FILED May 06 2026, 9:10 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana Nicholas A. Blackburn, Appellant-Defendant
v.
State of Indiana, Appellee-Plaintiff
May 6, 2026 Court of Appeals Case No. 25A-CR-2222 Appeal from the Delaware Circuit Court The Honorable John M. Feick, Judge Trial Court Cause No. 18C04-2308-F4-52
Opinion by Judge Mathias Judge Felix concurs. Judge May concurs in part and dissents in part with a separate opinion.
Court of Appeals of Indiana | Opinion 25A-CR-2222 | May 6, 2026 Page 1 of 16 Mathias, Judge.
[1] In April 2023, Nicholas A. Blackburn, with fentanyl and a fentanyl metabolite
in his blood, crashed his vehicle into the back of Brittany Wilson’s vehicle in
Muncie. Wilson was twenty to twenty-four weeks pregnant at the time. The
crash killed Wilson. At the emergency room, doctors observed that Wilson’s
unborn child had a heartbeat but was in distress; they performed an emergency
C-section and immediately transported the child to neonatal specialists.
However, the child died soon afterward.
[2] The State charged Blackburn in relevant part with two counts of Level 4 felony
causing death when operating a vehicle with a schedule I or II controlled
substance or its metabolite in his blood, with one count based on Wilson’s
death and the other based on the death of her child. 1 Following the jury’s
verdict of guilty on both counts, Blackburn raises the following two issues for
our review:
1. Whether the trial court abused its discretion when it admitted the analysis of his blood draw into evidence.
2. Whether the State presented sufficient evidence to show that Blackburn caused the death of another “person” based on the death of Wilson’s child.
1 The State charged Blackburn with two counts under Indiana Code section 9-30-5-5(a) (2022). Indiana Code section 9-30-5-5(c) states that “[a] person who commits an offense under subsection (a) . . . commits a separate offense for each person . . . .whose death . . . is caused by the violation . . . .”
Court of Appeals of Indiana | Opinion 25A-CR-2222 | May 6, 2026 Page 2 of 16 [3] We conclude that the trial court did not err in the admission of the evidence.
We also conclude that the State presented sufficient evidence from which a
reasonable fact-finder could conclude that Wilson’s child was a person. We
therefore affirm his convictions.
Facts and Procedural History [4] Around 6:30 p.m. on April 27, 2023, Blackburn crashed his SUV into the back
of Wilson’s sedan near the intersection of East Jackson Street and North Truitt
Street in Muncie. “[D]ebris” from the crash “went flying,” causing other
motorists nearby to come to sudden stops. Tr. Vol. 2, p. 118. Wilson’s vehicle
went “spinning” into the oncoming lanes. Id. at 130. Blackburn “stumbled out”
of his SUV, and one witness observed that he “seemed more upset about the
state of [his] car than the actual accident.” Id. at 119.
[5] Others at the scene rushed to Wilson. One witness observed that she was
“unconscious,” slumped over into the passenger seat, and “not responsive.” Id.
at 130. Her car doors were “jammed up” and would not open. Id. James Omey,
a witness who has Navy training for “mass triage” and medical knowledge,
broke Wilson’s passenger’s side window and crawled into Wilson’s car with
her. Id. at 215. He noticed that she was nonresponsive, “had no pulse,” and
appeared to be pregnant. Id. at 216. He began CPR on her.
[6] Approximately ten minutes after Omey began CPR, emergency medical
personnel arrived on the scene. August Holderman, a responding paramedic,
first noticed “several firemen that seemed to be emotionally upset flagging” the
Court of Appeals of Indiana | Opinion 25A-CR-2222 | May 6, 2026 Page 3 of 16 paramedics down and “yelling at us to hurry up.” Id. at 146. “At least one of
[the firemen] was crying.” Id. Emergency responders had removed Wilson from
the vehicle and placed her on a cot. Holderman observed that Wilson appeared
to be deceased and also appeared “twenty weeks pregnant or more.” Id. at 147.
