                                                                                 FILED
                                                                          Jun 26 2018, 7:22 am

                                                                                 CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Kay A. Beehler                                             Curtis T. Hill, Jr.
      Terre Haute, Indiana                                       Attorney General of Indiana

                                                                 James B. Martin
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Larry P. Prouse, III,                                      June 26, 2018
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 84A04-1710-CR-2270
              v.                                                 Appeal from the Vigo Superior
                                                                 Court
      State of Indiana,                                          The Honorable Michael J. Lewis,
      Appellee-Plaintiff                                         Judge
                                                                 Trial Court Cause No.
                                                                 84D06-1608-MR-2268



      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

      Court of Appeals of Indiana | Opinion 84A04-1710-CR-2270 | June 26, 2018                     Page 1 of 9
      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


      Court of Appeals of Indiana | Opinion 84A04-1710-CR-2270 | June 26, 2018   Page 2 of 9
      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


      Court of Appeals of Indiana | Opinion 84A04-1710-CR-2270 | June 26, 2018     Page 3 of 9
       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.




       Court of Appeals of Indiana | Opinion 84A04-1710-CR-2270 | June 26, 2018   Page 4 of 9
[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

       Court of Appeals of Indiana | Opinion 84A04-1710-CR-2270 | June 26, 2018   Page 5 of 9
       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

       Court of Appeals of Indiana | Opinion 84A04-1710-CR-2270 | June 26, 2018    Page 6 of 9
       the person’s consent.1 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




       1
        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.

       Court of Appeals of Indiana | Opinion 84A04-1710-CR-2270 | June 26, 2018                           Page 7 of 9
       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

       Court of Appeals of Indiana | Opinion 84A04-1710-CR-2270 | June 26, 2018    Page 8 of 9
       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.




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