MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not Mar 18 2015, 9:54 am
be regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Julie P. Verheye Gregory F. Zoeller
Mishawaka, Indiana Attorney General of Indiana
Angela N. Sanchez
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Devon Fry, March 18, 2015
Appellant-Defendant, Court of Appeals Case No.
71A03-1407-CR-263
v.
Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable John M.
Appellee-Plaintiff Marnocha, Judge
Cause No. 71D02-1305-FC-116
Friedlander, Judge.
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[1] Devon Fry appeals his conviction of Possession of a Destructive Device,1 a
class C felony, Pointing a Firearm,2 a class D felony, Domestic Battery,3 a class
A misdemeanor, Resisting Law Enforcement,4 a class A misdemeanor, and
Battery,5 a class A misdemeanor. Fry presents the following restated issues for
review:
1. Did the trial court abuse its discretion in denying Fry’s
request to replace a juror with an alternate?
2. Did the prosecutor commit misconduct, resulting in
fundamental error?
3. Was the evidence sufficient to sustain Fry’s conviction for
possession of a destructive device?
[2] We affirm.
1
The version of the governing statute, i.e., Ind. Code Ann. § 35-47.5-5-2(1) (West, Westlaw 2013) in effect at
the time this offense was committed classified it as a class A felony. This statute has since been revised and
in its current form reclassifies this as a Level 5 felony. See I.C. 35-47.5-5-2(1) (West, Westlaw current with
legislation of the 2015 First Regular Session of the 119th General Assembly effective through February 23,
2015). The new classification, however, applies only to offenses committed on or after July 1, 2014. See id.
Because this offense was committed before then, it retains the former classification.
2 2
The version of the governing statute, i.e., Ind. Code Ann. § 35-47-4-3(b) (West, Westlaw 2013) in effect
at the time this offense was committed classified it as a class A felony. This statute has since been revised
and in its current form reclassifies this as a Level 6 felony. See I.C. § 35-47-4-3(b) (West, Westlaw current
with legislation of the 2015 First Regular Session of the 119th General Assembly effective through February
23, 2015). The new classification, however, applies only to offenses committed on or after July 1, 2014. See
id. Because this offense was committed before then, it retains the former classification.
3
Ind. Code Ann. § 35-42-2-1.3(a)(2) (West, Westlaw current with legislation of the 2015 First Regular
Session of the 119th General Assembly effective through February 23, 2015).
4
Ind. Code Ann. § 35-44.1-3-1(a)(1) (West, Westlaw current with legislation of the 2015 First Regular
Session of the 119th General Assembly effective through February 23, 2015).
5
I.C. § 35-42-2-1(a)(1)(B) (West, Westlaw current with legislation of the 2015 First Regular Session of the
119th General Assembly effective through February 23, 2015).
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[3] The facts favorable to the conviction are that on January 26, 2013, Fry lived
with his girlfriend, M.R. After the two consumed a large quantity of whiskey
that day, they argued and Fry left the house. He returned home later,
unannounced, and surprised M.R. in the living room. Armed with a silver
revolver, Fry threatened to kill himself. When M.R. attempted to take the gun
away from him, Fry tapped the gun against her head and told her he would
shoot her and then shoot at police officers so they would shoot him. At that
point, Fry and M.R. struggled over possession of the gun. During the struggle,
Fry picked M.R. up and threw her over a chair. He then struck M.R. in the
face.
[4] While Fry thereafter paced between rooms, M.R. called 911. Fry went to the
basement of the home, retrieved weapons he had stored there, and began taking
them to his vehicle outside. At this point, officers from the South Bend Police
Department (SBPD) arrived and M.R. informed them that Fry was armed and
had threatened to kill her and the police. Shortly thereafter, Fry exited the
house and walked toward the officers, who drew their weapons and ordered Fry
several times to stop. He refused to obey the commands. The officers
approached Fry and attempted to handcuff him. When Fry struggled with
them, the officers placed him on the ground, and after a moment, Fry briefly
calmed down. When the officers again attempted to handcuff him, Fry grabbed
an officer’s leg and tried unsuccessfully to punch the officer. Police eventually
managed to subdue Fry and place him in handcuffs. When they patted him
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down, they found a pocket knife, but not the gun that M.R. had described.
M.R. gave police permission to search her home.
