ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ALISON T. FRAZIER STEVE CARTER
Eckert Alcorn Goering & Sage, LLP Attorney General of Indiana
JUSTIN F. ROEBEL
MATTHEW D. FISHER
Deputy Attorneys General
COURT OF APPEALS OF INDIANA
ROBIN L. MONTGOMERY, )
vs. ) No. 58A01-0304-CR-139
STATE OF INDIANA, )
APPEAL FROM THE OHIO SUPERIOR COURT
The Honorable John D. Mitchell, Judge
Cause No. 58D01-0105-CF-036
March 22, 2004
OPINION - FOR PUBLICATION
Robin L. Montgomery (Montgomery) appeals his convictions for two counts of arson, as
Class B felonies,
See footnote and fraud, a Class D felony.See footnote We reverse his
convictions and remand for a new trial.See footnote
Montgomery raises eight issues, one of which we find dispositive: whether counsel rendered
ineffective assistance. In order to determine whether retrial is permissible, we also
examine the sufficiency of the evidence supporting Montgomerys convictions. Finally, we address
whether Montgomerys convictions for the two arson counts violate principles of double jeopardy.
Facts and Procedural History
Montgomery owned a house in Rising Sun, Indiana, wherein he and his girlfriend
Jodi Gould (Gould) lived. On April 3, 2000, Gould was vacuuming in
a downstairs bedroom when she accidentally vacuumed an extension cord to an antique
lamp. The lamp switch did not work after this incident. That
evening, Montgomery and Gould had an argument, and Gould left the house to
go to the American Legion. According to Gould, Montgomery called Gould after
she left and told her that he was going to shoot [her] dog
and have a wiener roast with [her] stuff. Tr. 578.
That night, John Wolfe (Wolfe), a neighbor who lived across the street from
Montgomerys house, observed Montgomery leave the residence while Wolfe was smoking a cigarette
on his front porch. Approximately five or six minutes later, Wolfe went
inside. Wolfe noticed an orange glow through his bathrooms privacy window, returned
to the front porch and saw flames shooting out the lower left side
of Montgomerys house. Tr. 373. Wolfe called 9-1-1 and reported the
fire at 12:13 a.m.
After responding to the scene, Deputy Rodney Rimstidt (Deputy Rimstidt) of the Ohio
County Sheriffs Department located Gould at a hotel and interviewed her to determine
what caused the fire. Gould told Deputy Rimstidt that Montgomery told her
he was going to kill her dog and burn down the house.
Deputy Rimstidt also interviewed Montgomery, who told Deputy Rimstidt that he had heard
about the fire from his brother. Deputy Rimstidt checked Montgomerys Caller ID
system, but did not discover any incoming calls from Montgomerys brother.
Deputy Andrew Long (Deputy Long) of the State Fire Marshalls Office investigated the
fire scene and concluded that two fires had been set, one in the
middle bedroom and one in the upstairs bedroom. Deputy Long based his
opinion on the burn patterns on the walls and ceilings, although Deputy Long
had never received any formal training concerning fire pattern recognition. Deputy Long
tested the scene for accelerants using a hydrocarbon detector, and although the detector
signaled the presence of hydrocarbons, the samples taken from the scene ultimately tested
negative for the presence of accelerants. Long did not inspect any electrical
cord fragments later discovered by an insurance company investigator in the basement underneath
where the first floor bedroom previously existed. One section of an extension
cord demonstrated beading, which is indicative of arcing in an electrical short.
On May 22, 2001, a grand jury indicted Montgomery on two counts of
arson and one count of fraud. Prior to trial, the State subpoenaed
two insurance investigators, Mark Schockman (Schockman) and Michael McGwire (McGwire) to testify concerning
their investigation of the fire scene. However, at trial, the State rested
without calling either witness. Montgomery did not subpoena either witness before trial
and, upon realizing that the State did not intend to call Schockman and
McGwire as witnesses, was unable to serve subpoenas on them in time to
have them testify at trial. Although Schockman and McGwire concluded in their
investigative reports that the fire had been set, Schockman did not find evidence
of a second fire in the upstairs bedroom, and McGwire could not rule
out the extension cord as a source of the fire. Montgomery did
not move to continue the trial in order to have Schockman or McGuire
appear; instead, Montgomery read McGuires discovery deposition to the jury. While Montgomery
also took Schockmans deposition, Montgomery did not read any portion of his deposition
to the jury.
On December 23, 2002, the jury found Montgomery guilty on all counts.
The trial court sentenced Montgomery to twelve years, with six years suspended. This
Discussion and Decision
I. Ineffective Assistance
A. Standard of Review
It is well-settled that to prevail on a claim of ineffective assistance of
counsel, a defendant must show that counsels performance was deficient and that this
deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687
(1984); Dobbins v. State, 721 N.E.2d 867, 873 (Ind. 1999). When analyzing
whether counsels performance was deficient, we begin with the presumption that counsels performance
was effective. Autrey v. State, 700 N.E.2d 1140, 1141 (Ind. 1998).
