FOR PUBLICATION                                           FILED
                                                      Sep 06 2012, 9:29 am


                                                              CLERK
                                                            of the supreme court,
                                                            court of appeals and
                                                                   tax court




ATTORNEYS FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

RUSSELL A. JOHNSON                                GREGORY F. ZOELLER
HEATH Y. JOHNSON                                  Attorney General of Indiana
SUZY ST. JOHN
Johnson, Gray & Macabee                           GEORGE P. SHERMAN
Franklin, Indiana                                 Deputy Attorney General
                                                  Indianapolis, Indiana



                             IN THE
                   COURT OF APPEALS OF INDIANA

TAMI L. DUVALL,                              )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )   No. 03A04-1108-CR-447
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                APPEAL FROM THE BARTHOLOMEW CIRCUIT COURT
                      The Honorable Stephen R. Heimann, Judge
                          Cause No. 03C01-1008-MR-1652


                                  September 6, 2012

                             OPINION - FOR PUBLICATION

BAILEY, Judge
                                            Case Summary

          Tami L. Duvall (“Duvall”) appeals her conviction for Murder, a felony,1 five of her six

convictions for Insurance Fraud, Class C felonies,2 and two of her three convictions for

Obstruction of Justice, Class D felonies.3 We affirm the conviction for Murder, but reverse

and remand with instructions to vacate five of the convictions for Insurance Fraud and two of

the convictions for Obstruction of Justice.

                                                  Issues

          Duvall presents three issues for review:

          I.      Whether the trial court abused its discretion in admitting, pursuant to
                  the intent exception of Indiana Evidence Rule 404(b), testimony from
                  Duvall’s former boyfriend that he believed Duvall had poisoned him;
          II.     Whether the admission of evidence suggesting that Duvall stole a bottle
                  of morphine from her workplace is fundamental error; and
          III.    Whether Duvall committed only a single offense of Insurance Fraud
                  and a single offense of Obstruction of Justice.

                                     Facts and Procedural History

          Around 8:00 a.m. on August 24, 2007, Duvall placed a 9-1-1 call and told operator

Angela Lee that she had arrived home from work and found her estranged husband, Alan

Duvall (“Alan”), dead in a chair in the back yard. According to Duvall, Alan had come over

the prior evening to work on a malfunctioning air conditioning unit, became overheated, and

went outside to cool down. He had then slept outside. Duvall advised the operator that Alan


1
    Ind. Code § 35-42-1-1.
2
    Ind. Code § 35-43-5-4.5(a)(2).
3
 Ind. Code § 35-44-3-4(a)(3) [now repealed]. Duvall concedes there is sufficient evidence to support a single
conviction for Insurance Fraud and a single conviction for Obstruction of Justice.

                                                     2
was a heavy drinker.

       It was initially believed that Alan, who had a blood-alcohol content of 0.436%, died of

alcohol poisoning. However, several of Duvall’s and Alan’s family members contacted the

Columbus Police Department to convey their suspicions of foul play, prompting Detective

Marc Kruchten to request an autopsy of Alan’s body. Toxicology reports from the autopsy

revealed that Alan’s blood had a morphine concentration of 6,590 nanograms per milliliter

(approximately 100 times a therapeutic dose) and 3,229 nanograms per milliliter of

cyclobenzaprine, a muscle relaxer (approximately eight times a therapeutic dose). In light of

this evidence, Detective Kruchten began to conduct a homicide investigation.

       The investigation revealed that Alan and Duvall, who had been separated for several

months, had significant financial problems. Creditors were continually calling the marital

residence to discuss delinquencies of various consumer accounts and past-due vehicle

payments. The marital residence was a subject of foreclosure proceedings, and college

tuition for Duvall’s youngest daughter had become due. Alan had only recently begun to

work with a glass installation company after several job changes, and Duvall’s earnings as a

certified nurse’s aide were inadequate for the mounting financial obligations.

