                                                                                   FILED
                                                                            Sep 08 2016, 9:21 am

                                                                                   CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Scott King                                                 Gregory F. Zoeller
      Russell W. Brown, Jr.                                      Attorney General of Indiana
      Scott King Group
      Merrillville, Indiana                                      Michael Gene Worden
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jason Tibbs,                                               September 8, 2016
      Appellant-Defendant,                                       Court of Appeals Cause No.
                                                                 46A03-1501-CR-19
              v.                                                 Appeal from the LaPorte Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Thomas J.
      Appellee-Plaintiff.                                        Alevizos, Judge
                                                                 Trial Court Cause No.
                                                                 46C01-1308-MR-278



      Barnes, Judge.


                                              Case Summary
[1]   Jason Tibbs challenges his conviction for murder and the trial court’s

      subsequent denial of his Indiana Trial Rule 60(B) motion for relief from

      judgment. We affirm.

      Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016                     Page 1 of 38
                                                      Issues
[2]   Tibbs raises three issues, which we restate as:


              I.       whether the trial court abused its discretion by excluding
                       evidence of an alleged third-party perpetrator;

              II.      whether the trial court abused its discretion by excluding
                       impeachment evidence; and

              III.     whether the trial court properly denied Tibbs’s Trial Rule
                       60(B) motion for relief from judgment.

                                                       Facts
[3]   On March 26, 1993, sixteen-year-old Rayna Rison was working at the Pine

      Lake Veterinary Hospital (“the clinic”) in LaPorte County. She had a date

      scheduled that evening with her boyfriend, Matt Elser. Rison was scheduled to

      finish work at approximately 6:00 p.m., and Elser was waiting for Rison at her

      house. When Rison failed to return home, Elser called the clinic and then

      began looking for her. Elser first went to the clinic and noticed Rison’s car was

      not there.


[4]   At approximately 7:30 p.m. that same day, someone observed what would later

      be identified as Rison’s car parked along a road with its hood up. The police

      recovered the car the next day. Inside, police found a ring, which was later

      identified as belonging to Tibbs. On April 27, 1993, Rison’s dead body was

      discovered in a pond. The forensic pathologist who performed Rison’s autopsy

      concluded the cause of her death was asphyxia due to cervical compression—

      strangulation—and that her death was a homicide.


      Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016    Page 2 of 38
[5]   Tibbs and Rison were friends and dated briefly in middle school or junior high

      school. By 1993, Tibbs had dropped out of high school but was still in touch

      with Rison and still had strong romantic feelings for her. On the day Rison

      disappeared, Tibbs contacted his friend Eric Freeman in the late afternoon and

      asked Freeman to pick him up and drive him to the clinic. Freeman borrowed

      his girlfriend Jennifer Hammons’s (“Jennifer”) Buick and picked Tibbs up at his

      house. Tibbs had previously introduced Rison to Freeman as his girlfriend,

      and, on the day Rison disappeared, Tibbs told Freeman he “wanted to try to

      work things out with [Rison].” Tr. p. 81.


[6]   When Freeman and Tibbs arrived at the clinic, Tibbs went inside to speak with

      Rison. After a short time, Tibbs and Rison came out of the clinic and talked;

      then they began to argue about their relationship. Tibbs and Rison got in the

      back seat of Jennifer’s car, and the three “went driving.” Id. at 84. Tibbs and

      Rison continued arguing. Either Tibbs or Rison asked Freeman to pull over.

      He did, and Tibbs and Rison got out and continued arguing behind the car.

      According to Freeman, Rison “just didn’t want to be with [Tibbs].” Id. At

      some point, Freeman got out of the car and told Tibbs and Rison that he

      wanted to leave. Tibbs and Rison continued to argue, and Freeman observed

      Tibbs hit Rison then choke her with his hands. Freeman got back in the car,

      and Tibbs told him to open the trunk. Tibbs put Rison in the trunk, and

      Freeman drove back to the home of Rick and Judy Hammons, Jennifer’s

      parents, where Freeman lived at the time.




      Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 3 of 38
[7]   When they arrived, Freeman parked the car in the Hammonses’ pole barn.

      Freeman and Tibbs argued, and Tibbs stated, “If I can’t have her nobody can.”

      Id. at 87. After a short time, they left to get Rison’s car. After Freeman and

      Tibbs left the Hammonses’ barn, they returned to the clinic. Tibbs drove

      Rison’s car away, and Freeman followed him in Jennifer’s car. Together, the

      men dumped Rison’s body in a pond, and Tibbs weighed it down with logs.

      Freeman, alone, then returned to the Hammonses’ house in Jennifer’s Buick.

      Later that evening, Tibbs stopped by the Hammonses’ house, and Freeman

      gave him the letter jacket that had been left in the back seat of the Buick. The

      jacket was later discovered hanging in a tree and identified as belonging to

      Elser.


[8]   Unbeknownst to Freeman and Tibbs, Rickey Hammons (“Rickey”), Rick and

      Judy Hammons’s fourteen-year-old son, was in the loft of the barn smoking

      marijuana when they arrived at the Hammonses’ property. Rickey observed

      someone back Jennifer’s car into the pole barn. He saw Tibbs close the barn

      doors and Freeman get out of the driver’s seat. Rickey heard Freeman and

      Tibbs arguing and saw Freeman open the trunk of the car. Rickey saw a young,

      white woman in the trunk. “She was an off color, like-- she wasn’t moving.

      She was-- I don’t know. She didn’t look like she had a lot of color in her face.”

      Id. at 138. Rickey did not say anything to Freeman and Tibbs. After the men

      argued about what to do next, Rickey saw them leave in the car. When Rickey

      saw Rison’s picture in the newspaper the next day, he recognized her as the girl




      Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 4 of 38
       he saw in the trunk of his sister’s car. He did not tell anyone about what he saw

       in the pole barn.


[9]    Ray McCarty was Rison’s brother-in-law. He was married to Rison’s sister

       Lori McCarty (“Lori”). In 1991, McCarty plead guilty to Class D felony child

       molesting. Rison was the victim, and she became pregnant as a result of that

       molestation. McCarty was sentenced to serve three years on probation and was

       still on probation when Rison was killed. McCarty was indicted for Rison’s

       murder near the time she was killed, but the State later dismissed the charges.


[10]   For fifteen years, Rison’s murder remained unsolved. In 2008, Rickey, who

       now was serving a sentence for an unrelated murder, contacted the police in

       order to tell them what he saw in his parents’ barn in 1993. Rickey testified he

       neither received nor sought any benefit in exchange for his testimony. As a

       result of Rickey’s information, investigators located Freeman and granted

       Freeman immunity in exchange for the information he had regarding Rison’s

       murder. In 2013, the State charged Tibbs with murder. Freeman gave

       eyewitness testimony against Tibbs during Tibbs’s trial.


