHIFLETTE: I was just looking for him.
THE COURT: And “him” meaning the bailiff Steve Smith?
JUROR SHIFLETTE: That’s correct. THE COURT: Okay. Did you hear any conversations that anybody was having? Did you over hear [sic] anybody’s conversation?
JUROR SHIFLETTE: No, I did not. THE COURT: You did not?
JUROR SHIFLETTE: No.
THE COURT: Okay, so the only person that you recognized for sure is Miss Coleman who is a defense attorney and you don’t remember her saying anything or having any kind of contact?
JUROR SHIFLETTE: No, I don’t remember. I mean people were talking, there was noise but I don’t remember anything that was-I didn’t hear anything that was said.
THE COURT: Okay.
JUROR SHIFLETTE: I was just looking for him and then he had this look on his face like — oh, my god.
THE COURT: And when you say “he” once again just so we have the correct meaning Mr. Smith.
JUROR SHIFLETTE: He, Mr. Smith. THE COURT: And he looked at you like oh, my god.
JUROR SHIFLETTE: He looked at me like oh, my god what are you doing. And he told me did you not understand what I said. And I said I did not. THE COURT: Okay. All right [sic], just a moment okay. Parties want to approach or do you have any questions of her or — you’re okay?
MS. PROPS [STATE]: I have no questions, Judge.
THE COURT: You’re okay?
MR. MOORE: No, no questions.
THE COURT: You’re okay? Okay. Then I’ll tell you what we don’t do approach (sic), I’m just going to excuse her and put her back in the jury room[.] Okay, Ma’am I am going to excuse you right now. I’m going to put you back in the jury room. And this conversation that we’ve had here in open court we are going to keep to ourselves. So don’t communicate this to the other jurors. Or what was asked of you or what was said if you don’t mind.
JUROR SHIFLETTE: Okay.
THE COURT: Okay, and obviously we are just gonna’ [sic] keep moving forward I think and — it’s not — it’s no business of theirs what this conversation was, okay?
JUROR SHIFLETTE: Okay. I apologize.
THE COURT: That’s okay, that’s okay. I just wanted to make sure. That you didn’t hear or see anything, that the other’s [sic] didn’t [‘]cause [it’s] so important to keep you together as a group. Unless you were going to be separated with Mr. Smith at all times and that’s what-that’s what the issue was though. Okay.

JUROR SHIFLETTE: I understand. Transcript at 196-99. Shiflette returned to the jury room, and Leslie’s counsel agreed with the State that Shiflette seemed very genuine and had just wanted a cigarette. Leslie did not object or request any further action, and the trial proceeded.

At the conclusion of evidence, the trial court submitted the case to the jury. Approximately forty-five minutes into deliberations, another juror, Kermetha Brown, wrote a note to the trial court stating: “I realize that I am not comfortable in my spirit with deciding whether a person is guilty or not guilty. I would like for the alternative [sic] to step in. I’m extremely uncomfortable. Kermetha Brown.” Transcript at 308. The State moved to strike Brown from the jury, but Leslie objected. As a result, the trial court called Brown out of the jury room, and the following colloquy took place:

