source: Caselaw Access Project

author: Goff, Justice.

license: Public Domain

text:
    Marquell M. JACKSON, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
    Supreme Court Case No. 18S-CR-00113
    Supreme Court of Indiana.
    Argued: March 22, 2018 FILED August 24, 2018 Rehearing Denied November 7, 2018
    ATTORNEY FOR APPELLANT: Matthew J. McGovern, Anderson, Indiana
    ATTORNEYS FOR APPELLEE: Curtis T. Hill, Jr., Attorney General of Indiana, Justin F. Roebel, Supervising Deputy Attorney General, Indianapolis, Indiana
    On Petition to Transfer from the Indiana Court of Appeals, No. 82A04-1609-CR-02074
   Goff, Justice.

A jury found that Defendant Marquell M. Jackson committed several criminal offenses in connection with a criminal gang. As a result, the trial court increased his overall sentence by thirty years according to the criminal gang enhancement statute. Jackson appealed, and the Court of Appeals reversed the enhancement. Jackson and the State now dispute the extent of the trial court's sentencing authority on remand. This appeal requires us to determine what, if any, ability a trial court has to resentence a criminal defendant on the felonies that underlie a criminal gang enhancement when an appellate court has reversed that enhancement and remanded to the trial court. Guided by a general inquiry into the relationship between an enhancement and its underlying offenses, we find that the criminal gang enhancement statute unambiguously increases the punishment for all the felonies that underlie the enhancement, and vacating such an enhancement disturbs the punishment originally imposed. As such, after an appellate court reverses a criminal gang enhancement, the trial court on remand must resentence a defendant on all surviving underlying felonies.

Factual and Procedural History

On October 26, 2015, Jackson and four friends decided to rob a person they thought had marijuana. Armed with two guns, they drove to the person's apartment building. Four members of the group, including Jackson, entered the building, made their way to the apartment, and encountered a group of about ten people smoking marijuana. A gunfight broke out, and the would-be thieves fled. All told, three of the intruders, one of the occupants of the apartment, and a neighbor's brother were injured in the shooting.

The State ultimately charged Jackson with nine offenses: two counts of burglary, as Level 1 felonies (Counts 1 and 2); one count of attempted robbery resulting in serious bodily injury, as a Level 2 felony (Count 3); four counts of attempted armed robbery, as Level 3 felonies (Counts 4, 5, 6, and 7); and two counts of aggravated battery, as Level 3 felonies (Counts 8 and 9). The State also sought to have Jackson's potential sentence enhanced under the criminal gang enhancement statute. See Ind. Code § 35-50-2-15 (2014 Repl.). After a bifurcated trial, the jury found Jackson guilty as charged and that the enhancement applied to each count. The trial court merged Count 2 with Count 1 but otherwise entered judgments of conviction on each count and accepted the jury's finding as to the enhancement. The court ordered that Jackson serve concurrent sentences of thirty years for Count 1, seventeen-and-one-half years for Count 3, and nine years each for Counts 4, 5, 6, 7, 8, and 9. It then applied the statutory enhancement of thirty years to Jackson's sentence, which resulted in a sixty-year overall sentence.

Jackson appealed and argued, among other things, that the trial court committed fundamental error when it allowed the State to amend the information for the criminal gang enhancement. The Court of Appeals agreed and reversed the enhancement. Jackson v. State , 84 N.E.3d 706, 711-14 (Ind. Ct. App.) (" Jackson I "), clarified on reh'g , 88 N.E.3d 1106 (Ind. Ct. App. 2017) (" Jackson II "). It instructed the trial court on remand to "vacate the enhancement and the sentence imposed on it." Id. at 714.

Both Jackson and the State petitioned the Court of Appeals for rehearing seeking clarification of the remand order. Jackson sought clarification instructing the trial court that it could not resentence him on the offenses underlying the vacated enhancement, and the State, in relevant part, requested that the clarification explicitly allow the trial court to resentence on those underlying offenses. The Court of Appeals granted the petitions and compared the criminal gang enhancement statute with the habitual offender enhancement statute and Coble v. State , 523 N.E.2d 228 (Ind. 1988), a case involving a vacated habitual offender enhancement. Jackson II , 88 N.E.3d at 1108-1110. Based on this comparison, it found that "nothing about the trial court's imposition of the underlying sentence, or the convictions on which the underlying sentence is imposed, required that the trial court consider the criminal gang enhancement." Id. at 1110. Therefore, it concluded, "the underlying sentence imposed by the trial court on Jackson's convictions is not subject to change on remand." Id.

We granted the State's petition to transfer to address the trial court's sentencing authority on remand after vacating the criminal gang enhancement, thereby vacating the Court of Appeals opinions in part. See Ind. Appellate Rule 58(A). We summarily affirm the Court of Appeals on the other issues addressed in Jackson I and Jackson II . See App. R. 58(A)(2).

Standard of Review

Resolution of this case requires us to interpret the criminal gang enhancement statute. "Because this presents a matter of statutory interpretation, it receives de novo review." Day v. State , 57 N.E.3d 809, 811 (Ind. 2016).

Discussion and Decision

Generally, trial courts have broad discretion in formulating appropriate sentences for criminal convictions. Cardwell v. State , 895 N.E.2d 1219, 1222 (Ind. 2008). But this discretion can be limited when the sentencing occurs on remand. For example, the nuances of a particular sentence enhancement, as shown by the enhancement statute and related case law, can limit a trial court's sentencing discretion on remand. See, e.g. , Coble , 523 N.E.2d at 228-29 (discussing the trial court's sentencing options on remand after a habitual offender enhancement had been vacated); Greer v. State , 680 N.E.2d 526, 527-28 (Ind. 1997) (discussing the trial court's sentencing options on remand after the felony underlying a habitual offender enhancement had been vacated). Because the parties here dispute the extent of the trial court's sentencing discretion on remand, we begin with an overview of the criminal gang enhancement statute.

The criminal gang enhancement statute increases the penal consequences for committing one or more felony offenses in connection with a criminal gang. See generally I.C. § 35-50-2-15. The State must initially show that the defendant has committed at least one underlying felony. See I.C. § 35-50-2-15(b) - (d) (referring to "the offense," "the felony offense," "the underlying felony," and "the underlying felonies"). See also State v. Davis , 898 N.E.2d 281, 289 (Ind. 2008). If the State carries this burden, the statute provides for "an additional fixed term of imprisonment" based on the underlying felony or felonies. I.C. § 35-50-2-15(b), (d). This enhancement then runs consecutive to the underlying sentence and cannot be suspended. I.C. § 35-50-2-15(e) - (f). With this statutory scheme in mind, we turn to the task at hand: determining the extent of the trial court's sentencing authority on remand after vacating a criminal gang enhancement.

I. The general inquiry illustrated by Coble is instructive in determining a trial court's sentencing authority on remand after a criminal gang enhancement has been reversed.

Both parties direct us to our prior decision in Coble as a means to resolve this matter, and the Court of Appeals below heavily relied on the case. The State argues that Coble and subsequent cases allow a trial court, on remand from a reversal of a criminal gang enhancement, to resentence a defendant on the felonies related to the enhancement. Jackson argues that Coble plainly prohibits a trial court from resentencing on any felonies underlying a vacated criminal gang enhancement. Both parties' reliance on Coble is partially misplaced. Coble dealt with issues specific to habitual offender enhancements-not criminal gang enhancements-and cannot be mechanically applied to disputes outside that context. However, we find the general inquiry illustrated by Coble instructive here.

Coble was initially convicted of two counts of burglary and found to be a habitual offender. Id. at 228. The trial court sentenced him to concurrent terms of two years on each count. Id. It attached the habitual offender enhancement to count 2, enhancing it by thirty years. Id. On appeal, this Court reversed the habitual offender enhancement. Id. After vacating the enhancement on remand, the trial court sentenced Coble to consecutive terms of six years on count 1 and eight years on count 2. Id. Coble appealed again, and this Court reversed the trial court in part. Id. at 228-29. First, we reversed the change of Coble's sentence on count 1 because it "was not directly affected by the habitual offender status." Id. at 228. Second, we affirmed the change of the sentence on count 2 because the attachment of the enhancement to that count increased the punishment for that burglary offense from two years to thirty-two years. Id. at 229. Vacating the enhancement thus disturbed the punishment, and we found it "proper for the trial court to sentence [Coble] on [count 2], and to impose any sentence permissible under the statute." Id. (citing Flowers v. State , 518 N.E.2d 1096 (Ind. 1988) ). Finally, we affirmed the trial court's change to consecutive sentences finding that the trial court had a duty to reassess its concurrent/consecutive determination after the initial sentence for count 2 was set aside. Id.

Coble provides two takeaways in the context of this appeal. First, Coble 's narrow holding shows an application of the specific law of habitual offender enhancements to the two particular offenses Coble committed to determine the trial court's sentencing authority on remand. Second, more broadly, Coble illustrates a general inquiry into how an enhancement affects the punishment for the offenses the defendant committed to determine a trial court's sentencing authority after vacating the enhancement. We find Coble 's specific application of the habitual offender enhancement statute unhelpful here, but its general inquiry is instructive in the context of criminal gang enhancements.

A. The specific holdings of Coble are based on nuances of the habitual offender enhancement statute and related case law-not the criminal gang enhancement statute-and do not control here.

Coble involved a habitual offender enhancement, and its specific holdings relied on particular aspects of such enhancements. Because this appeal involves the criminal gang enhancement, which has important differences from the habitual offender enhancement, Coble 's specific holdings do not control here.