[11]   McCarty testified during Tibbs’s case-in-chief that at approximately 5:40 or 5:45

       p.m. on the night Rison disappeared, he looked at a house for sale directly

       across the street from the clinic. McCarty testified that after he left the house,

       he drove to the clinic to ask Rison if she knew where Lori was. McCarty

       testified the exchange with Rison took “[h]alf a minute,” and then he left the

       clinic. Tr. p. 858. McCarty admitted he told police more than one story


       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 5 of 38
       regarding his whereabouts the night Rison disappeared. McCarty stated that he

       initially lied to police in order to prevent Lori from learning he had picked up a

       female hitchhiker that night because it might upset her. McCarty testified he

       did not threaten to harm Rison if she told anyone about his illegal sexual

       contact with her. Lori testified she did not recall telling a police officer that she

       vacuumed out the back of McCarty’s car before police searched it, nor did she

       remember McCarty asking her to do so.


[12]   During his trial, Tibbs attempted to ask Officer Timothy Short, who

       interviewed both McCarty and Lori, whether McCarty asked Lori to vacuum

       out his car before the police searched it. The trial court sustained the State’s

       objection to the question. Tibbs also sought to question McCarty about the

       details of his divergent stories to police, but the trial court prohibited him from

       doing so.


[13]   During an offer of proof, McCarty testified he was indicted for Rison’s murder

       but was not tried. He also testified that he initially told police he was at a pig

       farm in the southern part of the county around or at the time Rison

       disappeared. As part of his offer of proof, Tibbs offered Rison’s 1989 statement

       to police regarding McCarty’s molestation. The statement states, “[McCarty]

       said that ‘if I didn’t do as he asked of me he would hurt me, and he said that if I

       ever told, he would KILL me.’” Ex. AA.


[14]   Detective Brett Airy, who began re-investigating Rison’s death in 2008, testified

       during an offer of proof that he reviewed the reports made during the original


       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 6 of 38
       murder investigation. He testified McCarty did not admit he had contact with

       Rison at the clinic until May 11, 1993, approximately six weeks after Rison

       disappeared, and further testified about the details of McCarty’s differing stories

       regarding his whereabouts at the time Rison disappeared.


[15]   In November 2014, a jury found Tibbs guilty of murder. The trial court

       sentenced Tibbs to forty years in the Department of Correction. This appeal

       ensued. Before filing his Appellant’s Brief, however, Tibbs requested, and this

       court gave him, permission to file a Trial Rule 60(B) motion for relief from

       judgment in the trial court. Tibbs filed his motion and argued the State, in

       violation of Brady v. Maryland, withheld exculpatory evidence that Rickey

       received a benefit as a result of his testimony. The trial court held an

       evidentiary hearing on Tibbs’s motion. Shortly after that evidentiary hearing,

       Tibbs filed an amended motion for relief from judgment and argued he had

       newly discovered evidence to support his contention the State committed a

       Brady violation. The trial court denied Tibbs’s requests pursuant to Trial Rule

       60(B). Tibbs now appeals his conviction and the trial court’s denial of his

       motion for relief from judgment.


                                                     Analysis
                     I. Exclusion of Alleged Third-Party Perpetrator Evidence

[16]   Tibbs first contends the trial court denied him his right to present a complete

       defense by excluding: 1) testimony that McCarty was indicted for Rison’s

       murder; 2) Rison’s 1989 statement that McCarty threatened to kill her if she


       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 7 of 38
       disclosed that he sexually abused her; 3) statements that McCarty asked Lori to

       clean out his car; and 4) the details of McCarty’s inconsistent statements

       regarding his whereabouts the night Rison disappeared. Tibbs contends this

       evidence tends to show McCarty murdered Rison and that its exclusion was not

       harmless error.


[17]   We review the trial court’s ruling on the exclusion of evidence for an abuse of

       discretion. Pitts v. State, 904 N.E.2d 313, 318 (Ind. Ct. App. 2009), trans. denied.

       The trial court’s ruling regarding the admission of evidence will be upheld if it is

       sustainable on any legal theory supported by the record, even if the trial court

       did not use that theory. Rush v. State, 881 N.E.2d 46, 50 (Ind. Ct. App. 2008).

       We will reverse only if the trial court’s decision is clearly against the logic and

       effect of the facts and circumstances. Pitts, 904 N.E.2d at 318. Generally,

       errors in the exclusion of evidence are disregarded as harmless unless they affect

       the substantial rights of a party. Id. However, “if error results from the

       exclusion of evidence which indicates that someone else had committed the

       crime, the error cannot be deemed harmless.” Allen v. State, 813 N.E.2d 349,

       361 (Ind. Ct. App. 2004), trans. denied.


[18]   “Evidence which tends to show that someone else committed the crime makes

       it less probable that the defendant committed the crime and is therefore relevant

       under [Evidence] Rule 401.” Dickens v. State, 754 N.E.2d 1, 5 (Ind. 2001) (citing

       Joyner v. State, 678 N.E.2d 386, 389 (Ind. 1997)). Such evidence, however, may

       be excluded “if its probative value is out-weighed by unfair prejudice, confusion

       of the issues, or the potential to mislead the jury.” Pelley v. State, 901 N.E.2d

       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 8 of 38
       494, 505 (Ind. 2009) (citing Ind. Evid. R. 403). “In the context of third-party

       motive evidence, these rules are grounded in the widely-accepted principle that

       before evidence of a third-party is admissible, the defendant must show some

       connection between the third party and the crime.” Pelley 901 N.E.2d at 505.


[19]   In Joyner v. State, 678 N.E.2d 386 (Ind. 1997), our supreme court concluded the

       trial court abused its discretion by excluding Joyner’s proffered evidence that a

       third party committed the murder for which Joyner was convicted. In that case,

       Joyner unsuccessfully sought to introduce the following evidence with regard to

       the third party: he had an affair with the victim; he worked in the same place as

       the appellant and the victim; he saw the victim the day before the murder; he

       lied to his wife about where he was the night of the murder and later told her he

       had an argument with the victim on the last day she was seen alive; and he

       went to work late the day after the victim disappeared and lied about his

       tardiness on his time card. Joyner also successfully presented evidence that

       “was consistent with [his] theory that the crime was committed by [the third

       party].” Id. at 389. Joyner’s evidence included expert testimony that a hair

       found inside the plastic bag covering the victim’s head excluded Joyner as the

       “donor” of the hair and indicated there was a ninety-eight to ninety-nine

       percent probability match with respect to the third party. Id. Under those

       circumstances, our supreme court concluded “the defendant had sufficiently

       connected the third party to the crime, and the excluded evidence could have

       also established motive and opportunity” and remanded the case for a new trial.

       Pelley, 201 N.E.2d at 505.


       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 9 of 38
[20]   In Lashbrook v. State, 762 N.E.2d 756 (Ind. 2002), our supreme court rejected an

       argument similar to that made in Joyner. Lashbrook wanted to introduce

       evidence that a third party previously stated the victim “was gonna die.” Id. at

       757. Our supreme court concluded, “In stark contrast to Joyner, the defendant

       presents no material evidence that [the third party] was connected to the crime.

       The phrase allegedly uttered by [the third party] that [the victim] ‘was gonna

       die’ does not tend to show that [the third party] committed the murder.” Id.


