Fry v. State

• Citation: 25 N.E.3d 237
• Decision Date: 04 February 2015
• Docket Number: No. 09A05–1404–CR–178.,09A05–1404–CR–178.
• Parties: Loren H. FRY, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

25 N.E.3d 237

Loren H. FRY, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 09A05–1404–CR–178.

Court of Appeals of Indiana.

Feb. 4, 2015.

Matthew D. Barrett, Matthew D. Barrett, P.C., Bradley A. Rozzi, Hillis Hillis Rozzi & Knight, Logansport, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

SHARPNACK, Senior Judge.

Statement of the Case

[1] A jury determined that Loren H. Fry shot and killed his neighbor David Schroder. Fry appeals his conviction of murder, a felony. Ind.Code § 35–42–1–1 (2007). He challenges the trial court's evidentiary rulings, the prosecutor's conduct during trial, the denial of his motions for directed verdict, and the court's rejection of one of his proposed jury instructions. We affirm.

Issues

[2] Fry raises four issues, which we expand and restate as:

I. Whether the trial court abused its discretion in admitting evidence obtained from a search of Fry's house.

II. Whether the trial court abused its discretion in admitting a witness's demonstration of how Fry's revolver was loaded and unloaded.

III. Whether the prosecutor committed misconduct.

IV. Whether the trial court erred in denying Fry's motions for directed verdict.

V. Whether the trial court abused its discretion in rejecting Fry's proposed jury instruction.

Facts and Procedural History

[3] Loren Fry and David Schroder were neighbors in rural Cass County. They lived along County Road 275, near a hog farm. Schroder leased portions of his property for farming. He experienced a drainage problem that caused parts of his land to flood on occasion, which hindered farming. The problem was caused by conditions on Fry's property. Schroder and Fry disagreed about how to correct the flooding, and they both hired attorneys in relation to the matter. The dispute was ongoing at the time of Schroder's death.

[4] On several occasions prior to Schroder's death, visitors to Schroder's property saw Fry drive past, going as slow as fifteen miles per hour, looking at Schroder and his visitors. On other occasions, Fry would drive an off-road vehicle to the boundary between his property and Schroder's property and sit there for up to half an hour while staring at Schroder's house. In addition, Schroder and Fry would “follow each other up and down” County Road 275 as often as “once a week.” Tr. p. 161. “You'd see one drive by and then the other one would go and see what the other one was doing.” Id. at 831. One of Schroder's sons advised Schroder to stay away from Fry.

[5] On the afternoon of September 20, 2011, Steve Swartzell delivered fuel to Schroder's house. According to his truck's electronic records, he finished pumping the fuel at 12:34 p.m. When Swartzell finished, Schroder was standing nearby, and the two talked for fifteen to twenty minutes. As they talked, Fry drove by in a blue truck. He slowed down to “five to ten” miles per hour and stared at Schroder and Swartzell as he drove by. Id. at 356.

[6] Andrew Rusk worked at the hog farm that was located near Schroder's and Fry's houses. Brian Stoneking was Rusk's supervisor. During the time period relevant to this case, Rusk lived with Jessica Malchow in a house on the farm's property, along County Road 275. Rusk, Malchow, and Stoneking were familiar with Schroder and Fry.

[7] Early on the afternoon of September 20, 2011, Rusk was working with Stoneking in a hog barn. They saw Schroder drive up to the barn in a white truck. After several minutes, Fry drove by on County Road 275, traveling in the same direction Schroder had been traveling. Schroder drove after Fry, keeping “a telephone pole or two” of distance between them. Id. at 233. They were driving thirty-five to forty-five miles per hour.

[8] A few minutes later, Fry drove back by the barn, going in the opposite direction. Schroder followed him and was “shaking his index finger” at Fry. Id. at 233. Next, Stoneking and Rusk finished loading hogs into a tractor-trailer, and Stoneking drove to another building on the farm. As he drove, he saw Schroder's truck parked on County Road 275. Stoneking saw Schroder's truck again, in the same location, six minutes later. Id. at 338. To Stoneking, the situation did not “look right. It looked like something happened.” Id. at 305. Five to six minutes later, he saw a tractor towing a trailer driving down County Road 275. He recognized the tractor as belonging to Sam Snyder.

[9] During this same time period, Malchow was sitting in the front room of her house. She saw Schroder and Fry drive by on County Road 275. A few minutes later, she saw them drive by again, going in the opposite direction. Later, Malchow saw a man she recognized as Brandon Snyder drive a tractor towing a trailer down County Road 275. She did not see any other vehicles on the road during this time frame.

