Fry v. State
| Decision Date | 07 June 2001 |
| Docket Number | No. 49S00-0008-CR-471.,49S00-0008-CR-471. |
| Citation | 748 N.E.2d 369 |
| Parties | DeQuan FRY, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Michael E. Caudill, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee. 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 did 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.
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 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)
.
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.
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