MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                FILED
regarded as precedent or cited before any                                     May 25 2018, 10:11 am

court except for the purpose of                                                      CLERK
                                                                               Indiana Supreme Court
establishing the defense of res judicata,                                         Court of Appeals
                                                                                    and Tax Court
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                       Curtis T. Hill, Jr.
Brownsburg, Indiana                                   Attorney General of Indiana
                                                      Monika Prekopa Talbot
                                                      Supervising Deputy Attorney
                                                      General
                                                      Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Cory Lee Woody,                                       May 25, 2018
Appellant-Defendant,                                  Court of Appeals Case No.
                                                      49A02-1710-CR-2423
        v.                                            Appeal from the Marion Superior
                                                      Court
State of Indiana                                      The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                   Judge
                                                      Trial Court Cause No.
                                                      49G04-1607-MR-28708



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018             Page 1 of 16
[1]   Cory Lee Woody appeals his convictions for murder and robbery as a level 5

      felony. Woody raises two issues which we revise and restate as:


              I.      Whether the admission of certain testimony resulted in
                      fundamental error; and

              II.     Whether the evidence is sufficient to sustain his
                      convictions.

      We affirm.

                                      Facts and Procedural History

[2]   Woody previously worked in the same building as Joshua Thomas and his wife

      Ashley Thomas, and Woody purchased drugs from Joshua. Joshua sold drugs,

      namely heroin, and used a particular phone for that purpose. He also drove a

      burgundy Chevy Tahoe and carried a gun. Woody lived with girlfriend Lula

      Dawson and drove a gold Ford Taurus which had a paper plate and was

      registered in the name of Dawson.


[3]   At some point on September 25, 2015, Joshua told Ashley that he was leaving

      to make a drug transaction, left home, and later returned. Later that evening,

      Joshua told Ashley that he had to meet Woody, and at around 11:00 p.m., he

      told Ashley that he would be right back and left the house. Also on September

      25, 2015, Woody was at his residence with Dawson, her son, and Woody’s

      long-time friend Ned Casteel. At about 11:00 p.m., Woody asked Casteel to

      take a ride with him. Woody drove his gold Taurus and took a cell phone with

      him which was registered to Dawson. Woody traveled to an area near 42nd

      Street, noted a red Tahoe, and told Casteel “[t]here he is.” Transcript Volume

      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018   Page 2 of 16
      II at 40. Woody opened the door of his vehicle and told Casteel, “[w]hatever

      you do, don’t get out of the car.” Id. Woody walked up to the window of the

      Tahoe, returned to his Taurus, and told Casteel “this wasn’t a good spot” and

      that they were going to follow the Tahoe up the road. Id. at 41. Before they

      left, Woody realized that he had lost his phone, had the person in the Tahoe

      call his phone so he could locate it, and located his phone on the ground

      outside of the Taurus.


[4]   Woody followed the Tahoe onto Crestview Avenue and parked about fifteen

      feet behind the Tahoe. Woody opened the door of his car, leaned down and

      looked at Casteel and said “no matter what, do not get out of the car” and that

      he would be right back, and then walked up to the passenger side of the Tahoe.

      Id. at 42. The next thing Casteel observed was: “Pop. A flash.” Id. Casteel

      saw a “tussling action” and that Woody was in the Tahoe. Id. at 43. Woody

      then ran back to the driver’s door of the Taurus, and Casteel saw that he was

      soaked in blood. When Woody entered his vehicle, he had a necklace, heroin,

      Joshua’s cell phone, a shell casing, and two guns, one of which was his own

      and the other was Joshua’s. Casteel said “[m]an, what did you do,” and

      Woody replied, “I robbed that n-----.” Id. at 45. Woody told Casteel that

      Joshua did not have any money and had only the heroin, a necklace, and the

      gun. Woody said “[m]an, ain’t nobody going to miss that n-----.” Id. Woody

      and Casteel returned to Woody’s residence, Casteel heard Woody tell Dawson

      that “[h]e had to kill the n-----,” and Woody started to clean off his shoes and




      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018   Page 3 of 16
      took a shower. Id. at 47. Woody said there was nothing to worry about, no

      one had seen anything, and he had taken the shell casing.


[5]   Indianapolis Metropolitan Police Officer Darrell Miller was dispatched to

      Crestview Avenue in response to a report of a suspicious vehicle identified as a

      red SUV. Officer Miller arrived at the location within two or three minutes,

      approached the Chevy Tahoe, discovered Joshua in the driver’s seat, and

      requested a medic. Medics arrived and confirmed that Joshua was deceased.