       A short time before Alan’s death, Duvall had encouraged Alan to procure a $100,000

life insurance policy and name her as the beneficiary. According to the couple’s friends and

acquaintances, Alan had been willing to do so because he believed it was a mortgage

insurance policy and he expected to move back in with Duvall as soon as her daughter moved

to college. The policy had been obtained through insurance agent Gary Ruddell (“Ruddell”),


                                              3
with whom Duvall was having an extra-marital affair. Although, according to Ruddell, he

advised Duvall not to attempt to collect on the policy because Alan died during the policy

“grace period” and it would look suspicious, (Tr. 2134) Duvall promptly made a claim for

payment.

       Motorists Life Insurance did not immediately pay the claim, but instead assigned

Dennis Thomas (“Thomas”) to investigate the circumstances surrounding Alan’s death.

Thomas interviewed Duvall on multiple occasions, as did Detective Kruchten. Duvall

maintained that she had, upon arriving home from early morning home health duties,

observed Alan slumped in his backyard chair, and immediately called 9-1-1 and tried,

without success, to pull Alan from his chair to perform CPR.

       Early in the investigation, Duvall suggested that Alan had been a drug user and had

“hid the other part of his life” from her. (Tr. 1806.) However, she claimed to lack specific

knowledge of what Alan had ingested or how he did so. Ultimately, in an interview with

Detective Kruchten and Bartholomew County Prosecutor William Nash, Duvall stated that

she had observed Alan take muscle relaxers of the brand name Flexeril, which he had

allegedly obtained from his cousin, Zillah Thompson (“Thompson”). She also described

seeing Alan, on the last evening of his life, in possession of an eye dropper type bottle with a

lavender-colored liquid inside (a description consistent with Roxanol, a liquid form of

morphine used for hospice patients). She admitted to disposing of empty medication and

alcohol bottles after Alan’s death.

       Meanwhile, the police investigation uncovered several witnesses who contradicted


                                               4
Duvall’s claims of a prompt 9-1-1 call and Alan’s drug use. Also, one of Duvall’s former

employers, Miller’s Merry Manor, had documented the mysterious disappearance of a bottle

of Roxanol. Thompson admitted that she had left medications, including Flexeril, out in

plain view at her house, and that she had recently had a block party attended by the Duvalls.

However, those who knew Alan, including Thompson, insisted that Alan was opposed to

ingesting drugs.

       On August 6, 2010, the State charged Duvall with Murder, six counts of Insurance

Fraud, and three counts of Obstruction of Justice. On April 5, 2011, Duvall’s jury trial

commenced. On April 22, 2011, the jury found Duvall guilty as charged. On May 25, 2011,

she received an aggregate sentence of sixty and one-half years (fifty-five for Murder, six

concurrent sentences of four years for Insurance Fraud, and three concurrent sentences of one

and one-half years for Obstruction of Justice). Duvall now appeals.

                                  Discussion and Decision

                   I. Admission of Evidence – Alleged Prior Poisoning

                                    Standard of Review

       A trial court has broad discretion in ruling on the admissibility of evidence. Camm v.

State, 908 N.E.2d 215, 225 (Ind. 2009). We will reverse the trial court’s decision only when

it is clearly against the facts and circumstances before the court; moreover, even if the trial

court abused its discretion in admitting evidence, the judgment will be undisturbed if the

decision to admit evidence is harmless error. Granger v. State, 946 N.E.2d 1209, 1213 (Ind.

Ct. App. 2011). “Harmless error occurs ‘when the conviction is supported by such


                                              5
substantial independent evidence of guilt as to satisfy the reviewing court that there is no

substantial likelihood that the questioned evidence contributed to the conviction.’” Id.

(quoting Lafayette v. State, 917 N.E.2d 660, 666 (Ind. 2009)). Accordingly, we reverse only

when the record as a whole discloses that the evidence admitted in error likely had a

prejudicial impact upon the mind of the average juror, thereby contributing to the verdict. Id.

                                          Analysis

       During the investigation following Alan’s death, police learned that Stephen Brown

(“Brown”), Duvall’s former boyfriend, had made a June 27, 2005 statement to Farm Bureau

Insurance special investigator John Moon (“Moon”) in the course of an investigation into

alleged theft of Duvall’s property. Brown denied that he had stolen Duvall’s property and,

during the interview, advised Moon of his suspicion that Duvall had tried to poison him with

tainted pudding immediately before requesting his signature and identifying information on a

life insurance policy.