A habitual offender enhancement increases punishment based on recidivism and is not intrinsically related to the underlying offense it enhances. This enhancement increases the punishment for a current offense based on the ineffectiveness of past punishment to deter continued illegal behavior. Funk v. State , 427 N.E.2d 1081, 1086 (Ind. 1981) ; Hall v. State , 273 Ind. 507, 515, 405 N.E.2d 530, 535-36 (1980). See generally I.C. § 35-50-2-8 (Supp. 2015). As a result, the habitual offender enhancement is not intrinsically linked to any particular current offense. See Greer , 680 N.E.2d at 527. Nevertheless, this Court has consistently held that the trial court must specify to which underlying felony the enhancement applies. See, e.g. , Winn v. State , 748 N.E.2d 352, 360 (Ind. 2001) ; Johnson v. State , 432 N.E.2d 1358, 1362 (Ind. 1982). See also I.C. § 35-50-2-8(j). This specific application or "attachment" of the enhancement is necessary to avoid potential double jeopardy and Eighth Amendment problems. Yager v. State , 437 N.E.2d 454, 457 (Ind. 1982). Because habitual offender enhancements do not naturally relate to any particular underlying offense, the trial court must specifically attach the enhancement to an underlying offense.

A criminal gang enhancement, by contrast, is fundamentally related to its underlying felony or felonies. The enhancement increases punishment based on the manner in which the defendant committed the underlying felony or felonies. I.C. § 35-50-2-15(b) (2014 Repl.). Additionally, the increase in the defendant's sentence depends on the length of the sentence for the underlying felony or felonies. I.C. § 35-50-2-15(d). Thus, the criminal gang enhancement is fundamentally tied to the underlying felony or felonies. Because of this intrinsic connection and the basis for the enhanced punishment, the criminal gang enhancement does not experience the same potential constitutional pressures as the habitual offender enhancement, and there is no need for the trial court to specifically "attach" the criminal gang enhancement to an underlying felony.

Coble addressed issues related to habitual offender enhancements rather than criminal gang enhancements. While both enhancements increase the punishment of crimes, they differ in their aims, requirements, and results. Because of these differences, Coble cannot be mechanically applied to this case. The specific holdings of Coble providing a trial court's sentencing options on remand after vacating a habitual offender enhancement do not control a trial court's options after a criminal gang enhancement has been vacated.

B. The general inquiry represented by Coble , however, is instructive here.

Coble 's relevance here is not its narrow holding but its general inquiry into the relationship between an enhancement and the punishment for the underlying offenses. This general inquiry asks: For what offense(s) does the enhancement provide an increased punishment? If the enhancement provides an increased punishment for a particular offense (or multiple offenses), the sentence for that offense (or those offenses) can be adjusted on remand after the enhancement is vacated because vacating the enhancement disturbs the punishment. Viewed in this light, the specific holdings of Coble can be understood as an application of this general inquiry in the context of habitual offender enhancements.

This general inquiry reflects the realities of sentencing. The Court of Appeals has noted that "[w]hen a[ ] habitual offender enhancement is to be added to a defendant's sentence, it certainly is a factor in the trial court's decision of whether to impose the presumptive sentence for the underlying felony or to increase or decrease the presumptive sentence due to aggravating or mitigating circumstances." Williams v. State , 494 N.E.2d 1001, 1003 (Ind. Ct. App. 1986). This statement, based on the general understanding that an enhancement will increase a defendant's sentence, applies as equally to criminal gang enhancements as to habitual offender enhancements. The general inquiry into the connection between the enhancement and the underlying offense(s) that receives an increased punishment comports with this commonsense understanding of some of a trial court's sentencing considerations.

We find this general inquiry instructive in determining the trial court's authority to resentence Jackson on remand.

II. Based on the statutory relationship between the criminal gang enhancement and its underlying felonies, a trial court on remand after vacating a criminal gang enhancement must resentence a defendant on the enhancement's underlying felonies.

We turn to the criminal gang enhancement statute to determine which underlying felony or felonies receive an increased punishment as a result of a criminal gang enhancement. We interpret statutes with a primary goal in mind: "to fulfill the legislature's intent." Day , 57 N.E.3d at 812. "[T]he 'best evidence' of that intent is the statute's language." Id. If the legislature has clearly and unambiguously expressed its intent in the statute, "we put aside various canons of statutory construction and simply 'require that words and phrases be taken in their plain, ordinary, and usual sense.' " KS & E Sports v. Runnels , 72 N.E.3d 892, 898-99 (Ind. 2017) (citation omitted).

According to the unambiguous language of the criminal gang enhancement statute, a criminal gang enhancement increases the punishment for all the underlying felonies the jury or court finds the defendant committed in connection with a criminal gang. The statute contemplates prosecutions in which a single felony alone or multiple felonies together provide a basis for the enhancement. I.C. § 35-50-2-15(d)(1)-(2). The statute then provides that "[a] sentence imposed under this section shall run consecutively to the underlying sentence." I.C. § 35-50-2-15(e). In cases with multiple underlying felonies punished together, the "underlying sentence" will necessarily be the total sentence for those underlying felonies. In these situations, the additional term of imprisonment is "equal to the longest sentence imposed for the underlying felonies." I.C. § 35-50-2-15(d)(2). The result of this scheme is that, when multiple felonies provide the basis for the criminal gang enhancement, the enhancement increases a defendant's overall punishment by a term equal to the longest individual, underlying sentence. Effectively, the legislature has provided a system that groups the felonies underlying a criminal gang enhancement and increases the punishment on the group. Thus, because the criminal gang enhancement increases the punishment for all the underlying felonies, a trial court's authority on remand after a reversal of such an enhancement extends to resentencing on each underlying felony. The trial court's authority likewise extends to its determination as to whether the sentences for the underlying felonies should be concurrent or consecutive. See Flowers , 518 N.E.2d at 1097-99 ; Gootee v. State , 942 N.E.2d 111, 113-14 (Ind. Ct. App. 2011).

A stated purpose of the criminal code also confirms that our reading of the statute comports with the legislature's intent. "In determining legislative intent, we 'consider the objects and purposes of the statute ....' " Kitchell v. Franklin , 997 N.E.2d 1020, 1026 (Ind. 2013) (quoting Bushong v. Williamson , 790 N.E.2d 467, 471 (Ind. 2003) ). The legislature has provided that a purpose of the criminal code is to "give judges maximum discretion to impose sentences based on a consideration of all the circumstances related to the offense[.]" I.C. § 35-32-1-1(7). Our reading of the criminal gang enhancement statute provides trial courts with the discretion to craft an appropriate sentence without undue concern for what sentence might be left if an appellate court reverses the enhancement.

Here, the jury found the criminal gang enhancement applied to each felony offense charged. Based on the statutory formula, the trial court sentenced Jackson to an additional fixed term of imprisonment of thirty years. Thus, Jackson's punishment for committing the underlying felonies (Counts 1, 3, 4, 5, 6, 7, 8, and 9) was increased by thirty years because he committed each offense in the manner specified by the criminal gang enhancement statute. When the trial court vacates the criminal gang enhancement on remand, it will necessarily disturb the punishment originally imposed for the underlying felonies. With the original sentences disturbed, the trial court on remand must resentence Jackson on each underlying felony.

Conclusion

Based on the general inquiry from Coble and the unambiguous language of the criminal gang enhancement statute, a trial court on remand from a reversal of a criminal gang enhancement is to resentence the defendant on all the felonies underlying that enhancement. Thus, we remand to the trial court with instructions to follow the instructions given by the Court of Appeals that relate to those portions of Jackson I and Jackson II we have summarily affirmed, including the instruction to vacate the criminal gang enhancement. We further instruct the trial court on remand to resentence Jackson on Counts 1, 3, 4, 5, 6, 7, 8, and 9 in accordance with this opinion.

Rush, C.J., and David, Massa, and Slaughter, JJ., concur.

      Effective July 1, 2016, the statute refers to criminal organizations rather than criminal gangs. See Pub. L. No. 25-2016, § 29, 2016 Ind. Acts 219-221. Because the statute in effect at the time of Jackson's offenses referred to criminal gangs, we will use that language here.

      In addition to their reliance on Coble , both parties offer extensive arguments regarding whether this Court should adopt the sentencing doctrine known as the "sentencing package doctrine" or the "aggregate package theory." We observe that the legislature has shown a tendency to grant trial courts more sentencing discretion in recent years. See I.C. § 35-32-1-1(7) (instructing that the criminal code should be construed to "give judges maximum discretion to impose sentences based on a consideration of all the circumstances related to the offense"); Cardwell , 895 N.E.2d at 1222 (discussing the additional discretion granted to trial courts when the legislature moved from presumptive sentences to advisory sentences). However, considering the legislature's ongoing criminal code reform, we decline to evaluate the doctrine's applicability in Indiana at this time.

      The legislature recently codified our case law in this regard and supplied a few additional specific instructions to trial courts. See Pub. L. No. 158-2013, § 661, 2013 Ind. Acts 1605 (adding subsection (j) and specifying the felony to which the enhancement should attach).

      Relying primarily on subsection (e) of the statute, Jackson argues that a criminal gang enhancement results in a separate sentence such that vacating the enhancement leaves the sentences on the underlying felonies undisturbed. Response to Pet. to Transfer, p. 6. While we agree that the subsection contemplates some difference in how the terms of imprisonment are served, we do not read it as creating sentences so separate as to be unrelated. As discussed throughout this opinion, the criminal gang enhancement statute provides an enhancement that is intimately related to its underlying felonies as well as the corresponding sentences. Despite any separation in the service of the sentences, vacating the enhancement still disturbs the punishment imposed on the underlying felonies. Finding otherwise would deny the enhancement's very nature and contravene the legislature's intent.

      The trial court may, in its discretion and subject to generally applicable resentencing limitations, see, e.g. , Alabama v. Smith , 490 U.S. 794, 798-803, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989) (discussing the prohibition on vindictive sentences), impose the same sentence as originally pronounced for each underlying felony conviction or a different sentence allowed by statute.

