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 b e 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.

A TTORNEY FOR A PPELLANT Julie P. Verheye Mishawaka, Indiana A TTORNEYS FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Devon Fry, A

ppellan t -Defendant,

v. State of Indiana, A

ppelle e -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. 71D0 2 -1305-FC-116

Friedlander, Judge.Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 2 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, Resist ing 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 abus e 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 sufficien t to sustain Fry’s conviction for possession of a destructive device?

[2] We affirm.

1 The version of the governing statut e, i.e., Ind. Code Ann. § 35-47.5-5-2(1) (West, We stlaw 2013) in effect at the time this offense was committed cl assified 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 stat ute, i.e., Ind. Code Ann. § 35-47-4-3(b) (West, Westlaw 2013) in effect at the time this offense was committe d 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 fo rmer classification.
3 Ind. Code Ann. § 35-42-2-1.3(a)(2 ) (West, Westlaw current with le gislation 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, Westla w current with legislatio n 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 wi th 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 3 of 22 [3] The facts favorable to the conviction ar e that on January 26, 2013, Fry lived with his girlfriend, M.R. After the tw o consumed a large quantity of whiskey that day, they argued and Fry left th e 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 agai nst her head and told her he would shoot her and then shoot at police office rs so they would sh oot him. At that point, Fry and M.R. struggled over possession of the g un. During the struggle, Fry picked M.R. up and threw her over a chair. He then st ruck 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 po int, officers from th e South Bend Police Department (SBPD) arrived and M.R. in formed 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 hand cuff 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 himCourt of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 4 of 22 down, they found a pocket knife, but not the gun that M.R. had described. M.R. gave police permissi on 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 gl ass, police observed two rifles inside the cabinet. The bottom portion of th e cabinet was enclosed with a wooden door. Officer Michael Janicki opened that door and observed “miscellaneous gun equipment.” Transcript at 357. He also saw wh at 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 someon e to come to the scene and inspect the device and advise as to whether it co uld be safely removed. Officer Janicki continued to search the house and disc overed a silver handgun matching the description of the one M.R. had de scribed. The handgun was found underneath a couch in the basement, near the gun cabinet.

[6] Officer D.J. Vohs of the SBPD bomb sq uad arrived at the scene to secure the devices. He found two items wrappe d in green tape, each with a fuse protruding from it. After determining th at he could do so safely, he removed them and later dismantled them. Unde r 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 areCourt of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 5 of 22 commonly known as “crickets.” Id. at 412. A cricket is a destructive device designed to propel destructive ma terial outward once detonated.

[7] Shortly after the events of that evenin g, 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 fi rearm as a class D felony, two counts of domes tic battery as class A misd emeanors, battery on an officer as a class A misdemeanor, resi sting law enforcement as a class A misdemeanor, and possession of a destru ctive device as a cl ass C felony. The two domestic-battery charges were later consolidated into a single charge. Following a jury trial, Fry was convicte d on all five counts. The trial court sentenced Fry to four years for the class C felony, eighteen mo nths for the class D felony, and one year each for the domesti c battery, battery on an officer, and resisting law enforcement convictions. The four-year sentence was ordered to be served consecutive to the other senten ces, 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 fa cts 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. Purs uant to article 1, § 13 of the Indiana Constitution, which guarantees a defendant’s right to an impartial jury, a biasedCourt of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 6 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 verd ict, 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 wh ere 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 No tre Dame. He trained in CPR and explosions.” Transcript at 441. Outside the presence of the other jurors, the trial court questioned juror Durand. Juror Du rand explained that she had attended training sessions provided by Officer Vohs and University secu rity. She told the court that she had not recognized Officer Vohs’s name from the witness list. Juror Durand further stated, “I don’t thin k 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 matte r with the attorneys and Fry’s counsel opined that Durand must be dismissed an d replaced with an alternate juror. Following the conference with counsel, the cour t 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 7 of 22 [11] Durand was instructed by Vohs on the subj ect 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 suppor t an implication of bias on Durand’s part and thus required her replacement.

