                                                                   Aug 08 2013, 5:28 am
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:                         ATTORNEYS FOR APPELLEE:

MARK I. COX                                     GREGORY F. ZOELLER
The Mark I. Cox Law Office, LLC                 Attorney General of Indiana
Richmond, Indiana
                                                JUSTIN F. ROEBEL
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

KENNETH FRYE,                                   )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 89A05-1211-CR-577
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE WAYNE SUPERIOR COURT
                         The Honorable Gregory A. Horn, Judge
                             Cause No. 89D02-1111-MR-3



                                      August 8, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          In this case, what should have been a night of Halloween fun and good-natured

frights turned into an all-too-real nightmare when Kenneth Frye became angry because

Percy Campbell refused to pay a $20 debt. A confrontation ensued between the two men,

and Frye was escorted out of the bar where the confrontation had occurred. Frye returned

to the bar a few minutes later and shot Campbell, killing him almost immediately.

          Frye was convicted of Murder,1 a felony. Following his conviction, Frye was

sentenced to fifty-five years imprisonment. Frye now appeals, arguing that his sentence

is inappropriate in light of the nature of the offense and his character. Concluding that

because of the egregious nature of the offense along with Frye’s criminal history and

inability to maintain stable employment, his fifty-five-year sentence is not inappropriate,

and we decline his invitation to revise it.

                                              FACTS

          Frye supported himself by doing “odd jobs,” and spent most of his evenings

drinking at the Knuckleheads Bar in Richmond. Tr. p. 595. Frye admitted that he usually

carried a .25 caliber handgun with him when he went out at night. Frye would socially

drink with three of his friends, and the group would take turns buying pitchers of beer.

Sometimes Campbell joined the group; however, Campbell “was always short on money”

and wanted to drink with them without paying. Id. at 571.

          One night in early October 2011, Campbell, who was wearing a uniform shirt

from a new job, approached Frye and his friends, and asked if he could have a drink with

1
    Ind. Code § 35-42-1-1(1).
                                                2
them. Despite Campbell’s new job, he needed someone to loan him money for drinks

because he had yet to be paid, but he promised to “pay them back” when he received his

first paycheck. Tr. p. 572. Frye agreed to loan Campbell money for drinks and bought

four pitchers of beer for $20.

       Three or four weeks later, on October 31, 2011, Frye saw Campbell again. On

that night, Frye was drinking alone at Knuckleheads and “probably [drank] about four (4)

pitchers” of beer. Id. at 575. Frye asked Campbell about the debt, and Campbell agreed

to repay Frye later that night at Alley Kats, a nearby bar.

       Frye went to Alley Kats around 1:00 a.m. to collect his debt. According to Frye,

when he approached Campbell about the debt, Campbell was dismissive. Frye described

Campbell as “showin’ off for his people” at Alley Kats and “actin’ like he didn’t know

me now.” Id. at 579. Frye walked away from Campbell, but then returned a few minutes

later, determined to be repaid. Witnesses, however, described Frye as the aggressor and

claimed that Frye repeatedly punched Campbell in the face until Campbell grabbed him

and held him in a headlock.

       The confrontation ended when the bar owner and another employee told Frye to

leave the bar and escorted him outside. Campbell was allowed to remain in the bar

because the owner believed that Frye was the aggressor. A few minutes later, Frye

walked back into the bar, raised his gun, and shot at Campbell. Frye claims that the first

shot was fired at Campbell’s knees, but no witness account or physical evidence supports

that assertion. Frye continued walking toward Campbell and fired a second shot that

                                              3
struck Campbell in the eye. Campbell died almost instantly from a brain injury. Frye

immediately ran from the bar.

`      On November 3, 2011, the State charged Frye with murder. Frye’s jury trial

commenced on September 24, 2012, and on September 27, the jury found him guilty as

charged.

       On October 18, 2012, the trial court held a sentencing hearing, during which the

trial court determined that the aggravating factors included Frye’s history of criminal

behavior. More particularly, the trial court stated:

       Although not a significant criminal history, this Defendant has four (4)
       prior criminal cases resulting in at least three (3) Misdemeanor convictions
       and another case out of the State of Tennessee where it is unclear whether
       the four (4) convictions are for infractions or misdemeanors.

Appellant’s App. p. 67.

       The trial court concluded that the sole mitigating circumstance was Frye’s remorse

and that the mitigating and aggravating factors “balance one another.” Id. Thus, the trial

court sentenced Frye to the advisory term of fifty-five years2 in the Department of

Correction with no time suspended. Frye now appeals.

                                DISCUSSION AND DECISION

       Frye’s sole argument on appeal is that his fifty-five-year sentence is inappropriate

pursuant to Appellate Rule 7(B). Frye requests that this Court revise his sentence to fifty-

five years with ten years suspended.

2
  Indiana Code section 35-50-2-3 provides, relevant part, that “[a] person who commits murder shall be
imprisoned for a fixed term of between forty-five (45) and sixty-five (65) years, with the advisory
sentence being fifty-five (55) years.”
                                                  4
       Under Rule 7(B), this Court may revise a sentence authorized by statute if, after

due consideration of the trial court’s decision, we find that the sentence is inappropriate

in light of the nature of the offense and the character of the offender. Ind. Appellate Rule

7(B). The burden is on the defendant to persuade us that his sentence is inappropriate.

Taylor v. State, 891 N.E.2d 155, 162 (Ind. Ct. App. 2008).

       In this case, because of the way in which Frye frames his arguments, the nature of

the offense and his character are intertwined. Specifically, Frye vigorously argues that

his sentence is inappropriate because this brutal crime was completely out of character

for him as supported by the shock of those who know him. Additionally, Frye highlights

the fact that given his demeanor, even the trial court stated that it would not have

believed that he would have committed this crime. Tr. p. 761. Finally, Frye points to his

remorse, as acknowledged by both the trial court and his outreach pastor. Id. at 748;

Appellant’s App. p. 67.

       While we do not dispute Frye’s assertions, the fact remains that Campbell lost his

life because Frye chose to return to the bar from where he had just been removed, pull out

a gun, and shoot Campbell in the eye, killing him almost instantly. Tr. p. 339-40.

Campbell died for what appears to be no more than a $20 debt and some lost pride. The

nature of this offense is so violent, the fact that it was out of character for Frye avails him

of nothing.

       As for Frye’s character outside of the instant offense, we again do not dispute the

trial court’s determination that Frye is remorseful or even Frye’s assertion that this crime

                                              5
is out of character for him. However, while Frye’s criminal history is not “significant,”

consisting of misdemeanors and infractions, he nevertheless has one, and it spans two

states. Appellant’s App. p. 67. Additionally, Frye, who was twenty-nine years old at

sentencing, had not had steady employment in “a couple of years.” Tr. p. 595. Thus, in

light of these circumstances, we decline Frye’s invitation to revise his sentence to fifty-

five years with ten years suspended.

       The judgment of the trial court is affirmed.

MAY, J., and MATHIAS, J., concur.




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