MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 30 2017, 10:04 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Corey L. Scott Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dwayne Casteel, January 30, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1606-CR-1476 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa F. Borges, Appellee-Plaintiff Judge The Honorable Richard Hagenmaier, Commissioner Trial Court Cause No. 49G04-1510-F5-36410
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017 Page 1 of 9 Case Summary
[1] Following a jury trial, Dwayne Casteel was convicted of robbery as a Level 5
felony. Casteel raises two issues on appeal:
1. Did the trial court abuse its discretion in admitting hearsay?
2. Did the State present sufficient evidence to support Casteel’s conviction?
[2] We affirm.
Facts & Procedural History
[3] During the early morning hours on October 10, 2015, Glen Julbert contacted a
woman who was offering massage services on backpage.com, a website
commonly used to advertise escort services. Julbert and the woman, who called
herself China but was later identified as Mary Day, agreed on a price of $60-65
for a thirty-minute massage, and Day provided Julbert with the address of her
apartment.
[4] Julbert arrived at Day’s apartment at approximately 2:00 a.m. Day, who
Julbert recognized as the woman in the photos on the backpage.com
advertisement, answered the door and invited him inside. Day was wearing a
handgun in a holster. The two sat down and talked for approximately ten
minutes before Day directed Julbert to her bathroom and told him to undress
down to his boxers. Julbert did as he was instructed and came out of the
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017 Page 2 of 9 bathroom a few minutes later wearing only his boxers and carrying the rest of
his clothing. Day was not there when he returned, so Julbert put his clothes
down and sat in a chair. Day then emerged from a walk-in closet and sat across
from Julbert.
[5] Moments later, three men rushed into the apartment. The first man to enter,
who was later identified as Casteel, was armed with a handgun and pointed it at
Julbert. Casteel ordered Julbert to get on the ground and demanded his wallet.
Julbert told Casteel his wallet was in his pants, and Casteel retrieved it and took
the $410 he found inside. Casteel gave Julbert back his empty wallet and
ordered him to get dressed. While Julbert was getting dressed, Casteel took
Julbert’s cell phone and his pack of cigarettes from a table. Once Julbert was
dressed, Casteel told him to leave and threatened to kill him if he called the
police. Julbert then left the apartment.
[6] Initially, Julbert did not tell anyone what had happened because he was
embarrassed and he did not want to call the police because Casteel had
threatened him. Later that day, however, Julbert learned that his cell phone
was being used to send vulgar messages to his daughters. Julbert then told his
brother what had happened, and his brother encouraged him to call the police.
Julbert did so, and two police officers met with him in a park across the street
from Day’s apartment. Julbert explained what happened, provided descriptions
of the suspects, and showed the officers Day’s apartment building and her
backpage.com advertisement.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017 Page 3 of 9 [7] At the officers’ request, Julbert knocked on the door of Day’s apartment while
the officers waited nearby. Day did not open the door, but she asked who was
there. Julbert told her that he wanted his phone back, and Day responded that
she did not have his phone and did not know what he was talking about.
Julbert left the apartment door, but the officers asked him to try knocking on
the door one more time. Julbert did so, and he again told Day that he wanted
his phone back. Day responded that she was going to get her boyfriend.
[8] Moments later, the door flew open and Casteel stepped out. Julbert stepped
back and the police officers came around the corner with weapons drawn and
took Casteel into custody. During a sweep of the apartment, police found Day
hiding under a pile of clothes in a bedroom closet.
[9] As a result of these events, Casteel was charged with robbery as a Level 5
felony. A jury trial was held on June 9, 2016, at the conclusion of which
Casteel was found guilty as charged. The trial court sentenced Casteel to six
years in the Department of Correction. Casteel now appeals.
Discussion & Decision
1. Admission of Testimony
[10] Casteel argues that the trial court abused its discretion in admitting hearsay
testimony. The decision to admit or exclude evidence lies within the trial
court’s sound discretion. Filice v. State, 886 N.E.2d 24, 34 (Ind. Ct. App. 2008),
trans. denied. An abuse of discretion occurs when the trial court’s decision is
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017 Page 4 of 9 against the logic and effect of the facts and circumstances before it. Dixon v.
State, 967 N.E.2d 1090, 1092 (Ind. Ct. App. 2012). Moreover, even if the trial
court abuses its discretion in admitting evidence, we will not reverse if the error
was harmless. Id. An error in the admission of evidence is harmless “when the
conviction is supported by such substantial independent evidence of guilt as to
satisfy the reviewing court that there is no substantial likelihood that the
questioned evidence contributed to the conviction.” Granger v. State, 946 N.E.2d
1209, 1213 (Ind. Ct. App. 2011) (quoting Lafayette v. State, 917 N.E.2d 660, 666
(Ind. 2009)). In other words, we will reverse “only if the record as a whole
discloses that the erroneously admitted evidence was likely to have had a
prejudicial impact upon the mind of the average juror, thereby contributing to
the verdict.” Id. (quoting Wales v. State, 768 N.E.2d 513, 521 (Ind. Ct. App.
2002), trans. denied).