Wilson’s husband was on the scene by that point, and he informed Holderman
that Wilson “was 5 months pregnant.” Ex. Vol. 1, p. 19.
[7] At that moment, Holderman believed “[t]hat that baby could possibly be
saved.” Tr. Vol. 2, p. 147. Holderman knew that the hospital to which they
were transporting Wilson had “very good care for premature babies. And
anything below twenty weeks is usually considered a non-viable baby if it is
born. Anything above twenty weeks, if they are able to get that baby out, then it
does have a chance of living . . . .” Id.
[8] Paramedics rushed Wilson to the nearby emergency room, but she “never had a
pulse.” Id. at 150. Upon Wilson’s arrival to the emergency room, Dr. Brad
Hayes immediately performed an ultrasound. He observed that Wilson’s
unborn child “showed signs of life,” namely, “a heartbeat,” but the heartbeat
rate showed the child to be in distress. Id. at 192. The ultrasound also showed
that the child’s growth was “consistent with a child . . . that was somewhere
around twenty to twenty-four weeks” of gestational age. Id. at 193. In Dr.
Hayes’s opinion, “if the fetus is twenty-four weeks, we have a good chance of
survival.” Id. However, “[u]nder twenty-four weeks, that chance is much less.”
Id.
Court of Appeals of Indiana | Opinion 25A-CR-2222 | May 6, 2026 Page 4 of 16 [9] Within minutes of Wilson’s arrival, Dr. Hayes concluded that “we don’t have
any more time to waste” and “we’re going to . . . [try] to make sure this baby
makes it.” Id. He and his team then removed the child from Wilson’s womb by
way of an emergency C-section. Dr. Hayes had a neonatal specialist ready to
receive Wilson’s child, and he “passed that baby right off.” Id. at 194. However,
shortly after, the child died. Id. at 194-95.
[10] Back at the crash scene, Delaware County Sheriff’s Deputy Britney Milholland
informed Blackburn of Indiana’s implied consent laws. She administered a
portable breath test to him, which returned a negative result for alcohol
intoxication. She then asked him if he would consent to a chemical test, and he
“agreed to take the chemical test.” Id. at 156. She transported him to the nearby
hospital, where Blackburn again expressly “consented” to have a nurse perform
a blood draw. Id. at 157. The ensuing analysis of his blood showed the presence
of fentanyl as well as a metabolite of fentanyl in the blood. Id. at 208.
[11] The State charged Blackburn in relevant part with two counts of Level 4 felony
causing death when operating a vehicle with a schedule I or II controlled
substance or its metabolite in his blood, with one count based on Wilson’s
death and the other based on the death of her child. Several witnesses to the
accident testified at his ensuing jury trial. Holderman and Dr. Hayes also
testified regarding their observations from that day and to their knowledge of
Court of Appeals of Indiana | Opinion 25A-CR-2222 | May 6, 2026 Page 5 of 16 neonatal viability. 2 The trial court also admitted into evidence, over Blackburn’s
objection, the results of his blood draw following the accident.
[12] The jury found Blackburn guilty of both offenses. After a sentencing hearing,
the court ordered Blackburn to serve an aggregate sentence of twenty years in
the Department of Correction. 3 This appeal ensued.
1. The trial court properly admitted the analysis of the blood draw into evidence. [13] We first address Blackburn’s argument that the trial court erred when it
admitted the analysis of his blood draw into evidence. The trial court has broad
discretion to rule on the admissibility of evidence. Thomas v. State, 81 N.E.3d
621, 624 (Ind. 2017). Rulings on the admissibility of evidence are reviewed for
an abuse of discretion and ordinarily reversed only when admission is clearly
against the logic and effect of the facts and circumstances that were before the
court. Id.
[14] Indiana Code section 9-30-7-3(a) requires a law enforcement officer to “offer a
portable breath test or chemical test to any person who the officer has reason to
believe operated a vehicle that was involved in a fatal accident or an accident
2 Blackburn lodged no objection to any portion of Holderman’s testimony, and Blackburn specifically did not challenge Holderman’s competence to testify regarding the child’s viability. Had Blackburn objected on the ground that Holderman lacked sufficient qualifications to opine on the relevant medical issues, perhaps the State would have bolstered that component of the record. But, as there was no objection, the State had no need to do so. 3 The maximum sentence for two consecutive Level 4 felonies is twenty-four years. See I.C. § 35-50-2-5.5. We also note that Blackburn has eighteen prior felony convictions and seventeen prior misdemeanor convictions.