      This includes correcting the judgment of conviction, sentencing order, abstract of judgment, and any other orders that reflect the erroneous attachment of the criminal gang enhancement to Count 1.


author: Per Curiam.

text:
    In the MATTER OF Trista A. HUDSON Respondent.
    Supreme Court Case No. 64S00-1705-DI-325
    Supreme Court of Indiana.
    FILED August 29, 2018
    ATTORNEY FOR RESPONDENT: Donald R. Lundberg, Indianapolis, Indiana
    ATTORNEYS FOR INDIANA SUPREME COURT DISCIPLINARY COMMISSION: G. Michael Witte, Executive Director, Seth Pruden, Staff Attorney, Larry Newman, Staff Attorney, Indianapolis, Indiana
    Attorney Discipline Action
   Per Curiam.

We find that Respondent, Trista Hudson, committed attorney misconduct by failing to disclose exculpatory evidence and by prosecuting a charge she knew was not supported by probable cause. For this misconduct, we conclude that Respondent should be suspended for at least eighteen months without automatic reinstatement.

This matter is before the Court on the report of the hearing officer appointed by this Court on the Indiana Supreme Court Disciplinary Commission's verified disciplinary complaint. Respondent's 1998 admission to this state's bar subjects her to this Court's disciplinary jurisdiction. See IND. CONST. art. 7, § 4.

Procedural Background and Facts

At relevant times, Respondent served as a deputy prosecuting attorney in Porter County. In 2013, "Defendant" was charged with five counts of child molesting, the first four of which were tried together and are at issue here. Counts I and II alleged criminal deviate conduct involving Defendant's stepchildren K.C. and E.C., respectively. Counts III and IV alleged fondling with respect to K.C. and E.C. The four counts were based upon statements made by the children to various police officials, and there was no physical or medical evidence of child molesting.

Five days before trial, Respondent interviewed E.C. in preparation for trial with a detective present. During this interview E.C. recanted the facts underlying Count II, stating he had lied at the request of his and K.C.'s biological father. Respondent believed E.C.'s recantation was truthful.

However, Respondent did not disclose E.C.'s recantation to defense counsel, nor did she withdraw Count II at any point prior to or during trial. During her direct examination of E.C. at trial, Respondent avoided asking any questions about the allegations underlying Count II. E.C.'s recantation, and the fact his father had coached him to lie, was revealed at trial during defense counsel's questioning of E.C. and other witnesses. Respondent did not immediately disclose to the court that she had known about E.C.'s recantation for nearly one week. After the prosecution concluded its case-in-chief, the trial court addressed Respondent's failure to disclose the recantation and determined that the appropriate remedy was to enter judgment of acquittal for Defendant as to all four counts.

The Commission charged Respondent with violating Indiana Professional Conduct Rules 3.8(a), 3.8(d), and 8.4(d) in connection with the conduct described above. Following a hearing, the hearing officer filed his report to this Court concluding that Respondent violated each of those three rules as charged.

The Commission also charged Respondent with violating Rules 8.1(a) and 8.4(c), based on the Commission's allegation that Respondent's response to the Commission's request for investigation was knowingly false. The hearing officer concluded that the Commission had not met its burden of proving these charges by clear and convincing evidence.

Discussion and Discipline

Respondent concedes a violation of Rule 3.8(a) but seeks our review of the hearing officer's conclusions that she violated Rules 3.8(d) and 8.4(d) as well as certain underlying findings made by the hearing officer. The Commission does not seek our review of the hearing officer's conclusions that the Commission failed to prove the Rule 8.1(a) and Rule 8.4(c) charges. Both parties also have filed briefs addressing the question of appropriate sanction.

The Commission carries the burden of proving attorney misconduct by clear and convincing evidence. See Ind. Admission and Discipline Rule 23(14)(g)(1). We review de novo all matters presented to the Court, including review not only of the hearing officer's report but also of the entire record. See Matter of Neary , 84 N.E.3d 1194, 1196 (Ind. 2017). The hearing officer's findings receive emphasis due to the unique opportunity for direct observation of witnesses, but this Court reserves the right to make the ultimate determination. Id.

Rule 3.8(a) forbids a prosecutor from prosecuting a charge that she knows is not supported by probable cause. Respondent concedes that she violated this rule but attempts to cast her violation as merely a "formal" one, in that (according to Respondent) Count II technically was left "in the case" as Defendant's trial commenced but otherwise was abandoned by the prosecution. (Mem. in Support of Pet. for Review at 42-43). The hearing officer did not agree with this reductive view, nor do we. Respondent gave no indication that Count II was being abandoned when the court reviewed with counsel the proposed preliminary instructions (which included an instruction on the Count II charge), nor did she do so when those instructions were given to the jury orally and in writing. And immediately after the preliminary instructions were given to the jury, Respondent told the jury in her opening statement that "[a]t the end of the evidence ... I will ask you to find this Defendant guilty in what he is charged with, the four counts of child molesting." (Ex. 5 at 26).

Respondent also admits that she failed to disclose E.C.'s recantation to the defense, but she argues that Rule 3.8(d)

did not require her to do so. We disagree. Respondent's argument is premised on the tenuous notion that E.C.'s recantation was merely impeachment evidence, which Respondent contends Rule 3.8(d) does not encompass. But Rule 3.8(d) in relevant part expressly requires timely disclosure of "all evidence or information known to the prosecutor that tends to negate the guilt of the accused" (emphasis added). Rule 3.8(d) contains one limited exception not applicable here involving information subject to a protective order. But there is no exception for impeachment evidence. Further, under the circumstances of this case we cannot agree that E.C.'s recantation was merely impeaching. Respondent concedes E.C.'s recantation was evidence tending to negate Defendant's guilt on Count II, and as discussed above we reject Respondent's contention that the inclusion of Count II in the trial was a trivial formality. And in a case in which all remaining counts likewise were founded entirely upon reports made by Defendant's two stepchildren, we find it very difficult to characterize direct evidence that the stepchildren's father successfully coached at least one of them to lie about what Defendant had done as mere impeachment.

Finally, Respondent argues in her briefing to this Court that her conduct was not "prejudicial to the administration of justice" within the meaning of Rule 8.4(d). Again, we cannot agree. The first component of Respondent's argument echoes one addressed above; namely, Respondent's contention that Defendant was never actually at risk of conviction of Count II, notwithstanding its inclusion in the trial, because Respondent elicited no evidence to support that count. This argument conflates prejudice to the defendant with prejudice to the administration of justice; they are not the same, and the focus of Rule 8.4(d) is the latter. See Neary , 84 N.E.3d at 1197. The second component of Respondent's argument is that the trial court "overreacted" in entering judgment of acquittal on all four counts and instead should have taken less drastic remedial action, such as declaring a mistrial and then retrying Defendant on Counts I, III, and IV. (Mem. in Support of Pet. for Review at 66-68). Even assuming that the trial court had other options within its discretion to exercise, we are not inclined to shift culpability for the prejudicial effects of an attorney's misconduct onto the court forced to take remedial action to address that misconduct. Accord Neary , 84 N.E.3d at 1197. We also note that Respondent testified as follows at the final hearing in this matter:

Whether or not I thought Judge Alexa should've done something a little different still doesn't negate the fact that but for my lack of making a better decision he never would've been put in that place and ultimately, as I mentioned, victims not getting justice, the State of Indiana being harmed, the potential of, God forbid, [Defendant] doing something to someone else, none of that would be a consideration if I had done something different.

(Tr. at 204-05). Respondent's testimony accurately captures the thrust of Rule 8.4(d).

In sum, we find sufficient support for the hearing officer's findings and conclusions. Accordingly, we find that Respondent violated Rules 3.8(a), 3.8(d), and 8.4(d), and we find in favor of Respondent on the remaining charges. We turn now to the matter of sanction.

Quite thankfully, we have not previously had occasion to consider the question of an appropriate sanction for a Rule 3.8(a) or Rule 3.8(d) violation. There can be little doubt that prosecuting a charge known to lack probable cause, and failing to disclose known information or evidence tending to negate a defendant's guilt, are among the most serious ethical violations a prosecutor could commit. "The State is never more awesomely powerful, nor is the individual more vulnerable, than in a criminal prosecution[.]" State v. Taylor , 49 N.E.3d 1019, 1023 (Ind. 2016). These rules of professional conduct are central to the prosecutorial function and essential to ensuring the integrity and fairness of our criminal justice system.

Respondent urges us to impose a public reprimand, arguing that she committed only a "formal" Rule 3.8(a) violation and likening her case to Matter of Henderson , 78 N.E.3d 1092 (Ind. 2017). As discussed above, Respondent's rule violations were not so limited. Moreover, the nature of Respondent's misconduct in this case significantly differs from the ill-advised book deal negotiated by the prosecutor in Henderson and affected the underlying criminal case far more directly.

The Commission urges us to impose a four-year suspension without automatic reinstatement, likening this case to Neary , in which the prosecutor eavesdropped on confidential attorney-client discussions in two separate criminal cases. The types of misconduct at issue in this case and in Neary are extremely serious and erode public confidence in the criminal justice system. Without attempting to parse which prosecutorial transgression is qualitatively worse, we find Respondent's conduct in this one single case distinguishable from the prosecutor's repeated violations in Neary . Additionally, during her testimony in this case Respondent expressed some measures of contrition, regret, and insight into her misconduct that distinguish her from the prosecutor in Neary .

After careful consideration of this matter, we conclude that Respondent should be suspended for a period of at least eighteen months and required to go through the reinstatement process before resuming practice.

Conclusion

The Court concludes that Respondent violated Professional Conduct Rules 3.8(a), 3.8(d), and 8.4(d). The Court finds in favor of Respondent on the remaining charges.