      He had sustained a single gunshot wound with two skin defects, and the bullet

      had entered the right side of his forehead and exited on the left side of his head.

      Police discovered a fired bullet on the floorboard of the Tahoe near the driver’s

      seat.


[6]   When Joshua did not return home by close to midnight, Ashley called his

      phone a number of times but he did not answer. The second time she called

      Joshua’s phone, there “was like a rustling noise” like the call had been

      answered, and then she heard the call hang up. Id. at 117. Joshua’s phone rang

      in Woody’s vehicle, and Woody told Casteel that he had taken Joshua’s phone.

      Ashley left home to look for Joshua, eventually found his Tahoe and police

      vehicles near it, and was later informed that he had been killed. Ashley gave a

      statement to a detective and said that Woody should be investigated. On

      October 17, 2015, police came into contact with Woody and Casteel, and

      Woody was in possession of a nine-millimeter pistol.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018   Page 4 of 16
[7]   The State charged Woody with Count I, murder; Count II, felony murder; and

      Count III, robbery resulting in serious bodily injury as a level 2 felony. At trial

      on August 28 and 29, 2017, the State presented the testimony of, among others,

      Casteel, Ashley, several police investigators, and witnesses who lived on the

      block where the shooting and robbery occurred. Casteel testified that, several

      weeks after the shooting and robbery, he had some involvement with the police

      and provided them with information in the hopes of receiving a deal in that

      case. When asked if he was given a deal in exchange for his testimony in this

      case, he testified: “Not even a consideration. It wasn’t even took it into factor.

      Nothing.” Id. at 49. On cross-examination, Casteel agreed that, when he said

      he did not receive a deal from the State, he was referring to a case in another

      courtroom. He indicated that he was present at the sentencing hearing in that

      other case and that his attorney had raised the fact that he was cooperating in

      this case. When asked “your hope in so doing was that the judge would show

      you leniency based on that; is that right,” Casteel answered “[y]es, but they

      wouldn’t accept it. They said, the State said there was no consideration to be –

      that was it.” Id. at 61. When asked “[y]ou’re saying that the State never . . .

      made you a promise that you were going to get a deal; right,” he replied

      “[n]ever,” and when asked “at your sentencing hearing, you did bring up the

      fact that you were cooperating in another case as a mitigating circumstance;

      your attorney did,” Casteel answered “[t]he words wasn’t cooperating. The

      word was testifying.” Id. On redirect examination, Casteel indicated that he

      had reached out to a detective and asked to speak to him and that the detective

      had told him that he was not going to be charged with anything. At one point,
      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018   Page 5 of 16
      the prosecutor asked Casteel about Woody’s demeanor after Woody returned to

      the Taurus following the shooting, and Casteel replied, “[h]e looked at me,

      man, like it was, it was like, he went and bought a loaf of bread. He looks at

      me and says, ‘man, you ain’t never done that before?’,” and Woody did not

      object. Id. at 45.


[8]   Dorothy Kouroupis testified that, on September 25, 2015, she lived on

      Crestview Avenue, heard a popping sound, immediately jumped to her feet and

      looked out the window, and observed two vehicles parked in front of her house.

      She testified “[o]ne was a Chevy Blazer,” and when asked “when you say

      Chevy Blazer, what type of vehicle,” she said “[i]t was an SUV” and “I just

      specifically recall that SUV.” Id. at 85. She testified the vehicle parked behind

      the SUV was a tan sedan, there were two people in the sedan, the tan sedan

      slowly backed up into a neighbor’s driveway without its lights on, and she

      called the police. Marquetta Johnson testified that, on September 25, 2015, she

      lived on Crestview Avenue and observed a dark red or burgundy Tahoe driving

      slowly with a tan Taurus that had a paper plate following right behind it and

      that two people were in the tan car. She testified that she observed someone

      exit the tan car, that she saw a male figure stand outside the Tahoe, that she

      heard a gunshot and fell to the floor, and that the tan car backed up into a

      driveway of a neighbor with its lights off and then pulled away with its lights

      on. Richard Amberger, a forensic scientist with the Indianapolis Marion

      County Crime Lab, testified that he examined the bullet recovered from the

      floorboard of Joshua’s Tahoe and the firearm later recovered from Woody and


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018   Page 6 of 16
       determined that the bullet had been fired from Woody’s firearm. The State also

       presented evidence regarding phone calls between Joshua’s cell phone and the

       cell phone registered to Dawson and the general locations of the phone

       registered to Dawson on the night of September 25, 2015. The phone records

       show a call between the phones at 11:01 p.m. associated with one cell tower

       and additional calls between the phones at 11:34, 11:35, and 11:36 p.m.

       associated with another cell tower showing that the phone registered to Dawson

       was used in the general area of the murder on Crestview Avenue.