[12] We reject the claim that Vohs’s “relations hip” with Fry was anything more than a casual work relationship. To the contrary, Durand informed the court that Vohs had assisted in her routin e training on the subject of CPR and explosives in conjunction with her empl oyment at the University and that she had known him for a period of only four mo nths. Further, she testified that she did not even recognize his name when it appeared on the witness list. Moreover, and significantly, Vohs offered expert test imony 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 contes ted at trial. Under thes e 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 revi ew a claim of prosec utorial misconduct by determining (1) whether misconduct occurred, and if so, (2) “whether theCourt of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 8 of 22 misconduct, under all of the circumstance s, 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 meas ured by reference to case law and the Rules of Professional Conduct. Th e 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 orde r to preserve a claim of prosecutorial misconduct, the defendant must, at th e 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 mu st establish both th at the grounds for prosecutorial misconduct are present a nd that the prosecutorial misconduct
constituted fundamental error. Id.

[14] Fundamental error is an “e xtremely narrow” exception to the waiver rule and places a “heavy burden” on a defendant to show that the all eged 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 elem entary 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 contextCourt of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 9 of 22 “depends upon whether [the defendant’s] right to a fair trial was detrimentally affected by the denial of procedural o pportunities for the ascertainment of truth to which he otherwise woul d 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 argu ment, 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 e rred ... 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 wo uld have been procedurally barred. Ryan v. State , 9 N.E.3d 663. It is no t meant to afford defense counsel a second bite at the apple where counsel “ignorantly, care lessly, or strategically fail[ed] to preserve an error.” Id. at 668. Our Supreme Court has further noted that a defendant is “‘highly unlikely’ to pr evail 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 pros ecutorial 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 10 of 22 examination by Deputy Prosecutor Lind a Lawder. Some background facts are necessary to understand the context of this exchange. Fry had installed
surveillance cameras at the house that was th e scene of this occurrence. There were a total of four cameras in the system, a nd they monitored the outside of the house and the front porch. The cam eras provided a live feed th at could be viewed on the television in the living room of the hous e and the system was attached to a DVR
that recorded the camera feed s. The DVR was located upsta irs in the house. Police officers on the scene that night testified th at they observed th e live feeds displayed on the television that evening, but they di d not locate any recording equipment. M.R. testified that sometime after the pres ent 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 tes tified that he did not know what became of the footage from the surveillanc e cameras that night. He was asked if it had been provided to his attorney as part of the di scovery 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 soCourt of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 11 of 22 important to you to get; isn’t th at 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 eq uipment in that December. It didn’t even go through the te n 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 li ne of questioning, the prosecutor “was clearly impeaching Fry’s test imony 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 hisCourt of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 12 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 th e silence of a defendant who’s been arrested and Mirandize d to impeach the defendant.” Trice v. State , 766 N.E.2d 1180, 1182 (Ind. 2002). “Where a defendant asserts a Doyle violation, he ‘ordinarily bear s the burden of showing that Miranda warnings were given prior to the post-arrest sile nce 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 rev eal any indication that he was Mirandized in the first place, much less wh en that would have occu rred. 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 fundamen tally 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 13 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 factor s when deciding whether a Doyle violation is harmless beyond a reasonable doubt:
(1) [T]he use to which the pros ecution puts the post-arrest silence; (2) who elected to pursue the line of questioning; (3) the quantum of other evidence indicati ve 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 impl ied that the State ha d taken surveillance tapes from the surveillance system in M. R.’s home. Fry also claimed the State had failed to turn over th ose 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 Stat e then questioned Fry why he had not told anyone, including the police officers involved in the in vestigation, about the recording capability of the surveilla nce equipment in M.R.’s home. ThisCourt of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 14 of 22 was clearly done in response to Fry’s test imony 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 questi oning of Fry that Fry had, in fact, destroyed the surveillance equipment. 6