[5] Officers went to the basement and saw a gun cabinet. A glass door enclosed the
top portion of the cabinet. Through the glass, police observed two rifles inside
the cabinet. The bottom portion of the cabinet was enclosed with a wooden
door. Officer Michael Janicki opened that door and observed “miscellaneous
gun equipment.” Transcript at 357. He also saw what he described as “two
packages … that had a fuse coming out of them.” Id. Concerned that the
package might be “some kind of an explosive device”, id., Officer Janicki called
the SBPD bomb squad and asked for someone to come to the scene and inspect
the device and advise as to whether it could be safely removed. Officer Janicki
continued to search the house and discovered a silver handgun matching the
description of the one M.R. had described. The handgun was found
underneath a couch in the basement, near the gun cabinet.
[6] Officer D.J. Vohs of the SBPD bomb squad arrived at the scene to secure the
devices. He found two items wrapped in green tape, each with a fuse
protruding from it. After determining that he could do so safely, he removed
them and later dismantled them. Under the tape, he found a CO2 canister,
such as is commonly used in pellet guns. A fuse ran into the CO2 container,
which was full of a powder that acted as a propellant when ignited. Outside of
the CO2 canister, but wrapped inside the tape, Officer Vohs found a large
number of .177-caliber BBs. Officer Vohs recognized these devices as what are
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commonly known as “crickets.” Id. at 412. A cricket is a destructive device
designed to propel destructive material outward once detonated.
[7] Shortly after the events of that evening, Fry and M.R. briefly reconciled and
M.R. wrote several letters recanting her claims because she did not want Fry to
be prosecuted. According to M.R., Fry made her write the letters and told her
what to write.
[8] On May 21, 2013, the State charged Fry with pointing a firearm as a class D
felony, two counts of domestic battery as class A misdemeanors, battery on an
officer as a class A misdemeanor, resisting law enforcement as a class A
misdemeanor, and possession of a destructive device as a class C felony. The
two domestic-battery charges were later consolidated into a single charge.
Following a jury trial, Fry was convicted on all five counts. The trial court
sentenced Fry to four years for the class C felony, eighteen months for the class
D felony, and one year each for the domestic battery, battery on an officer, and
resisting law enforcement convictions. The four-year sentence was ordered to
be served consecutive to the other sentences, which in turn were ordered to be
served concurrent to each other. Thus, Fry received an aggregate sentence of
five and one-half years. Further facts will be provided where relevant.
1.
[9] Fry contends the trial court abused its discretion in denying his request to
replace a juror with an alternate. Pursuant to article 1, § 13 of the Indiana
Constitution, which guarantees a defendant’s right to an impartial jury, a biased
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juror must be dismissed. Ind. Trial Rule 47(B) provides, in pertinent part,
“Alternate jurors in the order in which they are called shall replace jurors who,
prior to the time the jury returns its verdict, become or are found to be unable or
disqualified to perform their duties.” Trial courts have broad discretion in
determining whether to replace a juror with an alternate, and we will reverse its
determinations in this respect only where we find them to be arbitrary,
capricious, or an abuse of discretion. May v. State, 716 N.E.2d 419 (Ind. 1999).
[10] After Officer Vohs testified, juror Durand sent a note to the court stating: “I’ve
known Mr. Vohs from my job at Notre Dame. He trained in CPR and
explosions.” Transcript at 441. Outside the presence of the other jurors, the trial
court questioned juror Durand. Juror Durand explained that she had attended
training sessions provided by Officer Vohs and University security. She told the
court that she had not recognized Officer Vohs’s name from the witness list.
Juror Durand further stated, “I don’t think that it would cause me to be unfair
either way. … It’s not like I knew him from before or known [sic] him longer.”
Id. at 445. The court discussed the matter with the attorneys and Fry’s counsel
opined that Durand must be dismissed and replaced with an alternate juror.
Following the conference with counsel, the court asked Durand, “Do you
believe you could follow the instructions of the Court concerning the law and
judge each of the witnesses, including Mr. Vohs, the same?” Id. at 446. She
answered, “Absolutely.” Id. Fry appeals the trial court’s decision to not
replace juror Durand.
