MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be
                                                                     Jan 30 2017, 10:04 am
regarded as precedent or cited before any
court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Corey L. Scott                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Dwayne Casteel,                                          January 30, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1606-CR-1476
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Lisa F. Borges,
Appellee-Plaintiff                                       Judge
                                                         The Honorable Richard
                                                         Hagenmaier, Commissioner
                                                         Trial Court Cause No.
                                                         49G04-1510-F5-36410



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017       Page 1 of 9
                                               Case Summary


[1]   Following a jury trial, Dwayne Casteel was convicted of robbery as a Level 5

      felony. Casteel raises two issues on appeal:

              1. Did the trial court abuse its discretion in admitting hearsay?


              2. Did the State present sufficient evidence to support Casteel’s
              conviction?


[2]   We affirm.


                                       Facts & Procedural History


[3]   During the early morning hours on October 10, 2015, Glen Julbert contacted a

      woman who was offering massage services on backpage.com, a website

      commonly used to advertise escort services. Julbert and the woman, who called

      herself China but was later identified as Mary Day, agreed on a price of $60-65

      for a thirty-minute massage, and Day provided Julbert with the address of her

      apartment.


[4]   Julbert arrived at Day’s apartment at approximately 2:00 a.m. Day, who

      Julbert recognized as the woman in the photos on the backpage.com

      advertisement, answered the door and invited him inside. Day was wearing a

      handgun in a holster. The two sat down and talked for approximately ten

      minutes before Day directed Julbert to her bathroom and told him to undress

      down to his boxers. Julbert did as he was instructed and came out of the


      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017   Page 2 of 9
      bathroom a few minutes later wearing only his boxers and carrying the rest of

      his clothing. Day was not there when he returned, so Julbert put his clothes

      down and sat in a chair. Day then emerged from a walk-in closet and sat across

      from Julbert.


[5]   Moments later, three men rushed into the apartment. The first man to enter,

      who was later identified as Casteel, was armed with a handgun and pointed it at

      Julbert. Casteel ordered Julbert to get on the ground and demanded his wallet.

      Julbert told Casteel his wallet was in his pants, and Casteel retrieved it and took

      the $410 he found inside. Casteel gave Julbert back his empty wallet and

      ordered him to get dressed. While Julbert was getting dressed, Casteel took

      Julbert’s cell phone and his pack of cigarettes from a table. Once Julbert was

      dressed, Casteel told him to leave and threatened to kill him if he called the

      police. Julbert then left the apartment.


[6]   Initially, Julbert did not tell anyone what had happened because he was

      embarrassed and he did not want to call the police because Casteel had

      threatened him. Later that day, however, Julbert learned that his cell phone

      was being used to send vulgar messages to his daughters. Julbert then told his

      brother what had happened, and his brother encouraged him to call the police.

      Julbert did so, and two police officers met with him in a park across the street

      from Day’s apartment. Julbert explained what happened, provided descriptions

      of the suspects, and showed the officers Day’s apartment building and her

      backpage.com advertisement.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017   Page 3 of 9
[7]    At the officers’ request, Julbert knocked on the door of Day’s apartment while

       the officers waited nearby. Day did not open the door, but she asked who was

       there. Julbert told her that he wanted his phone back, and Day responded that

       she did not have his phone and did not know what he was talking about.

       Julbert left the apartment door, but the officers asked him to try knocking on

       the door one more time. Julbert did so, and he again told Day that he wanted

       his phone back. Day responded that she was going to get her boyfriend.


[8]    Moments later, the door flew open and Casteel stepped out. Julbert stepped

       back and the police officers came around the corner with weapons drawn and

       took Casteel into custody. During a sweep of the apartment, police found Day

       hiding under a pile of clothes in a bedroom closet.


[9]    As a result of these events, Casteel was charged with robbery as a Level 5

       felony. A jury trial was held on June 9, 2016, at the conclusion of which

       Casteel was found guilty as charged. The trial court sentenced Casteel to six

       years in the Department of Correction. Casteel now appeals.


                                           Discussion & Decision

                                          1. Admission of Testimony


[10]   Casteel argues that the trial court abused its discretion in admitting hearsay

       testimony. The decision to admit or exclude evidence lies within the trial

       court’s sound discretion. Filice v. State, 886 N.E.2d 24, 34 (Ind. Ct. App. 2008),

       trans. denied. An abuse of discretion occurs when the trial court’s decision is

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017   Page 4 of 9
       against the logic and effect of the facts and circumstances before it. Dixon v.

       State, 967 N.E.2d 1090, 1092 (Ind. Ct. App. 2012). Moreover, even if the trial

       court abuses its discretion in admitting evidence, we will not reverse if the error

       was harmless. Id. An error in the admission of evidence is harmless “when the

       conviction is supported by such substantial independent evidence of guilt as to

       satisfy the reviewing court that there is no substantial likelihood that the

       questioned evidence contributed to the conviction.” Granger v. State, 946 N.E.2d

       1209, 1213 (Ind. Ct. App. 2011) (quoting Lafayette v. State, 917 N.E.2d 660, 666

       (Ind. 2009)). In other words, we will reverse “only if the record as a whole

       discloses that the erroneously admitted evidence was likely to have had a

       prejudicial impact upon the mind of the average juror, thereby contributing to

       the verdict.” Id. (quoting Wales v. State, 768 N.E.2d 513, 521 (Ind. Ct. App.

