Kyle DeHart v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 10 2017, 5:28 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lawrence M. Hansen Curtis T. Hill, Jr.
Hansen Law Firm, LLC Attorney General of Indiana
Noblesville, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kyle DeHart, July 10, 2017
Appellant-Defendant, Court of Appeals Case No.
43A03-1611-CR-2594
v. Appeal from the Kosciusko Circuit
Court
State of Indiana, The Honorable Michael W. Reed,
Appellee-Plaintiff Judge
Trial Court Cause No.
43C01-1503-MR-2
Crone, Judge.
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Case Summary
[1] Kyle DeHart, Brandon Woody, and Thomas Hursey went to Tara Thornburg’s
home and asked to purchase marijuana. They did not intend to pay for it,
however, and Woody fatally shot Thornburg and her boyfriend Joshua Knisely
during the robbery. The State charged both DeHart and Woody with two
counts of murder and also charged DeHart with obstruction of justice. Over
DeHart’s objection, he was tried together with Woody. Hursey, who was also
charged with murder, testified against them. The jury found DeHart and
Woody guilty as charged.
[2] On appeal, DeHart raises four arguments: (1) the State failed to present
sufficient evidence to support his convictions; (2) the trial court abused its
discretion in denying his motion for a separate trial; (3) the trial court abused its
discretion in admitting evidence regarding rap songs; and (4) the trial court
abused its discretion in admitting evidence regarding Woody’s rap performance
with a handgun at a party. Finding the evidence sufficient and no reversible
error, we affirm DeHart’s convictions.
Facts and Procedural History
[3] The facts most favorable to the convictions follow. DeHart was born in 1992.
He and Woody went to high school together and were close friends. DeHart
and Hursey were incarcerated together in 2013 and 2014 and became “[r]eally
close” during that time. Tr. Vol. 3 at 36. Hursey got to know Woody in early
2015 and “accepted him because he was [DeHart’s] friend.” Id. at 37. On
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February 18, 2015, the three men spent most of the day together. They also
spent time with Jacob Larkin, who had bought an eighth of an ounce of “really
good” marijuana from Thornburg earlier that day. Tr. Vol. 5 at 132. The four
men went to DeHart’s house and smoked some of Larkin’s marijuana. They
drove around, dropped Larkin at his house, and returned to DeHart’s house.
Hursey went into a room on the ground floor, and DeHart and Woody went
upstairs. They came downstairs about twenty minutes later, and DeHart told
Hursey that they were “trying to go pick up some weed.” Tr. Vol. 3 at 47.
DeHart also said, “[J]ust so you know we don’t intend on paying for these
trees[,]” i.e., the marijuana. Id. at 48. According to Hursey, “it was established
that [DeHart and Woody] planned on rolling [Thornburg]. So basically talk her
out of her weed, promise to pay her and later not do it.” Id. at 49.
Unbeknownst to Hursey, DeHart and Woody also planned to bind Thornburg
with duct tape and slit her throat.
[4] The trio drove to Thornburg’s house and arrived around midnight. DeHart saw
Knisely’s vehicle parked outside and said, “[O]ld boy’s here.” Id. Woody
replied, “I ain’t worried about him.” Id. The three men walked through an
alley to the door. DeHart was carrying a black bag containing a roll of duct
tape and a utility knife. Woody knocked on the door. Thornburg, who had
dated Woody in high school, let them in and led them to an upstairs room
where Knisely was sleeping on a bed. Thornburg and her three visitors sat
down and smoked marijuana. Woody asked Thornburg how much marijuana
she had. She told him “somewhere around an ounce, maybe a little more.” Id.
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at 51. Woody said, “I want it all.” Id. She asked him if he had “the money to
cover that[,]” and he said, “[Y]eah, no problem.” Id. Thornburg weighed out
an ounce of marijuana, put it in a plastic bag, and gave it to Woody. Woody
gave the bag to DeHart and “wink[ed] at him.” Id. Thornburg asked for the
money. Woody said, “[I]t’s out in the car, you know, I gotta go get it.” Id.