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[11] Durand was instructed by Vohs on the subject of explosives in the course of her
employment at Notre Dame. According to Fry, “[t]his situation was not simply
a casual work relationship.” Appellant’s Brief at 15. Rather, Fry claims she was
Vohs’s student in the subject that was also the subject of his trial testimony. Fry
contends that this was enough to support an implication of bias on Durand’s
part and thus required her replacement.
[12] We reject the claim that Vohs’s “relationship” with Fry was anything more
than a casual work relationship. To the contrary, Durand informed the court
that Vohs had assisted in her routine training on the subject of CPR and
explosives in conjunction with her employment at the University and that she
had known him for a period of only four months. Further, she testified that she
did not even recognize his name when it appeared on the witness list.
Moreover, and significantly, Vohs offered expert testimony regarding the nature
of the devices (i.e., that they were explosive devices) found in the bottom
compartment of Fry’s gun cabinet. It does not appear that the nature of the
devices was seriously contested at trial. Under these circumstances, the trial
court’s refusal to replace juror Durand with an alternate was not arbitrary,
capricious, or an abuse of discretion.
2.
[13] Fry contends the prosecutor committed misconduct in three respects, each
constituting fundamental error. We review a claim of prosecutorial misconduct
by determining (1) whether misconduct occurred, and if so, (2) “whether the
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misconduct, under all of the circumstances, placed the defendant in a position
of grave peril to which he or she would not have been subjected” otherwise.
Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (quoting Cooper v. State, 854 N.E.2d
831, 835 (Ind. 2006)), reh’g denied. Placing a defendant in grave peril, by itself,
is not misconduct. Ryan v. State, 9 N.E.3d 663. “Whether a prosecutor’s
argument constitutes misconduct is measured by reference to case law and the
Rules of Professional Conduct. The gravity of peril is measured by the probable
persuasive effect of the misconduct on the jury’s decision rather than the degree of
impropriety of the conduct.” Id. at 667 (quoting Cooper v. State, 854 N.E.2d at
835) (emphasis in original). In order to preserve a claim of prosecutorial
misconduct, the defendant must, at the time the alleged misconduct is
committed, request a jury admonishment. Ryan v. State, 9 N.E.3d 663. When a
defendant fails to do this, he or she must establish both that the grounds for
prosecutorial misconduct are present and that the prosecutorial misconduct
constituted fundamental error. Id.
[14] Fundamental error is an “extremely narrow” exception to the waiver rule and
places a “heavy burden” on a defendant to show that the alleged errors are so
prejudicial to the defendant’s rights as to “‘make a fair trial impossible.’” Id. at
668 (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). Thus, to
establish fundamental error, the defendant must show that the alleged errors (a)
“‘constitute clearly blatant violations of basic and elementary principles of due
process’” and (b) “‘present an undeniable and substantial potential for harm.’”
Id. (quoting Benson v. State, 762 N.E.2d at 756). “Harm” in this context
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“depends upon whether [the defendant’s] right to a fair trial was detrimentally
affected by the denial of procedural opportunities for the ascertainment of truth
to which he otherwise would have been entitled.” Id. (quoting Townsend v.
State, 632 N.E.2d 727, 730 (Ind. 1994)).
In evaluating the issue of fundamental error, our task in this case is to
look at the alleged misconduct in the context of all that happened and
all relevant information given to the jury—including evidence
admitted at trial, closing argument, and jury instructions—to
determine whether the misconduct had such an undeniable and
substantial effect on the jury’s decision that a fair trial was impossible.
Id. (emphasis in original).
[15] Our Supreme Court has stressed that “[a] finding of fundamental error
essentially means that the trial judge erred ... by not acting when he or she
should have....” Id. (quoting Whiting v. State, 969 N.E.2d 24, 34 (Ind. 2012)).
This doctrine provides a means for appellate courts to correct egregious and
blatant trial errors that otherwise would have been procedurally barred. Ryan v.
State, 9 N.E.3d 663. It is not meant to afford defense counsel a second bite at
the apple where counsel “ignorantly, carelessly, or strategically fail[ed] to
preserve an error.” Id. at 668. Our Supreme Court has further noted that a
defendant is “‘highly unlikely’ to prevail on a claim of fundamental error
relating to prosecutorial misconduct”. Id. (quoting Stevens v. State, 691 N.E.2d
412, 420 n.2 (Ind. 1997), cert. denied, 525 U.S. 102 (1998)).