[21]   In Pelley, our supreme court rejected the argument that the trial court denied the

       appellant his right to present a defense when it excluded evidence that a third

       party had a motive to commit the murders for which Pelly was convicted.

       Pelley was convicted of murdering his father, stepmother, and two sisters. He

       sought to introduce evidence that his father may have been killed because

       someone learned about money laundering at the Florida bank where Pelley’s

       father previously worked. Pelley offered statements related to money missing

       from the bank and the family’s subsequent move to Indiana, the fact the DEA

       closed the bank, and that a neighbor had seen a limousine with Florida license

       plates in the area of the Pelleys’ home the night of the murders.


[22]   Our supreme court stated, “Pelley’s case falls between Joyner and Lashbrook, but

       is much closer to Lashbrook.” Pelley, 901 N.E.2d at 505. The court explained

       that Pelley’s offer of proof was comprised of hearsay statements regarding

       Pelley’s father’s work at a Florida bank and “hearsay within hearsay” regarding

       the limousine. Id. It further explained that Pelley did not show that the

       witnesses who could testify regarding the Florida situation were competent to

       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 10 of 38
       do so—they were minors at the time the relevant events transpired in Florida.

       “Equally important,” the court concluded, Pelley “failed to present any

       evidence connecting the bank or the limousine to the murders. Absent a more

       direct connection, the trial court did not abuse its discretion in excluding this

       evidence as too speculative.” Id. at 506.


[23]   In some cases, our appellate courts have not reached a conclusion regarding a

       direct connection between the third party and the crime and, instead, focused

       specifically on the exculpatory nature of the excluded evidence.


[24]   In Allen v. State, 813 N.E.2d 349 (Ind. Ct. App. 2004), trans. denied, this court

       reversed a murder conviction because “Allen had the right to present evidence

       that [a third party] was involved in the commission of the crimes.” Id. at 363.

       In that case, the trial court excluded testimony that the witness and a third party

       “cased” the Osco drug store where the murders took place; the witness

       encountered the third party coming from the direction of the Osco; the third

       party told the witness “he had just got some money and some people got hurt

       and got killed in it”; the third party showed the witness a handgun similar to the

       one used in the murders and told the witness it was “‘dirty,’ meaning it had ‘a

       body attached to it, or bodies’”; and the witness saw the third party throw the

       gun into the river. Id. at 362 (citations omitted). The record, this court

       concluded, supported “a conclusion that [the witness’s] testimony was

       exculpatory, unique, and critical to Allen’s defense.” Id. at 363.

       Such evidence, this court concluded, goes to the very heart of the fundamental



       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 11 of 38
       right to present exculpatory evidence, and the trial court’s exclusion of the

       testimony impinged on Allen’s right to present a complete defense. Id. at 363.


[25]   We conclude the evidence Tibbs sought to introduce—that McCarty was

       indicted for Rison’s murder; that in 1989 Rison reported McCarty threatened to

       kill her if she disclosed he sexually molested her; that McCarty allegedly asked

       Lori to clean out his car; and the details of McCarty’s conflicting statements

       related to his whereabouts around the time Rison disappeared—was neither

       sufficiently exculpatory nor relevant evidence of a third-party perpetrator.

       None of the excluded evidence made it less probable that Tibbs murdered Rison

       or that McCarty was responsible for her murder as required under Rule of

       Evidence 401.


[26]   We note that the evidence of McCarty’s alleged threat to Rison is very similar

       to the evidence at issue in Lashbrook—the appellant’s statement that victim “was

       gonna die”—which our supreme court concluded was not relevant. Lashbrook,

       762 N.E.2d at 757. We further note that, with regard to McCarty’s inconsistent

       statements regarding his whereabouts, McCarty himself admitted during his

       testimony that he was not forthright when police questioned him. See Herron v.

       State 10 N.E.3d 552, 557 (Ind. Ct. App. 2014) (concluding impeachment was

       “improper and unnecessary” after witness acknowledged her testimony was

       inconsistent with a pretrial statement and admitted she lied). Finally, like

       Lashbrook and Pelley, Tibbs wholly failed to establish any direct, material

       connection between McCarty and Rison’s murder similar to that which was

       established by forensic evidence in Joyner.

       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 12 of 38
[27]   Unlike the evidence at issue in Allen, the evidence Tibbs sought to introduce

       was not “exculpatory, unique, and critical” to Tibbs’s defense. Allen, 813

       N.E.2d at 363. “‘Exculpatory’ is defined as ‘“[c]learing or tending to clear from

       alleged fault or guilt; excusing.”’” Albrecht v. State, 737 N.E.2d 719, 724 (Ind.

       2000) (quoting Samek v. State, 688 NE.2d 1286, 1288 (Ind. Ct. App. 1997) (in

       turn quoting BLACK’S LAW DICTIONARY 566 (6th ed. 1990)) (alteration in

       Samek). None of the excluded evidence was relevant under Rule 401. Without

       clearing even that initial hurdle, it could not meet the definition of exculpatory

       evidence as required by Allen. The trial court’s exclusion of Tibbs’s proposed

       evidence did not impinge on his right to present a complete defense.


[28]   In addition to his general contention that the trial court’s evidentiary rulings

       impinged on his right to present a defense, Tibbs argues his proffered evidence

       that McCarty was charged with Rison’s murder was admissible “to show the

       motive or bias of the witness.” Appellant’s Br. p. 19. In support of that

       argument, Tibbs directs us to People v. Steele, 288 N.E.2d 355, 359 (Ill. 1972),

       and State v. Wills, 476 P.2d 711 (Wash. Ct. App. 1970), review denied.


[29]   In Steele, the appellant sought to introduce evidence that a witness in his murder

       trial was accused of the same murder, in what appears to have been an attempt

       to establish the witness’s bias. The witness was present at the time of the

       murder and was called by the State “as [an] occurrence witness[] to the events

       which transpired in the apartment prior to the arrival of [the police].” Steele,

       288 N.E.2d at 358. The Illinois Supreme Court concluded the trial court should

       not have excluded the evidence but noted that the witness denied any promises

       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 13 of 38
       or threats influenced his testimony, with the exception that the prosecuting

       attorney agreed to help him enlist in the military and leave the city. The court

       further concluded, “[i]n contrast, the jury was presented with overwhelming

       evidence of defendant’s guilt . . . After examination of the record we find this

       error was harmless beyond a reasonable doubt and the jury would not have

       reached a different verdict even if the witness would have responded

       affirmatively to the question [of whether he was accused of the murder].” Id. at

       360.


[30]   In Wills, the appellant was convicted of murder in a case based entirely on

       circumstantial evidence. The “most damaging” was testimony from a witness

       who stated he observed Wills assault the victim the day before the murder in

       the same area of the same warehouse in which the murder took place. The

       witness further testified he said to Wills after the assault (which did not result in

       the victim’s death), “Wills, you stomped that old man to death,” and that Wills

       replied, “You don’t know [the victim] like I do, he’s tough, I’ve stomped him a

       lot of times.” Id. at 712. Wills sought to introduce evidence that the witness,

       too, had been charged with the victim’s murder, but that the charges had been

       dismissed. “The purpose of the proposed inquiry was to determine the effect

       the dismissal had upon [the witness’s] testimony as a witness for the state.” Id.