Thornburg said, “You’re not going to do this to me Brandon.” Id.
[5] Woody removed one of his gloves, revealing a latex glove underneath. He then
took a nine-millimeter handgun out of his sweatpants, stood up, and pulled
back the slide. Thornburg started “screaming telling him he ain’t gonna do this,
he’s not gonna do this.” Id. at 52. Hursey and DeHart “jumped up
simultaneously[.]” Id. Woody punched Thornburg and shot her in the face.
Hursey saw her fall “backwards motionless” in her chair. Id. He also saw that
Knisely was “awake in the bed now.” Id. Hursey and DeHart ran downstairs
to the car. Woody shot Knisely in the back of the neck, killing him instantly.
Woody got into the car, and DeHart drove off. Woody told Hursey that if he
“ever said anything about what [he] just saw [he] was going to get the same
thing they just got.” Id. at 53. DeHart threw his shoes out the car window and
“made the comment it’s trash day tomorrow[,]” so Woody dropped his
handgun in a trash can en route to DeHart’s house. Id. at 55.
[6] When they arrived at DeHart’s house, Woody started cutting the soles off his
shoes. DeHart said, “[N]o, you gotta burn them. You gotta make them
disappear.” Id. at 56. DeHart asked Hursey to get a bottle of lighter fluid from
a nearby shelf. Hursey handed the bottle to Woody, who used the lighter fluid
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to set his shoes on fire in the backyard. DeHart picked up some gloves and hats
and told Woody to burn those too because “[h]e didn’t know which ones had
the gunpowder on them.” Id. at 57. The stolen marijuana was “dumped” on a
table, and DeHart “told Woody to burn the [plastic] bag” because Thornburg’s
“prints would be on it.” Id.
[7] Woody then emptied the black bag that DeHart had brought to Thornburg’s
house, and “a utility knife hit the table.” Id. Woody remarked, “[G]ee, the
duct tape is missing.” Id. DeHart told him to look for it. Woody searched the
car and said, “[I]t’s not out there.” Id. at 58. DeHart asked where it was, and
Woody “said it’s either in [Thornburg’s] house somewhere or the alley.” Id. at
58. DeHart replied, “[Y]ou’re stupid, you’re stupid.… [Y]ou just took two
lives for an ounce of weed.” Id. Woody said that Thornburg was “getting too
loud[,]” and he thought that “she was going to wake up the grandma that was
at the residence[,]” so he “panicked and shot her.” Id. He also said that “the
gun had jammed and that he had dropped all the rounds except for the last one
on the floor[,]” and “he shot [Knisely] in the head and [saw] his brains fly out
with the last bullet.” Id. Woody said that he “couldn’t stick to the original
plan” because DeHart and Hursey “ran out of the house[,]” so he “couldn’t
very well tape [Thornburg] up and slit her throat[.]” Id. at 59.
[8] At 12:29 a.m., Thornburg called 911 and told the operator that Woody had
“knocked [her] out and shot [her] boyfriend.” State’s Ex. 2. Thornburg was
still alive when police arrived, and she told them that Woody was the shooter.
She later died from “a shock wave type trauma to the brain” as a result of the
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shooting. Tr. Vol. 5 at 46. In her bedroom, police found a roll of duct tape, a
glove, two nine-millimeter shell casings, and three live nine-millimeter rounds.
That afternoon, police officers apprehended Woody at a gas station in a vehicle
registered to DeHart’s mother.
[9] Hursey initially denied that he or the others were involved in the crimes, but he
later told police where DeHart discarded his shoes and Woody discarded his
handgun. Police searched the roadside and found a pair of shoes that were
“similar in size, shape and tread design” to “impressions made in the snow”
outside Thornburg’s home “on the night of the shooting.” Tr. Vol. 4 at 166.
