Kristina Sell, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Kristina Sell appeals her four convictions for Level 4 felony arson and her conviction for Level 6 felony domestic violence animal cruelty. Sell raises three issues for our review, which we restate as follows:

1. Whether two of Sell's arson convictions are contrary to Indiana's protections against double jeopardy.

2. Whether the trial court abused its discretion in the admission of certain evidence.

3. Whether the State presented sufficient evidence to support Sell's convictions.

[2] We affirm two of Sell's convictions for Level 4 felony arson and her conviction for Level 6 felony domestic violence animal cruelty, and we reverse two of Sell's convictions for Level 4 felony arson as contrary to Indiana double-jeopardy law.

Facts and Procedural History

[3] Sometime in 2019 or 2020, Sell moved into her boyfriend Tony's house in Greenfield. The two married in September 2020. Sell drove a red Ford F-150 truck. The couple had three adult dogs; in July 2023, one of the dogs gave birth to eight puppies.

[4] On September 14, 2023, Tony informed Sell that he was going to file for divorce. Tony locked some of his personal belongings in the backyard shed. He then went to his sister's house to spend the night.

[5] The next morning, Denise Cook, one of Sell's neighbors, was having coffee on her front porch when she observed smoke coming over Sell's home. Cook then saw Sell “come from around the back of the yard, put a box in her truck[,] and go in the front door.” Tr. Vol. 3, p. 29. Only Sell's red truck was in the driveway. About one hour later, another neighbor, Elaine Lewis, saw that the shed in Sell's backyard was on fire. Lewis's husband called 9-1-1 while Lewis, who saw Sell's truck in the driveway, went to Sell's house to inform Sell of the fire. Lewis knocked on the front door, and Sell answered. Lewis told Sell that the shed was on fire. Sell responded, “[o]f course it is,” and “shut the door.” Id. at 108. Sell did not appear “shocked or surprised[.]” Id.

[6] Shortly after 9:00 a.m., firefighters from the Sugar Creek Township Fire Department responded to the shed fire and extinguished it. Fire investigator Richard Tracy concluded that the shed fire had had multiple “ignition points” and had been intentionally set. Id. at 71. Other firefighters located a butane igniter near the shed, which Tracy testified was likely to have been used to start the fire. Tracy also observed a knife inside a flat tire of a trailer belonging to Tony on the property. When officers informed Sell that they believed the fire had been intentionally set, she directed the officers to leave the property. A few days later, Tony went into the shed and saw the words “I love you Tony Sell” spray-painted on the inside of the shed door. Tr. Vol. 4, p. 157.

[7] Following the shed fire, Sell continued to move her belongings out of the house. Around 8:00 a.m. on September 22, Lisa Jefford, another neighbor, observed Sell drive away from the house with items in the back of her truck. Seven to ten minutes later, Jefford's husband said that “the Sells’ house is on fire,” and Jefford heard sirens of responding firefighters approaching the house. Id. at 20-21.

[8] Responding firefighters extinguished the fire within ten minutes of their arrival. In investigating the fire, Sugar Creek Township Fire Department Officer Andrew Neumeister located a one-gallon gas can and a lighter in a laundry room adjacent to the main bedroom. Neumeister was able to identify the laundry room as the origin of the fire. In the main bedroom, he found three deceased adult dogs and seven deceased puppies; the eighth puppy was resuscitated and placed in the care of local animal control. Neumeister concluded that the fire had been intentionally started with the use of gasoline. He further concluded that, based on Jefford's observation of when Sell had left the residence, the fire had started while Sell was still present inside the house.

[9] Around 6:20 the next morning, Alan Hodgkin, who also lived near Sell's house, observed a truck matching the description of Sell's truck park on the road near Sell's house. When Hodgkin looked again around 7:00 a.m., the truck was no longer there. Around those same times, Mary Sweetland, another neighbor, observed a fire coming from behind Sell's house near the air conditioner, and she called 9-1-1. She then heard a sudden, loud “bang” and observed the fire quickly getting worse. Id. at 9-10.

[10] Firefighters arrived on the scene and attempted to extinguish the house fire from inside the residence, but the floors started to collapse, and two firefighters sustained minor injuries. After twenty to thirty minutes, the firefighters were able to extinguish the fire from the outside, but by that time the roof had also started to collapse. An ensuing investigation concluded that the fire had been started on the exterior of the home using an accelerant.