For Respondent's professional misconduct, the Court suspends Respondent from the practice of law in this state for a period of at least eighteen months, without automatic reinstatement, effective October 10, 2018. Respondent shall fulfill all the duties of a suspended attorney under Admission and Discipline Rule 23(26). At the conclusion of the minimum period of suspension, Respondent may petition this Court for reinstatement to the practice of law in this state, provided Respondent pays the costs of this proceeding, fulfills the duties of a suspended attorney, and satisfies the requirements for reinstatement of Admission and Discipline Rule 23(18).

The costs of this proceeding are assessed against Respondent. The hearing officer appointed in this case is discharged.

All Justices concur.

      The State did not appeal this decision, and Respondent's employment with the prosecutor's office was terminated following Defendant's trial.

      Respondent devotes much of her memorandum in support of her petition for review to analyzing the disclosure requirements under the criminal-law Brady doctrine. See Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). But in this attorney discipline case, our focus is on the requirements of Rule 3.8(d). Accord Matter of Smith , 60 N.E.3d 1034, 1036 (Ind. 2016). We note that in applying similar versions of Rule 3.8(d), some jurisdictions have treated the duties imposed by the rule coextensively with the duties imposed under Brady . See, e.g., In re Seastrunk , 236 So.3d 509, 518-19 (La. 2017). Other jurisdictions have held that a prosecutor's ethical obligations under the rule are broader than those imposed by Brady . See, e.g., In re Disciplinary Action Against Feland , 820 N.W.2d 672, 678 (N.D. 2012). We need not choose today between these two approaches because we find Respondent's conduct runs afoul of Rule 3.8(d) under either approach.

      Regardless, different remedial action still would have resulted in prejudice to the administration of justice. For example, a mistrial would have resulted in a delay in the prosecution, the expenditure of additional judicial resources, the selection and impanelment of a second jury, and the need for witnesses (including E.C. and K.C.) to testify a second time.

      See, e.g. , Tr. at 170 ("[T]his is completely on me, it was my case"), at 192 (describing her failure to disclose E.C.'s recantation to defense counsel as "ridiculous, quite frankly" and explaining "[i]t's almost like I shut everything else out, every other reasonable thought that you would think a person in my position, meaning my experience, would've done"), at 193 ("I can't explain to you the amount of guilt I feel [that K.C. and E.C. did not get a verdict on Counts I, III, and IV]. I struggle with that because I was supposed to protect them and also I was supposed to protect, if the jury found him guilty, any other children in the future from him, and because I failed to recognize an issue that will forever be on my shoulders"), and at 204-05 (quoted above).


author: Barnes, Senior Judge.

text:
    David EARLEY and Rhonda Earley, Appellants-Plaintiffs, v. EDWARD JONES & CO., LP, Edward Jackson, and Adam Jackson, Appellees-Defendants.
    Court of Appeals Case No. 36A04-1710-PL-2258
    Court of Appeals of Indiana.
    FILED June 25, 2018
    Attorneys for Appellants: Jason M. Smith, W. Brent Gill, Smith Law Services, P.C., Seymour, Indiana
    Attorneys for Appellees: Stacy Walton Long, William J. Barkimer, Krieg DeVault LLP, Indianapolis, Indiana
   Barnes, Senior Judge.

Case Summary

[1] David and Rhonda Earley ("the Earleys") appeal the trial court's stay and order compelling arbitration in their action against Edward D. Jones & Co., LP ("Edward Jones"), Edward Jackson, and Adam Jackson (collectively, "Defendants"). We affirm.

Issues

[2] The Earleys raise two issues, which we restate as:

I. whether the trial court properly found that the arbitration agreements between the parties were enforceable; and
II. whether the trial court properly found that the Federal Arbitration Act applied rather than Missouri law.

Facts

[3] Edward Jones is a national corporation based in Missouri and doing business in Jackson County, Indiana, and Edward Jackson and Adam Jackson were employees/agents of Edward Jones. In 1998, David Earley opened a Roth Individual Retirement Account ("IRA") with Edward Jones. The Adoption Agreement, which David signed, provided: "I appoint Edward Jones to serve as Custodian in accordance with the terms and conditions of the Edward Jones Self-Directed Individual Retirement Account Custodial Agreement, which contains a pre-dispute arbitration clause. I hereby acknowledge that I have received and read such Agreement and the Disclosure Statement and Schedule of Fees accompanying it." Appellants' App. Vol. II p. 31. The Custodial Agreement provided, in part:

Any controversy arising out of or relating to any of my accounts or transactions with you, your officers, directors, agents and/or employees for me, or to this agreement, or the breach thereof, or relating to transactions or accounts maintained by me with any of your predecessor or successor firms by merger, acquisition or other business combinations from the inception of such accounts shall be settled by arbitration in accordance with the rules then in effect of the Boards of Directors of the New York Stock Exchange, Inc., the American Stock Exchange, Inc., the Municipal Securities Rulemaking Board, or the National Association of Securities Dealers, Inc. as I may elect.

Id. at 44.

[4] In 2005, the Earleys opened a joint account with Edward Jones. They signed an Account Authorization and Acknowledgement Form, which provided: "The Edward Jones Account Agreement and Disclosure Statement contains on page 20 a binding arbitration provision which may be enforced by the parties. By my/our signature below, I/we have received a copy of this document ... and agree to its terms and conditions." Id. at 45. That agreement contained an arbitration clause similar to the earlier arbitration clause.

[5] In 2009, David executed a revised Roth IRA agreement. David acknowledged that he had received and reviewed the Retirement Account Agreement, which contained a binding arbitration clause similar to the earlier arbitration clauses. The document also provided:

"THESE CONTRACTS CONTAIN A BINDING ARBITRATION PROVISION ... WHICH MAY BE ENFORCED BY THE PARTIES." Id. at 74. Also in 2009, the Earleys opened traditional IRAs with Edward Jones. They signed a document acknowledging that they had received and reviewed the Retirement Account Agreement, which contained a binding arbitration provision similar to the earlier provisions. The document also provided: "THESE CONTRACTS CONTAIN A BINDING ARBITRATION PROVISION ... WHICH MAY BE ENFORCED BY THE PARTIES." Id. at 87, 89, 91. Finally, in 2014, Rhonda opened another IRA account with Edward Jones. She signed an Account Authorization and Agreement Form, in which she acknowledged receiving and reviewing the Account Agreement, which contained a binding arbitration provision similar to the earlier provisions. The document also provided: "THE EDWARD JONES ACCOUNT AGREEMENT CONTAINS ... A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES." Appellants' App. Vol. III p. 31. All of the agreements also provided that the agreement was to be governed by the laws of the State of Missouri.

[6] In November 2016, the Earleys filed a complaint against the Defendants regarding a significant decrease in funds that the Earleys invested with Edward Jones. The Earleys' complaint alleged breach of contract, negligence, constructive fraud, and conversion. Defendants filed a motion to dismiss or to compel arbitration and stay the proceedings. Defendants alleged that the Earleys' agreements with Edward Jones contained binding arbitration provisions, that the disputes fell within the scope of the arbitration provisions, and that Missouri law governed.

[7] The Earleys responded and argued: (1) the provisions are not valid under Missouri law because they lack the language and format required by Missouri Revised Statutes Section 435.460 ; and (2) they "were never presented with the arbitration provisions in question and their signatures were obtained by misrepresentation as to the substance of the signed documents which contained the arbitration provisions." Id. at 48. The Earleys submitted affidavits in which they alleged that the forms were presented merely as forms to open an account, they trusted Jackson to advise them of relevant facts regarding the documents, they were not given the agreements containing the arbitration provisions, and Jackson never discussed the agreements or arbitration provisions with them.

[8] The trial court held a hearing on Defendants' motion. At the hearing, Defendants argued that the Federal Arbitration Act ("FAA") preempted Missouri law and governed the parties' agreements. The trial court then allowed the parties to submit additional briefs. Defendants argued that the FAA applied because the contracts involve interstate commerce and that the Earleys acknowledged in writing that they received the agreements and that they contained arbitration provisions. The Earleys then filed another response arguing that the Defendants' misrepresentations voided any contracts and that FAA was not controlling. After a second hearing, the trial court entered findings of fact and conclusions thereon granting Edward Jones's motion to compel arbitration. In particular, the trial court found:

The Plaintiffs' counsel attached to their first response, affidavits from Mr. and Mrs. Earley to support the argument that the contracts are void because the Defendants misrepresented the contractual documents; "as mere forms to authorize transactions". The Plaintiffs, Earleys, allege they were told on each occasion they signed account agreements that the forms merely authorized the opening of accounts (emphasis added), transfer of funds and/or naming beneficiaries.
The forms did "authorize transactions" and was [sic] exactly what was being authorized by the Plaintiffs' signatures. The Earleys acknowledge they went to the Defendants for the very purpose of doing financial planning and having their money invested for them. Each contract they signed from 1998 to and through July 29, 2014, clearly refers to account agreements, disclosure statements and in the later documents, arbitration clauses, immediately above their signatures. In addition, in the contracts signed from 2009 and on, language appears in the paragraph above the Plaintiffs' signatures acknowledging that they have received and read the account agreements. Again, in the later documents, directly above their signatures, in bold type, is a statement that there are arbitration provisions in the contract including the page and paragraph numbers where found.
There is no allegation that the Plaintiffs ever asked to read or review the contracts before they signed, but were refused.
* * * * *
With regard to the issue of void contracts, the Court must look to Indiana law. If there never was a contract, the choice of law provisions of the contracts in question never took effect and therefore don't control.
The Court finds insufficient evidence of fraudulent inducement or misrepresentation to void the contracts under Indiana law. The fact that the Defendant's [sic] did not provide copies after the fact is irrelevant. The contracts were already signed.
The Earleys simply chose not to read the contracts and chose to remain ignorant of the terms and conditions thereof.
The Court finds that all of the contracts in controversy were or are valid and enforceable.
Indiana recognizes choice of law provisions in contracts.
Missouri's arbitration notice statute applies to each of the contracts in issue in this case.
The contracts in question do not substantially comply with Missouri's arbitration notice statute and the arbitration provisions are unenforceable under Missouri law.
Missouri's arbitration notice statute is in derogation of the agreement of the Parties to arbitrate in each of the contracts in question.
The Defendants have asked to invoke application of the FAA. 9 U.S.C.S. § 3 and require arbitration in spite of Missouri law.
* * * * *
The procedural requirements of the FAA have been met. This Court has ruled that the contracts in question are valid and enforceable [sic] 9 U.S.C.S. § 4. The contracts in question evidence transactions involving ("interstate") commerce. 9 U.S.C.S. § 2. The Defendants have asked for the act to be applied. 9 U.S.C.S. § 3. Missouri law would prevent arbitration otherwise. 9 U.S.C.S. § 2.
The FAA should be applied to each contract in question in this matter.