Woody’s handgun was never found. At DeHart’s house, police found a pile of
burned clothes and shoes, a bottle of lighter fluid, a utility knife, and DeHart’s
black bag.
[10] The State charged DeHart with two counts of murder, alleging that he
knowingly or intentionally committed or attempted to commit robbery, during
which Thornburg and Knisely were killed.1 The State also charged DeHart
with one count of level 6 felony obstruction of justice, alleging that he “burned
[the] coat, gloves and shoes used in the crime of robbery and/or murder[.]”
Appellant’s App. Vol. 4 at 21. The State charged Woody with two counts of
murder, alleging that he knowingly or intentionally killed Thornburg and
Knisely. The State also charged Hursey with murder.
1
Robbery is the knowing or intentional taking of property from another person or from the presence of
another person by using or threatening the use of force on any person or by putting any person in fear. Ind.
Code § 35-42-5-1.
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[11] The State filed a motion to join the defendants, which the trial court granted.
DeHart filed a motion for a separate trial, which the trial court granted as to
Hursey but denied as to Woody. DeHart and Woody’s jury trial occurred in
October 2016. Hursey testified for the State. Neither DeHart nor Woody
testified. The jury found them guilty as charged. The trial court imposed
consecutive fifty-five-year sentences for DeHart’s murder convictions and a
concurrent one-year sentence for the obstruction of justice conviction, for an
aggregate sentence of 110 years. DeHart now appeals. Additional facts will be
provided as necessary.
Discussion and Decision
Section 1 – DeHart’s convictions are supported by sufficient
evidence.
[12] DeHart contends that the State failed to present sufficient evidence to support
his convictions. When reviewing a sufficiency claim, we neither reweigh
evidence nor judge witness credibility. Wood v. State, 999 N.E.2d 1054, 1063
(Ind. Ct. App. 2013), trans. denied (2014), cert. denied. “[R]ather, we consider
only the evidence and reasonable inferences most favorable to the verdict.” Id.
“The factfinder is obliged to determine not only whom to believe, but also what
portions of conflicting testimony to believe, and is not required to believe a
witness’[s] testimony even when it is uncontradicted.” Id. at 1064 (citation
omitted). “[I]f the testimony believed by the trier of fact is enough to support
the verdict, then the reviewing court will not disturb it.” Bell v. State, 31 N.E.3d
495, 500 (Ind. 2015).
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[13] DeHart’s argument is essentially an elaborate invitation to reweigh evidence
and judge witness credibility, especially that of Hursey, the only eyewitness to
testify about DeHart’s involvement in the crimes. DeHart harps on Hursey’s
initial denial of his and the others’ culpability, his history as a confidential
informant, and his possible motives for testifying against his accomplices. The
jury was made aware of all that and chose to believe Hursey’s trial testimony
regarding the murders and obstruction of justice. Contrary to DeHart’s
assertion, this testimony was not equivocal, inconsistent, or inherently
improbable, and key aspects of it were supported by circumstantial evidence.2
In accordance with our standard of review, we must decline DeHart’s invitation
to second-guess Hursey’s credibility and the jury’s verdicts.
Section 2 – The trial court did not abuse its discretion in
denying DeHart’s motion for a separate trial.
[14] Indiana Code Section 35-34-1-9(b) allows the State to try two or more
defendants together. If a defendant moves for a separate trial, Indiana Code
Section 35-34-1-11(b) provides that the court “shall” order a separate trial
whenever it “determines that a separate trial is … appropriate to promote a fair
determination of the guilt or innocence of a defendant.” To show an abuse of
discretion in the denial of a motion for a separate trial, “an appellant must show
that in light of what occurred at trial, the denial of a separate trial subjected him
to actual prejudice.” Peck v. State, 563 N.E.2d 554, 557 (Ind. 1990).
2
Consequently, we reject DeHart’s incredible dubiosity claim.