[16] Fry cites three instances of alleged prosecutorial misconduct that he claims
amounted to fundamental error. The first occurred during his cross-
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examination by Deputy Prosecutor Linda Lawder. Some background facts are
necessary to understand the context of this exchange. Fry had installed
surveillance cameras at the house that was the scene of this occurrence. There were
a total of four cameras in the system, and they monitored the outside of the house
and the front porch. The cameras provided a live feed that could be viewed on the
television in the living room of the house and the system was attached to a DVR
that recorded the camera feeds. The DVR was located upstairs in the house. Police
officers on the scene that night testified that they observed the live feeds displayed
on the television that evening, but they did not locate any recording equipment.
M.R. testified that sometime after the present crime, Fry returned to the house and
disabled the surveillance equipment such that the system no longer worked.
[17] Upon direct examination at trial, Fry testified that he did not know what became of
the footage from the surveillance cameras that night. He was asked if it had been
provided to his attorney as part of the discovery process. He responded, “[i]t was
supposed to have been”, but it had not been provided. Transcript at 497. During
Fry’s cross-examination, the following exchange occurred:
A. I did not get my surveillance equipment.
Q. Okay, you didn’t get … Oh, it’s your surveillance equipment
now, I thought before it was her surveillance equipment?
A. No, I said it was hers.
Q. Okay.
A. I didn’t get that surveillance equipment.
Q. Okay. Isn’t it true that you could have gone over there right
after and gotten that surveillance equipment, if it was so
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important to you to get; isn’t that true? You could have gone
and done that.
A. I probably could have.
Q. Yes, okay, so you could have. But isn’t it true that you never
told the State, you never told the police officers or anybody,
that this surveillance equipment was recording, until in court –
A. Nobody asked me.
Q. -- isn’t that true?
A. Nobody asked me.
Q. But you never told anyone?
A. I haven’t even made a statement.
Q. Okay, that’s true, yeah.
And isn’t it that’s why no one can see it, because you did go
and get it and it’s destroyed?
A. No.
Q. Okay. If it even recorded, right?
A. It was recording.
Q. Okay. How often did you go and like watch your recordings
and check that the recording actually works?
A. I didn’t.
Q. You didn’t, okay.
A. I just put the surveillance equipment in that December. It
didn’t even go through the ten thousand hours yet, so …
Q. Well, you don’t know, you just told us you didn’t check it.
A. No, I didn’t check it.
Q. Okay, so you don’t know.
Id. at 533-34. Fry contends that in this line of questioning, the prosecutor “was
clearly impeaching Fry’s testimony with his post arrest silence. Her questions
implied that he had some sort of duty or obligation to come forward with his
explanation to either the police or the prosecutor prior to offering his
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explanation at trial.” Appellant’s Brief at 19. Fry continues that the use of a
defendant’s silence at the time of arrest and after receiving Miranda warnings
violates the Due Process Clause of the Fourteenth Amendment.
[18] Fry’s contention in this regard alleges a so-called Doyle violation, which rests
upon Doyle v. Ohio, 426 U.S. 610 (1976). “In Doyle, the Court held that under
the Fourteenth Amendment a prosecutor may not use the silence of a defendant
who’s been arrested and Mirandized to impeach the defendant.” Trice v. State,
766 N.E.2d 1180, 1182 (Ind. 2002). “Where a defendant asserts a Doyle
violation, he ‘ordinarily bears the burden of showing that Miranda warnings
were given prior to the post-arrest silence used by the state for impeachment
purposes.’” Lainhart v. State, 916 N.E.2d 924, 936 (Ind. Ct. App. 2009) (quoting
3 Wayne R. LaFave, Criminal Procedure § 9.6(a) n. 47 (3d ed. 2007)).
[19] In the present case, Fry presented no such evidence, and our search of the
appellate materials does not reveal any indication that he was Mirandized in the
first place, much less when that would have occurred. Thus, Fry has not
demonstrated that the State induced his silence through a Miranda warning,
which is the due process violation that Doyle was intended to redress. See Doyle
v. Ohio, 426 U.S. at 618 (the Miranda warning’s assurance “that silence will
carry no penalty … is implicit to any person who receives the warnings. In
such circumstances it would be fundamentally unfair and a deprivation of due
process to allow the arrested person’s silence to be used to impeach an
explanation subsequently offered at trial”).
