Rosas pleads not guilty, Fry loses bid for freedom

By C.F. David

On Thursday, Eric Rosas quietly plead not guilty to the three charges leveled against him in arraignment.

Rosas, a 20-year old student at OPSU, was arraigned on charges, of attempted rape, indecent exposure and public intoxication. The charges derive from a May 7, 2006 incident in West Central Boise City . By pleading not guilty, the case moves to it's next phase, a trial to be set sometime in December.

Dwayne Fry loses bid for freedom

Edwin Dwayne Fry, 67, lost his bid for freedom on Thursday.

Fry is imprisoned in Oklahoma 's Lexington Prison for parole violations.

Fry's attorney, Gordon Melson, of Seminole, told District Judge Greg Zigler that Fry's only problem seems to have been that he had asked for a parole modification. That request for a parole modification on Fry's guilty plea in 2000 on drug manufacturing charges drew attention to the fact that he was, by living in Boise City in violation of his parole.

Fry, by that time having lived in Northeastern New Mexico , had been ordered not to return to Cimarron county to live, or to even frequently visit. When he asked that be modified, he was imprisoned for the balance of an 11-year sentence.

“Mr Fry has been a model prisoner,” Melson pointed out, using documents from Lexington Prison officials as proof.

Melson continued that Fry had medical problems that should be taken into consideration.

“He also has pending civil litigations. That [imprisonment] hinders them,” Melson said.

Melson continued his argument by pointing out that Fry's 86-year-old mother also needed his assistance.

“Lastly, Federal Probation officers have a hold on him,” Melson said.

“The best interest of the public won't be affected [by Fry's release],” Melson said.

Melson had a pool of witnesses from which to draw in an attempt to win Fry's freedom.

First, was retired Oklahoma Highway Patrol Trooper Don Hagelberg. Hagelberg, who now lives in Raton , N.M. , explained that he'd known Fry off and on for 50 years, and that he did not consider him a risk to the public.

“Would you help him in anyway to improve himself..to satisfy the court? Melson asked.

“I'd do anything to help him. I'd be glad to,” Hagelberg said.

Melson next called Darwood Davis, who met Fry through a mutual passion for motorcycles.

Melson asked where Davis lived in relation to former District Judge George Leach; and Davis explained he lived “..katty-cornered across the street.”.

Leach, is one of several persons Fry is to remain several thousand feet away from.

Melson asked Davis if at anytime Fry had stopped at his home to discuss motorcycles he had seemed interested in Judge Leach's home. Davis answered he had not seen any such indication. Melson asked if Fry had made any comments about Leach, again Davis answered no.

Melson then called Colorado businessman Laverne Jenkins. Jenkins told Melson that he knew Fry very well and had done a lot of business with him.

Would you be willing to take him in and let him live with you?” Melson asked.

Jenkins answered yes. “I've never had no problems with Dwayne at all,” Jenkins added.

Melson next called Fry's mother, Jessie Nall, and asked how she was doing.

“I'm not doing too good. There are lots of things wrong,” Nall said.

“Did you rely on him? Melson asked.

“Oh yes!” Nall answered. “He worked in the house, changed my light bulbs. He'd say now don't you get up on that ladder.”

Asked if she needed him, Nall replied, “Oh Yes! Real bad!

Nall also pointed out that her memory wasn't too good.

“What about this other son [Eldean, Dwayne's younger brother]?” Melson asked.

“I haven't seen him in years,” Nall said.

Asked about Dwayne's sons, Eldon and Dallas, Nall responded that she had no contact with them either.

“I depend on Norma {Leach},” she explained.

Asked if she would take Dwayne back were he released, Nall answered, “You bet!”

Gloria Damron took the stand and explained that she had met Fry several years ago while working in the Texhoma Sale barn.

“I used to cut his hair in my carport after his knees wouldn't let him climb the stairs,” she said.

Damron said she'd be willing to have Fry around and called him a loving father and grandfather, this proven by pictures he'd kept on his mantle.

Norma Leach took the stand and explained that Fry's presence in Boise City was due to the fact that he had undergone knee surgery and developed a staph infection.

“We'd lost our ranch in New Mexico , he had to live with me, he had nowhere to go. I had to take care of him,” Leach said.

Asked if she needed him because of pending civil matters, Leach said, “ I need him real bad, we have some hearings coming up.”

“There seems to be a lot of hate. He just wants to be left alone,” Leach said.

With Leach's testimony, Melson rested, and Assistant D.A. Pat Versteeg took the offensive.