Appellants' App. Vol. II pp. 9-11. The trial court stayed the litigation pending arbitration and ordered that the parties arbitrate the claims in the Earleys' complaint. The Earleys now appeal.

Analysis

[9] The Earleys appeal the trial court's grant of Defendants' motion to compel arbitration. We begin by addressing the parties' argument regarding the proper standard of review. Defendants argues that we should review the trial court's findings of fact and conclusions of law under a clearly erroneous standard and give due regard to the trial court's ability to assess a witness's credibility. The Earleys contend that our review is de novo. We agree with the Earleys.

[10] "Our review of a trial court's order compelling arbitration is de novo." Maynard v. Golden Living , 56 N.E.3d 1232, 1237 (Ind. Ct. App. 2016). We held in Brumley v. Commonwealth Bus. Coll. Educ. Corp. , 945 N.E.2d 770, 775 (Ind. Ct. App. 2011), that the review of a motion to compel arbitration is similar to that of a motion for summary judgment. We concluded that, "like parties opposing motions for summary judgment, parties opposing motions to compel arbitration may designate and rely on evidence beyond the pleadings and written contractual instruments." Brumley , 945 N.E.2d at 775. As in summary judgment proceedings, there were no evidentiary hearings here, and there was no opportunity for the trial court to judge a witness's credibility. Further, just as we are not bound by a trial court's specific findings of fact and conclusions thereon in the context of summary judgment proceedings, we are not bound by them here. Estate of Spry v. Batey , 804 N.E.2d 250, 252 (Ind. Ct. App. 2004), trans. denied .

I. Validity of Arbitration Provisions

[11] The Earleys argue that the arbitration provisions are invalid because the contracts were misrepresented to them by Defendants. "Indiana recognizes a strong policy favoring enforcement of arbitration agreements." Progressive Se. Ins. Co. v. Empire Fire & Marine Ins. Co. , 88 N.E.3d 188, 194 (Ind. Ct. App. 2017). Because arbitration is a matter of contract, a party cannot be required to submit to arbitration unless he or she has agreed to do so. Id. Arbitration is a method to resolve disputes, but only disputes that the parties have mutually agreed to submit to arbitration. Id.

[12] "A party seeking to compel arbitration first must demonstrate the existence of an enforceable arbitration agreement and that the disputed matter is the type of claim that the parties agreed to arbitrate." Brumley , 945 N.E.2d at 776. "Like other contracts, however, arbitration agreements may be invalidated by generally applicable contract defenses, such as fraud, duress, or unconscionability." Id. "State law contract principles apply to determine whether parties have agreed to arbitrate." Id.

[13] In support of their argument, the Earleys rely on A.G. Edwards and Sons, Inc. v. Hilligoss , 597 N.E.2d 1 (Ind. Ct. App. 1991), where a customer filed a complaint against an investment broker, and the broker filed a motion to stay the proceedings pending arbitration. The trial court denied the broker's motion, and the broker appealed. The customer argued that the broker misrepresented the contents of the contract and that fraudulent inducement voided the agreement. We found that "[s]ubstantial evidence" supported the trial court's finding that the customer's signature was procured by representing the agreement as a loan document rather than a customer agreement form. Hilligoss , 597 N.E.2d at 3. Consequently, we affirmed.

[14] Hilligoss is distinguishable from this case. In Hilligoss , "the fraud went to the actual contents of the contract, and the facts regarding the contract, which included the arbitration clause, were misstated."

Novotny v. Renewal by Andersen Corp. , 861 N.E.2d 15, 21 n.6 (Ind. Ct. App. 2007). " 'This result only follows, however, if the misrepresentation relates to the very nature of the proposed contract itself and not merely to one of its nonessential terms.' " Brumley , 945 N.E.2d at 779 (quoting Restatement (Second) of Contracts § 163 (1981) ). Here, the Earleys allege that the contractual documents were presented "as mere forms necessary only for the opening of an account or some other single action." Appellants' Br. p. 12. They contend that Edward Jones's employees did not give them an opportunity to read the agreements or explain the agreements. However, there is no evidence that Edward Jones's employees misrepresented the contents of the documents signed by the Earleys. Rather, the Earleys signed the documents without reading them. "Under Indiana law, a person is presumed to understand the documents which he signs and cannot be released from the terms of a contract due to his failure to read it." Clanton v. United Skates of Am. , 686 N.E.2d 896, 899-900 (Ind. Ct. App. 1997). The trial court found:

The Court finds insufficient evidence of fraudulent inducement or misrepresentation to void the contracts under Indiana law. The fact that the Defendant's [sic] did not provide copies after the fact is irrelevant. The contracts were already signed.
The Earleys simply chose not to read the contracts and chose to remain ignorant of the terms and conditions thereof.
The Court finds that all of the contracts in controversy were or are valid and enforceable.

Appellants' App. Vol. II p. 10. We agree with this conclusion. The Earleys have failed to present contract defenses to invalidate the agreements.

II. Applicability of the Federal Arbitration Act

[15] Next, the Earleys argue that the trial court erred when it determined that the FAA preempted application of Missouri law. According to the Earleys, Missouri law applies, and the arbitration agreements are unenforceable because they failed to comply with Missouri law's notice of arbitration statute, Missouri Revised Statutes Section 435.460. The trial court disagreed and concluded that the FAA, not Missouri law, controlled.

[16] The FAA applies to written arbitration provisions contained in contracts involving interstate commerce. See 9 U.S.C. §§ 1 - 16 ; MPACT Const. Grp., LLC v. Superior Concrete Constructors, Inc. , 802 N.E.2d 901, 904 (Ind. 2004)"The [FAA] reflects congressional intent to 'foreclose state legislative attempts to undercut the enforceability of arbitration agreements.' " LaSalle Grp., Inc. v. Electromation of Delaware Cty., Inc. , 880 N.E.2d 330, 331 (Ind. Ct. App. 2008) (quoting Southland Corp. v. Keating , 465 U.S. 1, 16, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984) ). "The Act contains no express preemptive provision, nor does it reflect a congressional intent to occupy the entire field of arbitration." Id. "But state law may be pre-empted to the extent it 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " Id. (quoting MPACT , 802 N.E.2d at 904 ). "Preemption has been found where state statutes 'explicitly made certain arbitration clauses unenforceable or placed serious burdens on the enforceability of arbitration provisions.' " Id. (quoting MPACT , 802 N.E.2d at 905 ).

[17] The parties do not dispute here that the agreements at issue affect interstate commerce. Rather, their arguments focus on whether the Missouri notice of arbitration statute is preempted by the FAA. In support of their argument, the Earleys rely on Albright v. Edward D. Jones & Co. , 571 N.E.2d 1329 (Ind. Ct. App. 1991), trans. denied, cert. denied . In Albright , customers bought investments through Edward Jones, and the agreements contained arbitration provisions and provisions calling for the application of Missouri law. The trial court entered an order compelling arbitration. On appeal, we addressed whether the notice of arbitration provisions of Missouri Revised Statutes Section 435.460 were preempted by the FAA. We relied on Volt Information Sciences, Inc. v. Board of Trustees, 489 U.S. 468, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989), in which "the Supreme Court held that state law was not pre-empted by the Federal Arbitration Act where the parties have agreed that their arbitration agreement will be governed by state law." Albright , 571 N.E.2d at 1332-33. We found that Volt was controlling and looked "to Missouri law in our construction of the contracts." Id. at 1333. We concluded, in part, that the arbitration clauses would not be enforceable under Missouri law, and we reversed the trial court's order compelling arbitration.

[18] Defendants point out that, after Albright was decided, the United States Supreme Court clarified Volt . In Doctor's Assocs., Inc. v. Casarotto , 517 U.S. 681, 688, 116 S.Ct. 1652, 1656-57, 134 L.Ed.2d 902 (1996), the Supreme Court held:

Volt involved an arbitration agreement that incorporated state procedural rules, one of which, on the facts of that case, called for arbitration to be stayed pending the resolution of a related judicial proceeding. The state rule examined in Volt determined only the efficient order of proceedings; it did not affect the enforceability of the arbitration agreement itself. We held that applying the state rule would not "undermine the goals and policies of the FAA," 489 U.S., at 478, 109 S.Ct. at 1255, because the very purpose of the Act was to "ensur[e] that private agreements to arbitrate are enforced according to their terms," id. , at 479, 109 S.Ct. at 1256.

Casarotto , 517 U.S. at 688, 116 S.Ct. at 1656-57. The court then held that Montana's notice of arbitration requirements, which required notice that a contract was subject to arbitration to be included in underlined capital letters on the first page of the contract, would have invalidated the arbitration clause and was "inconsonant with, and is therefore preempted by, the federal law." Id., 116 S.Ct. at 1657.