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[20] Even assuming for the sake of argument, however, that a Doyle violation
occurred here, the use of a defendant’s post-arrest silence to impeach the
defendant is subject to harmless-error analysis. Sobolewski v. State, 889 N.E.2d
849 (Ind. Ct. App. 2008), trans. denied. Even an error of constitutional
dimension may be deemed harmless “if it is clear beyond a reasonable doubt
that the error did not contribute to the defendant’s conviction.” Id. at 857. We
consider the following factors when deciding whether a Doyle violation is
harmless beyond a reasonable doubt:
(1) [T]he use to which the prosecution puts the post-arrest
silence; (2) who elected to pursue the line of questioning; (3) the
quantum of other evidence indicative of guilt; (4) the intensity
and frequency of the reference; and (5) the availability to the trial
court of an opportunity to grant a motion for mistrial or give a
curative instruction.
Id.
[21] During his direct examination, Fry implied that the State had taken surveillance
tapes from the surveillance system in M.R.’s home. Fry also claimed the State
had failed to turn over those tapes during discovery. The State not only denied
that it had the surveillance tapes in its possession, but by implication also
denied even knowing that the surveillance system in M.R.’s home was capable
of recording images in the first place. Fry was asked rhetorically whether he
could have gone to M.R.’s home and retrieved the tapes himself, and he
admitted that he could have. The State then questioned Fry why he had not
told anyone, including the police officers involved in the investigation, about
the recording capability of the surveillance equipment in M.R.’s home. This
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was clearly done in response to Fry’s testimony insinuating that the State was in
possession of the recordings and chose not to give them to Fry. In fact, the
State went on to imply through questioning of Fry that Fry had, in fact,
destroyed the surveillance equipment.6
[22] In any event, the State used the post-arrest silence in response to Fry’s
apparently inaccurate claim that the State was in possession of surveillance
recordings from M.R.’s house. This was the only time the subject was
mentioned at trial. Against this brief, isolated reference to Fry’s failure to
divulge to police the existence of the recording equipment and possibly a tape
recording of the night in question there was ample evidence of Fry’s guilt.
Namely, the devices were found in a cabinet that Fry built, which was located
in the basement of the home in which he was living, and which contained
firearms that he admitted were his. In view of the overwhelming evidence of
Fry’s guilt, we conclude that it is clear beyond a reasonable doubt that any error
in the use of Fry’s post-arrest silence did not contribute to his conviction, and
therefore, was harmless. Accordingly, the questions of which Fry complains
concerning his post-arrest silence do not constitute fundamental error.
6
When M.R. was asked whether the surveillance equipment was still at her house, she replied: “the cameras
are, the mechanism no longer works. [Fry] made sure he took that with [sic] or took it apart, it doesn’t work
any longer.” Transcript at 230. She went on to testify that Fry took it sometime after the night of this
occurrence. She testified that, to her knowledge, the police made no effort to recover any surveillance tapes
depicting the events of January 26.
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[23] The second alleged instance of prosecutorial misconduct centered upon another
point in Fry’s cross-examination in which the prosecutor asked him about his
knowledge of the presence of the destructive devices in the gun cabinet. During
his direct examination, Fry testified that he and M.R. had a New Year’s Eve
party at their house and among the guests were men named Josh and Neil.
According to Fry, Josh and Neil brought three explosive devices to the party,
one of which they set off at around midnight. Fry claimed that when they
prepared to set off another one, he stopped them and told them the party was
over. At that point, according to Fry, he set the two remaining devices on a
counter near the patio. He claimed at trial that the next time he saw those two
devices was when they were introduced into evidence at trial. During this
discussion, the following exchange occurred between Fry and Lawder:
Q. [Josh and Neil brought the devices to your home on] New
Years [sic] Eve, January 1st, correct?
A. Uh-huh (affirmative).
Q. This incident, January 26th, correct?
A. Uh-huh (affirmative).
Q. Isn’t it true that in between that time [sic] you actually saw
those devices in your gun cabinet?
A. No.
Q. So it’s your testimony that they were not there until that day,
until January 26, they showed up there?