[22] In any event, the State us ed the post-arrest silenc e in response to Fry’s apparently inaccurate claim that the St ate was in possession of surveillance recordings from M.R.’s house. This was the on ly time the subject was mentioned at trial. Agains t this brief, isolated refe rence to Fry’s failure to divulge to police the existence of the recording equipment an d possibly a tape recording of the night in question there was ample ev idence of Fry’s guilt. Namely, the devices were found in a cabi net that Fry built, which was located in the basement of the home in whic h he was living, and which contained firearms that he admitted were his. In view of the overwh elming 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 di d 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 po lice made no effort to re cover any surveillance tapes depicting the events of January 26.Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 15 of 22 [23] The second alleged instance of prosecut orial misconduct centered upon another point in Fry’s cross-examin ation in which the prosec utor asked him about his knowledge of the presence of the destruct ive devices in the gun cabinet. During his direct examination, Fr y testified that he and M.R. had a New Year’s Eve party at their house and among the gues ts were men named Josh and Neil. According to Fry, Josh an d Neil brought three explos ive devices to the party, one of which they set off at around mi dnight. Fry claimed that when they prepared to set off another one, he st opped 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 tr ial that the next time he saw those two devices was when they were introduced in to evidence at tria l. During this discussion, the following exchange occurred between Fry and Lawder:
Q. [Josh and Neil brought the de vices 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 16 of 22 Transcript at 540. According to Fry, the “cl ear implication” of this line of questioning “was that Fry made up a st ory to tell in court and suggested that Fry had the burden of producing Josh or Ne il as witnesses in his trial or that he had to provide this explan ation to the police or th e 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 a lluded to in the prosecutor’s questions was that of Josh, who was not called to testify at tr ial. 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 pr osecutorial miscondu ct occurred during closing argument. At trial, Fry testifie d 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 in cident occurred, but was married to Fry by the time of tr ial. During closing argument, the prosecutor stated:Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 17 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 co lor 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 prov e 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 Fr y, this constituted pros ecutorial misconduct in that it suggested to the jury that Fr y had the burden of proof because it questioned why he did not call a witne ss to testify on his behalf or to corroborate his own testimony.

[26] As with the other claims of prosecutoria l misconduct, Fry did not preserve it by making a contemporaneous objection and request for admonishment and mistrial. Therefore, he must establ ish 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 , 916Court of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 18 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 cl osing 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 ab out what occurred that evening. Rather, the prosecutor’s comments conveyed the im plausibility of a portion of Fry’s narrative, i.e., that the gu n found under the couc h in his basement was placed there by a woman who liv ed in a different state.

[27] Moreover, even if we accepted for the sa ke 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 wa s not required to pr esent 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 prel iminary 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 StateCourt 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 inno cent, 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 pr esent any evidence or prov e his innocence. As a result, any impropriety in the pr osecutor’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 comme nts of which Fry complains do not constitute fundamental error.

3.

[29] Fry contends the evidence was insuffi cient to support his conviction for possession of a destructive device. Specif ically, he contends the evidence failed to show that he “possessed” the dest ructive devices. When reviewing the sufficiency of the evidence needed to su pport a criminal conviction, we neither reweigh evidence nor jud ge 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 su bstantial 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 reas onably drawn from the evidence. AllCourt of Appeals of Indiana | Memorandum Decision 71A03-1407-CR-263 | March 18, 2015 Page 20 of 22 inferences are viewed in a light mo st 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, commi ts a class C felony.” Fry does not dispute that the two devices upon which this conviction was based were destructive devices. He contends, howeve r, that the evidence did not establish that he possessed them.

[31] Possession of contraband can be establ ished by either actual or constructive possession. Houston v. State , 997 N.E.2d 407 (Ind. Ct. A pp. 2013). Constructive possession has been explained thus:
Constructive possession is established by showing that the defendant has the intent and capa bility 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 th e 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 be cause 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 21 of 22 in addition to the presence of the contraband, “additional circumstances indicating knowledge” of the contraba nd 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, buil t, 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 poss essions in the area. Th e basement bathroom was primarily used by Fry. M.R. testified th at she went into the basement only to sleep and do laundry. The destructiv e 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 hi s home. Taken togethe r, this evidence was such that a jury could reasonab ly conclude that Fry had both the knowledge of the presence of the devi ces 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 22 of 22 Kirsch, J., and Crone, J., concur.