THE COURT: Good evening, Miss Brown. All right [sic], I just wanted to let you know that the Court is in receipt of your letter and I did share it with the parties. And I just have a couple of questions for you. Okay?
JUROR BROWN: Uh huh.
THE COURT: Can you maybe elaborate a little more?
JUROR BROWN: Honestly I feel that I’m just not comfortable. I realize just sitting in the room (indiscernible) yea or nay. I don’t care if somebody was on trial for stealing bubble gum. I don’t know, I’m just not comfortable with somebody’s life. And me being in control of making a decision.
THE COURT: Okay, you understand that — You have a duty now, you are charged with a duty that you sat through this entire trial okay, right?
JUROR BROWN: Yes, I understand.
THE COURT: Okay. And you are to evaluate the evidence and based upon the evidence to render a verdict or [sic] either guilty or not guilty. Do you understand that that’s what your duty is?
JUROR BROWN: Right, I understand.
THE COURT: Okay. And are you saying that you cannot fulfill that at this point in time?
JUROR BROWN: I’m—
THE COURT: You know, I’m — cause [sic] I don’t think anybody is — in this courtroom would say to you right now, hey this is a real easy thing to do.
JUROR BROWN: Right.
THE COURT: Go do it. Or this is a piece of cake, or this is a walk in the park. Don’t think that any of us are suggesting that.
JUROR BROWN: Right.
THE COURT: So I — I—I—I understand that you are uncomfortable.
JUROR BROWN: I realize how hard the job is. Yes.
THE COURT: Yeah, and — and we realize it too. So — and it is a job. You know, so I guess what I am asking can you do this job? I know that its uncomfortable but just because something is uncomfortable doesn’t necessarily mean that we can’t do it. Does that make sense?
JUROR BROWN: Right.
THE COURT: So that’s what I am trying to figure out.
JUROR BROWN: I mean I’ve been here like what fourteen — thirteen, fourteen hours.
THE COURT: Sure.
JUROR BROWN: And it’s like—
THE COURT: But you just started deliberating less than forty-five minutes ago.
JUROR BROWN: Right. And I strongly feel like I just — don’t want to be, you know, involved with the whole— the deliberation part. I’m very uncomfortable.
THE COURT: Okay. I understand that you are uncomfortable. But can you put that aside and render a decision based upon the evidence, [’jcause once again I know that just because something is uncomfortable doesn’t mean that we can’t do it, so that’s what I am asking you. Despite the fact that you are uncomfortable, can you — can you render a decision?
JUROR BROWN: I feel like I can’t, that’s why I wrote the letter.
THE COURT: You cannot?
JUROR BROWN: Right.
THE COURT: So based upon the deliberation, or the state of delib — you feel that you cannot join in those deliberations and make a decision is that what you are telling me?
JUROR BROWN: Yes.

Transcript at 311-14. The court then held a private discussion with counsel at the bench, after which the State asked Brown whether anyone was putting pressure on her during deliberations. Brown responded in the negative. Leslie’s counsel then questioned Brown further:

[DEFENSE COUNSEL]: Thank you. Ma’am, Miss Brown you understand that as part of your duties as juror you’re— you’ve agreed to at least collaborate with the folks back there and listen to what they have to say. Express yourself, keep an open mind and make a decision regarding the evidence. No one is asking to make that decision about a person. Knowing that do you think that you can still do your job (unintelligible) to the other juror (sic). JUROR BROWN: I do understand that part. About going off the evidence. And that’s how you—
[DEFENSE COUNSEL]: Right.
JUROR BROWN: (inaudible). I just don’t really feel comfortable at all.
[DEFENSE COUNSEL]: What specifically is making you feel uncomfortable? What — what’s changes [sic] since you went you went [sic] back there?
JUROR BROWN: I’m just — you know how you just feel like there is something just — come over me like I just don’t want to do — you know—
[DEFENSE COUNSEL]: Right. [The State] asked you if you felt pressure, do you feel peer pressure just to make a decision?
JUROR BROWN: No. I don’t feel peer pressure at all. I don’t even know the people back there.
[DEFENSE COUNSEL]: Okay. Okay, thank you.
THE COURT: Okay, once again despite the fact that you feel uncomfortable, you still think that you cannot render a decision just because you’re uncomfortable, its unpleasant?
JUROR BROWN: That’s how I feel. THE COURT: How do you feel, tell me again.
JUROR BROWN: Just uncomfortable you know, with making the decision. THE COURT: Okay, but despite the fact that you are uncomfortable, or that making a decision may be unpleasant are you saying that you just can’t make it period? Or that you will make a decision but it is going to be very painful.
JUROR BROWN: I feel like I can’t make it, period.
THE COURT: Okay. You cannot make a decision period?
JUROR BROWN: Right.
THE COURT: All right [sic]. Any other questions, Miss Props, on these questions.
[STATE]: No.
THE COURT: Mr. Moore?
[DEFENSE COUNSEL]: No.
THE COURT: All right [sic], ma’am I’m going to excuse you. I am going to put you back into the jury room. Please do not discuss with them anything that took place here.
JUROR BROWN: Okay.

Transcript at 316-19. The trial court took the matter under advisement for a few minutes. The court subsequently excused Brown from the jury, over Leslie’s objection, and replaced her with the alternate juror.

Following further deliberations, the jury returned a verdict finding Leslie guilty on both counts. The trial court entered judgment of conviction on dealing in cocaine, as a Class B felony, and sentenced Leslie accordingly. Leslie now appeals.

DISCUSSION AND DECISION

Issue One: Failure to Dismiss Juror

Leslie contends that the trial court erred when it denied his request that the court dismiss Shiflette because she had been standing near Leslie and defense counsel while they were discussing trial strategy during a recess. Leslie did not raise this issue at the trial court and, therefore, it is waived. To avoid waiver, Leslie contends that the failure to dismiss Shiflette constitutes fundamental error. As this court has stated on several occasions:

The fundamental error doctrine is extremely narrow. Sandifur v. State, 815 N.E.2d 1042, 1046 (Ind.Ct.App.2004), trans. denied. To qualify as fundamental error, an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. Id. Further, the error must constitute a blatant violation of basic principles, the harm, or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process. Id.

