ATTORNEY FOR APPELLANT
Michael E. Caudill
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Steve Carter
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
DeQUAN FRY, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 49S00-0008-CR-471
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
__________________________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark Renner, Magistrate
Cause No. 49G04-9911-CF-199872
__________________________________________________________________
ON DIRECT APPEAL
__________________________________________________________________
June 7, 2001
BOEHM, Justice.
DeQuan Fry was convicted of murder, conspiracy to commit robbery,
robbery, and assisting a criminal. He was sentenced to sixty-eight years
imprisonment. In this direct appeal, he contends that: (1) the trial
court abused its discretion in admitting evidence of a scheme to steal a
big-screen television; (2) the trial court abused its discretion in
refusing a jury instruction on “mere presence”; and (3) there was
insufficient evidence to convict Fry of felony murder and conspiracy to
commit robbery. We affirm the judgment of the trial court.
Factual and Procedural Background
Sometime in the fall of 1997, Douglas Higgins saw Timothy Taylor and
William Jones on West 27th Street in Indianapolis. Shortly after Taylor
and Jones entered a building, Fry, his brother DaTwone, and Anthony “Banks”
Johnson arrived in a car. Fry told Higgins that Taylor “beat him out of
something” and he was “going to pop him.” Taylor and Jones then appeared
and Fry, DaTwone, and Johnson forced the two into the car at gunpoint.
According to Higgins, all three were armed. On October 10, 1997, the
Indianapolis police found Taylor’s body in an alley and Jones’ in a nearby
yard. Both had died from gunshot wounds.
Police questioned Fry on October 20, 1997. Fry admitted that he and
Taylor were involved in a scheme to steal a big-screen television. Taylor
was to arrange to have a television delivered from a rent-to-own
establishment to Fry’s girlfriend’s house where Fry lived. Taylor would
pick the set up, and give Fry $300. On the day of the murders, a
television was delivered to Fry’s girlfriend’s house, and friends of Taylor
picked it up, but Fry had not received his money. According to Fry,
DaTwone, Johnson, and Taylor were also involved in a separate scheme of
their own.
Fry said that later that night, DaTwone, Johnson, and Fry ran into
Jones and Taylor on the street and DaTwone threatened Taylor. Fry then
asked Jones and Taylor to come with them, which they did voluntarily. As
the group drove, DaTwone began arguing with Taylor over money he claimed
was owed to him. DaTwone and Johnson then threatened to kill Jones and
Taylor. Johnson searched both Jones and Taylor and recovered a large brick
of marijuana and more than $100 in cash from Taylor.
In Fry’s account, the group drove to an alley, where he, DaTwone, and
Johnson took Taylor’s shoes, and ordered Taylor and Jones out of the car.
As Taylor exited the car, he and DaTwone began to struggle and DaTwone shot
Taylor, then chased him when he attempted to flee, and shot him several
more times. When Taylor fell, DaTwone fired another shot to his head.
DaTwone then returned to the car and shot Jones. After Jones fell in a
nearby yard, DaTwone also shot him in the head. Fry, DaTwone, and Johnson
then drove away. According to Fry, DaTwone was the only one in the
encounter who had a gun.
After the murders, Fry directed his brother to stop near the
Indianapolis Water Company Central Canal and Fry threw Taylor’s shoes into
the Canal. He later threw DaTwone’s gun into the Canal as well. The next
day, Fry received part of the money from the sale of the marijuana taken
from Taylor. On October 11, 1997, police recovered a pair of shoes from
the Canal with Taylor’s ID in them.
Fry was charged with two counts of felony murder, conspiracy to
commit robbery, robbery, two counts of criminal confinement, and assisting
a criminal. He was found guilty of the felony murder of Jones, conspiracy
to commit robbery, robbery, and assisting a criminal. The trial court
merged the robbery and conspiracy to commit robbery convictions and
sentenced Fry to sixty years for murder and thirty years for conspiracy to
commit robbery, to run concurrently, and eight years for assisting a
criminal, to be served consecutively with the other sentences.
I. Evidence of the Television Scheme
Fry contends that the trial court abused its discretion in admitting
evidence of the plan to steal a television set. The State responds that
this evidence was not used to make the “forbidden inference” that the
defendant had a criminal propensity and therefore engaged in the charged
conduct, but was used to show motive and the relationship between Fry and
the victims.
Indiana Rule of Evidence 404(b) provides that “[e]vidence 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 .
. . .” In assessing admissibility of 404(b) evidence the court must (1)
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 and (2) balance the probative value of the evidence against its
prejudicial effect pursuant to Rule 403. Hicks v. State, 690 N.E.2d 215,
221 (Ind. 1997). The relevance and balancing issues are reviewed for an
abuse of discretion. Thompson v. State, 690 N.E.2d 224, 233 (Ind. 1997).
Evidence of motive is always relevant in the proof of a crime, and a
defendant’s prior actions with respect to the victim are also usually
admissible to show the relationship between the two. Ross v. State, 676
N.E.2d 339, 346 (Ind. 1996).
Here, the State offered the evidence of the television scheme to show
the defendant’s motive for killing Taylor and Jones. Although Fry
contended at trial, as he does on appeal, that this evidence was admitted
to show his bad character and his propensity to act in conformity with the
prior bad acts, the trial court specifically found that the testimony went
to motive.[1] This satisfied Rule 404(b). Although the trial court did
not make a specific finding on the balance of prejudice and probative
value, it did not abuse its discretion under Rule 403. The probative value
of the evidence of the television scheme was high. It established a reason
for Fry’s hostility to Taylor and Fry’s motive to rob Taylor. The danger
of unfair prejudice was fairly low because this scheme was minor and non-
violent in nature, as opposed to the charged crimes. We conclude that the
probative value was not substantially outweighed by any potential prejudice
that might arise from this evidence. See Ortiz v. State, 716 N.E.2d 345,
350 (Ind. 1999).
