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

MEMORANDUM DECISION 

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not 

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

Julie P. Verheye 

Mishawaka, Indiana 

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller 

Attorney General of Indiana 

Angela N. Sanchez 

Deputy Attorney General 

Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA 

Devon Fry, 

Appellant-Defendant, 

v. 

State of Indiana, 

Appellee-Plaintiff 

March 18, 2015

Court of Appeals Case No. 

71A03-1407-CR-263 

Appeal from the St. Joseph 

Superior Court 

The Honorable John M. 

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