       The Washington Court of Appeals reversed Wills’s conviction, concluding:

               The defendant was entitled to cross-examine [the witness]
               regarding the circumstances of the dismissal of the charges
               against him so that the jury could consider and weigh this
               testimony in its proper perspective. The scope and extent of that

       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 14 of 38
               cross-examination was within the discretion of the trial court but
               its refusal to allow any cross-examination into that area
               constitutes reversible error.


       Id. at 713.


[31]   We conclude these cases are inapplicable. Tibbs seems to rely on Steele and

       Wills for the narrow proposition that he had a right to admit into evidence the

       fact that the third-party perpetrator he put forth was previously indicted for

       Rison’s murder. We, however, read these cases as discussing the constitutional

       rights to confront and cross-examine witnesses. See Chambers v. Mississippi, 410

       U.S. 284, 93 S. Ct. 1038 (1973). “[T]he main and essential purpose of

       confrontation is to secure for the opponent the opportunity of cross-

       examination . . . we have recognized that the exposure of a witness’ motivation

       in testifying is a proper and important function of the constitutionally protected

       right of cross-examination.” Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106

       S. Ct. 1431, 1435 (1986) (citations omitted) (quotations omitted) (emphases

       omitted).


[32]   Unlike the witnesses in Steele and Wills, who testified against the appellants,

       McCarty did not testify against Tibbs. In Steele and Wills, the appellants sought

       to reveal biases that could have motivated the witnesses to give damaging

       testimony against them. Tibbs, in contrast, called McCarty as a defense witness

       in order to advance his theory of the case. McCarty’s testimony was not

       damaging to Tibbs, and Tibbs’s reliance on Steele and Wills is misplaced.



       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 15 of 38
[33]   Neither party directs us to any Indiana cases related to this argument. In

       Standifer v. State, 718 N.E.2d 1107 (Ind. 1999), our supreme court noted that

       “the constitutionally improper denial of a defendant’s opportunity to impeach a

       witness for bias, like other Confrontation Clause errors, is subject to [the]

       Chapman [v. California, 386 U.S 18, 87 S. Ct. 824 (1967)] harmless-error

       analysis.” Standifer, 718 N.E.2d at 1110 (citing Van Arsdall, 475 U.S. at 684,

       106 S. Ct. at 1438).


               Whether the trial court’s error is harmless depends on several
               factors including the importance of the witness’[s] testimony in
               the prosecution’s case, whether the testimony was cumulative,
               the presence or absence of evidence corroborating or
               contradicting the testimony of the witness on material points, the
               extent of cross-examination otherwise permitted, and, of course,
               the overall strength of the prosecution’s case.


       Standifer, 718 N.E.2d at 1111.


[34]   Assuming, without deciding, that the trial court’s exclusion of the fact that

       McCarty was indicted for Rison’s murder did somehow infringe on Tibbs’s

       rights to confront and cross-examine, we conclude such error was harmless.

       McCarty’s testimony was not central to (or even part of) the prosecution’s case

       against Tibbs, and the State’s case against Tibbs was extremely strong and

       included eyewitness testimony. We also note that Tibbs did successfully

       present evidence from which the jury could have concluded McCarty harbored

       a bias or motive to testify the way he did. We therefore conclude beyond a

       reasonable doubt that the presumed error did not contribute to the verdict. See


       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 16 of 38
       Standifer, 718 N.E.2d at 1110. Thus, the trial court did not abuse its discretion

       by excluding from evidence the fact of McCarty’s prior indictment for Rison’s

       murder.


                                 II. Exclusion of Impeachment Evidence

[35]   Tibbs next contends the trial court abused its discretion by excluding from

       evidence the transcript of Freeman’s 2013 interview with Detectives Brett Airy

       and Al Williamson, which Tibbs states he sought to admit in order to impeach

       the veracity of the investigation. Tibbs concedes he did not submit his

       proposed evidence in an offer of proof1 and that we must review his claim for

       fundamental error.


[36]   Although we generally review rulings on the exclusion of evidence for an abuse

       of discretion, Pitts, 904 N.E.2d at 318, “[f]ailure to make an offer of proof of the

       omitted evidence renders any claimed error unavailable on appeal unless it rises

       to the level of fundamental error.” Young v. State, 746 N.E.2d 920, 924 (Ind.

       2001). In order to successfully claim an error was fundamental, the appellant

       “must show that the error was a substantial and blatant violation of basic

       principles which rendered the result of the trial unfair.” Id. (citation omitted).


[37]   We first note that the record is confusing, at best, with regard to Tibbs’s attempt

       to introduce the transcript of Freeman’s interview and the reason he wanted to




       1
        Tibbs did append the transcript to his sentencing memorandum, and it is thus part of the record on appeal
       and available for our review.

       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016                     Page 17 of 38
       do so. The State correctly notes that Tibbs did not explain why he introduced

       the transcript, and, instead, that the trial court suggested that he could have

       used it to impeach Freeman himself. See Appellee’s Br. p. 31, n.2 (citing Tr. pp.

       1090-91).


[38]   In his Appellant’s Brief, Tibbs states he attempted to introduce the transcript in

       order to impeach the veracity of the investigation. He argues that the transcript

       contradicts Detective Airy’s testimony that neither he nor Detective Williamson

       asked leading questions or suggested answers during Freeman’s 2013 interview

       and that the transcript “calls into serious question whether Freeman’s testimony

       was based upon what he said he witnessed as opposed to the details of the

       investigation that the detectives shared with him during the subject interview.”

       Appellant’s Br. p. 27. But Tibbs’s line of questions for Detective Airy at the

       time he sought to introduce the transcript provides no support for his argument

       on appeal. The following is the testimony preceding Tibbs’s attempt to

       introduce the transcript:


               Q.    Is it fair to characterize you as the lead detective with
               respect to the death and disappearance of Rayna Rison?


               A.       Yes.


               Q.    And, on occasion, did you have the opportunity to
               conduct a recorded interview with Eric Freeman on June 27,
               2013?


               A.       Yes.


       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 18 of 38
        Q.       Was that interview transcribed?


        A.       Yes.


        Q.       And it was also recorded audibly?


        A.       Yes.


        Q.    Have you had an opportunity to review the transcription
        and the recordings?


        A.       Yes.


        Q.       Were they accurate?


        A.       Yes.


        [Defense counsel identifies the exhibit and the State objects to its
        admission.]


Tr. pp. 1089-90. After the trial court sustained the State’s objection to the

exhibit, Tibbs asked Detective Airy, “And you also had interviewed him before

in March of 2008?” and then questioned him, generally, regarding his

experience as a law enforcement officer. Id. at 1092. Tibbs concluded that line

of questioning by inquiring whether Detective Airy or Detective Williamson

asked Freeman leading questions or suggested answers during his 2013

interview. But Tibbs did not attempt to introduce the transcript again, nor did

he explain why he wanted to do so in the first place.


Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 19 of 38
[39]   In his Appellant’s Brief, Tibbs highlights several instances in the interview

       during which he contends the detectives “lead [Freeman] through his

       statement.” Id. at 28. We note that in these portions of the interview Freeman

       gave answers (e.g., about the type of car he was driving when he took Tibbs to

       the clinic and the time he took Tibbs to the clinic) that differ from his trial

       testimony. We also note that Freeman admitted during his trial testimony that

       he was “scared and nervous” during his interview and that “at the end of [the

       interview]” he was honest and truthful. Tr. p. 102. We further note that,

       although Tibbs cross-examined Freeman regarding some of the discrepancies

       between his 2013 interview and his trial testimony, he did not attempt to

       introduce the transcript of the 2013 interview as impeachment evidence when

       he cross-examined Freeman.


[40]   Based on our review of the record, it is not clear why Tibbs sought to have the

       transcript of Freeman’s 2013 interview admitted into evidence during Detective

       Airy’s testimony. To the extent his purpose was to highlight what he thinks

       were questionable interviewing techniques and impeach the officers’

       investigation, we conclude he has waived that argument because there is no

       support for it in the record. To the extent his purpose was to impeach

       Freeman’s testimony, we again conclude Tibbs has waived that argument

       because he did not introduce the exhibit at the appropriate time. Alternatively,

       we conclude the trial court’s exclusion of the transcript did not prejudice Tibbs

       because the jury was aware that Freeman was not consistently forthright during

       his interview and because Tibbs had, and took some advantage of, the


       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 20 of 38
       opportunity to cross-examine Freeman regarding his inconsistent statements.

       We conclude the exclusion of the transcript did not infringe on Tibbs’s right to

       a fair trial and, therefore, does not rise to the level of fundamental error.


                                         III. Motion to Correct Error

                               A. Procedural Issues/Standard of Review

[41]   Tibbs next argues that the trial court erred when it denied his Trial Rule 60(B)

       motion for relief from judgment. After this court gained jurisdiction of this

       case, Tibbs filed a motion asking this court to remand his case to the trial court

       so he could file a Trial Rule 60(B) motion. This court granted his request.

       Pursuant to Logal v. Cruse, an appellant must follow a specific procedure when

       he or she requests permission to return to the trial court to file a Trial Rule

       60(B) motion, and this court must undertake a specific analysis when it

       considers that request. 267 Ind. 83, 368 N.E.2d 235 (1977), cert. denied.


               In short a party seeking to file a Rule 60(B) motion must file a
               verified petition with the appellate court seeking leave to file the
               motion. If the appellate court determines that the motion has
               sufficient merit, it will remand the entire case to the trial court for
               plenary consideration of the Rule 60(B) grounds.


       Whatley v. State, 937 N.E.2d 1238, 1242 (Ind. Ct. App. 2012).


               Two considerations underlie our decision in Logal. One is the
               unfairness of requiring a litigant to elect either an appeal or
               motion for relief as remedy for an improper judgment against
               him. The other is the economy of judicial resources which can
               be effected by the avoidance of considering appeals made
               unnecessary by the granting of Rule 60 relief.

       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 21 of 38
       Davis v. State, 267 Ind. 152, 156 368 N.E.2d 1149, 1151 (1977).


[42]   In Davis, our supreme court concluded that, in some cases, “the interests of

       fairness and judicial economy militate in favor of applying the Logal procedure

       to post-conviction relief petitions made pending appeal.” Davis, 267 Ind. at

       156-57, 368 N.E.2d at 1151. The court held:

               where an appellant from a criminal conviction seeks to bring a
               petition for post-conviction relief pending resolution of his
               appeal, he may obtain leave from the appellate court under the
               procedure outlined in Logal when the appellate court can find:


               (1) that the grounds for relief advanced in appellant’s petition
               have a substantial likelihood of securing appellant relief in the
               trial court;


               (2) that such relief has a substantial likelihood of rendering moot
               the issues raised on direct appeal and would effect a net savings
               of judicial time and effort;


               (3) that the circumstances of the case are such that undue
               hardship would result to appellant were he required to await
               completion of his appeal to petition for post-conviction relief.


       Id. at 157, 368 N.E.2d at 157. Davis acknowledged its criteria may be “more

       stringent than those imposed on civil litigants in Logal,” and explained, “they




       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 22 of 38
are imposed because of the differences between Rule 60(B) and Post-Conviction

Rule 1.”2 Id.


In addition to imposing different criteria, we review appeals from Trial Rule

60(B) motions and petitions for post-conviction relief under different standards.

“The standard of review for the granting or denying of a T.R. 60(B) motion is

limited to whether the trial court abused its discretion.” Anderson v. Wayne Post

64, American Legion Corp., 4 N.E.3d 1200, 1205 (Ind. Ct. App. 2014), trans.

denied.


           A petitioner who appeals the denial of PCR faces a rigorous
           standard of review, as the reviewing court may consider only the
           evidence and the reasonable inferences supporting the judgment
           of the post-conviction court. The appellate court must accept the
           post-conviction court's findings of fact and may reverse only if
           the findings are clearly erroneous. If a PCR petitioner was denied
           relief, he or she must show that the evidence as a whole leads
           unerringly and unmistakably to an opposite conclusion than that
           reached by the post-conviction court.




2
    Notably, Post-Conviction Rule 1(a) provides, in part:

           (a) Any person who has been convicted of, or sentenced for, a crime by a court of this
           state, and who claims:
                                                      *****
           (4) that there exists evidence of material facts, not previously presented and heard, that
           requires vacation of the conviction or sentence in the interest of justice;
                                                      *****
           May institute at any time a proceeding under this Rule to secure relief.
           (b) . . . Except as otherwise provided in this Rule, it comprehends and takes the place of all
           other common law, statutory, or other remedies heretofore available for challenging the
           validity of the conviction or sentence and it shall be used exclusively in place of them.

Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016                          Page 23 of 38
       Massey v. State, 955 N.E.2d 247, 253 (Ind. Ct. App. 2011) (citation omitted).


[43]   It is uncommon for an appellant in a criminal appeal to request permission to

       file a Trial Rule 60(B) motion after jurisdiction has transferred to this court.

       Most, it seems, request permission to file a petition for post-conviction relief

       pursuant to Davis and Hatton v. State, 626 N.E.2d 442 (Ind. 1993). We note that

       our supreme court has stated that a Trial Rule 60(B) motion “is a remedy to be

       used in civil actions . . . and that the proper procedure [in a criminal matter]

       would have been for the appellant to proceed under the post-conviction relief

       rules.” Lottie v. State, 273 Ind. 529, 538, 406 N.E.2d 632, 639 (Ind. 1980),

       overruled on other grounds by Ludy v. State, 784 N.E.2d 459 (Ind. 2003). Citing to

       Davis, the Lottie court further stated, “This Court has provided for procedures

       such as this under Ind. R. P.C. 1.” Lottie, 273 Ind. at 539, 406 N.E.2d at 639

       (citing Davis). We also note that in McVey v. State, 863 N.E.2d 434 (Ind. Ct.

