                                                                         Feb 04 2015, 9:18 am




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Matthew D. Barrett                                         Gregory F. Zoeller
      Matthew D. Barrett, P.C.                                   Attorney General of Indiana
      Logansport, Indiana
                                                                 Ellen H. Meilaender
      Bradley A. Rozzi                                           Deputy Attorney General
      Hillis Hillis Rozzi & Knight                               Indianapolis, Indiana
      Logansport, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Loren H. Fry,                                             February 4, 2015

      Appellant-Defendant,                                      Court of Appeals Cause No.
                                                                09A05-1404-CR-178
              v.
                                                                Appeal from the Cass Superior Court.
                                                                The Honorable Rick Maughmer,
      State of Indiana,                                         Judge.
      Appellee-Plaintiff.                                       Cause No. 09D02-1109-MR-2




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   A jury determined that Loren H. Fry shot and killed his neighbor David

      Schroder. Fry appeals his conviction of murder, a felony. Ind. Code § 35-42-1-

      1 (2007). He challenges the trial court’s evidentiary rulings, the prosecutor’s


      Court of Appeals of Indiana | Opinion 09A05-1404-CR-178 | February 4, 2015                Page 1 of 23
      conduct during trial, the denial of his motions for directed verdict, and the

      court’s rejection of one of his proposed jury instructions. We affirm.


                                                      Issues
[2]   Fry raises four issues, which we expand and restate as:

              I. Whether the trial court abused its discretion in admitting evidence
              obtained from a search of Fry’s house.


              II. Whether the trial court abused its discretion in admitting a
              witness’s demonstration of how Fry’s revolver was loaded and
              unloaded.


              III. Whether the prosecutor committed misconduct.


              IV. Whether the trial court erred in denying Fry’s motions for directed
              verdict.


              V. Whether the trial court abused its discretion in rejecting Fry’s
              proposed jury instruction.


                                Facts and Procedural History
[3]   Loren Fry and David Schroder were neighbors in rural Cass County. They

      lived along County Road 275, near a hog farm. Schroder leased portions of his

      property for farming. He experienced a drainage problem that caused parts of

      his land to flood on occasion, which hindered farming. The problem was

      caused by conditions on Fry’s property. Schroder and Fry disagreed about how

      to correct the flooding, and they both hired attorneys in relation to the matter.

      The dispute was ongoing at the time of Schroder’s death.

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[4]   On several occasions prior to Schroder’s death, visitors to Schroder’s property

      saw Fry drive past, going as slow as fifteen miles per hour, looking at Schroder

      and his visitors. On other occasions, Fry would drive an off-road vehicle to the

      boundary between his property and Schroder’s property and sit there for up to

      half an hour while staring at Schroder’s house. In addition, Schroder and Fry

      would “follow each other up and down” County Road 275 as often as “once a

      week.” Tr. p. 161. “You’d see one drive by and then the other one would go

      and see what the other one was doing.” Id. at 831. One of Schroder’s sons

      advised Schroder to stay away from Fry.


[5]   On the afternoon of September 20, 2011, Steve Swartzell delivered fuel to

      Schroder’s house. According to his truck’s electronic records, he finished

      pumping the fuel at 12:34 p.m. When Swartzell finished, Schroder was

      standing nearby, and the two talked for fifteen to twenty minutes. As they

      talked, Fry drove by in a blue truck. He slowed down to “five to ten” miles per

      hour and stared at Schroder and Swartzell as he drove by. Id. at 356.


[6]   Andrew Rusk worked at the hog farm that was located near Schroder’s and

      Fry’s houses. Brian Stoneking was Rusk’s supervisor. During the time period

      relevant to this case, Rusk lived with Jessica Malchow in a house on the farm’s

      property, along County Road 275. Rusk, Malchow, and Stoneking were

      familiar with Schroder and Fry.


[7]   Early on the afternoon of September 20, 2011, Rusk was working with

      Stoneking in a hog barn. They saw Schroder drive up to the barn in a white


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       truck. After several minutes, Fry drove by on County Road 275, traveling in

       the same direction Schroder had been traveling. Schroder drove after Fry,

       keeping “a telephone pole or two” of distance between them. Id. at 233. They

       were driving thirty-five to forty-five miles per hour.