       Prior to trial, Duvall filed a motion in limine seeking to exclude Moon’s testimony

with regard to the alleged poisoning attempt. The State conceded that such testimony would

be inadmissible unless the defense opened the door to its admissibility.

       In his opening statement, Duvall’s counsel advanced the defense theory that Alan had

killed himself. The factual scenario described by counsel essentially mirrored those facts

described by Duvall in her interview with Detective Kruchten and Prosecutor Nash; that is,

on the last night of his life, Alan was taking pills and had “an eye dropper full of morphine.”

(Tr. 300.) According to counsel, Duvall came home, found Alan dead, and “freaked out,”


                                              6
thus explaining the delay in calling 9-1-1. (Tr. 300.) The State argued that the defense had

opened the door to Brown’s testimony in order to contradict a particular factual scenario

portrayed by the defense and, after a bench conference, the trial court agreed.

       Brown testified that, around Thanksgiving of 2004, Duvall had arrived at his home

with food, including a pudding that she insisted he must eat because her daughter had made it

especially for Brown. When Brown took a few bites of the pudding, it tasted “like aspirin

dissolving” and he felt “very out of it” for several hours. (Tr. 2318.) Duvall had also

brought a life insurance policy application, and claimed that she needed information from

Brown so that he could be the listed beneficiary. She asked Brown to sign and provide his

Social Security number. Brown did not do so, and Duvall left, taking with her the bowl and

plate that she had brought.

       Duvall claims that the trial court admitted this evidence in violation of Evidence Rule

404(b), which provides in relevant part:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It may,
       however, be admissible for other purposes, such as proof of motive, intent,
       preparation, plan, knowledge, identity, or absence of mistake or accident[.]

       Evidence of extrinsic offenses poses the danger that the jury will convict the

defendant because he or she is a person of bad character generally, or has a tendency to

commit crimes. Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003). The rationale for the

prohibition against bad act and character evidence is that the jury is precluded from making

the forbidden inference that the defendant had a criminal propensity and therefore engaged in

the charged conduct. Monegan v. State, 721 N.E.2d 243, 248 (Ind. 1999). When a defendant

                                              7
objects to the admission of evidence on the grounds that it violates Evid. R. 404(b), and

specific acts evidence is offered for “other purposes,” the trial court is to “determine that the

evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the

defendant’s propensity to commit the charged act … determine that the proponent has

sufficient proof that the person who allegedly committed the act did, in fact, commit the act

… and third, balance the probative value of the evidence against its prejudicial effect

pursuant to Rule 403.” Camm, 908 N.E.2d at 223.

       In admitting Brown’s testimony, the trial court relied upon four cases where prior

conduct evidence had been admitted on the issue of intent after the defendant had presented a

particular factual claim to refute the charge. In Wickizer v. State, 626 N.E.2d 795 (Ind.

1993), the defendant charged with molesting a fourteen-year-old male had admitted touching

the victim’s penis but had insisted that his intention was not sexual gratification, but

providing assistance. The State had presented the testimony of two other witnesses regarding

their youthful sexual experiences with the defendant. Id. at 796. Our Supreme Court, in

reviewing the appellant’s claim that the evidence was admitted in violation of Evidence Rule

404(b), explained:

       The intent exception in Evid. R. 404(b) will be available when a defendant
       goes beyond merely denying the charged culpability and affirmatively presents
       a claim of particular contrary intent. When a defendant alleges in trial a
       particular contrary intent, whether in opening statement, by cross-examination
       of the State’s witnesses, or by presentation of his own case-in-chief, the State
       may respond by offering evidence of prior crimes, wrongs, or acts to the extent
       genuinely relevant to prove the defendant’s intent at the time of the charged
       offense. The trial court must then determine whether to admit or exclude such
       evidence depending upon whether ‘its probative value is substantially
       outweighed by the danger of unfair prejudice, confusion of the issues, or

                                               8
       misleading the jury, or by considerations of undue delay, or needless
       presentation of cumulative evidence.’ Evid. R. 403.