[10] Brandon Snyder, who was Sam Snyder's nephew, was driving his uncle's tractor and trailer on County Road 275 to a field. He passed the hog farm and encountered a white truck on the side of the road. He looked down into the truck and saw a man slumped over. Snyder got out of the tractor and walked over to the truck. The truck's engine was running. Snyder recognized Schroder and poked Schroder through the open driver's side window, asking if he needed help. There was no response, so Snyder went around to the passenger side and saw that Schroder had a wound to his head and was bleeding. Snyder called 911. Snyder did not see anyone else on County Road 275 from the time he began driving on it to the point where he encountered Schroder's truck.

[11] Police records reflect that Snyder's call was received at 1:57 p.m. Police, paramedics and the coroner arrived at the scene. The coroner determined that Schroder had two gunshot wounds to the head and was dead. Schroder's wallet, which contained $165, was still in his pocket. A crime scene investigator found a bullet fragment in Schroder's hat. Officers searched nearby buildings and saw no sign of criminal activity. Schroder's truck was located no more than “three football fields” from Fry's house. Id. at 1096.

[12] The police obtained a search warrant for Schroder's house but found no signs of criminal activity there. After further investigation, the police obtained a search warrant for Fry's property. They executed the warrant shortly after midnight on September 21, 2011. A team of police officers surrounded Fry's house, and the Cass County Sheriff ordered him to come outside, unarmed. Fry came out only after the sheriff ordered him to do so “five or six times.” Id. at 658. Officers handcuffed Fry and took him to jail. At the jail, an officer searched Fry and discovered three .22 magnum bullets on his person.

[13] The officers did a “quick walk through” of Fry's house after taking him into custody but decided to delay a full search until the morning. Id. at 506. During the full search, officers saw letters related to Schroder and Fry's drainage dispute on the dining room table. In addition, they found a cubby hole in a wall near an exterior door, specifically the door that Fry used to leave the house when the sheriff directed him to come out. The cubby hole was two feet deep. An officer searched the hole and found a .22 magnum Ruger revolver in a holster, concealed beneath clothing, dirty Styrofoam plates, and paper shooting targets.

[14] Elsewhere in the house, the officers found packaging for the revolver, a receipt from a gun store reflecting the purchase of the revolver, and bullets for the revolver. The revolver had a six-bullet capacity, and it contained four bullets and two empty shells. Thus, the gun had been fired twice. The officers found several other guns in Fry's home. None of them were in the hole with the revolver. The revolver was the only gun in the house that could have fired the bullets that the police had found on Fry's person the previous night.

[15] An autopsy revealed that both bullets went through Schroder's brain, and either wound would have been fatal. One shot went through the head, resulting in the bullet fragment that was found in Schroder's hat. The other shot did not have a corresponding exit wound, so a second bullet fragment was recovered from Schroder's skull.

[16] Both bullet fragments, Fry's .22 magnum Ruger revolver, and the bullets found in the revolver were submitted for forensic testing. The examiner stated that the revolver could not be conclusively identified as the gun that was used to shoot Schroder, but it could not be excluded either.

[17] The State charged Fry with murder. Fry requested bail, and the trial court denied his motion. Our Supreme Court affirmed the trial court's decision on interlocutory review. Fry v. State, 990 N.E.2d 429, 451 (Ind.2013).

[18] Next, Fry filed a motion to suppress all evidence obtained as a result of the search warrant. The court denied Fry's motion after a hearing. Fry sought interlocutory review of the court's denial. A panel of this Court denied Fry's motion for interlocutory review.

[19] At trial, Fry raised a continuing objection to all evidence obtained as a result of the search warrant. The trial court admitted into evidence photographs of Fry's revolver but declined to admit the actual gun. Fry filed a motion for directed verdict after the State rested. The court denied Fry's motion. Fry renewed his motion for directed verdict after he presented his case. The court denied that motion. The jury determined that Fry was guilty of murder, and the court sentenced him accordingly. This appeal followed.

Discussion and Decision

I. Admission of Evidence Obtained From Search Warrant

[20] Fry contends that the evidence the State obtained from the search of his house is inadmissible. He frames the issue as whether the court erred by denying his motion to suppress. Because Fry seeks appellate review after a conviction, the issue is more appropriately framed as whether the trial court properly admitted the evidence...