[8]    A few minutes later, Fry drove back by the barn, going in the opposite

       direction. Schroder followed him and was “shaking his index finger” at Fry.

       Id. at 233. Next, Stoneking and Rusk finished loading hogs into a tractor-

       trailer, and Stoneking drove to another building on the farm. As he drove, he

       saw Schroder’s truck parked on County Road 275. Stoneking saw Schroder’s

       truck again, in the same location, six minutes later. Id. at 338. To Stoneking,

       the situation did not “look right. It looked like something happened.” Id. at

       305. Five to six minutes later, he saw a tractor towing a trailer driving down

       County Road 275. He recognized the tractor as belonging to Sam Snyder.


[9]    During this same time period, Malchow was sitting in the front room of her

       house. She saw Schroder and Fry drive by on County Road 275. A few

       minutes later, she saw them drive by again, going in the opposite direction.

       Later, Malchow saw a man she recognized as Brandon Snyder drive a tractor

       towing a trailer down County Road 275. She did not see any other vehicles on

       the road during this time frame.


[10]   Brandon Snyder, who was Sam Snyder’s nephew, was driving his uncle’s

       tractor and trailer on County Road 275 to a field. He passed the hog farm and

       encountered a white truck on the side of the road. He looked down into the


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       truck and saw a man slumped over. Snyder got out of the tractor and walked

       over to the truck. The truck’s engine was running. Snyder recognized Schroder

       and poked Schroder through the open driver’s side window, asking if he needed

       help. There was no response, so Snyder went around to the passenger side and

       saw that Schroder had a wound to his head and was bleeding. Snyder called

       911. Snyder did not see anyone else on County Road 275 from the time he

       began driving on it to the point where he encountered Schroder’s truck.


[11]   Police records reflect that Snyder’s call was received at 1:57 p.m. Police,

       paramedics and the coroner arrived at the scene. The coroner determined that

       Schroder had two gunshot wounds to the head and was dead. Schroder’s

       wallet, which contained $165, was still in his pocket. A crime scene

       investigator found a bullet fragment in Schroder’s hat. Officers searched nearby

       buildings and saw no sign of criminal activity. Schroder’s truck was located no

       more than “three football fields” from Fry’s house. Id. at 1096.


[12]   The police obtained a search warrant for Schroder’s house but found no signs of

       criminal activity there. After further investigation, the police obtained a search

       warrant for Fry’s property. They executed the warrant shortly after midnight

       on September 21, 2011. A team of police officers surrounded Fry’s house, and

       the Cass County Sheriff ordered him to come outside, unarmed. Fry came out

       only after the sheriff ordered him to do so “five or six times.” Id. at 658.

       Officers handcuffed Fry and took him to jail. At the jail, an officer searched

       Fry and discovered three .22 magnum bullets on his person.



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[13]   The officers did a “quick walk through” of Fry’s house after taking him into

       custody but decided to delay a full search until the morning. Id. at 506. During

       the full search, officers saw letters related to Schroder and Fry’s drainage

       dispute on the dining room table. In addition, they found a cubby hole in a

       wall near an exterior door, specifically the door that Fry used to leave the house

       when the sheriff directed him to come out. The cubby hole was two feet deep.

       An officer searched the hole and found a .22 magnum Ruger revolver in a

       holster, concealed beneath clothing, dirty Styrofoam plates, and paper shooting

       targets.


[14]   Elsewhere in the house, the officers found packaging for the revolver, a receipt

       from a gun store reflecting the purchase of the revolver, and bullets for the

       revolver. The revolver had a six-bullet capacity, and it contained four bullets

       and two empty shells. Thus, the gun had been fired twice. The officers found

       several other guns in Fry’s home. None of them were in the hole with the

       revolver. The revolver was the only gun in the house that could have fired the

       bullets that the police had found on Fry’s person the previous night.


[15]   An autopsy revealed that both bullets went through Schroder’s brain, and either

       wound would have been fatal. One shot went through the head, resulting in the

       bullet fragment that was found in Schroder’s hat. The other shot did not have a

       corresponding exit wound, so a second bullet fragment was recovered from

       Schroder’s skull.