Id. at 799. The Court found “the admission of the prior conduct evidence to have been

error,” although reversal was not compelled because there existed substantial independent

evidence of guilt. Id. at 800.

       In Koo v. State, 640 N.E.2d 95, 100 (Ind. Ct. App. 1994), trans. denied, a physician

charged with raping a patient during a medical appointment “introduced substantial evidence

to suggest that the victim hallucinated the sexual encounter.” The State then presented two

witnesses who each testified that Koo had raped her during a medical appointment. On

appeal, a panel of this Court reviewed the defense opening argument, cross-examination, and

closing argument and concluded: “Clearly, the defense had presented a specific factual claim

of hallucination that the prosecution was entitled to rebut with evidence of prior misconduct.”

Id. at 102.

       In Burgett v. State, 758 N.E.2d 571 (Ind. Ct. App. 2001), trans. denied, the State had

presented evidence of an attempted murder defendant’s drug and gang activity.               In

considering whether the admission of the evidence was an abuse of discretion, a panel of this

Court acknowledged that “the exceptions in Evid. R. 404(b) are only available when a

defendant goes beyond merely denying the charged crimes and affirmatively presents a

specific claim contrary to the charge,” and further acknowledged that the defendant did not

present any evidence at trial. Id. at 580. However, the Court observed that Burgett’s counsel

had presented a specific claim contrary to the charge by insinuating, during cross-



                                              9
examination, that the victim lied to avenge his friend’s death when he testified that Burgett

was the person who shot him. Id. Consequently, no abuse of discretion was found. Id.

       Finally, the trial court relied upon Bryant v. State, 802 N.E.2d 486 (Ind. Ct. App.

2004), trans. denied. Bryant was convicted of murdering his step-mother and, on appeal,

challenged the trial court’s admission of violent rap lyrics Bryant had either composed or

plagiarized. Although it found that Bryant had failed to show that the exhibits constituted

evidence of any prior crime or misconduct, the appellate court observed that “prior

misconduct evidence may be admitted to rebut a specific factual claim raised by the

defendant” and considered the exhibits, containing reference to the police finding a body in

the trunk of a car, relevant “to rebut Bryant’s claim that [his father] murdered Carol.” Id. at

499.

       Subsequent to the foregoing line of cases, our Indiana Supreme Court reaffirmed the

Wickizer “view that an expansive reading of the intent exception would be inconsistent to the

principal thrust of [Rule 404(b)] itself.” Lafayette v. State, 917 N.E.2d 660, 663 (Ind. 2009).

The Court clarified that the “intent exception [is to] be narrowly construed.” Id. at 664.

       In opening statements, Duvall’s counsel introduced a theory that Alan caused his own

death and the State seized the opportunity to offer evidence of an alleged prior poisoning,

reasoning that the defense had made a “very specific contrary claim” of how Alan’s death

occurred. (Tr. 322.) However, consistent with our Indiana Supreme Court’s guidance, we

cannot conclude that the intent exception of Rule 404(b) is to be read so broadly. Wickizer,

evincing a narrow construction of the intent exception, specified that it is when a defendant


                                              10
asserts a particular contrary intent that the State may respond with prior acts (to the extent

genuinely relevant) to prove intent at the time of the charged offense. 626 N.E.2d at 799.

Counsel’s references, in opening statements, suggesting that Alan died by his own hand did

not admit that Duvall engaged in the conduct at issue and then assert a particular non-

criminal intent. For example, the defense did not concede that Duvall gave Alan drugs but

only for therapeutic reasons. Nor did the defense “introduce substantial evidence” of a

contrary factual scenario, as in Koo. Duvall did not, in opening statements, open the door to

a broad application of the intent exception.

       Nonetheless, “[t]he improper admission is harmless error if the conviction is

supported by substantial independent evidence of guilt satisfying the reviewing court there is

no substantial likelihood the challenged evidence contributed to the conviction.” Turner v.

State, 953 N.E.2d 1039, 1059 (Ind. 2011). Here, the State presented substantial evidence of

Duvall’s guilt.