Rowe v. State, 867 N.E.2d 262, 266 (Ind.Ct.App.2007).

In cases alleging juror misconduct involving out-of-court communications with unauthorized persons, a rebuttable presumption of prejudice exists. May v. State, 716 N.E.2d 419, 421 (Ind.1999) (citation omitted). Such misconduct must be based on proof, by a preponderance of the evidence, that an extra-judicial contact or communication occurred and that it pertained to a matter pending before the jury. Id. (citation omitted). Typically, the trial court is in the best position to assess the honesty and integrity of a juror and his ability to perform as a conscientious, impartial juror. See id. (internal quotations and citation omitted). This is especially true where the trial judge must weigh the nature and extent of a juror relationship with a party or witness established pretrial and arising in the normal, and often inevitable, course of interaction in an employment or community environment. Id. (citations omitted). As such, our review of the trial court’s decisions in these matters is highly deferential. Id. (citations omitted).

Cases where convictions have been reversed due to socialization between a juror and an unauthorized person contemporaneous with the trial include Woods v. State, 233 Ind. 320, 119 N.E.2d 558 (1954), and Kelley v. State, 555 N.E.2d 140 (Ind.1990). In Woods, we reversed a conviction following denial of a motion for mistrial where, in part, police officer witnesses had mingled with jurors in the jury room during breaks in the trial. 119 N.E.2d at 561. And in Kelley, the jurors were instructed not to discuss the case with anyone, but six of the jurors ate lunch with the State’s witness. The trial court questioned three of the jurors, and all stated that they could remain unbiased. But the supreme court held: “Despite the lack of clear evidence that the security guard and the jurors discussed the trial proceedings and despite the three jurors’ assertions that their impartiality was intact, the enhancement of the credibility of the prosecution’s witness seems highly probable, regardless of whether the jurors themselves realized it at the time.” Id. at 142. As a result, the court reversed the conviction and remanded for a new trial.

A different outcome occurred in Morris v. State, 508 N.E.2d 11 (Ind.1987). There, a juror left the juror room during a recess, in direct violation of the bailiffs instructions, to run an errand in the courthouse. She was later seen exiting a stairwell, and the victim and her aunt exited the same stairwell a short time later. Both the victim and her aunt testified that they did not have any conversation with the juror, and the juror denied having any conversation with the victim or her aunt. Our supreme court held that such contact “did not parallel [that in] the Woods case in any way.” Id. at 14. As such, the court found no reversible error. Morris, 508 N.E.2d at 14.

Here, Shiflette left the jury room in violation of the bailiffs instructions. She stood unaccompanied in the hallway near Leslie and his counsel for five to ten seconds before Leslie’s counsel noticed her. The defendant and his attorney had been discussing the facts of the case and trial strategy. But, upon noticing Shiflette, they stopped talking and moved to a room off the hallway. About the same time, the bailiff noticed Shiflette, returned her to the jury room, and informed the trial court of the incident.

In the presence of both parties but outside the presence of the other jurors, the trial court questioned Shiflette about whether she had had any contact with Leslie. Shiflette maintained that she had only left the jury room to look for the bailiff to get permission to smoke; that she had not recognized Leslie or his lead attorney in the hallway; that the only person she recognized was Leslie’s other attorney, Miss Coleman; and that she had not overheard any conversation. Leslie’s attorney also stated that he did not know if Shiflette had overheard anything, nor did he object to her remaining on the jury or request any other relief.

We find the facts in the present case resemble more closely those in Morris than in Woods or Kelley. Woods and Kelley each involved actual contact between one or more jurors and one or more witnesses. But here, as in Morris, the evidence does not show any direct contact between the juror and one or more unauthorized persons. Indeed, Shiflette denied overhearing any conversation or even recognition of Leslie or his lead counsel. Leslie argues that Shiflette’s testimony in that regard is “unbelievable,” Appellant’s Brief at 19, but we must defer to the trial court on that point. Indeed, even Leslie’s trial counsel voiced doubts over whether Shiflette had heard anything. Leslie has not shown error, if any, that denied him fundamental due process.