II. Jury Instruction
Fry also contends that the trial court abused its discretion in not
instructing on “mere presence.” At trial, the trial court sua sponte added
an instruction on aiding and abetting and then denied Fry’s request to
instruct on “mere presence.”
Mr. Jinks [defense counsel]: Your Honor, I’d ask that the Court
tender a [sic] instruction on mere presence. The Court standard
instruction we’ve given as recently as the State v. Thai Luong.
I think we had an agreement on what that was and I’d use the
Court’s standard instruction on that.
The Court: Well, I’m not sure that there is a good basis for the
Court to give that instruction. The statement that your client
is alleged to have given to the detective does cause me concern
about giving mere presence. I don’t think that he was merely
present. It appears that he—if the jurors believe his alleged
statement, he was involved in disposing—at the very minimum,
disposing of evidence. He wasn’t merely present.
. . . .
The Court: Well but see, I don’t have an instruction in front of me.
. . . .
The Court: I don’t have anything in front of me. I don’t find
anything in the pattern jury instructions on mere presence to
give any guidance, therefore, I’m going to decline the
invitation.
This Court has recently held that a defendant is ordinarily not
required to tender proposed alternative instructions to preserve a claim of
error. Scisney v. State, 701 N.E.2d 847, 848 (Ind. 1998). Specifically,
this Court concluded that, although a defendant is not generally required
to tender an alternative instruction when objecting to a proposed
instruction, the “instruction objection at trial [must be] sufficiently
clear and specific to inform the trial court of the claimed error and to
prevent inadvertent error.” Id. However, if the claimed error is failure
to give an instruction, “a tendered instruction is necessary to preserve
error because, without the substance of an instruction upon which to rule,
the trial court has not been given a reasonable opportunity to consider and
implement the request.” Id. at 848 n.3. Because Fry did not tender a
proposed instruction on “mere presence,” he has waived any claim of error
by failing to give an instruction on that subject.
III. Sufficiency of the Evidence
Finally, Fry claims that there was insufficient evidence to support
his convictions for conspiracy to commit robbery[2] and felony murder.
When reviewing a claim of sufficiency of the evidence, we do not reweigh
the evidence or judge the credibility of witnesses. Spurlock v. State, 675
N.E.2d 312, 314 (Ind. 1996). We look to the evidence and the reasonable
inferences therefrom that support the verdict and will affirm a conviction
if evidence of probative value exists from which a jury could find the
defendant guilty beyond a reasonable doubt. Id. Mere presence at the
crime scene with the opportunity to commit a crime is not a sufficient
basis on which to support a conviction. Roop v. State, 730 N.E.2d 1267,
1271 (Ind. 2000); Wilson v. State, 455 N.E.2d 1120, 1122 (Ind. 1983).
However, presence at the scene in connection with other circumstances
tending to show participation may be sufficient to sustain a conviction.
Roop, 730 N.E.2d at 1271.
To prove felony murder, the State must establish that: (1) Fry killed
another human being (2) while committing or attempting to commit robbery.
Ind.Code § 35-42-1-1(2) (1998). The jury was instructed on aiding and
abetting and, therefore, could have found Fry responsible for the actions
of his accomplices. Higgins testified that Fry had a gun and forced Taylor
and Jones into a car. The evidence at trial showed that cash and marijuana
were taken from Taylor and Jones while in the car and that Fry received
money from the sale of the marijuana. Fry had a motive for robbery because
Taylor had never paid Fry for his participation in the television scheme.
Indeed, Fry had threatened to “pop” Taylor. According to Fry’s own
testimony, he directed the disposal of Taylor’s shoes and the murder weapon
after the killings. This evidence establishes that at a minimum Fry was an
accomplice to the robbery of Taylor and thus was also guilty in the felony
murder of Jones. This was sufficient evidence to convict Fry of the felony
murder of Jones.
To convict Fry of conspiracy to rob Taylor, the State must prove
that: (1) with the intent to commit robbery, (2) Fry agreed with another
person to commit robbery and (3) an overt act in furtherance of the
agreement was performed. Id. § 35-41-5-2 (1998). In proving the agreement
element, the State is not required to show an express formal agreement, and
proof of the conspiracy may rest entirely on circumstantial evidence.
Bailey v. State, 717 N.E.2d 1, 3 (Ind. 1999). The evidence established
that Fry threatened to “pop” Taylor because Taylor “beat him out of
something.” Fry and two accomplices forced Taylor and Jones into DaTwone’s
car. Fry was present when marijuana and money were taken from the two, and
Fry received part of the money from the sale of the marijuana. Although
there was no direct evidence of an agreement among Fry, DaTwone, and
Johnson, all three participated in taking and robbing Taylor. In the
aggregate this is sufficient to establish motive, a concerted action by the
group, and implementation of an agreement to rob Taylor. This is
sufficient evidence to convict Fry of conspiracy to commit robbery.
Conclusion
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
-----------------------
[1] The trial court stated, “I’m going to deny your motion. I think that
[the evidence] is appropriate. I think it does help the State explain why
there may have been some motive for this event as alleged to have taken
place. I think it gives some explanation and it is, I think, part of the
fabric of the crime so, over your objection, I’m going to allow the State
to inquire but please preserve the record by objecting at the appropriate
time.”
[2] Because the trial court merged the robbery conviction into the
conspiracy to commit robbery conviction, here we do not separately address
the sufficiency of the evidence with regard to the robbery conviction. See
Cutter v. State, 725 N.E.2d 401, 407 n.2 (Ind. 2000).