Kenneth Frye v. State of Indiana ( 2013 )

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MEMORANDUM DECISION – NOT FOR PUBLICATION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).
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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
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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.”
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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
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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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