[11] The State charged Sell with four counts of Level 4 felony arson and one count of Level 6 felony domestic violence animal cruelty. Two of the arson counts were based on the September 22 fire; one count addressed damage to the dwelling and the other addressed damage to “property.” Appellant's App. Vol. 2, pp. 37-38. The other two arson counts were based on the September 23 fire and were similarly divided between dwelling and property damage.

[12] Tony, numerous neighbors, and fire investigators testified at Sell's ensuing jury trial. Sell also testified. Thereafter, the jury found her guilty as charged. The trial court entered its judgment of conviction on all counts and sentenced Sell to an aggregate term of twenty-four years in the Department of Correction with four years suspended.

[13] This appeal ensued.

1. Two of Sell's arson convictions are contrary to Indiana's protections against double jeopardy.

[14] On appeal, we first address Sell's argument that her two “property” arson convictions are contrary to law based on her two “dwelling” arson convictions. Again, the State sought and obtained two convictions against Sell for the September 22 fire, with one conviction based on damage to the dwelling and the other conviction based on a more generalized damage to property. And the State likewise sought and obtained two convictions against Sell for the September 23 fire, again, with one based on damage to the dwelling and the other based on property damage.

[15] The State does not dispute that two of Sell's convictions are contrary to our Court's precedent, nor does the State argue that our precedent was incorrectly decided. In particular, in Morales v. State, another panel of our Court held that two convictions of arson based on the setting of one fire—at least where, as here, the convictions are based on damages to real or personal property—violate Indiana's statutory prohibition under substantive double-jeopardy law. 165 N.E.3d 1002, 1009-10 (Ind. Ct. App. 2021), trans. denied.

[16] Accordingly, under Morales, Sell cannot be convicted of her two counts for the singular September 22 fire or of her two counts for the singular September 23 fire. We therefore reverse her convictions for Level 4 felony arson as alleged in Count II and in Count IV (regarding “property” damages). As her sentences for her convictions under those two counts were ordered to be served concurrently with her sentences for her other two Level 4 felony arson convictions, Sell's aggregate sentence remains unchanged.

2. The trial court did not abuse its discretion in admitting evidence of the September 15 shed fire.

[17] We next consider Sell's argument that the trial court abused its discretion when it permitted the State, over her objection, to present evidence of the uncharged September 15 shed fire to the jury. We review the trial court's decision to admit or to exclude evidence for an abuse of discretion. See, e.g., Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). “An abuse of discretion occurs when the court's decision either clearly contravenes the logic and effect of the facts and circumstances” before it, or the court “misinterprets the law.” Nardi v. King, 253 N.E.3d 1098, 1103 (Ind. 2025) (quotation marks omitted).

[18] Sell objected to the admission of the shed-fire evidence under Indiana Evidence Rule 404(b)(1), which provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” However, Rule 404(b)(2) provides that such evidence “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” In response to Sell's Rule 404(b)(1) objection, the State argued, and the trial court agreed, that the evidence of the September 15 shed fire was evidence of Sell's motive.¹

[19] We agree with the trial court's assessment. As we recently summarized:

“Hostility is a paradigmatic motive for committing a crime.” Hicks v. State, 690 N.E.2d 215, 222 (Ind. 1997); see Iqbal v. State, 805 N.E.2d 401, 408 (Ind. Ct. App. 2004) (finding “[n]umerous cases have held that where a relationship between parties is characterized by frequent conflict, evidence of the defendant's prior assaults and confrontations with the victim may be admitted to show the relationship between the parties and motive for committing the crime.”), trans. denied; see Elliott v. State, 630 N.E.2d 202, 204 (Ind. 1994) (finding prior threats of violence to ex-wife and victim admissible to show the relationship between the parties and defendant's motive, plan, and absence of mistake); Price v. State, 619 N.E.2d 582, 584 (Ind. 1993) (finding prior bad acts against the victim are admissible “to show the relationship between the parties and appellant's motive[.]”), reh'g denied. And evidence of motive is always relevant in proving a crime. Cadiz v. State, 683 N.E.2d 597, 599 (Ind. Ct. App. 1997).

Carr v. State, 255 N.E.3d 519, 527-28 (Ind. Ct. App. 2025) (alterations original to Carr), trans. denied. So too here. The evidence that Sell set fire to the shed on September 15, the day after Tony had informed her he was going to file for divorce and locked several of his personal items in that shed, was admissible to show the relationship between Sell and Tony and Sell's corresponding motive for the later fires.