       2002), trans. denied).


[11]   Casteel argues that the trial court abused its discretion when it allowed

       Detective Jerry Townsend to testify that other officers informed him that a

       handgun had been located inside the apartment. Specifically, Detective

       Townsend testified as follows:


               Q: At some point, did you receive knowledge of a gun being
               located?


               A: Yes.


               Q: What did you – what did you decide to do with that
               knowledge?


       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017   Page 5 of 9
                  A: I decided to leave the gun where it was. It was – I was told
                  that the gun was in a bag.


                  DEFENSE: Objection, this is hearsay.


                  THE COURT: Well, he could testify what he did or did not do,
                  so I’m going to overrule it at this point.


       Transcript at 95. On cross-examination, Detective Townsend clarified that he

       had never personally seen the gun and that the gun was reportedly found in

       Day’s purse. Detective Townsend testified further that he did not collect the

       gun as evidence because he was very ill that day, and obtaining a warrant to

       seize the gun would have extended his investigation by several hours.1


[12]   Casteel reasserts his hearsay objection on appeal, but he has failed to cite a rule

       of evidence or any other legal authority relevant to his claim that Detective

       Townsend’s testimony was inadmissible hearsay. Accordingly, his hearsay

       argument is waived. See Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App.

       2005) (explaining that “[a] party waives an issue where the party fails to

       develop a cogent argument or provide adequate citation to authority and

       portions of the record”), trans. denied. We further note that instead of

       developing his hearsay argument, he argues that because Detective Townsend

       had no personal knowledge that a gun had been located, he “clearly was not a

       competent witness to testify about the gun in question.” Appellant’s Brief at 12.



       1
           The next day, Detective Townsend was admitted to the hospital and diagnosed with diverticulitis.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017            Page 6 of 9
       This argument is more in the nature of a claim that Detective Townsend’s

       testimony violated Ind. Evidence Rule 602, which provides that “[a] witness

       may testify to a matter only if evidence is introduced sufficient to support a

       finding that the witness has personal knowledge of the matter.” Because

       Casteel did not object on this basis below, any argument in this regard is also

       waived. See Bush v. State, 929 N.E.2d 897, 989 (Ind. Ct. App. 2010) (explaining

       that a party may not object to the admission of evidence on one basis at trial

       and seek reversal on another basis on appeal).


[13]   Waiver notwithstanding, and assuming arguendo that Detective Townsend’s

       testimony was inadmissible, we conclude that any error in its admission was

       harmless. As an initial matter, Julbert testified that when he met Day at her

       apartment, she was wearing a handgun in a holster, and Detective Townsend

       testified that he was told that a gun was found in Day’s purse. Under these

       circumstances, it seems highly likely that the jury believed that the gun

       reportedly found in Day’s purse belonged to Day rather than Casteel. We note

       further that Detective Townsend was cross-examined thoroughly regarding the

       gun, and it was made clear to the jury that he had never personally seen a gun

       and that he took no steps to ensure that the gun was collected as evidence. For

       these reasons, we conclude it was unlikely that the testimony contributed to the

       jury’s verdict. Because any error in the admission of Detective Townsend’s

       testimony was harmless, Casteel is not entitled to reversal on that basis.

                                         2. Sufficiency of the Evidence



       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017   Page 7 of 9
[14]   Casteel also argues that the State presented insufficient evidence to support his

       conviction. In reviewing a challenge to the sufficiency of the evidence, we

       neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v.

       State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we consider only the

       evidence supporting the conviction and the reasonable inferences flowing

       therefrom. Id. If there is substantial evidence of probative value from which a

       reasonable trier of fact could have drawn the conclusion that the defendant was

       guilty of the crime charged beyond a reasonable doubt, the judgment will not be

       disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It

       is not necessary that the evidence overcome every reasonable hypothesis of

       innocence; rather, the evidence is sufficient if an inference may reasonably be

       drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144, 147

       (Ind. 2007). The uncorroborated testimony of a victim alone is sufficient to

       support a conviction. Jenkins v. State, 34 N.E.3d 258, 262 (Ind. Ct. App. 2015),

       trans. denied.


[15]   Although Casteel cites the applicable standard of review, he completely

       disregards it. His arguments are nothing more than blatant requests to reweigh

       the evidence and judge the credibility of witnesses, which we will not do on

       appeal. Julbert testified that Casteel stole his money, cell phone, and cigarettes

       while holding him at gunpoint. This testimony was plainly sufficient to support

       Casteel’s conviction for robbery as a Level 5 felony. See Ind. Code § 35-42-5-1

       (providing that “[a] person who knowingly or intentionally takes property from

       another person or from the presence of another person . . . by using or

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017   Page 8 of 9
       threatening the use of force on any person . . . commits robbery, a Level 5

       felony”).


[16]   Judgment affirmed.


[17]   Riley, J. and Crone, J., concur.




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