INDIANAPOLIS  — An appeal by Brandon Thomas Woody, 25, Syracuse, is awaiting ruling by the Indiana Court of Appeals. Briefs on behalf of Woody and by the state have been filed with the court.

Woody is appealing his murder conviction of the Feb. 19, 2015, deaths of Tara Thornburg and Josh Knisley,

Woody was found guilty by a jury on two counts of murder Oct. 7, 2016. He was sentenced to a total of 120 years, with credit of 616 days plus good time credit as calculated Oct. 26, 2016. He was also ordered to pay restitution totaling $4,867.18 He is currently incarcerated at the Miami Correctional Level 3 facility. Indiana Department of Correction information indicates his earliest possible release date is March 13, 2105.

The appeal was filed Nov. 16, 2016. The 37-page brief, filed March 15, 2017, by Joseph A. Sobek, Warsaw attorney, note the issues for the appeal are: whether the trial court denied Woody’s right to confront all witnesses against him; whether the trial court properly admitted evidence of rap performances into evidence; and whether the trial court properly admitted evidence of Woody’s prior use of a firearm.

Included in the brief are statements of the case and facts including excerpts from court transcripts.
Sobek noted in the summary of the arguments the following:

• Woody’s rights to confront all witnesses against him were violated. The victim’s statements on two occasions were testimonial because the victim describes past events based on structured questions asked of her by law enforcement personnel, which went beyond resolving the ongoing emergency. The trial court abused its discretion in admitting the statements into evidence.
  “In the alternative, this court should revisit its treatment of jurisprudence of excited utterance and dying declaration exceptions to the hearsay rules as years of evidentiary research has eroded the underlying assumptions on which these hearsay exceptions rely.”
• The trial court abused its discretion in admitting rap performances by Woody. The rap performances performed by Woody in the songs “What’s Beef,” “Or Naw” and “KD Freestyle” contain consistent references to inadmissible prior crimes and bad acts under Indiana Rule of Evidence 404. “Further, the probative value of such evidence is greatly outweighed by the danger of unfair prejudice pursuant to Indiana Rule of Evidence 403.”
• The trial court abused its discretion in admitting evidence of Woody’s prior use of a firearm. No proper foundation was laid for any appropriate determination to be that such testimony would be helpful to the jury and the evidence constituted impermissible character evidence under Indiana Rule of Evidence 404. “Further, the probative value of such evidence is greatly outweighed by the danger of unfair prejudice pursuant to Indiana Rule of Evidence 403.”

The conclusion is a request the court of appeals find the trial court has committed reversible error, to order the trial court shall be reversed and Woody receive a new trial.

State’s Response

The state’s response to the appeal, seeking the court affirm the trial court’s ruling, was filed April 17 by Jesse R. Drum, deputy state attorney general.

The state’s summary of the argument are:

• Thornburg’s statements to the dispatcher and Officer (Joe) Denton were admissible as nontestimonial excited utterances. Her statements were admissible under the excited-utterance exception to the hearsay rule because she and her boyfriend had just been shot and she made statements about the shootings 10 to 15 minutes after they happened while she was still under the stress that the shootings caused. And her statements did not violate Woody’s right to confrontation because the primary purpose of the informal statements was to resolve an ongoing emergency.
• Woody’s recorded raps and testimony about his choreographed rap performance were admissible. Evidence Rule 404(b) does not apply … Writing rap songs, rapping and dancing with a gun are not forms of misconduct … the evidence was admissible for other purposes. The raps show Woody’s access to the type of weapon used in the murders, his motive and his plan. … The witness who testified about Woody’s performance was qualified as a skilled witness to offer his opinion based on his observations, about how Woody handled the gun.
• Even if Woody could show the trial court should have excluded all of the evidence he complains about, any error was harmless. There was substantial independent evidence of his guilt. (Thomas) Hursey testified Woody shot Thornburg and Knisley and the physical evidence corroborated his testimony.