       App. 2007), trans. denied, this court addressed the appellant’s contention that the

       trial court abused its discretion by denying his Trial Rule 60(B) motion without

       a discussion of Logal, Davis, and/or Lottie. See also Smith v. State, 38 N.E.3d 218

       (Ind. Ct. App. 2015).


[44]   The State does not take issue with the procedure Tibbs followed here.

       Regardless of which procedure Tibbs should have employed, we follow the lead

       of our supreme court in Lottie: “The procedure would have been much the

       same under either [Trial Rule 60(B) or the post-conviction rules], and since the

       same question would have been presented to the trial court and to this Court in



       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 24 of 38
       the way in which it is presented here now, we will decide this issue.” Lottie, 273

       Ind. at 539, 406 N.E.2d at 639.


[45]   The parties disagree regarding our standard of review given the procedure Tibbs

       chose to follow. Tibbs states he was “unable to find a standard of proof directly

       applicable to a Trial Rule 60(B) motion,” (presumably in a criminal case) and

       argues, “since the issues raised [in his Trial Rule 60(B) motion] are commonly

       found in Petitions for Post-Conviction Relief, TIBBS contends that the

       preponderance of the evidence standard used i[n] PCR is applicable to his Rule

       60(B) Motion.” Appellant’s Br. p. 30, n. 1. The State contends we should

       review the trial court’s order for an abuse of discretion. See Appellee’s Br. p. 32-

       33.


[46]   Because the trial court entered findings of fact and conclusions thereon, we will

       employ a two-tiered standard of review. Stronger v. Sorrell, 776 N.E2d 353, 358

       (Ind. 2002). First, we determine whether the evidence supports the findings and

       then whether the findings support the judgment. Id. We will only set aside the

       trial court’s findings and conclusions if they are clearly erroneous. Id. We may

       not reweigh the evidence or reassess the credibility of the witnesses. Id.

       Instead, “we must accept the ultimate facts as stated by the trial court if there is

       evidence to sustain them.” Id. This “clearly erroneous” standard is similar to

       that used when we review the denial of a PCR petition. See State v. Hollin, 970

       N.E.2d 147, 150 (Ind. 2012). Even if we were to review the trial court’s order

       simply for an abuse of discretion, we would reach the same result.



       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 25 of 38
                           B. Newly Discovered Evidence/Brady Violation

[47]   Tibbs contends Rickey and the State entered into an agreement under which

       Rickey would receive a benefit for his testimony against Tibbs and,

       alternatively, that the State offered Rickey a benefit in exchange for his

       testimony.3 He argues that the evidence of the offer and agreement is newly-

       discovered evidence, the revelation of which entitles him to a new trial. He

       further contends the State failed to disclose the evidence in violation of Brady v.

       Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).


               [N]ew evidence will mandate a new trial only when the
               defendant demonstrates that: (1) the evidence has been
               discovered since the trial; (2) it is material and relevant; (3) it is
               not cumulative; (4) it is not merely impeaching; (5) it is not
               privileged or incompetent; (6) due diligence was used to discover
               it in time for trial; (7) the evidence is worthy of credit; (8) it can
               be produced upon a retrial of the case; and (9) it will probably
               produce a different result at retrial.


       Kubsch v. State, 934 N.E.2d 1138, 1145 (Ind. 2010) (citing Taylor v. State, 840

       N.E.2d 324, 329-30 (Ind. 2006)) (alteration in original), cert. denied.


[48]   “[T]he suppression by the prosecution of evidence favorable to an accused upon

       request violates due process where the evidence is material either to guilt or to




       3
         We note that Tibbs initially seems to raise separate contentions that 1) the State committed a Brady
       violation by not disclosing evidence of an agreement between Rickey and the State and 2) he had newly-
       discovered evidence that the State offered Rickey a benefit in exchange for his testimony against Tibbs. As
       he develops his argument, however, Tibbs refers to the alleged agreement and offer interchangeably. In order
       to ensure we thoroughly address the arguments he raises, we will assess whether evidence of either the
       alleged offer or the alleged agreement were newly discovered or withheld in violation of Brady.

       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016                     Page 26 of 38
       punishment, irrespective of the good faith or bad faith of the prosecution.”

       Brady, 373 U.S. at 87, 83 S. Ct. at 1196-97. “To prevail on a Brady claim, a

       defendant must establish: (1) that the prosecution suppressed evidence; (2) that

       the evidence was favorable to the defense; and (3) that the evidence was

       material to an issue at trial.” Bunch v. State, 964 N.E.2d 274, 297 (Ind. Ct. App.

       2012) (quoting Minnick v. State, 698 N.E.2d 745, 755 (Ind. 1998) (in turn citing

       Brady, 373 U.S. at 87, 83 S. Ct. at 1194), cert. denied), trans. denied. “Evidence is

       material under Brady ‘only if there is a reasonable probability that, had the

       evidence been disclosed to the defense, the result of the proceeding would have

       been different. A “reasonable probability” is a probability sufficient to

       undermine confidence in the outcome.’” Bunch, 964 N.E.2d at 297

       (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383

       (1985)). “‘Favorable evidence’ includes both exculpatory evidence and

       impeachment evidence.” Bunch, 964 N.E. 2d at 297-98.


[49]   Tibbs alleges the State and Rickey entered into an agreement and that the State

       offered Rickey a benefit—“a time cut up to half of his sentence”—in exchange

       for his testimony against Tibbs. Appellant’s Br. p. 32. The trial court found:

               4.    On March 10, 2008, Detectives Al Williamson and Mark
               Lochmond met with Rickey Hammons at the Wabash Valley
               Correctional Facility . . . Most, but not all, of this interview was
               recorded by the law enforcement officers.


               5.     According to Detective Williamson, the portion of the
               interview which was not recorded was not recorded at Rickey
               Hammons’[s] request. Whatever the fact of the matter may be, it

       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 27 of 38
        was during this unrecorded portion of the interview that a
        discussion was held about what, if any, consideration Rickey
        Hammons was seeking in return for the information he was
        providing. According to Hammons’[s] testimony at a clemency
        hearing in 2015 and again before this court, the detectives
        brought up the subject of a sentence reduction but Hammons told
        the detectives that he was not asking for anything in return for
        the information he was providing or any testimony he might give
        in the future. According to Detective Williamson, Hammons
        told the detectives that he did not want anything in return for the
        information he was providing or for any testimony he might give
        in the future, but for reasons which are unclear to this court
        Hammons did not want that statement to be part of the recorded
        interview. Detective Williamson testified at the hearings that he
        did not have the authority to make any offer to Hammons, that
        no offers or promises were made during the interview, and that
        the discussion as to any possible benefit to Rickey Hammons
        went no further that day or at any time thereafter.