A. I don’t know when they showed up there.
Q. But Josh isn’t here to defend himself, is he?
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Transcript at 540. According to Fry, the “clear implication” of this line of
questioning “was that Fry made up a story to tell in court and suggested that
Fry had the burden of producing Josh or Neil as witnesses in his trial or that he
had to provide this explanation to the police or the prosecutor prior to his
testimony.” Appellant’s Brief at 21. Once again, Fry’s counsel did not object to
this line of questioning. Therefore, he must demonstrate fundamental error in
order to gain reversal.
[24] Fry’s argument fails for several reasons, prominent among which is the fact that
his post-Miranda silence was not mentioned, or even alluded to, in the
prosecutor’s questions. We note, as we did with the first claim of prosecutorial
misconduct, that Fry has failed to establish if and when he was Mirandized.
Moreover, the only silence alluded to in the prosecutor’s questions was that of
Josh, who was not called to testify at trial. Therefore, this brief line of
questioning was not a comment upon Fry’s post-Miranda silence, such as is
required to establish a Doyle violation. Once again, Fry has failed to establish
that the prosecutor’s comments constituted fundamental error.
[25] The third and final claim of alleged prosecutorial misconduct occurred during
closing argument. At trial, Fry testified that the silver handgun found under the
couch in the basement when the police searched M.R.’s house belonged to
Joetta Baker. Baker was a friend of Fry’s at the time this incident occurred, but
was married to Fry by the time of trial. During closing argument, the
prosecutor stated:
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Do you know how [the silver handgun] got there? He put it there. He
knew the police were outside, he knew he had done something wrong
and he went and put it there. He knew he pointed that firearm at her
and he didn’t want the police to find it.
Now that’s what she tells us, that’s what the police tell us where they
found it. What he said yesterday, is that it’s Joetta’s firearm.
This is one of those things that we talked about like the cell phone.
What color is the cell phone that we talked about on voir dire that was
taken? I don’t have to prove what color it is. I don’t have to prove if
it’s his gun or if it’s Joetta’s gun, it doesn’t matter. It could be either
one, but I just have to prove that he pointed it at her.
Let’s go along with what he’s saying, okay, it’s Joetta’s gun. It’s
Joetta’s gun, a woman who Melissa had never met, he had dated
before, and is in Kentucky at the time, who is now his wife. She didn’t
come into court, though, and say it was her gun. She didn’t say she
even lost it in this house.
How when they have been living in this house for three months, does
this firearm get lost under his couch, when she doesn’t even live in the
same state[?]
Transcript at 87. According to Fry, this constituted prosecutorial misconduct in
that it suggested to the jury that Fry had the burden of proof because it
questioned why he did not call a witness to testify on his behalf or to
corroborate his own testimony.
[26] As with the other claims of prosecutorial misconduct, Fry did not preserve it by
making a contemporaneous objection and request for admonishment and
mistrial. Therefore, he must establish both the grounds for prosecutorial
misconduct as well as the grounds for fundamental error in order to succeed.
Ryan v. State, 9 N.E.3d 663. We have held that it is improper for the prosecutor to
suggest that the defendant bears some burden of proof. See Lainhart v. State, 916
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N.E.2d at 936 (stating that “[w]hile the State may argue to the jury the
uncontradicted nature of its own case, the State may not suggest that the defendant
has the burden of proof by inquiring in closing argument why the defendant did not
call witnesses to testify on his behalf”). We cannot, however, agree with Fry that
the prosecutor’s comments were focused upon the fact that Fry did not call
witnesses to establish evidence consistent with his narrative about what occurred
that evening. Rather, the prosecutor’s comments conveyed the implausibility of a
portion of Fry’s narrative, i.e., that the gun found under the couch in his basement
was placed there by a woman who lived in a different state.
[27] Moreover, even if we accepted for the sake of argument that the prosecutor’s
comments somehow conveyed the notion that Fry had the burden of proof,
such would not compel reversal. In Flowers v. State, 738 N.E.2d 1051 (Ind.
2000), the prosecutor made comments about the defendant’s failure to call
witnesses. Those comments may have suggested that the defendant bore some
burden of proof. Our Supreme Court held, however, that “the jury here was
properly instructed that the defendant was not required to present any evidence
or prove his innocence. Accordingly we find that any impropriety in the
prosecutor’s closing argument was de minimis and overcome by the preliminary
and final instructions.” Id. at 1059.
