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.




Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017           Page 1 of 19
                                             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


      Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017   Page 2 of 19
      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.


      Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017   Page 3 of 19
      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
      Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017   Page 4 of 19
      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

      Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017   Page 5 of 19
       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.

       Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017              Page 6 of 19
[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).

       Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017   Page 7 of 19
[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.

       Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017   Page 8 of 19
[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:




       Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017   Page 9 of 19
               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


       Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017   Page 10 of 19
                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.

       Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017                Page 11 of 19
               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




       Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017   Page 12 of 19
       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.”

       Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017            Page 13 of 19
       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.”

       Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017            Page 14 of 19
       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.

       Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017              Page 15 of 19
               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).

       Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017            Page 16 of 19
       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.




       Court of Appeals of Indiana | Memorandum Decision 43A03-1611-CR-2594 | July 10, 2017   Page 17 of 19
[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