                                               *****


        12. Prior to the filing of the charges against Jason Tibbs,
        Rickey Hammons hired a private attorney in 2013 to represent
        him in efforts to obtain a sentence modification in his own case.
        Hammons had previously filed a pro se petition for modification
        of sentence in 2010. That petition was summarily denied.
        According to the testimony of Hammons and the attorney he
        hired, this new petition for sentence modification was to be based
        on Hammons’[s] accomplishments and progress in the Indiana
        Department of Correction. Both testified that it had nothing to
        do with any cooperation Hammons was giving in the Tibbs case.
        The new petition for modification of sentence was not filed until
        after the Tibbs trial.


        13. Prior to the trial of the defendant, Rickey Hammons gave
        a deposition which was attended by Deputy Prosecuting
Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 28 of 38
        Attorney Christopher Fronk, the prosecuting attorney who tried
        the defendant’s case to the jury. During that deposition, Ricky
        Hammons denied that he had been promised or received any
        consideration in return for the information he provided to the law
        enforcement officers or for his agreement to testify at the Tibbs
        trial.


        14. Prior to the trial of the defendant, Rickey Hammons also
        filed a petition for clemency with the Indiana Parole Board. That
        petition made no mention of Hammons’[s] cooperation in the
        Tibbs matter.


        15.    As is standard procedure, the petition for clemency was
        presented by the Indiana Parole Board to the trial court judge
        and the prosecuting attorney for comment. The letters from
        the Indiana Parole Board were sent out prior to the trial of
        Jason Tibbs. The trial court judge responded by stating that he
        had no knowledge of the case as it had been heard by a
        different judge but that he found the timing of the petition
        curious in light of the fact that Rickey Hammons was
        scheduled to testify during the next month as a state’s witness
        in the Tibbs trial. While it is not known for certain whether
        the office of the prosecuting attorney ever received the letter
        from the Indiana Parole Board regarding Rickey Hammons,
        the record is clear that the prosecuting attorney never
        responded favorably or unfavorably to the petition for
        clemency.


                                               *****


        17. While Tibbs’[s] appeal was pending, Rickey Hammons
        appeared before the Indiana Parole Board for his clemency
        hearing in February, 2015. At that hearing, Rickey Hammons
        stressed his progress while in the Indiana Department of
        Correction. One of the members of the board, who had

Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 29 of 38
        researched the matter further based on the trial court judge’s
        comment that Rickey Hammons was scheduled to be a state’s
        witness in another matter, asked Hammons about his
        involvement in the Tibbs case. Hammons told the board that
        the detectives who first interviewed him in 2008 had made an
        offer of leniency to him, but that he had refused it because he
        did not want anything in return for his cooperation or
        testimony.


        18. On August 7, 2015, Rickey Hammons by counsel filed
        a petition for modification of sentence with a request for
        hearing. The petition and the request were summarily denied
        by the trial court.


        19. On September 1, 2015, Hammons’[s] attorney filed a
        motion to reconsider the denial of the petition for
        modification of sentence. This motion was joined by the
        deputy prosecuting attorney assigned to handle such petitions
        after communications passed between counsel, the deputy
        prosecuting attorney who prosecuted Tibbs, and the deputy
        prosecuting attorney handling the petition for modification of
        sentence.


        20. Deputy Prosecuting Attorney Christopher Fronk
        testified to this court [during the post-trial evidentiary hearings
        on Tibbs’s Trial Rule 60(B) motion] that, although no
        promises or hopes of promises had been given to Rickey
        Hammons, the deputy prosecuting attorney believed that the
        sacrifice Hammons had made in cooperating with the state
        deserved consideration.


                                               *****


        25. A hearing was held on November 30, 2015, before the
        senior judge at which Rickey Hammons testified. Following the

Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 30 of 38
        hearing, the senior judge issued a sua sponte order to the Indiana
        Parole Board to disclose to the state and the defendant any
        information they might have regarding “any petition for
        clemency or parole that may have been filed by or on behalf of
        Rickey Hammons . . .” Such information did exist and was
        immediately provided by the Indiana Parole Board to the
        parties.


                                               *****


        27. A second hearing was held before the senior judge on
        December 7, 2015. Testimony was again received from Rickey
        Hammons and others regarding any possible agreement
        between the state and Rickey Hammons in return for his
        cooperation with law enforcement officers and his testimony
        at the Tibbs trial.


                                               *****


        30. Based on the evidence presented at the hearings on the
        motion to vacate judgment and amended motion to vacate
        judgment, the court finds that no formal or informal promises
        were made by the state or its agents to Rickey Hammons in
        return for his cooperation with law enforcement or his
        testimony at the trial of the defendant.


        31. Although witness Rickey Hammons has consistently
        stated and testified that he did not come forward with his
        evidence regarding Jason Tibbs in return for any agreement or
        promise of leniency, even if the court were to assume that he
        harbored a hope of special consideration after the fact, such
        hopes do not rise to the level of a constitutional disclosure
        violation even if there was a discussion of such a possibility
        during Hammons’[s] initial interview with the detectives. The
        uncontroverted evidence before the court is that there was no

Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 31 of 38
               agreement and Hammons made it clear from the beginning
               that he was not asking for or accepting any agreement. The
               evidence regarding the discussions between Hammons and
               the detectives at the initial interview additionally does not
               appear to rise to even the level of impeachment evidence that
               would qualify as favorable evidence which should have been
               disclosed by the state to the defense prior to trial.


               32. Even if the evidence is considered to have been
               favorable evidence which was not disclosed by the state, the
               court concludes that the evidence was not material to an issue
               at trial. Hammons[‘s] testimony corroborated Freeman’s
               testimony on a very important point and cannot be considered
               insignificant. But when Freeman’s eyewitness testimony of
               the events before, during, and after the killing are taken in
               concert with all of the other witness testimony which also
               corroborated some parts of Freeman’s testimony, the court
               concludes that there is not a reasonable probability that the
               evidence of the discussions between Hammons and the
               detectives would have made a difference to the result of the
               defendant’s trial. When taken in context, the evidence of the
               discussions is not sufficient to undermine confidence in the
               outcome of Tibbs’[s] trial.


       App. pp. 811-22. The trial court concluded the State did not commit a

       Brady violation. Id. at 822.


[50]   The trial court also concluded:


               34. Regarding the defendant’s separate claim that newly
               discovered evidence requires a new trial, the court finds and
               concludes as follows:


                        a.       The evidence has been discovered since trial.

       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 32 of 38
                        b.       The evidence is relevant but not material.


                        c.     The evidence is not cumulative to the extent that
                        it could establish in the minds of some jurors that the
                        detectives made an offer to Rickey Hammons which he
                        refused.


                        d.       The evidence is merely impeaching.


                        e.       The evidence is not privileged or incompetent.


                        f.     Due diligence was used to discover the evidence
                        prior to trial to the extent that evidence of
                        Hammons’[s] testimony before the Indiana Parole
                        Board could not have been discovered before trial.