[19] The Missouri notice of arbitration statute is similar to the Montana notice of arbitration statute discussed in Casarotto . Consequently, we find Casarotto more persuasive here than Albright . We further note that Missouri courts have repeatedly held that the notice of arbitration provisions of Missouri Revised Statutes Section 435.460 are preempted by the FAA in cases of interstate commerce. See, e.g., Duggan v. Zip Mail Servs., Inc. , 920 S.W.2d 200, 203 (Mo. Ct. App. 1996) ("Applying the Missouri Act to defeat arbitration in instances where the FAA permits it would place the state act above the federal act, violating the Supremacy Clause of the Constitution."); Kagan v. Master Home Products Ltd. , 193 S.W.3d 401, 407-08 (Mo. Ct. App. 2006) (holding that, even if Missouri law applied, the notice of arbitration provisions were preempted by the FAA);

Paetzold v. Am. Sterling Corp. , 247 S.W.3d 69, 74 (Mo. Ct. App. 2008) (holding that the arbitration clause was enforceable despite the lack of the notice of arbitration language). Given this authority, we agree with the trial court that the FAA is applicable here and preempts the Missouri notice of arbitration statute.

Conclusion

[20] The arbitration agreements between the parties are enforceable and subject to the FAA. The trial court properly granted the Defendants' motion to compel arbitration. We affirm.

[21] Affirmed.

Vaidik, C.J., and Pyle, J., concur.

      Missouri Revised Statutes Section 435.460 provides:
      Each contract subject to the provisions of sections 435.350 to 435.470 shall include adjacent to, or above, the space provided for signatures a statement, in ten point capital letters, which read substantially as follows:
      "THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES."


author: Bradford, Judge.

text:
    Linda SANDERS, Appellant/Petitioner, v. Jerad SANDERS, Appellee/Respondent.
    Court of Appeals Case No. 18A-DR-326
    Court of Appeals of Indiana.
    FILED June 25, 2018
    Attorney for Appellant: Timothy Logan, Benson, Pantello, Morris, James & Logan, LLP Fort, Wayne, Indiana
    Attorneys for Appellee: David W. Stone IV, Stone Law Office & Legal Research, Anderson, Indiana, Joanne M. Kolbe, Law Offices of Joanne M. Kolbe, Warsaw, Indiana
   Bradford, Judge.

Case Summary

[1] Linda Sanders ("Wife") and Jerad Sanders ("Husband") married in 1998, and, in 2014, Wife petitioned to dissolve the marriage. At a final hearing in January of 2017, the terms of a property settlement ("the Agreement") were read into the record, after which both parties agreed to them. The trial court granted Wife's dissolution petition that day and directed the preparation of a dissolution order that incorporated the terms of the Agreement. Approximately one month later, Wife moved to repudiate the settlement, which motion the trial court denied. Wife moved to correct error and for relief from judgment. Wife's motion to correct error was ultimately deemed denied by operation of rule, and the trial court did not grant her relief from judgment. Wife challenges both the denial of the motion to correct error and the failure to grant relief from judgment, contending that the Agreement was invalid because it was not submitted in writing or signed before the trial court's approval, that she timely repudiated it, and the trial court failed to explicitly find that the Agreement was just and reasonable. Finding no merit in Wife's contentions, we affirm.

Facts and Procedural History

[2] On April 25, 2014, Wife petitioned to dissolve her marriage to Husband, to whom she had been married since 1998. On January 9, 2017, a final hearing was held, at which the terms of the Agreement were read in open court:

[Wife's counsel]: Well, yes. Essentially, um, the parties are going to keep all property present in their possession. The real estate is going to be the property of the husband. The husband is going to transfer, I think, by way of QDRO or transference $30,000 from an IRA into my client's name. Ah, he's going to give her $5,000 cash-and when is that payable-when can you get that?
[Husband's counsel]: He had asked for six (6) months.
[Wife's counsel]: Okay. Six (6) months. Okay. Ah, the parties are going to be responsible for the debt in their individual name. I don't believe there's any joint debt.
[Husband's counsel]: Is the mortgage just in your name?
[Husband]: Yeah.
[Wife's counsel]: Okay. The mortgage-maybe-
[Husband's counsel]: I think you're right.
[Wife's counsel]: -we can recite that out in the decree. I think we know what the debts are. We can just put that-
[Husband's counsel]: Yes.
[Wife's counsel]: -in the decree.
[Husband's counsel]: But I think that's correct.
[Wife's counsel]: Okay. Ah, essentially then-in terms of personal property, there's still a number of items that are still at the house that my client would like to retrieve. Those are the items that she owned prior to the parties' marriage. I think there's like cast iron tub, her personal effects, some Christmas decorations, that type of thing, bed, dresser, that sort of stuff. She'd like to go ahead and keep all that. I think the parties know what's what or what's-whose is whose and so I don't think there's going to be any issue with that. It's just a matter of you being able to get some kind of truck to get over there and get it out. Right?
[Wife]: Uh-huh and some help.

Tr. Vol. II pp. 4-5.

[3] The following discussion also occurred:
THE COURT: You heard Mr. Black recite what is the purported agreement between you and Jerad concerning the disposition of all assets and debts? Is that correct?
[Wife]: Correct.
THE COURT: And is that what you agreed to?
[Wife]: Yes.
THE COURT: Do you feel that is fair and equitable to both of you?
[Wife]: Um-
THE COURT: Let me ask you this. Is it-is it fair enough to get the mar-the divorce granted today?
[Wife]: Yes.
Tr. Vol. II p. 8. The trial court stated,
THE COURT: Okay. If there's nothing else, then I'm going to grant the Petition for Dissolution of Marriage. Each of you are restored to the status of unmarried persons effective immediately. All property and debts are divided in accordance with the agreement and your prior name is restored. In other words, the divorce is granted today. It's just a matter of-[Wife's counsel], you're going to prepare the decree?[ ]

Tr. Vol. II p. 9.

[4] The hearing then moved to the matter of the parties' tax obligations for 2015 and 2016, with Husband requesting that the parties refile jointly for those years to save money. Wife initially objected, expressing concern that refiling might delay her taking possession of the marital home. When it was pointed out by Wife's counsel that she already had possession of the house and that Husband would be responsible for all of the taxes in any event, Wife's counsel asked her if she was "okay" with refiling, to which she responded, "I guess." Tr. Vol. II p. 14. The trial court asked Wife, "Is that agreeable[,] Mrs. Sanders?", to which she replied, "Sure." Tr. Vol. II p. 15. An entry for January 9, 2017, in the chronological case summary ("CCS") indicated as follows: "AGREEMENT RECITED-COURT GRANTS DISSOLUTION OF MARRIAGE THIS DATE [Husband's counsel] TO PREPARE DECREE ORDER TO BE DATED 01/09/2017[.]" Appellant's App. Vol. II p. 4.

[5] On February 10, 2017, Wife sent a handwritten letter to the trial court, requesting that it reconsider the Agreement. The trial court, presumably because Wife was represented by counsel, forwarded the correspondence to the parties and attorneys but took no further action. The CCS indicates that on February 15, 2017, the trial court issued the dissolution decree, which, consistent with the prior CCS entry, was dated and stamped as filed as of January 9, 2017. The decree reflected the terms of the Agreement discussed and agreed upon at the final hearing. A CCS entry on February 16, 2017, indicates that on February 15, 2017, Wife moved to withdraw the Agreement, and her counsel moved to withdraw his appearance.

[6] On March 13, 2017, the trial court held a hearing on Wife's motion to withdraw the Agreement. Wife testified, claiming that at the January 9 hearing (1) she could not hear hers or Husband's counsels, (2) the court reporter could not hear her, and (3) she did not voice her objections more forcefully because she was "crying a lot" and had "several polyps[,]" which had to be removed after the hearing. Tr. Vol. II p. 25. Also on March 13, 2017, the trial court denied Wife's motion to withdraw the Agreement. On April 6, 2017, Wife filed a verified motion to correct error and/or for relief from judgment. On December 11, 2017, the trial court conducted a hearing on Wife's motions; Wife's motion to correct error was ultimately deemed denied, and her motion for relief from judgment pursuant to Indiana Trial Rule 60(B) has neither been adjudicated nor deemed denied.

Discussion and Decision

I. Standards of Review

A. Motion to Correct Error

[7] Wife contends that the trial court abused its discretion in denying her motion to correct error. We review denial of a motion to correct error for abuse of discretion. Shane v. Home Depot USA, Inc. , 869 N.E.2d 1232, 1234 (Ind. Ct. App. 2007). An abuse of discretion occurs if the trial court's decision is against the logic and effect of the facts and circumstances before the court, or the reasonable inferences therefrom. Id.

B. Motion for Relief from Judgment

[8] Wife also contends that the trial court should have granted her motion for relief from judgment, seemingly filed pursuant to several grounds listed in Indiana Rule of Trial Procedure 60(B).

We review the denial of a motion for relief from judgment under Indiana Trial Rule 60(B) only for an abuse of discretion because such a motion is addressed to the equitable discretion of the trial court. V.C. Tank Lines, Inc. v. Faison , 754 N.E.2d 1061, 1064 (Ind. Ct. App. 2001). An abuse of discretion will be found only when the trial court's judgment is clearly erroneous. Id. A trial court's action is clearly erroneous when it is against the logic and effect of the facts before it and the inferences which may be drawn therefrom. Id. In ruling on a Trial Rule 60(B) motion, the trial court is required to "balance the alleged injustice suffered by the party moving for relief against the interests of the winning party and society in general in the finality of litigation." Id. (quoting Chelovich v. Ruff & Silvian Agency , 551 N.E.2d 890, 892 (Ind. Ct. App. 1990) ).

Goldsmith v. Jones , 761 N.E.2d 471, 473-74 (Ind. Ct. App. 2002).