[11] Casteel argues that the trial court abused its discretion when it allowed
Detective Jerry Townsend to testify that other officers informed him that a
handgun had been located inside the apartment. Specifically, Detective
Townsend testified as follows:
Q: At some point, did you receive knowledge of a gun being located?
A: Yes.
Q: What did you – what did you decide to do with that knowledge?
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017 Page 5 of 9 A: I decided to leave the gun where it was.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jan 30 2017, 10:04 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Corey L. Scott Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dwayne Casteel, January 30, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1606-CR-1476 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Lisa F. Borges, Appellee-Plaintiff Judge The Honorable Richard Hagenmaier, Commissioner Trial Court Cause No. 49G04-1510-F5-36410
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017 Page 1 of 9 Case Summary
[1] Following a jury trial, Dwayne Casteel was convicted of robbery as a Level 5
felony. Casteel raises two issues on appeal:
1. Did the trial court abuse its discretion in admitting hearsay?
2. Did the State present sufficient evidence to support Casteel’s conviction?
[2] We affirm.
Facts & Procedural History
[3] During the early morning hours on October 10, 2015, Glen Julbert contacted a
woman who was offering massage services on backpage.com, a website
commonly used to advertise escort services. Julbert and the woman, who called
herself China but was later identified as Mary Day, agreed on a price of $60-65
for a thirty-minute massage, and Day provided Julbert with the address of her
apartment.
[4] Julbert arrived at Day’s apartment at approximately 2:00 a.m. Day, who
Julbert recognized as the woman in the photos on the backpage.com
advertisement, answered the door and invited him inside. Day was wearing a
handgun in a holster. The two sat down and talked for approximately ten
minutes before Day directed Julbert to her bathroom and told him to undress
down to his boxers. Julbert did as he was instructed and came out of the
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017 Page 2 of 9 bathroom a few minutes later wearing only his boxers and carrying the rest of
his clothing. Day was not there when he returned, so Julbert put his clothes
down and sat in a chair. Day then emerged from a walk-in closet and sat across
from Julbert.
[5] Moments later, three men rushed into the apartment. The first man to enter,
who was later identified as Casteel, was armed with a handgun and pointed it at
Julbert. Casteel ordered Julbert to get on the ground and demanded his wallet.
Julbert told Casteel his wallet was in his pants, and Casteel retrieved it and took
the $410 he found inside. Casteel gave Julbert back his empty wallet and
ordered him to get dressed. While Julbert was getting dressed, Casteel took
Julbert’s cell phone and his pack of cigarettes from a table. Once Julbert was
dressed, Casteel told him to leave and threatened to kill him if he called the
police. Julbert then left the apartment.
[6] Initially, Julbert did not tell anyone what had happened because he was
embarrassed and he did not want to call the police because Casteel had
threatened him. Later that day, however, Julbert learned that his cell phone
was being used to send vulgar messages to his daughters. Julbert then told his
brother what had happened, and his brother encouraged him to call the police.
Julbert did so, and two police officers met with him in a park across the street
from Day’s apartment. Julbert explained what happened, provided descriptions
of the suspects, and showed the officers Day’s apartment building and her
backpage.com advertisement.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017 Page 3 of 9 [7] At the officers’ request, Julbert knocked on the door of Day’s apartment while
the officers waited nearby. Day did not open the door, but she asked who was
there. Julbert told her that he wanted his phone back, and Day responded that
she did not have his phone and did not know what he was talking about.
Julbert left the apartment door, but the officers asked him to try knocking on
the door one more time. Julbert did so, and he again told Day that he wanted
his phone back. Day responded that she was going to get her boyfriend.
[8] Moments later, the door flew open and Casteel stepped out. Julbert stepped
back and the police officers came around the corner with weapons drawn and
took Casteel into custody. During a sweep of the apartment, police found Day
hiding under a pile of clothes in a bedroom closet.
[9] As a result of these events, Casteel was charged with robbery as a Level 5
felony. A jury trial was held on June 9, 2016, at the conclusion of which
Casteel was found guilty as charged. The trial court sentenced Casteel to six
years in the Department of Correction. Casteel now appeals.
Discussion & Decision
1. Admission of Testimony
[10] Casteel argues that the trial court abused its discretion in admitting hearsay
testimony. The decision to admit or exclude evidence lies within the trial
court’s sound discretion. Filice v. State, 886 N.E.2d 24, 34 (Ind. Ct. App. 2008),
trans. denied. An abuse of discretion occurs when the trial court’s decision is
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017 Page 4 of 9 against the logic and effect of the facts and circumstances before it. Dixon v.
State, 967 N.E.2d 1090, 1092 (Ind. Ct. App. 2012). Moreover, even if the trial
court abuses its discretion in admitting evidence, we will not reverse if the error
was harmless. Id. An error in the admission of evidence is harmless “when the
conviction is supported by such substantial independent evidence of guilt as to
satisfy the reviewing court that there is no substantial likelihood that the
questioned evidence contributed to the conviction.” Granger v. State, 946 N.E.2d
1209, 1213 (Ind. Ct. App. 2011) (quoting Lafayette v. State, 917 N.E.2d 660, 666
(Ind. 2009)). In other words, we will reverse “only if the record as a whole
discloses that the erroneously admitted evidence was likely to have had a
prejudicial impact upon the mind of the average juror, thereby contributing to
the verdict.” Id. (quoting Wales v. State, 768 N.E.2d 513, 521 (Ind. Ct. App.
