ATTORNEY FOR APPELLANT
Michael E. Caudill
ATTORNEYS FOR APPELLEE
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
SUPREME COURT OF INDIANA
DeQUAN FRY, )
Appellant (Defendant Below), )
v. ) Indiana Supreme Court
) Cause No. 49S00-0008-CR-471
STATE OF INDIANA, )
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Mark Renner, Magistrate
Cause No. 49G04-9911-CF-199872
ON DIRECT APPEAL
June 7, 2001
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 Taylors 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
Frys girlfriends 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 Frys girlfriends house, and friends of Taylor picked it up,
but Fry had 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 Frys account, the group drove to an alley, where he, DaTwone, and
Johnson took Taylors 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 Taylors shoes into the Canal. He
later threw DaTwones 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 Taylors 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.
I. Evidence of the Television Scheme
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 [e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order
to show action in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident . . . . 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 defendants 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 defendants 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
defendants 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.
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 Frys
hostility to Taylor and Frys 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).
II. Jury Instruction
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 Frys request to instruct on
Mr. Jinks [defense counsel]: Your Honor, Id ask that the Court tender
a [sic] instruction on mere presence. The Court standard instruction weve given
as recently as the State v. Thai Luong. I think we had
an agreement on what that was and Id use the Courts standard instruction
The Court: Well, Im not sure that there is a good basis
for the Court to give that instruction. The statement that your client
is alleged to have given to the detective does cause me concern about
giving mere presence. I dont think that he was merely present.
It appears that heif the jurors believe his alleged statement, he was involved
in disposingat the very minimum, disposing of evidence. He wasnt merely present.
. . . .
The Court: Well but see, I dont have an instruction in front
. . . .
The Court: I dont have anything in front of me. I
dont find anything in the pattern jury instructions on mere presence to give
any guidance, therefore, Im going to decline the invitation.
This Court has recently held that a defendant is ordinarily not required to
tender proposed alternative instructions to preserve a claim of error. Scisney v.
State, 701 N.E.2d 847, 848 (Ind. 1998). Specifically, this Court concluded
that, although a defendant is not generally required to tender an alternative instruction
when objecting to a proposed instruction, the instruction objection at trial [must be]
sufficiently clear and specific to inform the trial court of the claimed error
and to prevent inadvertent error. Id. However, if the claimed error
is failure to give an instruction, a tendered instruction is necessary to preserve
error because, without the substance of an instruction upon which to rule, the
trial court has not been given a reasonable opportunity to consider and implement
the request. Id. at 848 n.3. Because Fry did not tender
a proposed instruction on mere presence, he has waived any claim of error
by failing to give an instruction on that subject.
III. Sufficiency of the Evidence
Finally, Fry claims that there was insufficient evidence to support his convictions for
conspiracy to commit robbery
and felony murder. When reviewing a claim of
sufficiency of the evidence, we do not reweigh the evidence or judge the
credibility of witnesses. Spurlock v. State, 675 N.E.2d 312, 314 (Ind. 1996).
We look to the evidence and the reasonable inferences therefrom that support
the verdict and will affirm a conviction if evidence of probative value exists
from which a jury could find the defendant guilty beyond a reasonable doubt.
Id. Mere presence at the crime scene with the opportunity to
commit a crime is not a sufficient basis on which to support a
conviction. Roop v. State, 730 N.E.2d 1267, 1271 (Ind. 2000); Wilson v.
State, 455 N.E.2d 1120, 1122 (Ind. 1983). However, presence at the scene
in connection with other circumstances tending to show participation may be sufficient to
sustain a conviction. Roop, 730 N.E.2d at 1271.
To prove felony murder, the State must establish that: (1) Fry killed another
human being (2) while committing or attempting to commit robbery. Ind.Code §
35-42-1-1(2) (1998). The jury was instructed on aiding and abetting and, therefore,
could have found Fry responsible for the actions of his accomplices. Higgins
testified that Fry had a gun and forced Taylor and Jones into a
car. The evidence at trial showed that cash and marijuana were taken
from Taylor and Jones while in the car and that Fry received money
from the sale of the marijuana. Fry had a motive for robbery
because Taylor had never paid Fry for his participation in the television scheme.
Indeed, Fry had threatened to pop Taylor. According to Frys own
testimony, he directed the disposal of Taylors shoes and the murder weapon after
the killings. This evidence establishes that at a minimum Fry was an
accomplice to the robbery of Taylor and thus was also guilty in the
felony murder of Jones. This was sufficient evidence to convict Fry of
the felony murder of Jones.
To convict Fry of conspiracy to rob Taylor, the State must prove that:
(1) with the intent to commit robbery, (2) Fry agreed with another
person to commit robbery and (3) an overt act in furtherance of the
agreement was performed.
Id. § 35-41-5-2 (1998). In proving the agreement
element, the State is not required to show an express formal agreement, and
proof of the conspiracy may rest entirely on circumstantial evidence. Bailey v.
State, 717 N.E.2d 1, 3 (Ind. 1999). The evidence established that Fry
threatened to pop Taylor because Taylor beat him out of something. Fry
and two accomplices forced Taylor and Jones into DaTwones car. Fry was
present when marijuana and money were taken from the two, and Fry received
part of the money from the sale of the marijuana. Although there
was no direct evidence of an agreement among Fry, DaTwone, and Johnson, all
three participated in taking and robbing Taylor. In the aggregate this is
sufficient to establish motive, a concerted action by the group, and implementation of
an agreement to rob Taylor. This is sufficient evidence to convict
Fry of conspiracy to commit robbery.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.
The trial court stated, Im going to deny your motion. I
think that [the evidence] is appropriate. I think it does help the
State explain why there may have been some motive for this event as
alleged to have taken place. I think it gives some explanation and
it is, I think, part of the fabric of the crime so, over
your objection, Im going to allow the State to inquire but please preserve
the record by objecting at the appropriate time.
Because the trial court merged the robbery conviction into the conspiracy to
commit robbery conviction, here we do not separately address the sufficiency of the
evidence with regard to the robbery conviction. See Cutter v. State, 725
N.E.2d 401, 407 n.2 (Ind. 2000).