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[15] DeHart claims that he “was prejudiced by the introduction of evidence against
Woody which would not be admissible in a trial against DeHart alone,”
Appellant’s Br. at 24, yet he cites no authority to support this claim. “Bald
assertions of error unsupported by either cogent argument or citation to
authority result in waiver of any error on review.” Pasha v. State, 524 N.E.2d
310, 314 (Ind. 1988). DeHart also notes that “a trial court is required to grant
severance where the parties[’] defenses are mutually antagonistic and
acceptance of one party’s defense precludes the acquittal of the other.”
Appellant’s Br. at 22 (citing Lampkins v. State, 682 N.E.2d 1268, 1272 (Ind.
1997)). In this case, the parties’ defenses were not mutually antagonistic, and
acceptance of one party’s defense would not have precluded the acquittal of the
other: Woody blamed Hursey for the murders, and DeHart claimed that he
was at home that night. See Tr. Vol. 3 at 10-13 (opening statements); Tr. Vol. 6
at 34-63 (closing arguments).
[16] DeHart also complains about “the unending drumbeat of the State arguing that
both defendants were together all the time” and therefore must have
“committed these murders together[,]” as well as about Jacob Larkin’s
testimony that he “wished DeHart would cut his ties” to Woody. Appellant’s
Br. at 24, 25. We are unpersuaded by DeHart’s complaints because the State
could have (and likely would have) elicited the same evidence against him if he
had been tried separately. Moreover, we note that the trial court instructed the
jury as follows:
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You must consider each crime and the evidence bearing upon it
separately, for you to convict either defendant of all or any
number of the crimes, you must be convinced beyond a
reasonable doubt that the State has proven each of the elements
of the crimes upon which you convict either Defendant. You
cannot lump the evidence or crimes together and you should, of
course, not convict … either Defendant of a crime upon which
you are not convinced beyond a reasonable doubt of his guilt
simply because you convict him of another crime concerning
which you are so convinced.
Appellant’s App. Vol. 2 at 76. “We presume that the jury follows the trial
court’s instructions.” Harris v. State, 824 N.E.2d 432, 440 (Ind. Ct. App. 2005).
In sum, DeHart has failed to establish that he was actually prejudiced by the
joint trial, and therefore we find no abuse of discretion in the denial of his
motion for a separate trial.
Section 3 – The trial court did not commit reversible error in
admitting evidence regarding rap songs.
[17] DeHart contends that the trial court erred in admitting evidence about rap
songs performed by him and/or Woody. The decision to admit or exclude
evidence is a matter within the trial court’s sound discretion. Green v. State, 65
N.E.3d 620, 630 (Ind. Ct. App. 2016), trans. denied (2017).
An abuse of discretion occurs where the trial court’s decision is
clearly against the logic and effect of the facts and circumstances
of the case or misinterprets the law. We afford an evidentiary
decision great deference upon appeal and reverse only when a
manifest abuse of discretion denies the defendant a fair trial. In
determining whether an evidentiary ruling affected a party’s
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substantial rights, we assess the probable impact of the evidence
on the trier of fact.
Id. (citations omitted). “The improper admission of evidence is harmless error
when the conviction is supported by substantial independent evidence of guilt
as to satisfy the reviewing court that there is no substantial likelihood the
questioned evidence contributed to the conviction.” Martin v. State, 779 N.E.2d
1235, 1242 (Ind. Ct. App. 2002), trans. denied (2003).
[18] At trial, State’s witness Nelson Blocher testified that he was “friends” with both
DeHart and Woody, that he had “hung out” with them, and that they had
performed rap songs for him. Tr. Vol. 4 at 4, 10. At the State’s request, the
trial court excused the jury so the parties could argue the admissibility of
transcribed lyrics and audiorecordings of three rap songs, the first of which is
titled “What’s Beef?” State’s Ex. 17.3 Blocher testified that both DeHart and
Woody had performed the song in the past and that he was “pretty sure” that
Woody had written the song “before 2012.” Tr. Vol. 4 at 18. According to
Blocher, only Woody’s voice was on the recording. In advocating its
admissibility, the State emphasized the following lyrics:
Pop, Pop, Pop
…
When that bullet leaves its 9 you gonna be the one deceased
…
3
The source of the transcriptions and the songs’ titles is unclear. We use the titles that appear on the
transcriptions.