[20] Further, as “evidence of motive is always relevant to proving a crime,” Sell's argument on appeal that she did not put her motive in issue is a nonstarter. See id. at 528. On this point, Sell cites Indiana appellate precedent that discusses nonmotive exceptions under Rule 404(b)(2), which is not persuasive. The threshold question under Rule 404(b)(2) is whether the purported nonpropensity purpose “is relevant to a matter at issue”; motive is always relevant and at issue, and therefore Sell's argument here fails. See Fairbanks v. State, 119 N.E.3d 564, 568 (Ind. 2019).

[21] As for Sell's argument that the evidence was insufficient to show that she committed the September 15 shed fire and, thus, that evidence could not be used to support a showing of her motive, she is incorrect. Cook observed smoke coming from behind Sell's home in the morning hours of September 15. Cook then saw Sell “come from around the back of the yard, put a box in her truck[,] and go in the front door.” Tr. Vol. 3, p. 29. Only Sell's red truck was in the driveway. About one hour later, Lewis saw that the shed in Sell's backyard was on fire, and she went to Sell's house to inform Sell of the fire. When Lewis told Sell at Sell's front door that the shed was on fire, Sell responded, “[o]f course it is,” and “shut the door.” Id. at 108. Sell did not appear “shocked or surprised[.]” Id. The trial court could conclude from that evidence that Sell had started the shed fire, and the jury could reasonably conclude that the shed fire evidenced Sell's motive against Tony.

3. The State presented sufficient evidence to support Sell's convictions.

[22] We thus turn to Sell's argument that the State presented insufficient evidence to support her remaining convictions. For challenges to the sufficiency of the evidence, we consider only the probative evidence and the reasonable inferences therefrom that support the judgment of the trier of fact. Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will neither reweigh the evidence nor judge witness credibility. Id. We will affirm a conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.

[23] To prove that Sell committed Level 4 felony arson (under the two “dwelling” counts alleged in Counts I and III), the State needed to prove beyond a reasonable doubt that Sell, by means of fire, knowingly or intentionally damaged the dwelling of another person without the other person's consent. Ind. Code § 35-43-1-1(a)(1) (2023). And to prove that Sell committed domestic violence animal cruelty, the State needed to prove that Sell knowingly or intentionally killed a vertebrate animal with the intent to threaten, intimidate, coerce, harass, or terrorize a family or household member. I.C. § 35-46-3-12.5.

[24] The State presented sufficient evidence to support Sell's arson convictions. Regarding the September 22 fire, Jefford observed Sell leave the residence about ten minutes before the fire started, and there was no evidence anyone else had been at the residence. Investigators concluded that that fire had been intentionally started in the laundry room adjacent to the main bedroom inside the house. Neumeister specifically testified that the evidentiary timeframe placed Sell inside the house at the time the fire was started. A reasonable fact-finder could readily conclude from the evidence that Sell had committed that arson.

[25] Regarding the September 23 fire, Hodgkin observed a truck matching the description of Sell's truck parked on a road near the house around 6:20 a.m. The truck was gone shortly thereafter, and, near that same time, Sweetland observed the back of Sell's house on fire. Investigators concluded that, like the September 22 fire, the September 23 fire had been intentionally started using an accelerant. Further, in support of both charges, the State presented substantial evidence of Sell's animosity toward Tony for seeking a divorce. A reasonable fact-finder could readily conclude from the evidence that Sell had committed the September 23 arson.

[26] Sell's argument against her conviction for Level 6 felony domestic violence animal cruelty is premised on our Court reversing her September 22 arson conviction. As we conclude the State presented sufficient evidence to support that conviction, we likewise affirm her conviction for Level 6 felony domestic violence animal cruelty.

Conclusion

[27] For all of these reasons, we affirm two of Sell's convictions for Level 4 felony arson (as charged in Counts I and III) as well as her conviction for Level 6 felony animal cruelty, and we reverse two of her convictions for Level 4 felony arson (as charged in Counts II and IV).

[28] Affirmed in part and reversed in part.

FOOTNOTES

1.   If evidence is admissible for another purpose under Rule 404(b)(2), the trial court must then balance the probative value of that evidence against its prejudicial effect under Indiana Evidence Rule 403. See, e.g., Carr v. State, 255 N.E.3d 519, 527 (Ind. Ct. App. 2025), trans. denied. Sell does not present a Rule 403-based argument to our Court, and we therefore limit our review to the trial court's decision under Rule 404(b)(2). See Ind. Appellate Rule 46(A)(8)(a).

Mathias, Judge.

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