II. Validity of Agreement

[9] At the heart of both of Wife's claims is her contention that the trial court's adoption of the oral Agreement into its dissolution decree was erroneous because (1) the Agreement was not reduced to writing before approval by the trial court, (2) the Agreement was not signed by the parties before approval by the trial court, (3) she timely repudiated it in any event, and (4) the trial court was required to explicitly find that the Agreement was fair and reasonable before approving it but failed to do so. If Wife cannot convince us of the merits of at least one of these contentions, it follows that she has failed to establish that the trial court abused its discretion in denying her motion to correct error or in not granting her relief from judgment.

A. Whether the Agreement was Required to Be in Writing Before Approval by the Trial Court

[10] Indiana Code section 31-15-2-17(a) provides, in part, that "[t]o promote the amicable settlements of disputes that have arisen or may arise between the parties to a marriage attendant upon the dissolution of their marriage, the parties may agree in writing to provisions for [...] the disposition of any property owned by either or both of the parties[.]" Wife contends that this language and related case law require that any such agreement must be reduced to writing before it can be properly accepted by the trial court. Husband contends that recitation of the terms of an agreement into the record is sufficient to satisfy section 31-15-2-17(a)'s writing requirement.

[11] We have noted that there are "strong policy reasons supporting the requirement that agreements be in writing, including: (1) ensuring the enforceability of agreements; (2) facilitating agreements that result from mutual assent; (3) achieving complete resolution of disputes; and (4) producing clear understandings that the parties are less likely to dispute or challenge." Akers v. Akers , 849 N.E.2d 773, 775 (Ind. Ct. App. 2006). In Stolberg v. Stolberg , 538 N.E.2d 1 (Ind. Ct. App. 1989), we concluded that the writing requirement was satisfied where

[t]he substance of the agreement was testified to by [husband] and orally accepted by [wife]. The trial court interrogated both parties on the content of the agreement and their understanding thereof. Upon questioning, [wife] affirmed her request for approval of the settlement as stated by [husband]. Unquestionably, both [husband and wife] intentionally, with full knowledge of the eventual outcome, entered into a joint agreement.

Id. at 4. The Stolberg court also rejected wife's claim that "the agreement signed by the trial judge was merely 'written evidence of an oral agreement[,]' " stating that "[w]e fail to see any real distinction between a written agreement and written evidence of an oral agreement. The distinction is one of semantics rather than substance. It was the written agreement contemplated by the statute." Id. We, too, fail to see any real distinction between a written agreement and written evidence of an oral agreement, as either can satisfy the policy concerns raised by the Akers court.

[12] Indeed, the Akers court reiterated Stolberg 's interpretation of the writing requirement:

We believe that the writing requirement of Indiana Code § 31-15-2-17 can be satisfied in two ways. First, and most obviously, the parties can produce and sign a written document containing the terms of their agreement. The second way was suggested by Judge Sullivan, writing in concurrence in [ McClure v. McClure , 459 N.E.2d 398 (Ind. Ct. App. 1984) ]. He wrote: "While the agreement may not have been reduced to writing in a separate document and signed by the parties as well as by counsel, the agreement became binding upon the parties when it was stipulated into the record." McClure , 459 N.E.2d at 401 (Sullivan, J., concurring). We agree with Judge Sullivan that the writing requirement of Indiana Code § 31-15-2-17 can be satisfied by orally stipulating the terms of the settlement agreement into the court record. The parties themselves, their attorneys, or the trial court can recite the terms of the agreement in open court, and the parties can then acknowledge, under oath, their assent to those terms. Placing the agreement on the trial court record by way of a voice recording and/or the court reporters' transcript is tantamount to composing a written settlement document in that both procedures produce tangible proof of the terms of the agreement.

Akers , 849 N.E.2d at 775-76.

[13] After the terms of the Agreement were read in open court, Wife acknowledged her assent under oath. What Wife characterizes as her equivocation about the Agreement is more fairly described as clearing up her apparent confusion regarding the effect of refiling tax returns for 2015 and 2016. Whatever concerns Wife may have had about the taxes, they were satisfactorily addressed, as she ultimately agreed in open court to the provisions of the Agreement, including Husband's proposal that he refile his tax returns for 2015 and 2016. We conclude that the trial court's recitation of the Agreement's terms followed by Wife's assent to them satisfies section 31-15-2-17(a)'s writing requirement.

B. Whether the Agreement Must Have Been Signed

[14] Wife also asserts that the writing must also have been signed by both parties before the trial court could approve it, citing to Indiana Code sections 31-15-2-17 and 31-15-2-13 for this proposition. Section 31-15-2-17 does contain the already-discussed writing requirement, but there is no signing requirement. Moreover, while section 31-15-2-13(a) does require the filing of verified pleadings "signed by both parties[,]" it only applies in cases where the trial court seeks to enter a "summary disposition decree without holding a final hearing[,]" which is not what occurred here. The authority cited by Wife does not support her contention, and our research has uncovered none that does. Wife has failed to establish that the parties were required to sign a written Agreement as a prerequisite for approval by the trial court.

C. Whether Wife Timely Repudiated the Agreement

[15] Wife argues that, even if the writing requirement was satisfied, the trial erred in entering a decree that incorporated the Agreement after she timely repudiated it. As we noted in McClure , there is a "simple two-step process necessary to bring a valid property settlement agreement into existence[,]" namely that (1) the parties must come to a valid agreement and (2) the trial court must approve it. McClure , 459 N.E.2d at 401. Until a property settlement agreement is approved by the trial court, it can be repudiated by a party. See id. ("[O]ur decision is grounded solely on error by the trial court in approving an agreement that was timely repudiated.").

[16] Here, the terms of the Agreement were read in open court and the parties agreed to them, after which the trial court explicitly approved it, stating on the record that "[a]ll property and debts are divided in accordance with the agreement[.]" Tr. Vol. II p. 9. The trial court also made it abundantly clear that its judgment was to be effective immediately, stating that the parties "are restored to the status of unmarried persons effective immediately" and, "In other words, the divorce is granted today." Tr. Vol. II p. 9. The trial court's CCS entry indicating that Husband's counsel was to prepare a dissolution decree to be submitted later but dated January 9, 2017-the date of the final hearing-further indicates that it considered the matter settled. Wife's repudiation came over one month after the trial court approved the Agreement at the final hearing, which is too late.

[17] We acknowledge that some of our precedent indicates that the cutoff for repudiation is not when the property settlement is approved by the trial court but when the dissolution decree is issued. See, e.g. , Anderson v. Anderson , 399 N.E.2d 391, 398 (Ind. Ct. App. 1979) ("Hence, a settlement agreement that has not been approved by the dissolution court and incorporated and merged into the decree has no legal efficacy."). Under the circumstances of this case, at least, the actual issuance of the decree was little more than a formality, as the trial court made it clear that its judgment was to take effect immediately with a decree detailing the judgment to be issued later. Granting relief to Wife on the basis that the terms of the Agreement had not yet been incorporated into the decree when she objected would elevate form over substance in this case. Wife has failed to establish that she timely repudiated the Agreement.

D. Whether the Trial Court Erroneously Failed to Consider Whether the Agreement Was Just and Reasonable

[18] Finally, Wife argues that the trial court was required to explicitly determine that the Agreement was just and reasonable before approving it. Specifically, Wife argues that "the statutes require trial courts to insist upon a written agreement or perform an analysis of factors listed at I.C. 31-15-7-5." Appellant's Br. p. 38. Even if we assume, arguendo , that these are, in fact, the only two options available to the trial court, we have already determined that the recitation of the Agreement's terms into the record, coupled with the parties' assent to them under oath, satisfies the writing requirement of Indiana Code section 31-15-2-17(a). Wife has failed to establish error in this regard.

Conclusion

[19] We conclude that the Agreement was not required to be reduced to writing or signed before approval by the trial court, Wife did not timely repudiate the Agreement, and the trial court did not err in failing to find that the Agreement was just and reasonable. Consequently, we further conclude that the trial court did not err in denying Wife's motion to correct error or in failing to grant her relief from judgment.

[20] We affirm the judgment of the trial court.

Baker, J., and Kirsch, J., concur.

      After a brief discussion, it was in fact determined that Husband's attorney would prepare the decree.

      In any event, Wife cannot even establish with certainty that she objected before the issuance of the decree. The trial court properly failed to act on Wife's letter to the trial court, as she was represented by counsel at the time, and Indiana does not recognize hybrid representation. See, e.g ., Miedreich v. Rank , 40 Ind. App. 393, 397, 82 N.E. 117, 118 (Ind. Ct. App. 1907) ("[A] party to an action may appear in his own proper person, or by attorney, but he cannot do both. If he appears by attorney, he should be heard through him.") (citation omitted). As for Wife's motion to withdraw the Agreement, which was filed by counsel, it is not at all clear that it was filed before the decree was issued. If anything, the record suggests the opposite, as the CCS entry indicating the issuance of the decree appears before the entry indicating Wife's motion to withdraw the Agreement.

      Indiana Code section 31-15-7-5 provides as follows:
      The court shall presume that an equal division of the marital property between the parties is just and reasonable. However, this presumption may be rebutted by a party who presents relevant evidence, including evidence concerning the following factors, that an equal division would not be just and reasonable:
      (1) The contribution of each spouse to the acquisition of the property, regardless of whether the contribution was income producing.
      (2) The extent to which the property was acquired by each spouse:
      (A) before the marriage; or
      (B) through inheritance or gift.
      (3) The economic circumstances of each spouse at the time the disposition of the property is to become effective, including the desirability of awarding the family residence or the right to dwell in the family residence for such periods as the court considers just to the spouse having custody of any children.
      (4) The conduct of the parties during the marriage as related to the disposition or dissipation of their property.
      (5) The earnings or earning ability of the parties as related to:
      (A) a final division of property; and
      (B) a final determination of the property rights of the parties.


author: Altice, Judge.

text:
    Larry P. PROUSE, III, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
    Court of Appeals Case No. 84A04-1710-CR-2270
    Court of Appeals of Indiana.
    FILED June 26, 2018
    Attorney for Appellant: Kay A. Beehler, Terre Haute, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, Indiana
   Altice, Judge.

