Devon Fry v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 18, 2015
• Docket: 71A03-1407-CR-263
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 1 of 22 [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).

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 2 of 22 [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

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 3 of 22 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

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 4 of 22 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

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 5 of 22 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.

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 6 of 22 [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

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 7 of 22 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

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 8 of 22 “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-

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 9 of 22 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

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 10 of 22 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

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 11 of 22 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”).

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 12 of 22 [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

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 13 of 22 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.

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 14 of 22 [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?

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 15 of 22 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:

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 16 of 22 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

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 17 of 22 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

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 18 of 22 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

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 19 of 22 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,

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 20 of 22 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.

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 21 of 22 Kirsch, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 22 of 22