       Duvall, who was under great financial stress, had complained frequently to her

friends, co-workers, and daughter that Alan was unreliable and did not contribute adequately

to family finances. Days before Alan’s death, Duvall prevailed upon him to obtain a life

insurance policy in the amount of $100,000. She was the beneficiary. Alan had told his

friends and co-workers that he and Duvall were reconciling; meanwhile, Duvall had told her

friend and daughter that there would be no reconciliation. According to the testimony of

Rhonda Brown (“Rhonda”), Duvall had told Rhonda that she wanted to be with Ruddell.

Also, Duvall’s daughter was adamantly opposed to Alan’s moving back with Duvall.


                                               11
       Rhonda further testified that Duvall had shown her small round yellow pills, claiming

that she had seen a cousin give Alan the pills, and wondering aloud if “he took the whole

bottle, would you die.” (Tr. 1315.) Duvall had also warned Rhonda not to tell Alan that the

policy he was procuring was for life insurance as opposed to mortgage insurance.

       Thompson testified that she was Alan’s cousin and had hosted the Duvalls at a block

party shortly before Alan’s death. Thompson habitually left her medications, including a

very large bottle of Flexeril, on a table inside her front door. After the party, the bottle of

Flexeril appeared less full. She denied offering Alan Flexeril from that bottle and testified

that she had never seen Alan take a prescription or illicit drug.

       Charles Rose (“Rose”) testified that he had been working at Miller’s Merry Manor as

a charge nurse on March 2, 2007, when he had absent-mindedly left a nearly-full bottle of

Roxanol on a hospice patient’s bedside table. When he went to retrieve it after lunch, Duvall

was “the only staff member present” and the bottle was missing. (Tr. 1426.) When

questioned, Duvall had responded that she had not seen the bottle but had seen the patient’s

daughter in the room. According to Rose, he “kind of knew better” because the daughter was

a teacher who never visited during the daytime. (Tr. 1434.)

       Additionally, testimony from various investigators, friends, acquaintances, and family

members established that Duvall had given many conflicting versions of the circumstances

surrounding Alan’s death. During the initial investigation, Duvall claimed to have placed the

8:00 a.m. 9-1-1 call as soon as she returned home and opened the door to see Alan slumped

over. However, Duvall had chatted with convenience store clerk Kim Foster as Foster


                                              12
opened the store sometime before 7:00 a.m. and, when Foster expressed concern for Duvall,

Duvall told Foster that she had discovered her husband dead in a lounge chair. Ruddell

testified that, during his 7:30 a.m. call with Duvall, she told him she was tying up her dogs

and Alan was “unconscious.” (Tr. 2122.) Duvall’s neighbors testified that, around 7:00,

Duvall had come to their door but left without waiting for a response to her knock. Jennifer

Melton then looked out the window and saw that Duvall was in the back yard trying to tie up

her dogs. When Duvall was confronted with phone records suggesting a significant delay

after she arrived home and before the 9-1-1 call, Duvall admitted to making some calls but

claimed to have been in shock.

       After Alan’s death, Duvall opposed an autopsy. She arranged to have his body

cremated, although Alan had a burial plot. According to Duvall’s daughter, Duvall had been

upset about the delay in the cremation. Duvall told Detective Kruchten that she had served

Alan some Long Island iced teas on the evening before his death. She told Alan’s former

girlfriend, Mary Beth Kahle, that Alan had not been drinking at all, then conceded that he had

one beer and one shot. She told her son that she and Alan had been drinking tequila the night

before his death. During the insurance investigation, Duvall insisted that Alan had initiated

the life insurance purchase.

       Eventually, Duvall provided investigators with scenarios under which Alan had both

Roxanol and Flexeril in his possession. However, persons familiar with Alan’s habits

uniformly denied that he was willing to ingest either a prescription or non-prescription drug.

Moreover, police officers testified that neither Roxanol nor Flexeril was a drug typically


                                             13
abused or available for street purchase. Evidence showed that Duvall had been in the

proximity of both drugs shortly before Alan’s death.

       In light of the substantial independent evidence of Duvall’s guilt, we conclude that

there is not a substantial likelihood that the challenged evidence contributed to the verdict.