2002), trans. denied).
[11] Casteel argues that the trial court abused its discretion when it allowed
Detective Jerry Townsend to testify that other officers informed him that a
handgun had been located inside the apartment. Specifically, Detective
Townsend testified as follows:
Q: At some point, did you receive knowledge of a gun being located?
A: Yes.
Q: What did you – what did you decide to do with that knowledge?
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017 Page 5 of 9 A: I decided to leave the gun where it was. It was – I was told that the gun was in a bag.
DEFENSE: Objection, this is hearsay.
THE COURT: Well, he could testify what he did or did not do, so I’m going to overrule it at this point.
Transcript at 95. On cross-examination, Detective Townsend clarified that he
had never personally seen the gun and that the gun was reportedly found in
Day’s purse. Detective Townsend testified further that he did not collect the
gun as evidence because he was very ill that day, and obtaining a warrant to
seize the gun would have extended his investigation by several hours.1
[12] Casteel reasserts his hearsay objection on appeal, but he has failed to cite a rule
of evidence or any other legal authority relevant to his claim that Detective
Townsend’s testimony was inadmissible hearsay. Accordingly, his hearsay
argument is waived. See Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App.
2005) (explaining that “[a] party waives an issue where the party fails to
develop a cogent argument or provide adequate citation to authority and
portions of the record”), trans. denied. We further note that instead of
developing his hearsay argument, he argues that because Detective Townsend
had no personal knowledge that a gun had been located, he “clearly was not a
competent witness to testify about the gun in question.” Appellant’s Brief at 12.
1 The next day, Detective Townsend was admitted to the hospital and diagnosed with diverticulitis.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017 Page 6 of 9 This argument is more in the nature of a claim that Detective Townsend’s
testimony violated Ind. Evidence Rule 602, which provides that “[a] witness
may testify to a matter only if evidence is introduced sufficient to support a
finding that the witness has personal knowledge of the matter.” Because
Casteel did not object on this basis below, any argument in this regard is also
waived. See Bush v. State, 929 N.E.2d 897, 989 (Ind. Ct. App. 2010) (explaining
that a party may not object to the admission of evidence on one basis at trial
and seek reversal on another basis on appeal).
[13] Waiver notwithstanding, and assuming arguendo that Detective Townsend’s
testimony was inadmissible, we conclude that any error in its admission was
harmless. As an initial matter, Julbert testified that when he met Day at her
apartment, she was wearing a handgun in a holster, and Detective Townsend
testified that he was told that a gun was found in Day’s purse. Under these
circumstances, it seems highly likely that the jury believed that the gun
reportedly found in Day’s purse belonged to Day rather than Casteel. We note
further that Detective Townsend was cross-examined thoroughly regarding the
gun, and it was made clear to the jury that he had never personally seen a gun
and that he took no steps to ensure that the gun was collected as evidence. For
these reasons, we conclude it was unlikely that the testimony contributed to the
jury’s verdict. Because any error in the admission of Detective Townsend’s
testimony was harmless, Casteel is not entitled to reversal on that basis.
2. Sufficiency of the Evidence
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017 Page 7 of 9 [14] Casteel also argues that the State presented insufficient evidence to support his
conviction. In reviewing a challenge to the sufficiency of the evidence, we
neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v.
State, 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we consider only the
evidence supporting the conviction and the reasonable inferences flowing
therefrom. Id. If there is substantial evidence of probative value from which a
reasonable trier of fact could have drawn the conclusion that the defendant was
guilty of the crime charged beyond a reasonable doubt, the judgment will not be
disturbed. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It
is not necessary that the evidence overcome every reasonable hypothesis of
innocence; rather, the evidence is sufficient if an inference may reasonably be
drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144, 147
(Ind. 2007). The uncorroborated testimony of a victim alone is sufficient to
support a conviction. Jenkins v. State, 34 N.E.3d 258, 262 (Ind. Ct. App. 2015),
trans. denied.
[15] Although Casteel cites the applicable standard of review, he completely
disregards it. His arguments are nothing more than blatant requests to reweigh
the evidence and judge the credibility of witnesses, which we will not do on
appeal. Julbert testified that Casteel stole his money, cell phone, and cigarettes
while holding him at gunpoint. This testimony was plainly sufficient to support
Casteel’s conviction for robbery as a Level 5 felony. See Ind. Code § 35-42-5-1
(providing that “[a] person who knowingly or intentionally takes property from
another person or from the presence of another person . . . by using or
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017 Page 8 of 9 threatening the use of force on any person . . . commits robbery, a Level 5
felony”).
[16] Judgment affirmed.
[17] Riley, J. and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1476 | January 30, 2017 Page 9 of 9