MEMORANDUM DECISION
[1] Thomas Dunigan, II appeals his conviction for Level 3 felony arson following a jury trial. Dunigan presents a single issue for our review, namely, whether the trial court abused its discretion when it permitted an expert witness to testify that the fire in his motel room was intentionally caused by a direct flame source and not accidentally caused by a smoldering marijuana cigarette.
[2] We affirm.
Facts and Procedural History
[3] On January 6, 2022, Dunigan was living in a motel room with his girlfriend, C.G., their baby, and Dunigans father, Thomas Sr. That morning, while Thomas Sr. was at work, Dunigan and C.G. fought, and Dunigan “struck” her in the face. Tr. Vol. 2, p. 36. C.G. took the baby and left the motel room. A short time later, Dunigan also left the motel room, but he left the door slightly ajar upon his exit.
[4] Shortly after Dunigans exit, a bystander saw smoke coming out of Dunigans motel room and called the fire department. Firefighters who responded saw that “the fire was on top of the bed.” Tr. Vol. 1, p. 190. While the fire was being extinguished, Anthony Malon, Andersons Chief Fire Marshall, began to investigate the cause. Malon collected evidence, took eyewitness statements, talked to firefighters on the scene, and examined surveillance video taken outside the motel room. Malon also examined the motel room and interviewed C.G. After his investigation was complete, Malon concluded that the fire was “incendiary in nature,” meaning that something on the bed was lit with a “direct flame source” like a lighter or match or “some other type of torch.” Tr. Vol. 1, p. 231. The motel surveillance video showed smoke coming out of the slightly ajar motel room door within approximately three minutes of Dunigan leaving the room.
[5] The State charged Dunigan with Level 3 felony arson and Level 6 felony domestic battery. A few days before trial, Dunigan filed a motion under Evidence Rules 403 and 702 to exclude Malons testimony regarding the cause of the fire. The trial court held a hearing on that motion mid-trial and denied it. Part of Dunigans defense was that C.G. had left a marijuana cigarette burning at the foot of the bed, which caused the fire. A jury found Dunigan guilty as charged. The trial court entered judgment of conviction and sentenced him to an aggregate sentence of twelve years. This appeal ensued.
Discussion and Decision
[6] Dunigan contends that the trial court abused its discretion under Evidence Rules 403 and 702 when it permitted Malon to testify that the fire was started by a direct flame source and not a smoldering marijuana cigarette. Under Evidence Rule 403, “relevant evidence may be excluded if its probative value is substantially outweighed by the danger of ․ unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” Snow v. State, 77 N.E.3d 173, 179 (Ind. 2017) (quotation marks omitted). Where a trial court reasonably could decide that evidence either be “admitted or excluded” under Rule 403, we will not “second-guess the trial courts determination.” Id.
[7] And, as our Supreme Court has explained:
“A trial courts determination regarding the admissibility of expert testimony under Rule 702 is a matter within its broad discretion and will be reversed only for abuse of that discretion.” TRW Vehicle Safety Sys., Inc. v. Moore, 936 N.E.2d 201, 216 (Ind. 2010) (citations omitted). We presume that the trial courts decision is correct, and the burden is on the party challenging the decision to persuade us that the trial court has abused its discretion. Id.
The trial court is considered the gatekeeper for the admissibility of expert opinion evidence under Rule 702. Doe v. Shults-Lewis Child & Family Servs., Inc., 718 N.E.2d 738, 750 (Ind. 1999). With regard to the admissibility of expert testimony, Rule 702 provides:
(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.
Ind. Evidence Rule 702. “By requiring trial courts to be satisfied that expert opinions will assist the fact-finder and that the underlying scientific principles are reliable, Rule 702 guides the admission of expert scientific testimony.” Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 460 (Ind. 2001) (plurality opinion). Once the admissibility of the experts opinion is established under Rule 702, “then the accuracy, consistency, and credibility of the experts opinions may properly be left to vigorous cross-examination, presentation of contrary evidence, argument of counsel, and resolution by the trier of fact.” Id. at 461 (citation omitted).