[9]    The jury found Woody guilty as charged. The trial court, due to double

       jeopardy concerns, vacated the count for felony murder and entered the

       conviction for robbery as a level 5 felony. The court sentenced Woody to

       consecutive terms of sixty years for the murder conviction and five years for the

       robbery conviction.


                                                   Discussion

                                                         I.


[10]   The first issue is whether the admission of certain testimony resulted in

       fundamental error. Specifically, Woody asserts the admission of certain

       testimony elicited from Casteel violated Ind. Evidence Rule 404(b). Generally,

       we review the trial court’s ruling on the admission of evidence for an abuse of

       discretion. Whatley v. State, 908 N.E.2d 276, 280 (Ind. Ct. App. 2009), trans.

       denied. Woody failed to object to the admission of the testimony at issue here.

       Failure to object to the admission of evidence at trial normally results in waiver


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018   Page 7 of 16
       and precludes appellate review unless its admission constitutes fundamental

       error. Id. (citing Cutter v. State, 725 N.E.2d 401, 406 (Ind. 2000), reh’g denied).

       Woody argues that the admission of the testimony was fundamental error. To

       rise to the level of fundamental error, an error “must constitute a blatant

       violation of basic principles, the harm or potential for harm must be substantial,

       and the resulting error must deny the defendant fundamental due process.” Id.

       (citing Maul v. State, 731 N.E.2d 438, 440 (Ind. 2000) (citations omitted)). The

       standard for fundamental error is whether the error was so prejudicial to the

       rights of the defendant that a fair trial was impossible. Id. (citing Boatright v.

       State, 759 N.E.2d 1038, 1042 (Ind. 2001)).


[11]   On appeal, Woody asserts that Casteel’s testimony that, after returning to the

       Taurus, Woody asked “man, you ain’t never done that before,” violated Ind.

       Evidence 404(b) and “implied that Woody admitted to committing murder in

       the past.” Appellant’s Brief at 20. He argues he was prejudiced by this

       testimony. The State responds that the prosecutor did not intend to elicit any

       statements from Casteel about any potential prior crimes but rather wished to

       elicit testimony about Woody’s careless and callous attitude toward the victim

       and the crimes he had just committed which is not forbidden by Ind. Evidence

       Rule 404(b). It also argues that no substantial harm to Woody resulted and that

       the challenged statement was one single sentence during a two-day jury trial.


[12]   Ind. Evidence Rule 404(b) provides:


               Other Crimes, Wrongs, or Acts. Evidence of other crimes,
               wrongs, or acts is not admissible to prove the character of a
       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018   Page 8 of 16
               person in order to show action in conformity therewith. It may,
               however, be admissible for other purposes, such as proof of
               motive, intent, preparation, plan, knowledge, identity, or absence
               of mistake or accident, provided that upon request by the
               accused, the prosecution in a criminal case shall provide
               reasonable notice in advance of trial, or during trial if the court
               excuses pre-trial notice on good cause shown, of the general
               nature of any such evidence it intends to introduce at trial.


[13]   Ind. Evidence Rule 403 provides that “[t]he court may exclude relevant

       evidence if its probative value is substantially outweighed by a danger of one or

       more of the following: unfair prejudice, confusing the issues, misleading the

       jury, undue delay, or needlessly presenting cumulative evidence.”


[14]   The standard for assessing the admissibility of Rule 404(b) evidence is: (1) the

       court must determine that the evidence of other crimes, wrongs, or acts is

       relevant to a matter at issue other than the defendant’s propensity to commit the

       charged act; and (2) the court must balance the probative value of the evidence

       against its prejudicial effect pursuant to Rule 403. Whatley, 908 N.E.2d at 281

       (citing Boone v. State, 728 N.E.2d 135, 137-138 (Ind. 2000), reh’g denied; Hicks v.