                       II. Admission of Evidence – Missing Roxanol

       Duvall also claims that the trial court admitted Rose’s testimony as to the missing

Roxanol in contravention of Evidence Rule 404(b) and “the conditional relevance standard of

Evidence Rule 104(b).” Appellant’s Brief at 26. According to Duvall, the evidence that she

“stole liquid morphine from Miller’s Merry Manor is tenuous at best.” Appellant’s Brief at

26. She emphasizes the testimony of director of nursing Robyn Sams, who stated that she

“decided to mark the bottle as spilled” and admitted that she could not prove where it went.

(Tr. 1509.)

       At the time of Rose’s testimony, Duvall lodged no contemporaneous objection. The

defendant’s failure to lodge a contemporaneous objection at the time evidence is introduced

at trial results in waiver of the error on appeal. Brown v. State, 929 N.E.2d 204, 207 (Ind.

2010), reh’g denied. “The purpose of this rule is to allow the trial judge to consider the issue

in light of any fresh developments and also to correct any errors.” Id. A claim that has been

thus waived can be reviewed on appeal if the reviewing court determines that a fundamental

error occurred. Id. The fundamental error exception is ‘“extremely narrow, and applies only

when the error constitutes a blatant violation of basic principles, the harm or potential for

harm is substantial, and the resulting error denies the defendant fundamental due process.”’


                                              14
Id. (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)). The exception is available

only in ‘“egregious circumstances.”’ Id. (quoting Brown v. State, 799 N.E.2d 1064, 1068

(Ind. 2003)).

       Pathologist Dr. Greg Brown testified that Alan died of an overdose of morphine.

Accordingly, Rose’s testimony was admitted for a purpose other than to show that Duvall had

a propensity to engage in crime; specifically, it was admissible to show that Duvall had

access to the murder weapon. See Pickens v. State, 764 N.E.2d 295, 299 (Ind. Ct. App.

2002) (evidence that police saw an assault rifle in the defendant’s parents’ home two years

before murder was admissible as evidence that defendant had access to weapon of the type

used in the murder), trans. denied.

       “But before a defendant’s alleged prior misconduct evidence can be admitted for a

permissible purpose under Rule 404(b), there must be sufficient proof from which a jury

could find that the defendant committed the prior acts in question.” Perry v. State, 956

N.E.2d 41, 59 (Ind. Ct. App. 2011) (citing Camm, 908 N.E.2d at 223-24). In other words,

‘“similar act evidence is relevant only if the jury can reasonably conclude that the act

occurred and that the defendant was the actor.”’ Id. (quoting Huddleston v. United States,

485 U.S. 681, 689 (1988)).

       Relevant evidence is that evidence “having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less probable

than it would be without the evidence.” Evid. R. 401. Only relevant evidence is admissible

at trial. Evid. R. 402. Testimony that Roxanol went missing at Miller’s Merry Manor is


                                             15
relevant to the issue of whether Duvall committed murder by morphine only if Duvall had

access to the particular missing drug and then took it. “When conflicting evidence persists

about a person’s involvement in Rule 404(b) specific acts, the question is one of conditional

relevance, which is governed by Rule 104(b).” Camm, 908 N.E.2d at 223. According to

Rule 104(b):

       When the relevancy of evidence depends upon the fulfillment of a condition of
       fact, the Court shall admit it upon, or subject to, the introduction of evidence
       sufficient to support a finding of the fulfillment of the condition.

“Whether Rule 104(b) should result in the exclusion of evidence depends upon whether ‘the

fact upon which the evidence depends is too speculative’ at the time a party seeks

introduction of the evidence.” Granger, 946 N.E.2d at 1216 (citing Cox v. State, 696 N.E.2d

853, 861 (Ind. 1998)). Evidence of uncharged conduct is admissible under Rule 104(b) if

there is likely to be sufficient proof for a reasonable jury to find the uncharged conduct

proven by a preponderance of the evidence. Camm, 908 N.E.2d at 224. Sufficiency of the

evidence under 104(b) is reviewed for an abuse of discretion. Cox, 696 N.E.2d at 861.

       As a predicate, the State introduced evidence of Duvall’s access to the premises.