Bennett v. Richmond, 960 N.E.2d 782, 786-87 (Ind. 2012).
[8] We address Dunigans argument under Evidence Rule 702 first. While Dunigan does not challenge Malons expertise with regard to arson investigations generally under Rule 702(a), Dunigan argues that the trial court should have excluded Malons testimony “that a marijuana cigarette could not have caused this fire” because he did not support that opinion with reliable scientific principles under Rule 702(b). Appellants Br. at 13. In particular, Dunigan maintains that
Malon did not have any experience, skill, training, or education regarding the duration that it takes a marijuana cigarette to create an exothermic fire on the mattress and bedding type at issue in this case. (Tr. Vol. II p. 234). Rather Malons opinion was based upon an article or articles that he read. There was absolutely no evidence that Malons articles were based upon reliable scientific principles, or that they involved this type of mattress or bedding. And although Malon suggested (without elaboration) that his articles were peer reviewed, Tr. Vol. II p. 135, publication in a peer-reviewed journal “is not ․ dispositive of the issue of scientific validity.” Ollis v. Knecht, 751 N.E.2d 825 (Ind. Ct. App. 2001).
Appellants Br. at 12.
[9] During the mid-trial hearing on Dunigans motion to exclude,
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Malon testified as follows:
Q And I believe it was that [sic] you told me that if it had been a cigarette for example that it would probably be twenty-two (22) minutes between the time of the cigarette would interact with say the bedding or a mattress before it would come to ignition. Is that what [sic]?
A Uh, studies on smoldering fires indicate that the transition from a smoldering fire to an exothermic chemical reaction, which is where we see flaming fire, is twenty (20) minutes to several hours. Um, there was one particular peer reviewed article that stated twenty-two (22) minutes on average. But, um, according to other research, smoldering fire, making that transition is twenty (20) minutes to several hours.
Q So, youre referring to other articles. Nothing that youve specifically have [sic] tested yourself?
A And if, uh, as far as testing myself?
Q Yes, yes.
A Um-
Q Have you ever tested material such as this yourself before?
A Bedding material?
Q Yes, bedding material.
A Um, there was one that I used a foam mattress. Um, it was a mock setup for an arson investigation class. That, uh, that I was involved in.
Q But a foam mattress would be different than-
A It would be different.
Q -bed clothing. Bed clothing would ignite quicker?
A Um, based on its mass, it would have more propensity to ignite faster. Yes.
Q Okay. And you did not conduct any testing on any of this bedding material yourself?
A On this particular bedding material?
Q Yes.
A No.
Q Okay. So, youre relying on these other articles. Which ones did you say they were?
A Um, several peer reviewed articles and studies done through NIST. National Fire, uh, Association of Fire Investigators. Underwriters Laboratory.
Q How many articles and how many peer reviewed?
A I dont have a specific number off the top of my head.
Q We discussed the possibility of a cigarette.
A Correct.
Q Um, and I think you told me that a cigarette would, uh, wrappers, that theres some restrictions than there used to be. Is that correct?
A That is correct, yes.
Q Um, but if it were something other than a cigarette itself such as a roach or something like that, that might have a different time. Would you agree?
A Uh, its potential [sic]. And when you brought that information to my attention, I did try to research to see if there was any data to supplement that, you know, it burns hotter or faster. And I was only able to find one study from 2014 done by the National Association of Fire Investigators that showed they were testing the propensity for hand rolled marijuana cigarettes and tube rolled marijuana cigarettes to be self-extinguished. And they determined that they self-extinguished in one (1) to two (2) minutes compared to cigarettes which were three and a half (3 1/212) to four and a half (4 1/212) minutes.
Q What do you mean by self-extinguished?
A Um, meaning if theyre just sitting without actually being drawn on, they will self-extinguish.
Q Okay. All right. Were not talking about a study where the, the roach for example, the marijuana cigarette is to some other flammable type material though. Right?
A Correct.
Q Okay.
Tr. Vol. 1, pp. 233-36.