                        g.    The evidence is worthy of credit to the extent that
                        there were discussion between Hammons and the
                        detectives at their initial interview about possible
                        leniency.


                        h.       The evidence can be produced at a new trial.


                        i.     The evidence will not probably produce a
                        different result at a new trial.



       Id. at 822-23. The trial court concluded Tibbs did not establish the existence

       of newly-discovered evidence. Id. at 822.


[51]   Tibbs does not challenge any of the trial court’s findings of fact. Instead, he

       argues generally that the alleged newly-discovered evidence and Brady

       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 33 of 38
       violation entitle him to a new trial. Specifically, Tibbs contends the

       evidence was “beneficial” to his defense, would have “helped the jury better

       assess the reliability and honesty of the felon-witness Hammons,” and was

       material because there is a reasonable probability that, if it had been

       disclosed, the outcome would have been different. Appellant’s Br. pp. 33-

       34. He contends the evidence is relevant “to the jury weighing

       Hammons’[s] credibility which clearly sheds light on the guilt or innocence

       of Mr. Tibbs.” Id. at 35-36.


[52]   Because Tibbs does not cogently argue that the trial court’s findings were not

       supported by sufficient evidence, he has waived that argument on review. See

       City of Whiting v. City of East Chicago, 359 N.E.2d 536, 540, 266 Ind. 12, 19

       (1977). “[W]here a party challenges only the judgment as contrary to law and

       does not challenge the special findings as unsupported by the evidence, we do

       not look to the evidence but only to the findings to determine whether they

       support the judgment.” Smith v. Miller Builders, Inc., 741 N.E.2d 731, 734 (Ind.

       Ct. App. 2000) (alteration in original). Although Tibbs does not challenge the

       trial court’s findings of fact, he maintains that there existed an offer of leniency

       from the State and agreement between Rickey and the State, and he bases his

       arguments on appeal on those assertions. Because those erroneous assumptions

       are central to his arguments, we find it necessary to, briefly, consider whether

       the evidence supports the trial court’s findings that no such offer or agreement

       existed. We conclude it does.




       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 34 of 38
[53]   Our review of the evidentiary hearings on Tibbs’s Trial Rule 60(B) motion

       reveals that Rickey; deputy prosecuting attorney Fronk, who prosecuted Tibbs;

       David Jones, who represented Rickey in his second request for a sentence

       modification; deputy prosecuting attorney John Lake, who represented the

       State when Rickey petitioned for a sentence modification; Detective

       Williamson; and Detective Airy all testified there was no agreement between

       Rickey and the State. Deputy prosecuting attorney Fronk and Detectives

       Williamson and Airy all testified no offer was extended to Rickey, and

       Detective Williamson testified he did not have the authority to make Rickey an

       offer. Although Rickey testified the officers who interviewed him in 2008

       mentioned a benefit—“they were like, you know, obviously you want

       something or you’re aware that you can get something or whatnot. That was

       pretty much the scope of what they talked about and offered”—he explained

       that the conversation was not a “formal” offer: “it was vaguely discussed, you

       know, guys get deals all the time for this, you know, do you know that that’s an

       option, you can ask.” Dec. 7, 2015 tr. pp. 28, 34. Rickey consistently testified

       that, not only was there no agreement between himself and the State, he did not

       want to receive any benefit in exchange for his testimony against Tibbs. Rickey

       also testified he was sentenced to forty-five years—the minimum sentence—for

       the murder he committed. Finally, and notably, Rickey’s second request for a

       sentence modification, which the State joined and attached to which was a

       letter of support from deputy prosecuting attorney Fronk, was denied.




       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 35 of 38
[54]   In short, Rickey did not receive a benefit in exchange for his testimony against

       Tibbs. We therefore conclude the evidence clearly supports the trial court’s

       finding that no agreement existed between the State and Rickey. We further

       conclude that the evidence supports the trial court’s characterization of Rickey’s

       2008 conversation with Detective Williamson as “a discussion . . . about what,

       if any, consideration Rickey Hammons was seeking in return for the

       information he was providing” and note that the trial court did not find that the

       State made an offer to Rickey. App. p. 811.


[55]   In support of his argument that “an agreement clearly existed,” Appellant’s Br.

       p. 32, Tibbs highlights the evidence most favorable to his position. Relying on

       Rickey’s vague testimony regarding the possibility of a time cut, Tibbs also

       asserts, in contradiction to the trial court’s findings, that the State made Rickey

       an offer. Our standard of review does not permit us to reweigh the evidence or

       substitute our judgment for that of the trial court. Weaver v. Niederkorn, 9

       N.E.3d 220, 222 (Ind. Ct. App. 2014).


[56]   Because there was no offer or agreement between the State and Rickey, we

       also conclude Tibbs “fails to meet the materiality requirement, thereby

       defeating both the initial claim of newly discovered evidence and the claim of

       a Brady violation.” Kubsch, 934 N.E.2d at 1145. In order to prove the evidence

       of an offer or agreement was material under either theory Tibbs advances, such

       an offer or agreement must have actually existed. The trial court found no

       agreement existed and stopped short of finding the State made Rickey an offer.



       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 36 of 38
       Because there was no agreement or offer, there simply was no material evidence

       that could have changed the outcome of Tibbs’s trial.


[57]   Even if the jury had the benefit of hearing Rickey’s crude characterization

       of his 2008 discussion with the detectives as an “offer,” (which Detectives

       Williamson and Airy deny was an offer of any sort) it also would have

       heard Rickey’s explanation of the context of that conversation—“it was

       vaguely discussed, you know, guys get deals all the time for this, you know, do

       you know that that’s an option, you can ask.” Dec. 7, 2015 tr. p. 34. We

       agree with the trial court that there is not a reasonable probability that that

       evidence related to the alleged agreement or offer, when taken in context

       with all the other evidence, would have changed the result of Tibbs’s trial.


[58]   We are not unmindful of the fact that Rickey’s assistance was likely the linchpin

       of the investigation into Rison’s death. Rickey told investigators about

       Freeman, and Freeman’s testimony was quite clearly a crucial part, if not the

       most crucial part, of the State’s case. And we are aware that the timing of

       Rickey’s petition for clemency and second request for a sentence modification is

       curious. But the trial court’s findings clearly establish that there was not, in

       fact, an agreement between Rickey and the State. Further, the trial court found

       that Rickey was already serving a minimum sentence, and the State was not

       able to intervene to change Rickey’s placement in the Department of

       Correction.




       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 37 of 38
[59]   In light of the foregoing, we conclude the trial court properly denied Tibbs’s

       Trial Rule 60(B) motion.


                                                  Conclusion
[60]   The trial court did not abuse its discretion by excluding the third-party

       perpetrator evidence Tibbs sought to introduce, nor was it fundamental error to

       exclude evidence Tibbs wanted to use to either impeach the investigation into

       Rison’s murder or Freeman’s testimony. The trial court properly denied

       Tibbs’s Trial Rule 60(B) motion for relief from judgment. We affirm.


[61]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 46A03-1501-CR-19 | September 8, 2016   Page 38 of 38