       Court of Appeals of Indiana | Opinion 09A05-1404-CR-178 | February 4, 2015   Page 6 of 23
[16]   Both bullet fragments, Fry’s .22 magnum Ruger revolver, and the bullets found

       in the revolver were submitted for forensic testing. The examiner stated that the

       revolver could not be conclusively identified as the gun that was used to shoot

       Schroder, but it could not be excluded either.


[17]   The State charged Fry with murder. Fry requested bail, and the trial court

       denied his motion. Our Supreme Court affirmed the trial court’s decision on

       interlocutory review. Fry v. State, 990 N.E.2d 429, 451 (Ind. 2013).


[18]   Next, Fry filed a motion to suppress all evidence obtained as a result of the

       search warrant. The court denied Fry’s motion after a hearing. Fry sought

       interlocutory review of the court’s denial. A panel of this Court denied Fry’s

       motion for interlocutory review.


[19]   At trial, Fry raised a continuing objection to all evidence obtained as a result of

       the search warrant. The trial court admitted into evidence photographs of Fry’s

       revolver but declined to admit the actual gun. Fry filed a motion for directed

       verdict after the State rested. The court denied Fry’s motion. Fry renewed his

       motion for directed verdict after he presented his case. The court denied that

       motion. The jury determined that Fry was guilty of murder, and the court

       sentenced him accordingly. This appeal followed.




       Court of Appeals of Indiana | Opinion 09A05-1404-CR-178 | February 4, 2015   Page 7 of 23
                                     Discussion and Decision
           I. Admission of Evidence Obtained From Search Warrant
[20]   Fry contends that the evidence the State obtained from the search of his house

       is inadmissible. He frames the issue as whether the court erred by denying his

       motion to suppress. Because Fry seeks appellate review after a conviction, the

       issue is more appropriately framed as whether the trial court properly admitted

       the evidence at trial. Jackson v. State, 908 N.E.2d 1140, 1142 (Ind. 2009). A

       trial court has broad discretion in ruling on the admissibility of evidence and we

       will disturb its rulings only where it is shown that the court abused that

       discretion. Halliburton v. State, 1 N.E.3d 670, 675 (Ind. 2013). An abuse of

       discretion occurs when the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances before it. Id.


[21]   To be valid, a warrant must comply with the Fourth Amendment prohibition

       on unreasonable searches and seizures, as well as with Indiana constitutional

       and statutory law. Gray v. State, 758 N.E.2d 519, 521 (Ind. 2001). The statute

       that governs search warrants provides, in relevant part:

               no warrant for search or arrest shall be issued until there is filed with
               the judge an affidavit:


               (1) particularly describing:


               (A) the house or place to be searched and the things to be searched for;
               or


               (B) particularly describing the person to be arrested;
       Court of Appeals of Indiana | Opinion 09A05-1404-CR-178 | February 4, 2015          Page 8 of 23
                (2) alleging substantially the offense in relation thereto and that the
                affiant believes and has good cause to believe that:


                (A) the things as are to be searched for are there concealed; or


                (B) the person to be arrested committed the offense; and


                (3) setting forth the facts then in knowledge of the affiant or
                information based on hearsay, constituting the probable cause.


       Ind. Code § 35-33-5-2 (2005).


[22]   When an appellant challenges a search warrant, we determine whether the

       issuing magistrate had a substantial basis to issue the warrant. Jones v. State, 783

       N.E.2d 1132, 1136 (Ind. 2003). We determine the existence of a substantial

       basis by considering whether reasonable inferences drawn from the totality of

       the evidence support the determination. Gray, 758 N.E.2d at 521. We give

       significant deference to the magistrate’s determination. Houser v. State, 678

       N.E.2d 95, 99 (Ind. 1997). Probable cause means a probability of criminal

       activity, not a prima facie showing. Seltzer v. State, 489 N.E.2d 939, 941 (Ind.

       1986).