The defendant must rebut this presumption through strong and convincing evidence. Id.
Deficient performance is that which falls below an objective standard of reasonableness.
Strickland, 466 U.S. at 687; see also Douglas v. State, 663 N.E.2d 1153,
1154 (Ind. 1996). Prejudice exists when a claimant demonstrates that there is
a reasonable probability that, but for counsels unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome. Strickland, 466 U.S. at 694; see
also Cook v. State, 675 N.E.2d 687, 692 (Ind. 1996).
Montgomery points to several alleged errors made by trial counsel, but we focus
upon the failure of Montgomerys trial counsel to subpoena two of the States
expert witnesses or, in the alternative, request a continuance when the State did
not call these experts and they were unavailable for Montgomerys defense.
Here, performance by Montgomerys trial counsel was deficient. A defendant has the
burden of insuring that witnesses who may aid in his or her defense
are called. Jenkins v. State, 627 N.E.2d 789, 793 (Ind. 1993).
Although Montgomerys counsel attempted to mitigate the absence of McGwire by reading the
transcript of McGwires discovery deposition to the jury, trial counsel did not attempt
to do the same with Schockmans deposition, nor did counsel make an offer
to prove what Schockmans testimony would have been. See Isom v. State,
585 N.E.2d 1347, 1350 (Ind. Ct. App. 1992) (deficient performance by failing to
make offer to prove absent witnesss testimony). Further, Montgomerys counsel did not
move for a continuance in order to secure Schockman and McGwire as witnesses.
These errors fall below an objective standard of reasonableness based on prevailing
professional norms. See Strickland, 466 U.S. at 694.
Having found deficient performance, we next address whether counsels performance prejudiced Montgomery.
The absence of Schockman and McGwire was more than a minor omission.
While both investigators concluded that the fire was set, their opinions differed from
that of Deputy Long, the States fire expert. Schockman apparently did not
find any evidence of a second set fire upstairs, contrary to Deputy Longs
See footnote In this respect, Schockmans conclusion is consistent with Montgomerys expert, Thomas
Hulse, who concluded that the fire on the second floor was a drop
down fire, caused by burning ceiling material that dropped to the floor and
bed in the upstairs bedroom. Tr. 743. McGwire discovered the electric
cord fragments in the area where Deputy Long determined that the fire was
set, and McGwire could not rule out the electric cord or the antique
lamp as the source of the fire. This is also consistent with
Hulses conclusion that the fire was the result of an electrical fire.
In this case, there was only circumstantial evidence of Montgomerys guilt. Indeed,
what became essentially a battle of experts, corroborating expert testimony would have been
particularly powerful, and in its absence, when available, substantially prejudicial. Moreover, the
introduction of McGwires discovery deposition is an inadequate substitute to live cross-examination when
the only reason for McGwires unavailability was counsels failure to serve a subpoena.
Without this corroborating testimony, we conclude that there is a reasonable probability
that, absent the errors, the factfinder would have had a reasonable doubt respecting
guilt. Games v. State, 690 N.E.2d at 211, 213 (Ind. 1997).
Accordingly, we reverse Montgomerys convictions.
II. Sufficiency of the Evidence
We must next determine whether retrial is permissible. Federal double jeopardy principles
prohibit multiple convictions for the same offense. Nevertheless, these principles do not
prohibit the successive prosecution of a defendant who initially succeeds in setting aside
his first conviction because of some error in the proceedings leading to the
conviction. Berry v. State, 725 N.E.2d 939, 944 (Ind. Ct. App. 2000)
(citing Lockhart v. Nelson, 488 U.S. 33, 38 (1988)). However, retrial is
not permissible if insufficient evidence supported the conviction. Accordingly, we consider all
the evidence admitted by the trial court, including erroneously admitted evidence. Id.
If the evidence as a whole would have been sufficient to sustain
the judgment, double jeopardy does not attach. Id.
A. Arson of dwelling of another
To convict Montgomery of arson of a dwelling as a Class B felony,
the State was required to establish that he: (1) by means of fire
or explosive; (2) knowingly or intentionally damaged (3) the dwelling of another person
without her consent. Ind. Code § 35-43-1-1(a)(1). Montgomery contends that because
Gould was not at the house at the time of the fire, there
was no evidence supporting an inference that Montgomerys home was her dwelling.