Versteeg first called Cimarron County Sheriff Keith Borth to the stand and asked if he knew Fry, Borth responded that he'd known him about seven years and had held him in his jail.

Under Versteeg's questioning Borth said that a former prisoner Daniel Taylor, had approached him about possible threats Fry had made. Borth took a statement, a copy of which Versteeg entered into evidence.

The prisoner had a confrontation with Fry, which led to Taylor's being separated into another cell.

Under cross-examination Melson asked Borth if Taylor had received special treatment for giving his statement, Borth answered, “No”.

Asked what Taylor's motive might have been, Borth responded, “I don't know.”

Melson then told Zigler that the “jailhouse statement was hearsay and should lend no weight.

“Bring Brian Daniel Taylor here so I can cross-examine him. I can't cross-examine a document,” Melson said. “This type of testimony has sent more innocent people to prison than any other kind,” Melson said. “We move it be excluded.”

Zigler pointed out that there were documents there from Fry's probation officer, and pointed out that both his document and Taylor's document were official, and both carry a weight of reliability.

“It's not the same type of reliability,” Melson argued.

Former Judge Leach took the stand and testified that he would feel threatened if Fry returned.

Asked if he bore a grudge, Leach said, “I have no ill will toward him.”

Melson challenged Leach's perception as a threat.

“He sat in his vehicle and watched my home,” Leach added. “He is a threat anytime he sits and watches my home.”

Melson asked about Fry's Probation Officer while he lived in Boise City.

“He had Odie Nunley. He didn't have a probation officer as far as I was concerned,” Leach said.

Fry's son Dallas, another of the individuals Fry isn't supposed to approach, took the stand, and Versteeg asked how he'd feel if his father were released from jail.

“Uneasy.” He's always been vindictive,” Dallas said.

Dallas then testified that he and his father had physical altercations up into his (Dallas') thirties.

Asked if he might be someone on whom Fry would want to seek revenge, Dallas replied, “I'd be at the top of the list.”

When Versteeg asked if Taylor's written statement would be consistent with his father's behavior, “Dallas replied, “consistent, 100 percent consistent.”

Asked what his statement would be on his father's possible release, Dallas said, “I'd highly object to it.”

“Me and my wife tried to get a restraining order against him, Judge Kincannon decided not to. There was so much violence during the divorce [Dwayne Fry and his late wife Luella] that I sent my wife and kids away,” he added.

Fry's younger brother Eldean took the stand and testified that his brother had threatened him by phone about 17 years ago over problems with their mother's property, and that it had created problems between he and his mother.

In closing, Melson pointed out that Fry had asked for a modification for a number of reasons.

“Usually when probation is revoked it's because the individual has been charged with a crime...often convicted of a crime,” Melson pointed out.

Melson then stated that Fry, on the stand in September of 2005, admitted to having broken some of the provisions in his probation. But Melson then argued that none of those infractions were of the gravity usual to a revocation. He then pointed out that Fry was at the highest level of risk, (trust), in a minimum security prison.

“What you have here is a family feud that rose out of a divorce, and a lot of property. He's never struck anybody. Did he strike Judge Leach,” Melson asked.

“He seems to be the only one in the immediate family who cares about his mother, and he's still facing this Federal hold,” Melson said.

Melson then admitted that his client had made errors. “I think he often speaks when he should be listening. I've heard a lot about what he's said, but nothing about what he's done. I think he deserves some kind of modification,” Melson concluded.

Versteeg pointed out that the probation was revoked because Fry was flagrant about his disobeying the rules.

“He's the one who is going to have to show that the public won't be endangered.”

Versteeg held up the jailhouse statement made by Taylor , “You know it's kinda hard to make this stuff up.”

This defendant has three felony convictions. He is a habitual criminal. He has shown himself worthy of incarceration. “They (the individuals threatened) are entitled to sleep at night,” Versteeg said.

As many of those who testified for both sides waited for Zigler's decision, Jessie Nall, lovingly stroked Norma Leach's hair.

In his decision, Judge said that Fry had violated his probation numerous times.

“Historically he hasn't done what he said he would. He hasn't followed the rules of probation.

Zigler pointed out that his good report from Lexington was in his opinion because Fry was now in a very structured environment.

“I have some concerns if over the long haul it will stick. I have heard testimony that gives me concern,” Zigler said.

“If my son had to testify as Dallas Fry had to do today, it would be appropriate that I was in prison somewhere,” Zigler said.

“Motion for modification is denied.”

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