[28] The record indicates that in both its preliminary and final instructions, the trial
court advised the jury:
Under the law of this state a person charged with a crime is presumed
to be innocent. To overcome this presumption of innocence, the State
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must prove the defendant guilty of each essential element of the crime
or crimes charged beyond a reasonable doubt.
Because he is presumed to be innocent, the defendant is not required
to present any evidence to prove his innocence or to provide any
explanation.
Transcript at 164 and 625. As in Flowers, the jury was properly instructed that
Fry was not required to present any evidence or prove his innocence. As a
result, any impropriety in the prosecutor’s closing argument was de minimis and
the error was overcome by the trial court’s preliminary and final instructions.
See Flowers v. State, 738 N.E.2d 1051. The comments of which Fry complains
do not constitute fundamental error.
3.
[29] Fry contends the evidence was insufficient to support his conviction for
possession of a destructive device. Specifically, he contends the evidence failed
to show that he “possessed” the destructive devices. When reviewing the
sufficiency of the evidence needed to support a criminal conviction, we neither
reweigh evidence nor judge witness credibility. Thang v. State, 10 N.E.3d 1256
(Ind. 2014). We consider only “the evidence supporting the judgment and any
reasonable inferences that can be drawn from such evidence.” Id. at 1258
(quoting Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008)). We will affirm a
conviction “if there is substantial evidence of probative value supporting each
element of the offense such that a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt.” Id. A verdict of guilt may be
based upon an inference that is reasonably drawn from the evidence. All
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inferences are viewed in a light most favorable to the conviction. Bailey v. State,
979 N.E.2d 133 (Ind. 2012).
[30] Pursuant to the version of I.C. § 35-47.5-5-2(1) in effect at the time of these
events, “[a] person who knowingly or intentionally possesses a destructive
device, unless authorized by law, commits a class C felony.” Fry does not
dispute that the two devices upon which this conviction was based were
destructive devices. He contends, however, that the evidence did not establish
that he possessed them.
[31] Possession of contraband can be established by either actual or constructive
possession. Houston v. State, 997 N.E.2d 407 (Ind. Ct. App. 2013). Constructive
possession has been explained thus:
Constructive possession is established by showing that the
defendant has the intent and capability to maintain dominion
and control over the contraband.... [W]hen possession of the
premises is non-exclusive, the inference [of control] is not
permitted absent some additional circumstances indicating
knowledge of the presence of the contraband and the ability to
control it. Among the recognized “additional circumstances” are:
(1) incriminating statements by the defendant; (2) attempted
flight or furtive gestures; (3) a drug manufacturing setting; (4)
proximity of the defendant to the contraband; (5) contraband is
in plain view; and (6) location of the contraband is in close
proximity to items owned by the defendant.
Holmes v. State, 785 N.E.2d 658, 660 (Ind. Ct. App. 2003).
[32] Fry did not have exclusive possession of the home because he shared the home
with M.R. In such cases, an inference of control will be permitted if there are,
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in addition to the presence of the contraband, “additional circumstances
indicating knowledge” of the contraband and the ability to control it. Houston v.
State, 997 N.E.2d 407 (Ind. Ct. App. 2013). The destructive devices were found
in a gun cabinet that Fry owned, built, and used, which was located in the
basement of the home he shared with M.R. The basement where the cabinet
was located was primarily used by Fry. He decorated it with wall coverings
and stored personal possessions in the area. The basement bathroom was
primarily used by Fry. M.R. testified that she went into the basement only to
sleep and do laundry. The destructive devices were located in the bottom
compartment of the cabinet, and situated next to ammunition for Fry’s guns.
Fry owned a gun that was located in the top of the cabinet at the time. Also,
there was another gun in the top of the cabinet, which was owned by a friend of
Fry’s and stored in the cabinet with Fry’s permission. Fry generally kept the
cabinet locked.
[33] We are also mindful that Fry admitted that he was in actual possession of the
devices at the New Year’s Eve party, when he claimed to have taken them from
friends and placed them somewhere in his home. Taken together, this evidence
was such that a jury could reasonably conclude that Fry had both the
knowledge of the presence of the devices and the ability to control them.
Therefore, the State presented sufficient evidence to prove he “possessed” the
devices within the meaning of I.C. § 35-47.5-5-2(1).
[34] Judgment affirmed.
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Kirsch, J., and Crone, J., concur.
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