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Fry v. State

Court of Appeals of Indiana

February 13, 2014

DUANE FRY, Appellant-Defendant,
STATE OF INDIANA, Appellee-Plaintiff

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

APPEAL FROM THE MARION SUPERIOR COURT. The Honorable Lisa F. Borges, Judge. Cause No. 49G04-1302-FB-12943.

ATTORNEY FOR APPELLANT: VICTORIA L. BAILEY, Marion County Public Defender Agency, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; MICHAEL GENE WORDEN, Deputy Attorney General, Indianapolis, Indiana.

BRADFORD, Judge. MATHIAS, J., and PYLE, J., concur.



Appellant-Defendant Duane Fry appeals his convictions for Class B felony burglary and Class A misdemeanor criminal mischief. On the evening of February 24, 2013, after consuming an unknown amount of vodka, Fry broke into a house owned by Kyla Thompson and attempted to steal bottles of wine therein. At trial, the jury was instructed that voluntary intoxication is not to be considered in determining whether Fry had the mens rea required for the crimes charged. Fry argues that the trial court abused its discretion in instructing the jury on voluntary intoxication, claiming there is insufficient evidence to support giving the instruction. Finding no objective evidence that Fry was impaired when he broke into Thompson's house, we conclude that the trial court abused its discretion in giving the voluntary intoxication instruction. Fry's conviction, however, is clearly sustained by the evidence. Therefore, we hold the trial court's error to be harmless and affirm.


The facts most favorable to the judgment are as follows. On the evening of February 24, 2013, Fry was hanging out at his apartment with friends Vickie and Paula. Fry was drinking vodka out of a Budweiser beer bottle, and Paula and Vickie were drinking gin out of McDonald's cups. When the group ran out of alcohol, they set out walking to Vickie's house to obtain more. Along the way, Paula stopped at a Village Pantry to buy cigarettes; Vickie and Fry continued walking. Vickie walked ahead of Fry and eventually built a sizeable lead over him. Ultimately, Fry alone arrived at a house owned by Thompson, whom Fry did not know. Thompson was not home at the time, but Thompson's neighbors, Beth and David Swickl, observed Fry pound on the side door of Thompson's house, walk to the front door, return and pound on the side door again, and then walk behind the house out of sight. David called 911.

Indianapolis Metropolitan Police Officer Joshua Stayton was dispatched to Thompson's house. Upon his arrival, Officer Stayton approached the house's front door and, through a window, observed Fry removing bottles of wine from a shelf and placing them into a black duffel bag. Finding the front door locked, Officer Stayton walked to the rear of the house and found that the house's back door had been kicked in. Officer Stayton drew his weapon, announced his presence, and entered the house. He proceeded to the house's front room and encountered Fry, who had a bottle of wine in one hand and a black duffle bag in the other. The duffle bag contained seven additional bottles of wine. From one of them, an evidence technician later recovered a latent print matching Fry's left middle finger. No one else was found inside the house.

On February 26, 2013, Appellee-Plaintiff the State of Indiana charged Fry as follows: Count I, Class B felony burglary; Count II Class D felony attempted theft; and Count III, Class A misdemeanor criminal mischief. The State also alleged Fry to be a habitual offender. A jury trial was held on May 6, 2013, during which the jury was instructed over Fry's objection as follows: "Voluntary intoxication is not a defense to a charge of Burglary, Theft or Criminal Mischief. You may not take voluntary intoxication into consideration in determining whether the Defendant acted intentionally or knowingly as alleged in the information." Appellant's App. p. 77. The jury found Fry guilty as charged, and Fry later admitted to being a habitual offender.

On May 29, 2013, the trial court sentenced Fry to fifteen years of incarceration on Count I, enhanced by ten years on account of his habitual offender status. The trial court set aside Fry's conviction on Count II on double jeopardy grounds and sentenced him to one year of incarceration on Count III, to be served concurrently with ...

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