                                                    A. Hearsay

[23]   Fry first contends that the magistrate should not have issued the warrant

       because the State’s request was based on uncorroborated hearsay. Indiana

       Code section 35-33-5-2 provides that when a State’s request for a search warrant

       is based on hearsay, the request must either:


       Court of Appeals of Indiana | Opinion 09A05-1404-CR-178 | February 4, 2015         Page 9 of 23
               (1) contain reliable information establishing the credibility of the
               source and of each of the declarants of the hearsay and establishing
               that there is a factual basis for the information furnished; or


               (2) contain information that establishes that the totality of the
               circumstances corroborates the hearsay.


[24]   The trustworthiness of hearsay for the purpose of proving probable cause can be

       established in several ways, including showing: (1) the witness has given

       correct information in the past, (2) independent police investigation

       corroborates the informant’s statements, (3) the basis for the witness’s

       knowledge is demonstrated, or (4) the informant predicts conduct or activity by

       the suspect that is not ordinarily easily predicted. Smith v. State, 982 N.E.2d

       393, 405 (Ind. Ct. App. 2013), trans. denied. These examples are not exclusive.

       Id.


[25]   Here, a judge pro tempore held a recorded hearing on the State’s request for a

       search warrant. Detective Sergeant Brad Sommers of the Cass County Sheriff’s

       Department testified that he had spoken with Schroder’s sons and daughters-in-

       law, and that Fry was the first person they suspected of the murder because of

       “ongoing arguments.” Appellant’s App. p. 31. Fry argues that the State

       submitted no evidence to establish the credibility of Schroder’s family. To the

       contrary, Sommers testified that he learned from his discussions with the family

       that Schroder received mail “this past Saturday” from Schroder’s attorney

       regarding the dispute between Schroder and Fry. Id. at 39. He thus

       demonstrated that Schroder’s family had a basis for knowing about the dispute.


       Court of Appeals of Indiana | Opinion 09A05-1404-CR-178 | February 4, 2015     Page 10 of 23
[26]   Sommers also testified at the probable cause hearing that he had interviewed

       Rusk and Malchow, who provided recorded statements. Sommers told the

       court that they saw Fry and Schroder drive up and down County Road 275

       shortly before Schroder was found dead, and that Malchow had not seen

       anyone else on the road during that time period. Fry argues that Rusk and

       Malchow’s statements are uncorroborated hearsay. Fry’s argument is incorrect,

       because the witnesses were interviewed separately, but their statements

       corroborate each other.


[27]   Fry further argues that Rusk’s and Malchow’s statements contradicted each

       other as to timing, and he concludes that their statements are thus unreliable

       hearsay. We disagree. Sommers testified that both witnesses told him that

       their estimates on timing were inexact. Rusk thought that he first saw Schroder

       at 2:00 p.m., but he said it was an estimate because he was not wearing a

       watch. Malchow said she looked at a clock when she saw Fry and Schroder

       drive by, but she conceded that Rusk set the clock to run early by an unknown

       span of time. Thus, the reviewing magistrate was made aware that the timing

       was not exact, and he questioned Sommers about the chronology in detail

       before issuing the warrant. Furthermore, Rusk’s and Malchow’s description of

       events corroborated each other, regardless of their timing.


[28]   Fry cites several cases in support of his claim of lack of corroboration. Bradley

       v. State, 609 N.E.2d 420 (Ind. 1993); Methene v. State, 720 N.E.2d 384 (Ind. Ct.

       App. 1999); Bryant v. State, 655 N.E.2d 103 (Ind. Ct. App. 1995). Those cases



       Court of Appeals of Indiana | Opinion 09A05-1404-CR-178 | February 4, 2015   Page 11 of 23
       are distinguishable because they involve confidential informants or anonymous

       tipsters, and in this case all of the witnesses were identified.


[29]   Next, Fry contends that Sommers lied during the probable cause hearing,

       thereby invalidating the search warrant. Specifically, Sommers testified that

       Malchow told him that the clock she used to tell time on the day in question

       “may be off by a half hour or more. She doesn’t really know. She knows it’s at

       least a half hour or more.” Id. at 42. Fry says that Malchow never gave an

       estimate of how fast the clock was running. The portion of Malchow’s

       recorded statement in which she discusses the timing of the clock contains

       several portions marked “indiscernible.” Id. at 102. A defendant bears the

       burden of demonstrating the invalidity of a warrant. Rios v. State, 762 N.E.3d

       153, 157 (Ind. Ct. App. 2002). During the hearing on Fry’s motion to suppress,

       he conceded that he did not “have any evidence that [Sommers] intentionally”

       lied to the court. Tr. pp. 58-59. We cannot conclude that Fry has demonstrated

       that Sommers misled the magistrate.