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Type to shoot you in your f**kin’ face
Beat so raw, head ringin’ from the base
…
Ain’t no goin’ back you could get smoked like crack
You think you’re tough sh*t but I’ma show you what you lack
Put a pistol in your face have you starin’ at the mack
Pistol whip a b*tch have your [sic] ringin’ like a bell
Tell my homey I said, “what’s up” when he greet you in hell
State’s Ex. 17.
[19] Regarding the second song, “KD freestyle Feb. 17,” Blocher testified that both
DeHart’s and Woody’s voices were on the recording but that he did not know
who wrote it or when it was written. The State highlighted the following lyrics:
“Wouldn’t give a f**k cuz I’ll bust you f**kin’ tooth.… No weed, grab weed,
take it to the death, Wouldn’t give a f**k, what you talkin’ ’bout my n*gga,
Wouldn’t give a f**k, he pull the f**kin’ trigger.” State’s Ex. 18.
[20] And as for the third song, “Or naw (remix),” Blocher testified that both
DeHart’s and Woody’s voices were on the recording, that he did not know who
wrote it, and that he had heard Woody perform it “a few months prior” to the
shooting. Tr. Vol. 4 at 19. The State emphasized the following lyrics: “Talk
too much, I’ll duct tape your mouth, … 9 milly gotta date with you, Leave your
face, chopped and screwed, Take ya dough, I[’]m hella rude[.]” State’s Ex. 19.
[21] DeHart objected to the admission of the lyrics and recordings on several
grounds: that they were cumulative; that they were irrelevant (and therefore
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inadmissible4) pursuant to Indiana Evidence Rule 401; that any probative value
was substantially outweighed by the danger of unfair prejudice pursuant to
Indiana Evidence Rule 403; that “What’s Beef?” was too “remote in time” to
the offenses; and that the other songs lacked foundation because the authors
and dates of authorship were unknown. Tr. Vol. 4 at 20. DeHart also joined in
Woody’s objection that the lyrics and recordings were inadmissible prior bad
acts evidence pursuant to Indiana Evidence Rule 404(b).5 In response, the State
argued that the evidence was admissible to show “both intent and motive on
both of the Defendants” and that the foregoing lyrics demonstrated the songs’
relevance to the case. Id. at 24.
[22] The trial court concluded that admitting the evidence was “probably the right
thing to do,” id. at 26-27, citing Bryant v. State, 802 N.E.2d 486 (Ind. Ct. App.
2004), trans. denied. In that case, the defendant was accused of murdering his
stepmother Carol and putting her body in the trunk of her car. At trial, the
State offered into evidence “two rap song lyrics that Bryant either composed or
plagiarized” as “an indication of Bryant’s intent regarding Carol’s murder.
Both sets of lyrics contained the line: ‘Cuz the 5-0 won’t even know who you
are when they pull yo ugly ass out the trunk of my car.’” Id. at 498. On appeal,
Bryant argued that “this evidence was irrelevant, prejudicial and constituted
4
See Ind. Evidence Rule 402 (“Irrelevant evidence is not admissible.”).
5
Evidence Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted in accordance with the
character” but “may be admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
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impermissible character evidence.” Id. Another panel of this Court noted that
“evidence is relevant where it has ‘any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or
less probable than it would be without the evidence.’” Id. (quoting then-current
version of Ind. Evidence Rule 401).6 The panel concluded that,
[i]nasmuch as Carol’s body was recovered from the trunk of her
car, and Bryant had driven that vehicle for several days visiting
friends and telling them that he was the owner, the reference in
the exhibits to finding a body in the trunk of “my car” made it
more probable that Bryant killed Carol and placed her body in
the trunk. Thus, such evidence was relevant, and the trial court
did not abuse its discretion in admitting the exhibits on this basis.