[10] Again, on appeal, Dunigan argues that Malons opinion was not “based upon reliable scientific principles” and should have been excluded. Appellants Br. at 12. In essence, Dunigan contends that Malons reliance on undisclosed peer-reviewed articles rather than on his own testing renders his conclusion unreliable. However, as this Court has explained, the trial court has broad discretion to admit evidence under Rule 702(b).
“If applied to separately evaluate every subsidiary point made during the testimony of a qualified expert regarding matters based on reliable science, Rule 702(b) can become excessively burdensome to the fair and efficient administration of justice.” [Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 461 (Ind. 2001).] Instead, it directs the trial court to consider the underlying reliability of the general principles involved in the subject matter of the testimony, but it does not require the trial court to re-evaluate and micromanage each subsidiary element of an experts testimony within the subject. Id. Once the trial court is satisfied that the experts testimony will assist the trier of fact and that the experts general methodology is based on reliable scientific principles, then the accuracy, consistency, and credibility of the experts opinions may properly be left to vigorous cross-examination, presentation of contrary evidence, argument of counsel, and resolution by the trier of fact. Id.
* * *
Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be empirically tested. Lytle[ v. Ford Motor Co.], 814 N.E.2d [301,] 309[ (Ind. Ct. App. 2004)]; Armstrong v. Cerestar USA, Inc., 775 N.E.2d 360, 366 (Ind.
Ct. App. 2002), trans. denied (2003). Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Lytle, 814 N.E.2d at 309; Armstrong, 775 N.E.2d at 366․ Other relevant factors are whether there is a known or potential rate of error, as well as the existence and maintenance of standards controlling the theory or techniques operation. Armstrong, 775 N.E.2d at 366. We also note, however, that while such factors are useful, there is no specific test that must be considered in order to satisfy the requirements of Evid. R. 702(b)․
Norfolk S. Ry. Co. v. Est. of Wagers, 833 N.E.2d 93, 102-03 (Ind. Ct. App. 2005) (emphasis added), trans. denied.
[11] Malon testified that, in concluding that the fire was intentionally set and not caused by a smoldering marijuana cigarette, he had relied on “several peer[ ]reviewed articles and studies done through NIST[,] National ․ Association of Fire Investigators[, and] Underwriters Laboratory,” including “one study from 2014 done by the National Association of Fire Investigators” specifically addressing “the propensity for hand rolled marijuana cigarettes and tube rolled marijuana cigarettes to be self-extinguished.” Tr. Vol. 1, pp. 234-35. Under Evidence Rule 702(b), the trial court had discretion to conclude that Malons reliance on those articles and studies was sufficient to show that his opinion was supported by reliable scientific principles. See Norfolk S. Ry. Co., 833 N.E.2d at 102-03.
[12] Dunigan also argues that the trial court abused its discretion when it did not exclude the challenged testimony under Evidence Rule 403. Specifically, he contends that, “even if this opinion was based upon reliable scientific principles, Malons testimony should have been excluded as prejudicial and confusing because there was nothing for the lay jury to use to evaluate the reliability of the underlying information.” Appellants Br. at 14.
[13] For the same reasons that the trial court did not abuse its discretion when it found that Malons opinion regarding the cause of the fire was based on reliable scientific principles, we cannot say that the prejudicial impact of Malons testimony outweighed its relevance under Rule 403.
[14] For all of these reasons, we will not second guess the trial courts determination on this record. See Snow, 77 N.E.3d at 179.
[15] Affirmed.
FOOTNOTES
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. The State argues that Dunigan failed to make a contemporaneous objection to the challenged testimony and has not preserved this issue for our review. The State relies on the well-settled rule that a party may not rely on a pre-trial motion in limine to preserve an issue for appeal. But, as Dunigan points out, where, as here, a motion to exclude evidence is conducted mid-trial, the issue is preserved for appeal. See Wilkes v. State, 917 N.E.2d 675, 685 (Ind. 2009) (holding issue preserved for appeal where motion in limine was heard mid-trial and immediately before witness testified).
Memorandum Decision by Judge Mathias
Chief Judge Altice and Judge Bailey concur.
Altice, C.J., and Bailey, J., concur.