However, as a certified nurse’s aide, Duvall was not permitted authorized access to patient

drugs, and so the State necessarily alleged a theft. Rose testified that Duvall was working

with him on March 2, 2007 on a particular ward that housed a hospice patient who had been

prescribed Roxanol. Rita Bell (“Bell”), a nurse then working as a nurse’s aide, was also on

duty. Rose testified that, when he and Bell left to go to the dining room, Duvall was left

behind to serve lunch to bedridden patients. Bell also testified that she had worked with


                                             16
Duvall on the day in question. Bell had seen a bottle of Roxanol on a patient’s table, but did

not pick it up because she was not in charge of the medicine cart on that day.4 Other

testimony indicated that, when Duvall was questioned as to the missing Roxanol, she gave a

suspicious account of a daytime visitor. The State presented sufficient evidence from which

the trial court could have found that there was likely to be sufficient proof for a reasonable

jury to find Duvall’s theft proven by a preponderance of the evidence.

           Indiana Evidence Rule 403 provides:

           Although relevant, evidence may be excluded if its probative value is
           substantially outweighed by the danger of unfair prejudice, confusion of the
           issues, or misleading the jury, or by considerations of undue delay, or needless
           presentation of cumulative evidence.

All evidence that is relevant to a criminal prosecution is inherently prejudicial, and thus the

Evidence Rule 403 inquiry boils down to a balance of the probative value of the proffered

evidence against the likely unfair prejudicial impact of that evidence. Carter v. State, 766

N.E.2d 377, 382 (Ind. 2002) (citing Richmond v. State, 685 N.E.2d 54, 55-56 (Ind. 1997)).

“When determining the likely unfair prejudicial impact, courts will look for the dangers that

the jury will (1) substantially overestimate the value of the evidence or (2) that the evidence

will arouse or inflame the passions or sympathies of the jury.” Id. (citing Evans v. State, 643

N.E.2d 877, 880 (Ind. 1994)).

           The value of evidence that Duvall had access to the murder weapon, a rare form of

morphine typically used for palliative care for dying patients, was high. Moreover, the access

had been in recent proximity to Alan’s death. The admission of such evidence was not

4
    Bell was licensed as a nurse, but was working a shift as a certified nurse’s aide on that particular day.

                                                        17
unfairly prejudicial. The trial court did not abuse its discretion and did not commit

fundamental error by allowing Rose to testify regarding missing Roxanol.

                                   III.Continuing Crimes

       Finally, Duvall argues that the continuing crime doctrine is applicable to her multiple

convictions for Insurance Fraud and Obstruction of Justice. “The continuing crime doctrine

essentially provides that actions that are sufficient in themselves to constitute separate

criminal offenses may be so compressed in terms of time, place, singleness of purpose, and

continuity of action as to constitute a single transaction.” Riehle v. State, 823 N.E.2d 287,

296 (Ind. Ct. App. 2005), trans. denied. The continuous crime doctrine does not seek to

reconcile the double jeopardy implications of two distinct chargeable crimes, but rather

defines those instances where a defendant’s conduct amounts to only a single chargeable

crime. Id.

       Duvall’s convictions for Insurance Fraud stem from six false statements given in a

single insurance investigation interview on May 29, 2008. Her three convictions for

Obstruction of Justice stem from a single crime scene clean-up (in which she removed an

alcohol bottle, medication container, and foam from Alan’s mouth) on August 24, 2007. The

State concedes – and we agree – that Duvall’s conduct was continuous so as to constitute one

offense of Insurance Fraud and one offense of Obstruction of Justice.

                                        Conclusion

       The trial court did not commit reversible error or fundamental error in the admission

of evidence and therefore we affirm the murder conviction. However, because Duvall’s acts


                                             18
constitute a single chargeable offense under the continuing crime doctrine, we affirm one

conviction each for Insurance Fraud and Obstruction of Justice, but reverse and remand with

instructions to vacate the remaining five convictions for Insurance Fraud and the remaining

two convictions for Obstruction of Justice.

      Affirmed in part, reversed in part, and remanded with instructions.

RILEY, J., and CRONE, J., concur.




                                              19