Issue Two: Replacement of Juror

Leslie next contends that the trial court abused its discretion when it replaced one of the jurors with an alternate after deliberations had already begun. Removal of a juror after deliberations have begun is ultimately a matter requiring deference to the trial court’s judgment, but it raises a number of considerations not present before deliberations begin. Riggs v. State, 809 N.E.2d 322, 327 (Ind.2004). Therefore, although the removal and replacement of a juror during deliberations is still within the trial court’s discretion, “that discretion is more limited” when removal occurs after deliberations have begun. Lichti v. State, 827 N.E.2d 82, 91 (Ind.Ct.App.2005) (citing Riggs, 809 N.E.2d at 327). It demands a carefully developed record as to the grounds for removal and requires precautions to avoid inappropriate consequences from the removal. Riggs, 809 N.E.2d at 327. Thus, once deliberations begin, discharge of a juror is warranted only in the most extreme situations where it can be shown that the removal of the juror is necessary for the integrity of the process, does not prejudice the deliberations of the rest of the panel, and does not impair the parties’ right to a trial by jury. Id. at 327-28.

In Riggs, after four hours of deliberations, the foreman notified the trial court that one juror was being “belligerent,” was “marginally” participating in deliberations, and was refusing to change his mind. Id. at 324-25. A short time later, after asking to speak with the court, that juror said that he was “trying to give a fair and impartial determination to [sic] this evidence and to this Court.” Id. at 326. Riggs moved for a mistrial, but the State requested that the juror be replaced. The trial court granted the State’s request. The jury, now including the alternate, deliberated further and convicted Riggs of murder and criminal deviate conduct. On appeal, we held that removal was improper because the record did not establish that the juror’s conduct was improperly influencing the rest of the panel. “A failure to agree ... is a ground for mistrial, not removal of the obstacle to unanimity.” Id. at 328.

Similarly, in LeFlore v. State, we affirmed the removal of a juror in a felony murder case. 823 N.E.2d 1205, 1210 (Ind.Ct.App.2005). When the trial court questioned the juror outside the presence of the other jurors, she was visibly shaken and crying. The trial court asked whether the juror could vote her conscience, and she stated that she could not live with the consequences and answered that she was unable to serve. Id. at 1210. We held that LeFlore had waived the argument that the trial court had failed to make a record to support removal of the juror because LeFlore had raised a different argument below. We also observed that LeFlore had not shown that his right to an impartial jury was infringed. Id.

The juror here and the juror in LeFlore are similarly situated. Brown repeatedly told the trial court that she was “not comfortable,” particularly that she was “not comfortable with somebody’s life” and “being in control of making a decision” about that. Transcript at 311. And when the trial court asked her if she was able to make a decision, she answered that she could not. Based on her responses, the trial court excused her from the jury and replaced her with the alternate. The trial court then instructed the jury, including the alternate, “not to speculate unto [sic] any reason why juror [Brown] has been dismissed” and asked them to continue deliberations. Id. at 327.

In essence, the trial court determined that Brown’s inability to make a decision as a juror affected the integrity of the process. We cannot say that the court abused its discretion in reaching that determination. See LeFlore, 823 N.E.2d at 1210. And Leslie has not shown that replacing Brown on the jury prejudiced the deliberations of the rest of the panel or impaired his right to a trial by jury. See Riggs, 809 N.E.2d at 327-28; LeFlore, 823 N.E.2d at 1210.

Finally, Leslie contends that the trial court’s questioning of Brown led her to make “statements toward an inability to deliberate, when she had not previously indicated she could not render a decision.” Appellant’s Brief at 14. We cannot agree. After Brown repeatedly stated that she was uncomfortable, the trial court reminded Brown of her duty as a juror and asked specifically whether she could make a decision based on the evidence. The question was fair, not leading, and to the point. Brown’s answer in the negative confirmed that her continued service on the jury was problematic. Leslie has not shown that the trial court abused its discretion when it dismissed Brown from the jury.

Conclusion

Leslie has not shown that the trial court committed fundamental error when it denied his request to dismiss Shiflette from the jury. Nor has Leslie shown that the court abused its discretion when it dismissed Brown from jury service after she stated that she could not render a decision based on the evidence. As such, we affirm Leslie’s conviction for dealing in cocaine, as a Class B felony.

Affirmed.

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

      . The jury acquitted Riggs of felony murder and rape charges.

      . Leslie also contends that the dismissal of Brown violated his right to a fair and impartial jury under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
      But Leslie does not support that contention with cogent argument. Therefore, it is waived. See Appellate Rule 46(A)(8)(a).