Dwelling is defined at Indiana Code Section 35-41-1-10 as a persons home or
place of lodging. Gould testified that she had been living with Montgomery
for approximately six months prior to the fire, and kept all of her
possessions at the house. This testimony was sufficient to establish Montgomerys house
as Goulds dwelling. Further, an eyewitness saw Montgomery leave his residence approximately
five to ten minutes before the house was engulfed in flames. Deputy
Long opined that the fire was intentionally set. Finally, Gould testified that
she was devastated by the fire and lost everything she owned. Accordingly,
the evidence was sufficient to support a conviction for arson of a dwelling.
B. Arson damaging property in excess of $5,000.00
To convict Montgomery of arson of property as a Class B felony, the
State must establish that he: (1) by means of fire or explosive; (2)
knowingly or intentionally damaged; (3) property of another person without her consent; (4)
with a pecuniary value of at least $5,000.00. Ind. Code § 35-43-1-1(a)(3).
Montgomery argues that the State failed to establish that the fire damaged
more than $5,000.00 of Goulds property. Specifically, Montgomery contends that Goulds speculation
on the value of items that were lost in the fire is insufficient
to establish the value of those items. Again, we disagree.
Gould testified that after the fire, she accounted for items that were missing
and approximated the value of these items at $30,000.00. Although Montgomery objected
to an itemized list prepared by Gould, Montgomery made no objection to Goulds
testimony on valuation and made no attempt to cross-examine her on that issue.
In essence, Montgomery asks this court to reweigh Goulds credibility and determine
that her testimony is without merit. This we will not do.
As discussed in Section II.A, the evidence was sufficient to establish the first
three elements of arson. Accordingly, the evidence is sufficient to support Montgomerys
conviction on this count.
Finally, to convict Montgomery of fraud, the State must establish that he:
(1) knowingly and with intent to defraud; (2) made, uttered, presented, or caused
to be presented to an insurer; (3) a claim statement that contained false,
incomplete, or misleading information concerning the claim. Ind. Code § 35-43-5-4(10).
Montgomery contends that the evidence was insufficient to support a conviction for fraud
because the indictment alleged that fraud occurred between April 4, 2000 and May
10, 2000, but the Proof of Loss form was not notarized until May
23, 2000. We note, however that to be convicted of fraud, Indiana
Code Section 35-43-5-4(10) does not require a false claim statement to be presented
to the insurer on a particular date.
The evidence here showed that Montgomery submitted to his insurer the Proof of
Loss form, signed by Montgomery, which provided: The said loss did not originate
by any act, design or procurement on the part of your insured, or
this affiant . . . and no attempt to deceive the company, as
to the extent of said loss, has been in any manner been made.
States Ex. 62. As we previously determined that sufficient evidence exists to
support the arson convictions, the jury could conclude that Montgomerys statement that he
did not cause the loss was false, and thus, by submitting a false
claim statement, Montgomery intended to defraud his insurer. Accordingly, the evidence is
sufficient to support Montgomerys conviction for fraud.
III. Double Jeopardy
Indianas Double Jeopardy Clause is embodied in Article 1, Section 14 of the
Indiana Constitution, which provides, No person shall be put in jeopardy twice for
the same offense. Our Supreme Court has concluded that this provision was
intended to prevent the State from being able to proceed against a person
twice for the same criminal transgression. Richardson v. State, 717 N.E.2d 32,
49 (Ind. 1999). In addition to the traditional notion that double jeopardy
bars subsequent prosecution, our Supreme Court has construed Indianas Double Jeopardy Clause as
also prohibiting multiple punishments. Id.
In Richardson, our Supreme Court established a two-part test for analyzing double jeopardy
two or more offenses are the same offense in violation of Article I,
Section 14 of the Indiana Constitution, 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
Id. at 49. If the evidentiary facts that establish one offense establish
only one or several, but not all of the essential elements of the
second offense, there is no double jeopardy violation. Spivey v. State, 761
N.E.2d 831, 833 (Ind. 2002).
The statutory elements test and the actual evidence tests are separate considerations under
the double jeopardy analysis. Richardson, 717 N.E.2d at 53. Thus, even
where the statutory elements define the offense as capable of being committed by
disparate acts, the convictions may nonetheless constitute a violation of double jeopardy if
the actual evidence presented at trial demonstrates that each offense was not established
by separate and distinct facts. Castillo v. State, 734 N.E.2d 299, 303
(Ind. Ct. App. 2000); see also Richardson, 717 N.E.2d at 53.
In addition to the statutory elements and actual evidence tests, Indiana courts have
long adhered to a series of rules of statutory construction and common law
that are often described as double jeopardy, but are not governed by the
constitutional test set forth in Richardson. Guyton v. State, 771 N.E.2d 1141, 1143
(Ind. 2002) (quoting Pierce v. State, 761 N.E.2d 826, 830 (Ind. 2002)).
Montgomery directs us to Clark v. State, 732 N.E.2d 1225 (Ind. Ct. App.