Id.
[23] In this case, however, the contested evidence has considerably less probative
value as to whether Woody and DeHart committed the charged crimes.
Woody wrote “What’s Beef?” more than three years before the murders, and
Blocher either did not know or did not testify about when or by whom the other
songs were written or when they were recorded. The songs do not specifically
mention Thornburg, nor do they mention Woody and DeHart’s original plan to
slit her throat with a utility knife; according to Hursey, Woody said that he shot
Thornburg because he “panicked[.]” Tr. Vol. 3 at 58. Thus, the songs’
references to handguns and shootings are significantly less prescient and
6
Evidence Rule 401 now states, “Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”
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probative than they might appear. Cf. State v. Skinner, 95 A.3d 236, 252 (N.J.
2014) (“Had defendant in this case rapped for seven minutes about murdering a
man named ‘Peterson,’ or described in his rap lyrics the exact manner in which
Peterson was to be killed, his writings would obviously hold more probative
value.”). Robbing and killing drug dealers is not unheard of in our society, nor
is rapping about such activities, which is not illegal. The mere fact that Woody
and DeHart rapped about stealing marijuana and shooting someone in the face
before they robbed and killed Thornburg (and Knisely, who was in the wrong
place at the wrong time) has only the slightest tendency to prove that they
committed robbery and murder.
[24] Indiana Evidence Rule 403 provides that the court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of unfair
prejudice.7 We review this balancing for an abuse of discretion. Dunlap v. State,
761 N.E.2d 837, 842 (Ind. 2002). All relevant evidence is inherently prejudicial
in a criminal case; “[w]hen determining likely unfair prejudicial impact, ‘courts
will look for the dangers that the jury will substantially overestimate the value
of the evidence or that the evidence will arouse or inflame the passions or
sympathies of the jury.’” Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002).
(quoting Evans v. State, 643 N.E.2d 877, 880 (Ind. 1994)). A respected jurist and
legal scholar has stated,
7
In Bryant, the court disposed of the defendant’s Evidence Rule 403 argument by noting that he had “insisted
on including the exhibits in their entirety if any part of them was to be admitted” and thus “invited any unfair
prejudice resulting from the contents of the exhibits ….” 802 N.E.2d at 499. That did not happen here.
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A judge balancing probative value against unfair prejudice should
focus on the incremental effect of the challenged evidence, and
weigh the additional probative value provided by the challenged
evidence in light of other evidence already in the case against the
additional potential for unfair prejudice in light of other evidence
already in the case.
12 ROBERT LOWELL MILLER, JR., INDIANA PRACTICE SERIES, INDIANA
EVIDENCE § 403.102 (4th ed. Dec. 2016 update) (citing Asher v. State, 790
N.E.2d 567, 570 (Ind. Ct. App. 2003)). Here, any additional probative value
provided by the rap song evidence was minimal in light of other evidence
already in the case, especially Hursey’s eyewitness testimony, and the
additional potential for unfair prejudice was significant in light of other
evidence already in the case, especially because of the songs’ profanity-laden
glorification of violence, drugs, and sex.8 Based on the foregoing, we conclude
that the minimal probative value of the rap song evidence was substantially
outweighed by a danger of unfair prejudice and that the trial court abused its
discretion in admitting that evidence.9
[25] That said, we note that Thornburg, who had known Woody since high school,
identified him as the person who shot her and Knisely. Both Larkin and
Hursey placed DeHart with Woody after 11:00 p.m. on the night of the
8
See State’s Ex. 19 (“Bustas wanna talk, so lets talk your girlfriend’s bra/She took it off, now its on the
ground, she bent over,/And I put it down, I’m a real G, you just a clown … Imma count this cash, then I’ll
eat that p***y out/P***y real good, but dat papers what Im ‘bout”).
9
Because we decide the issue based on Evidence Rule 403, we do not address DeHart’s argument regarding
Evidence Rule 404(b).