       State, 690 N.E.2d 215, 221 (Ind. 1997)). The evidence is inadmissible when the

       State offers it only to produce the “forbidden inference” that the defendant has

       engaged in other, uncharged misconduct and the charged conduct was in

       conformity with the uncharged misconduct. Id. (citing Crain v. State, 736

       N.E.2d 1223, 1235 (Ind. 2000)). The trial court has wide latitude, however, in

       weighing the probative value of the evidence against the possible prejudice of its

       admission. Id. If evidence has some purpose besides behavior in conformity


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018   Page 9 of 16
       with a character trait and the balancing test is favorable, the trial court can elect

       to admit the evidence. Id. (citing Boone, 728 N.E.2d at 138). For instance,

       evidence which is necessary for the jury to understand the relationships between

       the victim, various witnesses, and the defendant may be admissible. Id. (citing

       Wilson v. State, 765 N.E.2d 1265, 1270-1271 (Ind. 2002)).


[15]   At trial, the prosecutor elicited testimony from Casteel regarding the interaction

       between Casteel and Woody after Woody returned to the Taurus as follows:


               Q.      Did he say anything to you when he got back into the car?

               A.      Yes. I’m screaming, I’m freaking out, I’m like, “What are
                       you doing? What’s going on, man.” I mean, I’m just, I’m
                       going frantic.

               Q.      You initially thought he had been shot, right? That’s what
                       you said?

               A.      Yes. Yes.

               Q.      Okay. So you’re, as you asking him what had happened
                       in order to figure out what was going on?

               A.      Yeah, I said, “Man, what did you do? What happened?”
                       He said, “I robbed that n-----.” Excuse my language, but
                       that’s what he said.

               Q.      Did he indicate whether or not that person, the person that
                       he said he just robbed had any money on him?

               A.      He said he didn’t have no money. All he had was the
                       heroin, and a necklace, and the pistol. At that point, I
                       didn’t realize he had had something else, till on the drive
                       back.

               Q.      Okay.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018   Page 10 of 16
               A.      Which was a cell phone.

               Q.      Okay. We’ll get there. Um. So you’re freaking out.
                       What’s [Woody’s] demeanor?

               A.      He looked at me, man, like it was, it was like, he went and
                       bought a loaf of bread. He looks at me and says, “man,
                       you ain’t never done that before?”

               Q.      Well, let me, let me ask you this. Does he say anything
                       about, um, his feelings toward the person in the other
                       vehicle?

               A.      He said, “Man, ain’t nobody going to miss that n-----.
                       Didn’t nobody care about him.” And that’s when I
                       proceed to say, “Man, he’s got to have a family, at least a
                       mom, children.”

               Q.      Okay.

               A.      I mean.

               Q.      Did you express to him, to him any concerns about
                       potential forensic evidence against him? Anything like
                       that, that maybe he would get caught?

               A.      Yeah, because he was soaked in blood. And there had to
                       be fingerprints all over that. I mean.

               Q.      What was his response to that?

               A.      Bullshit. That was the, uh, that’s all he needed.


       Transcript Volume 2 at 44-46 (emphasis added).


[16]   The challenged testimony was not introduced to show Woody’s propensity to

       engage in crime or that his behavior was in conformity with a character trait.

       Casteel provided the testimony in response to the prosecutor’s question about

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018   Page 11 of 16
       Woody’s demeanor after he returned to the vehicle, and the prosecutor then

       asked Casteel if Woody said anything about his feelings toward Joshua. The

       prosecutor did not ask Casteel about Woody’s prior conduct, crimes, or

       character. The exchange regarding Woody’s demeanor and disposition showed

       the relationship between Woody, Joshua, and Casteel and the context of the

       events which culminated in Joshua’s death. Further, Casteel’s responses were

       relevant to the plan and motive of Woody as the person who shot Joshua and

       relevant to whether the shooting was a mistake or accident. The admission of

       the challenged response by Casteel did not violate Evidence Rule 404(b).

       Similarly, the probative value of the evidence was not substantially outweighed

       by the danger of unfair prejudice.


[17]   Even assuming Casteel’s statement that Woody asked him “man, you ain’t

       never done that before” was inadmissible, evidence admitted in violation of

       Evidence Rules 403 or 404 does not require a conviction to be reversed “if its

       probable impact on the jury, in light of all the evidence in the case, is

       sufficiently minor so as not to affect a party’s substantial rights.” Houser v. State,

       823 N.E.2d 693, 698 (Ind. 2005) (citations omitted). In light of the overall

       strength of the State’s case and the context of the challenged testimony we

       conclude that the probable impact on the jury was minor.


[18]   Based upon the record, we conclude that any error was not so prejudicial to the

       rights of Woody that a fair trial was impossible. The admission of Casteel’s

       testimony challenged by Woody did not constitute fundamental error.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018   Page 12 of 16
                                                        II.