Court of Appeals of Indiana | Opinion 25A-CR-2222 | May 6, 2026 Page 6 of 16 involving serious bodily injury.” Subsection (a)(2) of that statute adds:
“If . . . the results of a portable breath test do not indicate the presence of
alcohol but the law enforcement officer has probable cause to believe the person
is under the influence of a controlled substance or another drug” the officer
“shall offer a chemical test to the person.” I.C. § 9-30-7-3(a)(2) (emphasis
added). As we have explained, subsection (a)(2) is about “compel[ling] law
enforcement officers not to conclude their investigation when they receive a
negative portable breath test result and also have probable cause to believe that
the driver is under the influence of something other than alcohol.” Pedigo v.
State, 146 N.E.3d 1002, 1011-12 (Ind. Ct. App. 2020), trans. denied. Nothing
about the statute as a whole “prohibits a law enforcement officer from offering a
subsequent chemical test” if a portable breath test is offered first and returns a
negative result. Id. at 1011 (emphasis in original).
[15] There is no question that Deputy Milholland had reason to believe that that
statute applied to Blackburn. There is no question that she informed Blackburn
of that statute. And, while she first offered Blackburn a portable breath test that
returned negative results for alcohol intoxication, there is also no question that
Blackburn then twice consented to a chemical test by way of the blood draw.
[16] Nonetheless, relying on a panel opinion from our Court in Hannoy v. State,
Blackburn contends that Deputy Milholland needed probable cause that he was
under the influence of a controlled substance before she could offer him a
chemical test. 789 N.E.2d 977 (Ind. Ct. App.), aff’d on reh’g, 793 N.E.2d 1109
(Ind. Ct. App. 2003), trans. denied. Blackburn is incorrect. Our opinion in
Court of Appeals of Indiana | Opinion 25A-CR-2222 | May 6, 2026 Page 7 of 16 Hannoy was expressly not about Indiana’s implied consent laws. 789 N.E.2d at
982-83. Accordingly, Hannoy is not applicable here.
[17] Further, Blackburn does not discuss the Pedigo panel’s analysis of section 9-30-
7-3, which makes clear that an officer can always ask a driver to submit to a
chemical test. 146 N.E.3d at 1011-12. As that is what Deputy Milholland did
here, and as Blackburn expressly consented to the blood draw, the trial court
properly admitted the results of the blood draw into evidence.
2. The State presented sufficient evidence to show that Wilson’s child was a person. [18] We thus turn to Blackburn’s argument that the State failed to present sufficient
evidence to support his conviction resulting from the death of Wilson’s child.
For challenges to the sufficiency of the evidence, we consider only the probative
evidence and the reasonable inferences therefrom that support the judgment of
the trier of fact. Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will
neither reweigh the evidence nor judge witness credibility. Id. We will affirm a
conviction unless no reasonable fact-finder could find the elements of the crime
proven beyond a reasonable doubt. Id.
[19] Indiana Code section 9-30-5-5(a)(2) makes it a Level 4 felony when a person
causes the death “of another person” when operating a vehicle with a schedule
I or II controlled substance or its metabolite in the person’s blood. In relevant
part, a “[p]erson” means “an individual.” I.C. § 9-13-2-124. The parties agree
Court of Appeals of Indiana | Opinion 25A-CR-2222 | May 6, 2026 Page 8 of 16 that, at least for our purposes, an “individual” must mean that Wilson’s child
was “viable.” Appellant’s Br. at 14-16; Appellee’s Br. at 13.
