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
                                                                     Feb 13 2014, 10:07 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                    ATTORNEYS FOR APPELLEE:

VICTORIA L. BAILEY                                         GREGORY F. ZOELLER
Marion County Public Defender Agency                       Attorney General of Indiana
Indianapolis, Indiana
                                                           MICHAEL GENE WORDEN
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DUANE FRY,                                        )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )        No. 49A02-1306-CR-544
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


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


                                       February 13, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                     CASE SUMMARY

          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.

                         FACTS AND PROCEDURAL HISTORY

          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,
                                       2
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
                                         3
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 his sentence on Count

I. Fry was sentenced to an aggregate term of twenty-five years.

                             DISCUSSION AND DECISION

       Fry argues that the trial court abused its discretion in instructing the jury on

voluntary intoxication. In reviewing a trial court’s decision to give a tendered jury

instruction, we consider: “(1) whether the instruction correctly states the law; (2) whether

there is evidence in the record to support the giving of the instruction; and (3) whether the

substance of the tendered instruction is covered by other instructions which are given.”

Cutter v. State, 725 N.E.2d 401, 408 (Ind. 2000). Fry claims only that there is insufficient

evidence to support giving the voluntary intoxication instruction.

       The instruction at issue here is identical to the pattern jury instruction for voluntary

intoxication. 1 IND. PATTERN JURY INSTRUCTIONS – CRIMINAL, No. 10.09 (3d. ed. 2012).

It also tracks the language of Indiana Code section 35-41-2-5, for which the pattern

instruction was written. See id. Indiana Code section 35-41-2-5 provides that voluntary

intoxication “is not a defense in a prosecution for an offense and may not be taken into

consideration in determining the existence of a mental state that is an element of the

offense.” Prior to the 1997 enactment of Indiana Code section 35-41-2-5, Indiana law

recognized voluntary intoxication as a defense to a crime’s requisite mens rea. Sanchez v.
                                            4
State, 749 N.E.2d 509, 512-13 (Ind. 2001) (summarizing the history of the voluntary

intoxication defense). During this period, the Indiana Supreme Court set forth a standard

for determining whether evidence warranted a jury instruction on the voluntary intoxication

defense. Williams v. State, 273 Ind. 105, 108-09, 402 N.E.2d 954, 956 (1980). In Williams,

the Indiana Supreme Court stated:

       When the prosecution requests the instruction it seeks to avoid an acquittal
       on the basis of evidence of simple voluntary consumption of alcohol. When
       the defense requests the instruction it seeks to achieve acquittal by insuring
       consideration by the jury of evidence of intoxication. In either case the
       question for the court is whether there is an adequate evidentiary basis for it.
       That basis exists where the evidence of intoxication, if believed, is such that
       it could create a reasonable doubt in the mind of a rational trier of fact that
       the accused entertained the requisite specific intent.

273 Ind. at 108-09, 402 N.E.2d at 956.

       In applying the Williams standard, the Indiana Supreme Court later explained that

evidence that the defendant had merely been consuming alcohol is insufficient to support

instructing the jury on the voluntary intoxication defense. See Bowen v. State, 478 N.E.2d

44, 46 (Ind. 1985); Anderson v. State, 469 N.E.2d 1166, 1168 (Ind. 1984); Hubbard v.

State, 469 N.E.2d 740, 742 (Ind. 1984). “The question is not merely whether [the

defendant] was intoxicated, but rather ‘whether or not [the defendant’s] intoxication was

sufficient to deprive him of the ability to form the necessary intent.’” Gibson v. State, 516

N.E.2d 31, 33 (Ind. 1987) (quoting Butrum v. State, 469 N.E.2d 1174, 1176 (Ind. 1984)).

In other words, “objective evidence of impairment” is required. Bowen, 478 N.E.2d 46;

compare Pavey v. State, 498 N.E.2d 1195 (Ind. 1986),1 with Tiller v. State, 541 N.E.2d 885


       1
           In Pavey v. State, the Indiana Supreme Court held that instruction was warranted on the voluntary
                                                      5
(Ind. 1989).2

        Although the voluntary intoxication defense has been abolished in Indiana, we see

no reason to depart from the Williams standard in evaluating whether evidence supports

instructing the jury on the lack thereof. As was stated in Williams, it remains true, “When

the prosecution requests the instruction it seeks to avoid an acquittal on the basis of

evidence of simple voluntary consumption of alcohol.” 273 Ind. at 108, 402 N.E.2d at 956.

Therefore, we must determine whether the record contains evidence of intoxication such

that it could create a reasonable doubt in the mind of a rational trier of fact that Fry intended

to commit theft inside Thompson’s house. We conclude that there is not.

        The record reveals only that Fry consumed vodka on the evening in question; the

amount is unknown and, without more, cannot be inferred from the fact that he ran out.

Moreover, the State points to no objective evidence that Fry was impaired when he broke

into Thompson’s house. In fact, Officer Stayton and David both testified that Fry did not

appear to be “impaired,” Tr. pp. 45, 80, and Beth testified that Fry was not “staggering or

stumbling.” Tr. p. 25. We also find it significant that Fry never claimed to be intoxicated

or otherwise asserted or argued an inability to form the requisite intent.3 Therefore, we


intoxication defense where the evidence showed that defendant may have consumed seventeen to nineteen
beers during the nine-hour-period before committing murder and had a 0.17% blood alcohol content one
hour after the incident. 498 N.E.2d 1195, 1197 (Ind. 1986).
        2
          In Tiller v. State, the Indiana Supreme Court held that instruction was not warranted on the
voluntary intoxication defense where the evidence showed that defendant drank seven or eight beers and
registered a 0.14% blood alcohol content prior to committing attempted voluntary manslaughter, smelled
of alcohol at the time of his arrest, and “appeared drunk” according to one witness, but “did not appear to
be intoxicated” according to the arresting officer and “appeared to have all his faculties” when being
interrogated three or four hours later. 541 N.E.2d 885, 890 (Ind. 1989).
        3
            We note, however, that a defendant need not explicitly invoke intoxication as defense before the
                                                      6
hold that the trial court abused its discretion in instructing the jury on voluntary

intoxication. See Tiller, 541 N.E.2d at 890. Reversal, however, is not warranted because

the trial court’s error was harmless.

        “[E]rrors in the giving or refusing of instructions are harmless where a conviction

is clearly sustained by the evidence, and the instruction would not likely have impacted the

jury’s verdict.” Eberle v. State, 942 N.E.2d 848, 861 (Ind. Ct. App. 2011). Here, Officer

Stayton testified that the back door of Thompson’s home was kicked in and that he found

Fry inside, removing bottles of wine from a shelf and placing them into the black duffel

bag. Additionally, a latent print matching Fry’s left middle finger was recovered from a

wine bottle found inside the bag. This evidence clearly support’s Fry’s convictions.

        Fry contends that by erroneously giving the voluntary intoxication instruction, the

trial court falsely indicated to the jury that he was intoxicated, thereby prejudicing the

credibility of his testimony. Fry testified that Vickie invited him inside what he thought

was Vickie’s house and that she instructed him to retrieve the wine from the front room.

Vickie, however, was never seen by Beth or David and was not found in the house by

Officer Stayton. Therefore, we find negligible any prejudicial effect on Fry’s credibility

as a result of the voluntary intoxication instruction.

        The judgment of the trial court is affirmed.

MATHIAS, J., and PYLE, J., concur.




voluntary intoxication instruction may be given. See Schweitzer v. State, 552 N.E.2d 454 (Ind. 1990).
                                                   7