[30]   We conclude that the State properly corroborated the hearsay evidence it

       submitted in support of its request for a search warrant for Fry’s home.


                       B. Nexus between Evidence of a Crime and Fry’s Home

[31]   Fry also argues that the State failed to demonstrate during the probable cause

       hearing that evidence of a crime would be found at his house. In deciding

       whether to issue a search warrant, the issuing magistrate must make a practical,

       commonsense decision whether there is a fair probability that evidence of a


       Court of Appeals of Indiana | Opinion 09A05-1404-CR-178 | February 4, 2015   Page 12 of 23
       crime will be found in a particular place. Allen v. State, 798 N.E.2d 490, 495

       (Ind. Ct. App. 2003).


[32]   Here, Sommers testified during the probable cause hearing that (1) Fry and

       Schroder had been feuding; (2) Schroder shook his finger at Fry as they drove

       by the hog farm for a second time; (3) Fry was the last person to see Schroder

       alive and was near the scene of the murder; (4) Schroder had been shot to

       death; (5) no one else was on the road around the time Schroder was killed; and

       (6) Fry’s home was a quarter of a mile from the crime scene. This evidence

       provides a substantial basis for the court to conclude that Fry was a suspect in

       Schroder’s death and that a fair probability existed that the gun used to commit

       the murder could be found at Fry’s home. See Allen, 798 N.E.2d at 496

       (eyewitness testimony and police investigation revealed sufficient evidence for

       the magistrate to conclude that there was a fair probability that firearms would

       be found at the suspect’s home).1


[33]   The trial court did not abuse its discretion in admitting into evidence the items

       discovered as a result of the search of Fry’s home.




       1
         The parties also discuss whether, if the search warrant was issued without probable cause,
       the good faith exception to the warrant requirement applies here. We do not need to address
       the good faith exception due to the manner in which we have resolved Fry’s challenge to the
       issuance of the search warrant.

       Court of Appeals of Indiana | Opinion 09A05-1404-CR-178 | February 4, 2015      Page 13 of 23
               II. Admission of Demonstration with Fry’s Revolver
[34]   Fry asserts that the trial court should not have permitted the State to direct a

       witness to demonstrate for the jury how to load and unload Fry’s revolver,

       alleging that the demonstration was both irrelevant and unduly prejudicial.

       However, during trial Fry cited only Indiana Evidence Rule 402, which governs

       relevance. Tr. p. 1151. A party may not object on one ground at trial and raise

       a different ground on appeal. White v. State, 772 N.E.2d 408, 411 (Ind. 2002).

       We thus limit our analysis to relevance and disregard Fry’s arguments and

       citations to authority on the issue of unfair prejudice.


[35]   Demonstrative evidence is evidence offered for purposes of illustration and

       clarification. Wise v. State, 719 N.E.2d 1192, 1196 (Ind. 1999). To be

       admissible, the evidence need only be sufficiently explanatory or illustrative of

       relevant testimony to be of potential help to the trier of fact. Id. Evidence is

       relevant if it has any tendency to make a fact more or less probable than it

       would be without the evidence, and the fact is of consequence in determining

       the action. Ind. Evid. Rule 401. We review the admission of evidence for an

       abuse of discretion. Halliburton, 1 N.E.3d at 675.


[36]   During the State’s presentation of its case, the court admitted into evidence a

       photograph of Fry’s .22 caliber Ruger revolver but declined to admit the actual

       handgun. During Fry’s presentation of his case, he asked Doug Downham, a

       local gun shop owner, to testify about his past interactions with Fry and about

       his knowledge of firearms and ammunition. Downham stated that he was


       Court of Appeals of Indiana | Opinion 09A05-1404-CR-178 | February 4, 2015   Page 14 of 23
       familiar with the .22 caliber revolver manufactured by Ruger, including its parts

       and how it is loaded and unloaded. The following exchange occurred:

               FRY: So is there a lot more labor involved in either loading or
               unloading a Ruger single six than there is a conventional handgun?