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murders, contrary to the alibi testimony given by DeHart’s father. Hursey
testified to DeHart’s participation in the robbery and his efforts to hide or
destroy evidence of the crimes, and police found a pair of shoes on the side of
the road and a pile of burnt clothing and shoes at DeHart’s house. The day
after the murders, Woody was found in a vehicle registered to DeHart’s mother.
In light of all this, we are satisfied that there is no substantial likelihood that the
erroneously admitted evidence contributed to DeHart’s convictions.
Section 4 – The trial court did not abuse its discretion in
admitting evidence regarding Woody’s rap performance with a
handgun.
[26] State’s witness John VanderReyden testified that he attended a house party in
December 2014, approximately two months before the murders. DeHart and
Woody were also at the party. During the party, VanderReyden saw Woody
perform a rap song with dance moves. Woody pulled a semiautomatic
handgun out of his pants as part of the performance. He attempted to load the
handgun, and the magazine fell to the floor. He inserted it into the handgun
“following the beat of the music.” Tr. Vol. 5 at 61. Woody then attempted to
chamber a round by pulling back and releasing the slide, but “the slide did not
return in the battery[,]” resulting in what VanderReyden termed a “failure to
feed.” Id. at 64. Woody finished the song and returned the handgun to his
pants. DeHart objected to VanderReyden’s testimony regarding the rap
performance, and the trial court overruled the objection.
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[27] On appeal, DeHart wisely does not argue that the testimony has no probative
value; indeed, the evidence indicated that Woody owned a semiautomatic
handgun and that the feeding mechanism had jammed in the past. But DeHart
does suggest that the probative value was substantially outweighed by the
danger of unfair prejudice pursuant to Evidence Rule 403 because the murder
weapon was never found.10 DeHart relies on Hubbell v. State, 754 N.E.2d 884
(Ind. 2001), in which our supreme court acknowledged the “general
proposition” that “the introduction of weapons not used in the commission of
the crime and not otherwise relevant to the case may have a prejudicial effect.”
Id. at 890 (quoting Lycan v. State, 671 N.E.2d 447, 454 (Ind. Ct. App. 1996)).
The Hubbell court found that the trial court abused its discretion in admitting a
handgun found in the defendant’s home and bullets found in the defendant’s
van because there was no evidence that the handgun was used to abduct or
murder the victim, who had been strangled. In this case, however, the evidence
established that both Thornburg and Knisely were killed by a firearm; that
Woody told Hursey that his handgun jammed and dropped several rounds on
the floor, which were recovered by the police; and that Woody dropped the
10
DeHart also argues that “[a] proper foundation was not laid for any appropriate determination to be made
that [VanderReyden’s] testimony was from a skilled witness that would be helpful to the jury and evidence
constituted impermissible character evidence more prejudicial than probative under rule 404 and 403.”
Appellant’s Br. at 28-29. DeHart cites no authority for any of these arguments, and therefore they are
waived. Pasha, 524 N.E.2d at 314.
Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017 Page 18 of 19
handgun in a trash can after the murders. As such, we find Hubbell
unpersuasive.11
[28] DeHart also suggests that the testimony’s probative value was substantially
outweighed by the danger of unfair prejudice because he was not in the room
with Woody during the rap performance. VanderReyden’s testimony regarding
the performance may have been prejudicial to DeHart, but DeHart has failed to
establish that it was unfairly so, let alone that any unfair prejudice substantially
outweighed the testimony’s probative value. The State never argued that
DeHart murdered Thornburg and Knisely, only that he committed or attempted
to commit a robbery during which they were killed. Therefore, we affirm
DeHart’s convictions.
[29] Affirmed.
Baker, J., and Barnes, J., concur.
11
We are also unpersuaded by DeHart’s reliance on the factually distinguishable United States v. Tanner, 628
F.3d 890 (7th Cir. 2010), cert. denied (2011).
Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017 Page 19 of 19