Accused abductor may face homicide charge

By Jeff Wilford

Wednesday, February 25, 2004 12:00 AM CST

RACINE - Prosecutors are considering charging David Larsen with homicide for allegedly causing his ex-wife to miscarry a baby when he beat and kidnapped her last month.

Larsen, 39, of Wind Lake, already faces state charges, including attempted murder, for the crime. He's accused of ambushing Teri Jendusa-Nicolai when she came to his home to pick up their two children on Jan. 31, beating her, stuffing her inside a trash container and then leaving her to die in an unheated, rented storage facility in Illinois.

Jendusa-Nicolai, 38, was five weeks pregnant when she was attacked. She suffered a miscarriage after the attack, according to her doctors.

Wisconsin's fetal homicide law allows for a variety of homicide charges - ranging from intentional to reckless to negligent - when pregnancy is ended in a violent act. That wasn't always the case.

Before 1998, the killing of an unborn child while committing a crime could not be murder because the law defined a person as someone who was born alive. For example, if a person punched a pregnant woman in the stomach and that killed the unborn child, that person could not be charged with homicide under the old law. They could be charged under the fetal homicide law, however.

Specifically, when it comes to homicide, Wisconsin law extends the definition of a person to include an unborn child, from fertilization to birth. Wisconsin is one of 16 states with such homicide laws, according to the National Right to Life Council. That definition of a person does not extend to medical issues like abortion.

There's no real legal hurdle preventing prosecutors from charging Larsen under the fetal homicide law, said David Shultz, a law professor at the University of Wisconsin-Madison. Regardless of whether Larsen knew Jendusa-Nicolai was pregnant, if they can prove that he meant to kill Jendusa-Nicolai, they can transfer that intent to the death of her unborn child, Schultz said.

The real hurdle is whether prosecutors can prove that the injuries Larsen inflicted caused the miscarriage, Schultz said.

Nieskes said prosecutors need to review Jendusa-Nicolai's medical records to make sure they can prove that connection before they make a decision.

Nieskes said prosecutors also want to discuss the matter with Jendusa-Nicolai first. "That's such a sensitive issue, they deserve to have some input before we make a decision," Nieskes said.

Joseph Long II, the attorney representing Jendusa-Nicolai in her lawsuit against Larsen, could not say what her position would be.

Larsen's attorney, Mark Nielsen, declined to comment.

For now, prosecutors are in no rush to decide. Larsen will stand trial on the federal charges of kidnapping and interstate domestic violence before he's prosecuted in state court. In the meantime, Larsen is in jail - his bond for the state charges is $1 million cash.

"Since the federal prosecution is going to proceed first, we have the ability to make a decision without the pressure of time," Nieskes said.

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