               DOWNHAM: Several times longer. Extensively in a situation to
               reload, yes. The single action revolver requires a lot more time.


       Tr. p. 1141.


[37]   Downham concluded, in response to Fry’s questions, that owners of revolvers

       such as Fry’s tend to leave them partially loaded due to the greater difficulty in

       loading and unloading them. On cross-examination, the prosecutor showed

       Downham Fry’s .22 caliber Ruger revolver and asked him to show how it is

       fired. Over Fry’s relevancy objection, the court permitted Downham to

       demonstrate for the jury how to load and unload the revolver.


[38]   We conclude the demonstration was relevant. The State attempted to prove,

       through circumstantial evidence, that Fry used the .22 caliber Ruger revolver to

       murder Schroder. When the revolver was found, it contained four bullets and

       two empty shells. Although a forensic examiner could not conclusively prove

       that the revolver was used in the shooting, it also could not be ruled out, and

       there is a link between the two empty shells and Schroder’s two wounds.


[39]   Furthermore, the demonstration was sufficiently illustrative of Downham’s

       testimony. He testified on direct examination that because loading and

       unloading the revolver is relatively difficult, gun owners tend to leave them

       Court of Appeals of Indiana | Opinion 09A05-1404-CR-178 | February 4, 2015   Page 15 of 23
       partially loaded. The demonstration showed the jury how the loading and

       unloading process works and allowed them to judge the truth of Downham’s

       testimony. The trial court did not abuse its discretion. See Benner v. State, 580

       N.E.2d 210, 213 (Ind. 1991) (no abuse of discretion in allowing State’s witness

       to display to jury handguns found in the defendant’s home).


                                   III. Prosecutorial Misconduct
[40]   Fry argues that the prosecutor engaged in misconduct by (1) having Downham

       display the .22 caliber Ruger revolver to the jury during cross-examination even

       though the gun was not admitted into evidence and (2) arguing during closing

       arguments, without evidentiary support in the record, that the revolver was the

       murder weapon.


[41]   Fry concedes that he did not object to the prosecutor’s comments during closing

       argument. In addition, the record reflects that he did not object on grounds of

       prosecutorial misconduct during Downham’s demonstration. To preserve a

       claim of prosecutorial misconduct, the defendant must request an

       admonishment at the time the alleged misconduct occurs and, if further relief is

       desired, move for a mistrial. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). Fry

       has procedurally defaulted his claims of prosecutorial misconduct.


[42]   If a defendant has waived a claim of prosecutorial misconduct but wishes to

       raise it on appeal, the defendant must establish not only the grounds for

       prosecutorial misconduct but must also establish that the misconduct

       constituted fundamental error. Id. at 667-68. When addressing a claim of

       Court of Appeals of Indiana | Opinion 09A05-1404-CR-178 | February 4, 2015   Page 16 of 23
       prosecutorial misconduct, we determine (1) whether the prosecutor engaged in

       misconduct, and if so, (2) whether the misconduct, under all of the

       circumstances, placed the defendant in a position of grave peril to which he or

       she would not have been subjected. Coleman v. State, 946 N.E.2d 1160, 1166

       (Ind. 2011). When the alleged misconduct concerns the prosecutor’s arguments

       to the jury, we measure the gravity of peril by the probable persuasive effect of

       the misconduct on the jury’s decision rather than the degree of impropriety of

       the conduct. Ryan, 9 N.E.3d at 667.


[43]   Fundamental error is an extremely narrow exception to the waiver rule where

       the defendant faces the heavy burden of showing that the alleged errors are so

       prejudicial to the defendant’s rights as to make a fair trial impossible. Id. at 668.

       In evaluating the issue of fundamental error, our task 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 argument, 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.


[44]   In this case, the prosecutor’s conduct did not amount to misconduct. The

       bullets and empty shells in the revolver were relevant to the question of whether

       the revolver was the murder weapon, and Downham testified on direct

       examination that such revolvers were more difficult to load and were typically

       left partially loaded. On cross-examination, the prosecution acted within its

       rights to have Downham demonstrate how the gun was loaded to test his claim

       Court of Appeals of Indiana | Opinion 09A05-1404-CR-178 | February 4, 2015   Page 17 of 23
       that revolvers were more difficult to load. There is no evidence that the

       prosecutor asked for the demonstration to “inflame the jury,” as Fry asserts.