[19]   The next issue is whether the evidence is sufficient to sustain Woody’s

       convictions. When reviewing claims of insufficiency of the evidence, we do not

       reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656

       N.E.2d 816, 817 (Ind. 1995), reh’g denied. We look to the evidence and the

       reasonable inferences therefrom that support the verdict. Id. The conviction

       will be affirmed if there exists evidence of probative value from which a

       reasonable jury could find the defendant guilty beyond a reasonable doubt. Id.


[20]   Ind. Code § 35-42-1-1 governs the crime of murder and provides that a person

       who knowingly or intentionally kills another human being commits murder, a

       felony. Ind. Code § 35-42-5-1 governs the crime of robbery and provides in part

       that a person who knowingly or intentionally takes 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 commits robbery as a level

       5 felony.


[21]   Woody argues there is no DNA or fingerprint evidence connecting him to the

       offense. He states “[t]he record indicates that [he] was probably at the scene of

       the offense” and argues that his “presence at the crime scene suggests he could

       have robbed and murdered [Joshua], but it does not show beyond a reasonable

       doubt that he committed the offense.” Appellant’s Brief at 15-16. He argues

       that “it is at least equally likely that Casteel killed [Joshua],” that “[l]ike

       Woody, Casteel was a heroin addict” and “had just as much motive as Woody


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018   Page 13 of 16
       to kill [Joshua] and steal his heroin,” and that, although the State did not give

       Casteel any consideration for his testimony, Casteel’s motive for contacting the

       police and testifying against Woody raises serious questions about Casteel’s

       credibility. Id. at 16. He also argues that there is no evidence that Casteel’s

       telephone records were ever checked.


[22]   The State maintains that the evidence is more than sufficient to sustain

       Woody’s convictions and points to the testimony of Casteel as well as the

       witnesses who observed the Taurus driven by Woody at the scene of the murder

       and robbery, the multiple calls between Joshua’s phone and the phone

       registered to Woody’s girlfriend at the time of the murder, Woody’s statements

       to Casteel and Dawson following the shooting, and the fact the bullet recovered

       from Joshua’s vehicle was fired from the firearm later discovered in Woody’s

       possession. It also argues that Casteel admitted that his initial motive was to

       obtain a favorable deal, that Casteel’s motive does not mean that the

       information he gave police was not true, and that the jury was able to judge

       Casteel’s credibility.


[23]   To the extent Woody argues that Casteel was not credible, we note that, if there

       is an existing agreement between the State and one of its witnesses, a prosecutor

       has a duty to reveal it. See Whatley, 908 N.E.2d at 283 (citing Rubalcada v. State,

       731 N.E.2d 1015, 1024 (Ind. 2000) (“A prosecutor must disclose to the jury any

       agreement made with the State’s witness, such as promises, grants of immunity,

       or reward offered in return for testimony.”)). The purpose of this rule is to

       assist the jury in assessing the witness’s credibility. Id. (citation omitted). On

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018   Page 14 of 16
       the other hand, the State is not required to disclose a witness’s hope of leniency.

       Id. (citing Seketa v. State, 817 N.E.2d 690, 694 (Ind. Ct. App. 2004) (“An express

       agreement requiring disclosure does not exist if a witness testifies favorably in

       the hope of leniency, and the State neither confirms nor denies leniency to the

       witness.”)).


[24]   Here, the State disclosed to the jury the extent to which it had any agreement

       with Casteel in this or another case, and Woody’s counsel cross-examined

       Casteel before the jury regarding any agreement or hope or expectation for

       leniency he may have had. The jury was able to assess Casteel’s credibility.

       Woody’s arguments as to why Casteel should not be believed amount to an

       invitation that we reweigh the evidence, which we cannot do. See Jordan, 656

       N.E.2d at 817.


[25]   The jury was able to weigh the credibility of Casteel and the other witnesses and

       reasonably infer that Woody had shot Joshua and taken a gun, necklace,

       heroin, and cell phone from him. Based upon the record, we conclude that the

       State presented evidence of probative value from which a reasonable trier of fact

       could have found Woody guilty beyond a reasonable doubt of murder and

       robbery as a level 5 felony.


                                                  Conclusion

[26]   For the foregoing reasons, we affirm Woody’s murder and robbery convictions.


[27]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018   Page 15 of 16
Bailey, J., and Crone, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2423| May 25, 2018   Page 16 of 16