[20] Our Court has previously recognized that
by definition, a viable fetus is an “individual.” Indeed, the viability of the fetus proves its status as a separate and distinct entity. . . . [O]ur legislature has defined the term “viability” to mean “the ability of a fetus to live outside the mother’s womb.” I.C. § 16-18-2-365. A viable fetus is a fetus that can live independently from its mother. Thus, our legislature has made it an act of murder for a person to knowingly or intentionally kill a fetus that has attained viability. See Ind. Code § 35-42-1-1(4) [(2005)4].
Horn v. Hendrickson, 824 N.E.2d 690, 700 (Ind. Ct. App. 2005) (emphasis added;
footnote omitted). 5
4 The current version of Indiana’s murder statute, which was also in effect at the time Blackburn committed the instant offenses, defines an act of murder in relevant part to include “knowingly or intentionally kill[ing] a fetus in any stage of development.” I.C. § 35-42-1-1(4) (2022). 5 Whether it is sound policy to correlate personhood with viability is a concern best addressed by our General Assembly. As Judge Mathias explained in his separate opinion to Horn: Whether the majority wishes to recognize it or not, assigning a viable fetus the status of an “individual” will not be a singular or uniform definition. Rather, the majority’s opinion will create a complicated, multi-tiered definition, completely dependent upon the level of care available to the mother and fetus at the time of injury. Will a fetus not be “viable” and therefore not an “individual” if the level of care at the delivery facility is a local county general hospital without appreciable advanced prenatal care? If the same fetus could be viable in a large metropolitan hospital with highly specialized prenatal care, should viability and “individual” status be subject to establishment merely on the chance of location of the place of injury? Will the new standard withstand constitutional scrutiny when the injury occurs in a location where only a lower level of care is available? These are all questions ignored by the majority and that are more properly the province of the General Assembly. These issues should be resolved through proactive public policy debates in the legislative branch of government, rather than through reactive interpretation of statutory language by the judicial branch of government.
Court of Appeals of Indiana | Opinion 25A-CR-2222 | May 6, 2026 Page 9 of 16 [21] The State presented sufficient evidence from which a reasonable fact-finder
could conclude that Wilson’s child was viable and, thus, an individual.
Wilson’s husband informed Holderman that Wilson was “5 months pregnant”
at the crash scene. Ex. Vol. 1, p. 19. Holderman testified that Wilson appeared
to be “twenty weeks pregnant or more.” Tr. Vol. 2, p. 147. Likewise, Dr. Hayes
testified that the child’s growth was “consistent with a child . . . that was
somewhere around twenty to twenty-four weeks” of gestational age. Id. at 193.
[22] Holderman testified that an unborn child below twenty weeks of gestational age
is usually considered “a non-viable baby if it is born.” Id. at 147. Holderman
further testified that, “[a]nything above twenty weeks, if they are able to get that
baby out, then it does have a chance of living . . . .” Id. (emphases added).
Similarly, in his testimony, Dr. Hayes stated that a gestational age of twenty-
four weeks or higher comes with “a good chance of survival,” with the chances
becoming “much less” prior to twenty-four weeks. Id. at 193. But Dr. Hayes did
not contradict Holderman’s testimony that, between twenty and twenty-four
weeks of gestational age, the child “ha[s] a chance.” Id. at 147. Holderman
further testified that the hospital to which Wilson was transported had “very
good care for premature babies.” Id.
[23] At that hospital, Dr. Hayes testified that Wilson’s unborn child “showed signs
of life,” namely, “a heartbeat,” upon arrival. Id. at 192. After concluding that
Horn, 824 N.E.2d at 704 (Mathias, J., concurring in result). However, as neither party advocates for our Court to apply a different rule, we limit our review to the question of Wilson’s child’s viability.
Court of Appeals of Indiana | Opinion 25A-CR-2222 | May 6, 2026 Page 10 of 16 an emergency C-section was necessary, Dr. Hayes and his team removed the
child from Wilson’s womb. There is no dispute that the child was born alive
and then died shortly afterward.