       Appellant’s Br. p. 34.


[45]   In addition, the prosecutor’s statements about the revolver during closing

       arguments were based on the evidence presented at trial. The trial court

       admitted into evidence a photograph of the revolver and witness testimony

       about where it was found and its condition. The State made an argument based

       on properly admitted circumstantial evidence that the revolver was the murder

       weapon. See Coleman, 946 N.E.2d at 1167 (prosecutor’s comment on witness’s

       statement was based on evidence admitted at trial). Fry has failed to establish

       misconduct, let alone fundamental error.


                       IV. Denial of Motions for Directed Verdict
[46]   Fry asserts that the trial court should have granted his motions for directed

       verdict because the State failed to provide sufficient evidence to convict him of

       murder.


[47]   Indiana Trial Rule 50(a) provides, in relevant part, “Where all or some of the

       issues in a case tried before a jury or an advisory jury are not supported by

       sufficient evidence . . ., the court shall withdraw such issues from the jury and

       enter judgment thereon or shall enter judgment thereon notwithstanding a

       verdict.” Our review of the denial of a motion for directed verdict or judgment

       on the evidence is essentially the same as review of a claim of insufficient

       evidence to support a conviction. Pavlovich v. State, 6 N.E.3d 969, 980 (Ind. Ct.

       Court of Appeals of Indiana | Opinion 09A05-1404-CR-178 | February 4, 2015   Page 18 of 23
       App. 2014), trans. denied. We do not reweigh the evidence or judge the

       credibility of the witnesses. Delarosa v. State, 938 N.E.2d 690, 697 (Ind. 2010).

       We consider only the probative evidence and reasonable inferences supporting

       the verdict. Id. We affirm if the probative evidence and reasonable inferences

       could have allowed a reasonable trier of fact to find the defendant guilty beyond

       a reasonable doubt. Id.


[48]   Fry asserts that there is insufficient evidence to prove that he murdered

       Schroder. A conviction for murder may be sustained on circumstantial

       evidence alone if that circumstantial evidence supports a reasonable inference of

       guilt. Lacey v. State, 755 N.E.2d 576, 578 (Ind. 2001).


[49]   Schroder and Fry had a strained relationship due to the flooding on Schroder’s

       property, which was caused by conditions on Fry’s property. In addition, Fry

       frequently drove by Schroder’s property or went to the property line that

       divided their lands and watched Schroder and his guests. One of Schroder’s

       sons had advised him to stay away from Fry.


[50]   On the day of Schroder’s murder, Fry drove past Schroder’s property and stared

       at Schroder and Swartzell. In addition, several witnesses saw Schroder

       following Fry on County Road 275 immediately before Schroder’s murder.

       Schroder was wagging his finger at Fry. No other vehicles traveled on that road

       during that time period, and a police search of the area failed to reveal any signs

       that someone else had been present. In addition, no one took Schroder’s phone

       or wallet, so the evidence weighs against robbery as a motive.


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[51]   When the police executed the search warrant later that night, Fry had three .22

       caliber bullets on his person. During a search of his house the following day,

       officers found papers related to the drainage dispute on Fry’s kitchen table.

       They also found a .22 caliber Ruger revolver hidden in a cubby hole by the door

       through which Fry had left the house to surrender to the police. The revolver

       was the only gun Fry owned that could have fired the bullets the police found

       on his person. Forensic testing could not conclusively establish that the

       revolver was used to kill Schroder, but the revolver could not be ruled out

       either. Schroder had been shot twice, and the revolver had two spent shells in

       the cylinder. Fry owned other guns, but most of them were openly displayed in

       the house, and the revolver was the only gun hidden in the cubby hole.


[52]   This circumstantial evidence is sufficient for a reasonable finder of fact to

       conclude beyond a reasonable doubt that Fry had the opportunity, means, and

       motive to kill Schroder. See Lawrence v. State, 959 N.E.2d 385, 390 (Ind. Ct.