Case Summary

[1] Larry P. Prouse, III, appeals his convictions for murder, Level 4 felony arson, Level 6 felony abuse of a corpse, and Level 6 felony altering the scene of a death. On appeal, Prouse contends that his dual convictions for arson and altering the scene of death constitute double jeopardy in violation of Article 1, Section 14 of the Indiana Constitution. He also asserts fundamental error with respect to certain testimony of a deputy fire marshal.

[2] We affirm.

Facts & Procedural History

[3] Late in the evening of August 20, 2016, Prouse picked up Ashley McMickle from her friend Shawn Roberts's house and drove her to McDonald's. They returned about thirty minutes later and hung out with Roberts for a bit. Prouse and McMickle then left in Prouse's truck.

[4] Prouse and McMickle turned up at Leona and James Crowley's home sometime after midnight, purportedly with a man known only as Opie. Leona is Prouse's mother and James is his step-father. They did not know McMickle or Opie but allowed them into the home. Over the next several hours, everyone except Leona-who was painting signs in another room-hung out in the living room of the small home and used methamphetamine together. At Prouse's request, Leona provided him with a knife from her tool box that he used to fashion a meth pipe out of a lightbulb. McMickle eventually fell asleep on one end of the sectional couch where they were sitting.

[5] Sometime after 5:00 a.m., Prouse stabbed McMickle in the neck as she slept. She woke and attempted to fight off Prouse, but he overpowered her and continued stabbing her. James watched Prouse stab McMickle multiple times and then hit her with a baseball bat. Leona saw him stab McMickle in the shoulder, and unsuccessfully pleaded with Prouse to stop.

[6] Opie ran out the front door during the attack, followed by the Crowleys' dog and then Leona. James went out the back door and started yelling for the dog. Leona and the dog eventually returned to the fenced-in backyard. In the meantime, Prouse dragged McMickle's dead body out of the house and onto the back patio. Prouse then threatened James and told him to leave with Leona. The Crowleys walked to Leona's mother's house, arriving around 6:30 a.m. James took a shower and then stepped out on the porch, when a man drove up and told James that his house was on fire. The man drove James and Leona to the scene.

[7] The fire had been called in at 7:09 a.m. by an off-duty firefighter, who observed the back of the home engulfed in flames. Responding firefighters found two separate fires on the property-a large burn pile in the backyard and the residence fire. After fighting the fires, responders turned their attention to the burn pile where they then found McMickle's charred remains under boards. Her left arm was relatively unaffected by the fire due to its positioning and a tarp wrapped around it. She was identified the next day by her fingerprint.

[8] Fire investigators determined that the fires were intentionally and separately set. Additionally, Terre Haute Fire Chief Norm Loudermilk opined that the fire on the burn pile was set first and likely started sometime between 6:30 a.m. and 6:50 a.m., while the house began burning around 6:50 a.m. The house fire was set at the rear door of the house and destroyed the living room, including the sectional couch.

[9] The pathologist who performed the autopsy of McMickle determined that she died before being set on fire. McMickle's jaw was broken and six stab wounds were apparent during the autopsy-one in the neck, three to her left hand, and two to her left arm. These were mostly defensive wounds and not likely the cause of death. The pathologist determined the cause of death to be massive blood loss from a stab wound or wounds to a major blood vessel in one or more of her extremities, evidence of which was destroyed in the fire.

[10] Within a few hours of the fire, Prouse showed up at Lori Miller's home, where his ex-wife Miranda Roe and his two-year-old daughter were living. He ran inside, mumbling and rocking back and forth. He told Roe that there was a house fire. Later that day, he told Roe that he had stabbed a woman about twenty times and then burned the woman in a fire that he had started.

[11] Early the following morning, August 22, Prouse was found by police sleeping in his truck near his father's home. Roe and the child were inside the home sleeping on the floor. Further investigation revealed that Prouse had driven in a cornfield near Miller's home on the day of the fire. Investigators recovered clothing (shirt, underwear, and pants) and shoes owned by Prouse that had been discarded in that area. Testing revealed the presence of blood on the pants, as well as McMickle's DNA.

[12] On August 26, 2016, the State charged Prouse with murder (Count I), Level 4 felony arson (Count II), Level 6 felony abuse of a corpse (Count III), and Level 6 felony altering the scene of death (Count IV). A jury found Prouse guilty as charged on June 9, 2017. Thereafter, on August 3, 2017, the trial court sentenced Prouse to sixty years on Count I, eight years on Count II, and two years on Counts III and IV. Counts III and IV were ordered to be served concurrent with each other and consecutive to the other counts, for an aggregate sentence of seventy years in prison. Prouse now appeals. Additional facts will be provided below as needed.

Discussion & Decision

1. Double Jeopardy

[13] Prouse argues that his dual convictions for arson and altering the scene of death violate Indiana's constitutional prohibition against double jeopardy, Article 1, Section 14 of the Indiana Constitution. Specifically, he contends that the same evidence was used to convict him of both offenses.

[14] Under Indiana's Double Jeopardy Clause, a defendant may not be convicted of two offenses if "with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense." Richardson v. State , 717 N.E.2d 32, 49 (Ind. 1999) (emphases in original); see also Layman v. State , 42 N.E.3d 972, 980 n.7 (Ind. 2015). Our focus here is on the actual evidence used to convict Prouse of the offenses. This analysis requires a consideration of whether the evidentiary facts used to establish the essential elements of one offense may also have been used to establish all of the essential elements of the other challenged offense. See Spivey v. State , 761 N.E.2d 831, 833 (Ind. 2002) ("the Indiana Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense"). "Thus, even if 'each charge utilizes the same factual event,' no constitutional violation will be found if the second offense 'requires additional evidentiary facts establishing the essential elements.' " Vandergriff v. State , 812 N.E.2d 1084, 1086-87 (Ind. Ct. App. 2004) (quoting Davis v. State , 770 N.E.2d 319, 324 (Ind. 2002) ), trans. denied .

[15] To establish arson as charged, the State was required to prove that Prouse, by means of fire or explosion, knowingly or intentionally damaged the Crowleys' dwelling without their consent. See Ind. Code § 35-43-1-1(a)(1). To establish altering the scene of death as charged, the State had to prove that Prouse knowingly or intentionally altered the scene of McMickle's death, that McMickle died from violence, and that Prouse altered the scene with intent to hinder a criminal investigation and without permission of the coroner or law enforcement. See I.C. § 36-2-14-17(b).

[16] Double Jeopardy is not implicated here. The same factual event, the intentionally-set fire, was used in establishing both offenses. But additional evidentiary facts were required to prove both offenses. The arson conviction required evidence that the fire damaged the dwelling of another person without the person's consent. The conviction for altering the scene of death required, among other things, evidence that McMickle had died from violence inside the home prior to the arson. Because additional evidentiary facts were needed to establish the essential elements of each offense, both convictions may stand.

2. Fundamental Error

[17] Prouse contends that State's witness Deputy Fire Marshall Matt Holbert improperly offered an opinion as to guilt when he testified: "Uh, in my experience the only time you do something like this is to cover up something." Transcript Vol. 3 at 116. Acknowledging that he did not preserve the alleged error below, Prouse now asserts fundamental error to avoid waiver.

[18] The fundamental error exception permits appellate review of otherwise procedurally defaulted claims. Sciaraffa v. State , 28 N.E.3d 351, 356 (Ind. Ct. App. 2015), trans. denied . This exception to the waiver rule is extremely narrow and its proponent-here Prouse-"bears the heavy burden of showing that a fair trial was impossible." Harris v. State , 76 N.E.3d 137, 139 (Ind. 2017). To meet this daunting standard, Prouse is required to "show that the trial court should have raised the issue sua sponte due to a blatant violation of basic and elementary principles, undeniable harm or potential for harm, and prejudice that makes a fair trial impossible." Id . at 140.

[19] Indiana Evidence Rule 704(b) precludes witnesses from "testify[ing] to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions." Contrary to Prouse's assertion on appeal, Deputy Fire Marshall Holbert did not offer any opinion regarding Prouse's guilt. Indeed, Deputy Fire Marshall Holbert plainly testified that he was unable to determine who set the arson fire. He then opined, based on his experience, that the intent behind setting the fire was to "cover something up." Transcript Vol. 3 at 116. Prouse argues in his reply brief that this testimony improperly commented on the perpetrator's intent behind setting the fires.

[20] Even assuming that this testimony violated Evid. R. 704(b)'s proscription on opinion testimony concerning intent, we find that any error did not rise to the level of fundamental error because other independent evidence overwhelmingly established that the fires were set to cover up the stabbing death. The primary focus of the State's case, as well as the defense, was who committed the crimes-not why the fires were set. Further, we observe that Prouse makes no attempt on appeal to show that a fair trial was impossible. He simply attempts to show that the testimony violated our evidentiary rules and then baldly asserts the violations "constitute[d] the 'blatant violations of basic and elementary principles of due process.' " Appellant's Brief at 12. The extremely narrow fundamental error exception demands more than showing only that a violation of our evidentiary rules occurred. On the record before us, we cannot say that Deputy Fire Marshall Holbert's passing testimony indicating that whoever set the house fire did so to cover up something rendered a fair trial impossible.

[21] Judgment affirmed.

Najam, J., concurs.

Robb, J., concurs in result without opinion.

      In Mathews v. State , 849 N.E.2d 578, 586 (Ind. 2006), our Supreme Court made clear that "damaging property is the central element of arson." Thus, one fire can result in multiple arson convictions where properties with distinct owners are damaged. Id. at 587.