[24] A reasonable fact-finder could conclude from that evidence that Wilson’s child
was viable at the time of the crash. The child was at least twenty weeks
gestational age, which came with an undisputed chance of survival outside of
the womb. The testimony was equally clear that nonviability means a gestational
age below twenty weeks. And Wilson was transported to a hospital skilled in
the care of premature babies. Thus, the State presented sufficient evidence to
show that Wilson’s child was an individual under Indiana Code section 9-13-2-
124.
[25] Still, the dissent appears to conclude that clinical autopsy evidence or an
explicit examination by a physician on a specific fetus’s development is required
in order for the State to demonstrate that a prematurely born child is an
“individual” under Indiana Code section 9-13-2-124. Certainly such evidence
would be compelling. But to date, neither our Supreme Court nor the Indiana
General Assembly has mandated that such evidence is required in order for a
reasonable fact-finder to reach a conclusion on whether a prematurely born
child is an “individual” under Indiana Code section 9-13-2-124. Indeed, our
General Assembly has elsewhere made clear that it understands “a fetus in any
stage of development” to be equivalent to “another human being” for purposes
of Indiana criminal law. I.C. § 35-42-1-1(4) (defining murder). Thus, in absence
of explicit direction to do otherwise, we apply our usual criminal sufficiency
Court of Appeals of Indiana | Opinion 25A-CR-2222 | May 6, 2026 Page 11 of 16 standard of review here and conclude that the State’s evidence was sufficient to
show that Wilson’s child was an individual. See, e.g., Meehan v. State, 7 N.E.3d
255, 258-59 (Ind. 2014).
[26] Finally, we address Blackburn’s and the dissent’s argument that the evidence is
insufficient to support Blackburn’s conviction because a child’s “chance” at
survival invites speculation as to whether the child could in fact live
independently of the mother. Appellant’s Br. at 15-16. In support of that
position, the dissent relies on our opinion in Patel v. State, in which we
considered the sufficiency of the State’s evidence underlying a neglect-of-a-
dependent conviction. Infra at 15-16 (discussing Patel v. State, 60 N.E.3d 1041,
1054 (Ind. Ct. App. 2016)). But, at least as relied upon by the dissent, Patel is an
opinion on causation, and Blackburn does not argue causation in this appeal—
he argues personhood. See Patel, 60 N.E.3d at 1052-55. Further, we have
elsewhere acknowledged that an unborn child is not within the statutory
definition of a “dependent” for our neglect-of-a-dependent statutes. Herron v.
State, 729 N.E.2d 1008, 1010-11 (Ind. Ct. App. 2000) (relied on in Patel, 60
N.E.3d at 1053), trans. denied. But the question for Blackburn is not the
statutory definition of a “dependent”; it is the statutory definition of an
“individual.” Indeed, Blackburn’s brief to our Court does not rely on neglect-of-
a-dependent authority.
[27] Moreover, we conclude that Blackburn and the dissent misunderstand the
State’s evidence. The difference between viability and nonviability of a
prematurely born child is having a chance of survival at all. To date, our best
Court of Appeals of Indiana | Opinion 25A-CR-2222 | May 6, 2026 Page 12 of 16 medical efforts for prematurely born but viable children only affect the odds of
survival. See Tr. Vol. 2, pp. 147, 192-93. What matters for purposes of
Blackburn’s conviction is not what the odds here were, but that there was any
chance of the child’s survival at the time of Blackburn’s causative criminal
conduct. And the evidence was clear and unambiguous that this child had a
chance.
[28] We therefore affirm Blackburn’s conviction for the death of Wilson’s child.
Conclusion [29] For all of these reasons, we affirm Blackburn’s convictions.
[30] Affirmed.
Felix, J., concurs. May, J., concurs in part and dissents in part with a separate opinion.
ATTORNEY FOR APPELLANT Brandon E. Murphy Cannon Bruns & Murphy Muncie, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Courtney Staton Supervising Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 25A-CR-2222 | May 6, 2026 Page 13 of 16 May, Judge, concurring in part and dissenting in part.
[31] I concur with the majority’s determination regarding the admission of evidence,
but I cannot concur with the majority’s conclusion that the State presented
sufficient evidence of probative value to prove beyond a reasonable doubt that
Wilson’s fetus had attained viability.