       App. 2012) (circumstantial evidence sufficient to prove defendant killed the

       victim because he was present at the time of the murder and had a motive to

       shoot the victim), trans. denied; Ware v. State, 859 N.E.2d 708, 724 (Ind. Ct.

       App. 2007) (evidence was sufficient to establish defendant was the shooter even

       though the gun was never found and no one saw him shoot the victim; witness

       testimony placed defendant at the scene and he had a motive to kill), trans.

       denied.


[53]   Fry argues that Malchow, Rusk, and Stoneking contradicted each other and

       themselves as to the timing of their observations of Fry and Schroder.

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       Although their timing may have differed, they did not waver in what they had

       observed. We conclude any differences in their perceptions of time were for the

       jury to resolve. See Ware, 859 N.E.2d at 724 (timing questions did not render

       evidence insufficient). The trial court did not err in denying Fry’s motions to

       dismiss.


                            V. Jury Instruction on Mere Presence
[54]   Fry contends the trial court erred by rejecting his tendered jury instruction. The

       manner of instructing a jury lies largely within the discretion of the trial court,

       and we will reverse only for an abuse of discretion. Henson v. State, 786 N.E.2d

       274, 277 (Ind. 2003). In determining whether a trial court abused its discretion

       by declining to give a tendered instruction, we consider (1) whether the

       tendered instruction correctly states the law, (2) whether there was evidence

       presented at trial to support giving the instruction, and (3) whether

       the substance of the instruction was covered by other instructions that were

       given. Id. Our Supreme Court has at times rephrased the second element as

       whether there was evidence to “render the instruction applicable to the issues.”

       Hoskins v. State, 737 N.E.2d 383, 385 (Ind. 2000).


[55]   In this case, Fry tendered a jury instruction that stated, “Mere presence at the

       scene of the crime is not sufficient to establish that the accused committed the

       charged crime.” Appellant’s App. p. 160. The trial court, after reviewing the

       authorities that Fry cited in support of the proposed instruction, stated that the

       instruction “seems to me to be just an accomplice liability instruction and not


       Court of Appeals of Indiana | Opinion 09A05-1404-CR-178 | February 4, 2015   Page 21 of 23
       an instruction that is an appropriate one given the facts that have been

       presented.” Tr. p. 1175.


[56]   We agree that the proposed instruction is not justified by the evidence presented

       at trial or, as our Supreme Court has stated, that the instruction is not

       “applicable to the issues.” Hoskins, 737 N.E.2d at 385. As a general rule, juries

       are instructed that a defendant’s mere presence is insufficient to establish guilt

       in cases involving accomplice liability. In fact, both of the cases Fry cited to the

       trial court in support of his instruction address accomplice liability. Townsend v.

       State, 934 N.E.2d 118 (Ind. Ct. App. 2010), trans. denied; Alvies v. State, 905

       N.E.2d 57 (Ind. Ct. App. 2009). The doctrine of accomplice liability is

       inapplicable here because the State did not charge Fry as an accomplice or

       allege that he worked with an accomplice.


[57]   Fry argues that without this instruction, the jury was at risk of being misled into

       convicting him based upon his mere presence on the scene near the time when

       Schroder was killed, particularly because there was no corroborating forensic

       evidence. To the contrary, the State presented a wide array of circumstantial

       evidence. Some of the evidence related to events occurring before the day of

       the murder and other evidence was discovered after the murder. Although the

       State presented a great deal of evidence on Fry’s activities immediately prior to

       the murder, it did not argue that the mere presence alone required a finding of

       guilt. The evidence did not require giving the proposed instruction, and the

       trial court did not abuse it discretion in rejecting it. See Hoskins, 737 N.E.2d at

       385 (no error in denying defendant’s proposed instruction that he lawfully

       Court of Appeals of Indiana | Opinion 09A05-1404-CR-178 | February 4, 2015   Page 22 of 23
       possessed a firearm in his house because he was not charged with unlawful

       possession and the State never alleged any improprieties in his possession of the

       firearm).


                                                  Conclusion
[58]   For the reasons stated above, we affirm the judgment of the trial court.


[59]   Affirmed.


       May, J., and Bradford, J., concur.




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