2000) and Belser v. State, 727 N.E.2d 457 (Ind. Ct. App. 2000), trans.
denied, to support his contention that only one arson conviction may result from
a case with only one fire. In Clark, this court found a
violation of double jeopardy principles for multiple convictions of attempted arson of a
dwelling, attempted arson for hire, and attempted arson with intent to defraud, as
all three convictions stemmed from the same single act of arson. In
Belser, this court similarly found a double jeopardy violation for convictions of arson
of a dwelling and arson of property that endangered human life.
The State points to the recent case of Land v. State, 802 N.E.2d
45 (Ind. Ct. App. 2004), trans. pending, decided by a different panel of
this court. There, the court concluded that convictions for arson of a
dwelling and arson of personal property, caused by one fire, did not constitute
double jeopardy. Id. at 52. We distinguish Land, however, because the
two convictions involved two victims. Here, Gould was the victim of the
arson of her dwelling and the arson of her personal property.
The State argues that because Clark and Belser were decided prior to our
Supreme Courts clarification of the actual evidence test in Spivey, we should not
rely on those cases. Upon reviewing Clark and Belser, however, double jeopardy
in those cases was based on our statutory and common law rather than
the constitutional analysis of the Richardson actual evidence test. See Clark, 732
N.E.2d at 1229 (multiple convictions barred by statutory and common law rather than
upon constitutional grounds); Belser, 727 N.E.2d at 462 (hybrid double jeopardy violation involving
base offense in which very same act formed basis of second conviction).
We find that Montgomerys arson convictions are similarly barred under the common law.
Cf. Martin v. State, 488 N.E.2d 1160, 1162 (Ind. Ct. App. 1986)
(single act of arson of dwelling supported only one count of arson).
For the foregoing reasons, we reverse Montgomerys convictions and remand for a new
Reversed and remanded.
RILEY, J., and DARDEN, J., concur.
Ind. Code § 35-43-1-1(a)(1), (a)(3).
Footnote: Ind. Code § 35-43-5-4(10).
Footnote: We heard oral argument in this case on February 23, 2004 at
the Oldenburg Academy in Oldenburg, IN. We thank counsel for their advocacy
and extend our appreciation to Oldenburg Academy for hosting the event.
We do not address Montgomerys claims of error in the admission of
evidence, prosecutorial misconduct, the States failure to produce exculpatory evidence, or cumulative error.
Footnote: In closing argument, Montgomerys trial counsel referred to Schockmans deposition transcript, which
was reviewed by Hulse during his investigation. However, this deposition was never
introduced at trial.
Footnote: Although we reverse Montgomerys convictions based upon ineffective assistance, we are compelled
to admonish the prosecutor for conduct that gave rise to the ineffectiveness claim.
The prosecutor included McGuire and Schockman on the States witness list, subpoenaed
the two witnesses, and both witnesses were in the courthouse on Thursday, the
day before the State rested its case-in-chief. Thursday evening, the prosecutor informed
both witnesses that they would not be needed and could leave. The
prosecutor did not inform Montgomery, whose witness list included those witnesses listed by
the State, App. at 251, or seek permission from the trial court to
release the witnesses from the courts subpoena. This situation is distinguishable from
Wisehart v. State, 693 N.E.2d 23 (Ind. 1998), in which the prosecutor stated
before trial that he would subpoena a witness but may or may not
call the witness, and later did not have the witness available at trial.
See Wisehart, 693 N.E.2d at 58 (finding no misconduct). We find
it immaterial that the prosecutor told counsel only that the witnesses were subpoenaed,
not that they would be there. States Br. at 12. Once
a witness is served with a subpoena, the witness is under court order
to appear, and cannot be unilaterally dismissed without permission from the court that
issued the subpoena. Further, given the substantial time and cost that go
towards service of process, duplicative service of subpoenas is unnecessary and unwarranted when
one party has clearly served the subpoena prior to trial.
However, because Montgomerys trial counsel failed to object to the prosecutors actions, we
must address the conduct as fundamental error. Booher v. State, 773 N.E.2d
814, 817-18 (Ind. 2002). As Montgomery presents no argument on appeal that
the prosecutorial conduct also constituted fundamental error, Montgomery has not demonstrated that the
conduct makes a fair trial impossible or constitutes clearly blatant violations of basic
and elementary principles of due process [and] present an undeniable and substantial potential
for harm. Id. at 817.
Further, by failing to object during the trial to the variance in
proof, Montgomery waived any error in the variance between the date of the
offense as charged in the information and as proved at trial.
Hobson v. State, 495 N.E.2d 741, 746 (Ind. Ct. App. 1986) (failure to
object to one to two year variance between date of offense as charged
in information and proved at trial waives issue).
We address Montgomerys double jeopardy argument under Indiana law, as Montgomery makes
no separate argument under the Fifth Amendment of the United States Constitution.