[32] The parties and the majority seem to agree the State had an obligation to prove
Wilson's fetus had the capability of living independent of Wilson’s body. Slip
op. at para. 19-20. The testimony in this case demonstrated a “theoretical
chance of viability” exists for every fetus over twenty weeks of gestation.
Because a theoretical chance of viability is not the same as the existence of
viability, and because a theoretical chance that an element exists cannot
constitute proof beyond a reasonable doubt, I must dissent.
[33] The majority’s conclusion is also inconsistent with the legislature’s own
choices. The legislature defined viability as “the ability of a fetus to live outside
the mother’s womb.” Ind. Code § 16-18-2-365 (emphasis added). When the
legislature wanted to protect fetuses at any stage of development from criminal
liability it said so explicitly – as it did in the murder statute, which defines
murder to include knowingly or intentionally killing “a fetus in any stage of
development.” Ind. Code § 35-42-1-1(4). The legislature chose not to use that
language in Indiana Code section 9-30-5-5. That choice is dispositive. The
legislature knows how to write a statute that reaches fetuses at any stage of
development. When it intends that result it says so, in the text of the statute.
Court of Appeals of Indiana | Opinion 25A-CR-2222 | May 6, 2026 Page 14 of 16 Having chosen not to do so here, the scope of this statute is defined by the
language it actually contains – which requires viability, meaning ability – not by
reference to a neighboring provision with different language serving a different
purpose. Had the legislature used the same formulation in this statute as in the
murder statute, there would be no dissent. It did not, and that choice is for the
legislature to make, not for this court to override. A theoretical chance of
survival is not the ability to live outside the womb, and the legislature’s
deliberate use of the word ability is not an invitation to substitute a lesser
standard.
[34] “It is well-settled that proof of guilt beyond a reasonable doubt does not exist
where the evidence does no more than . . . establish a possibility or suspicion of
guilt.” Wilson v. State, 455 N.E.2d 1120, 1122 (Ind. 1983) (citing Briscoe v. State,
388 N.E.2d 638 (Ind. Ct. App. 1979)). In Briscoe, our court held a
“nonexclusive opportunity to commit the crime” is not enough to support of a
conviction because it demonstrates only a possibility. Briscoe, 388 N.E.2d at
645. A theoretical chance of survival is similarly just a possibility of viability.
The majority’s holding that a theoretical chance of survival constitutes proof of
viability beyond a reasonable doubt is irreconcilable with Briscoe, which the
majority does not cite and does not address. We similarly held that medical
testimony establishing only a possibility that an element exists is insufficient to
prove that element beyond a reasonable doubt in Patel v. State, 60 N.E.3d 1041,
1054 (Ind. Ct. App. 2016). Although the majority distinguishes Patel as a
causation case, the underlying principle is not element-specific. The rule of law
Court of Appeals of Indiana | Opinion 25A-CR-2222 | May 6, 2026 Page 15 of 16 stated in Wilson applies without limitation to the type of element at issue: a
possibility does not prove an element beyond a reasonable doubt. The majority
offers no authority for the position that possibility-level evidence is insufficient
for causation but sufficient for personhood, and caselaw forecloses that
distinction.
[35] Because the State did not prove beyond a reasonable doubt that Wilson’s fetus
had the ability to live outside the mother’s womb – as opposed to a theoretical
chance of doing so – I cannot vote to affirm Blackburn’s Level 4 felony
conviction on Count 3. I respectfully dissent. 6
6 I would reverse the Level 4 felony conviction on Count 3 and remand with instructions to enter the Level 5 felony involuntary manslaughter conviction on Count 4, on which the jury also found Blackburn guilty. See I.C. § 35-42-1-4(c)(4) (defining involuntary manslaughter to include killing a fetus while operating a motor vehicle while intoxicated). The legislature specifically created that statute for precisely this conduct. The State proved that offense beyond a reasonable doubt and neither party disputes it.
Court of Appeals of Indiana | Opinion 25A-CR-2222 | May 6, 2026 Page 16 of 16