Emmanuel Ross, Sr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 23, 2017
• Docket: 71A04-1612-CR-2850
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this May 23 2017, 9:31 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Phillip R. Skodinski Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Emmanuel Ross, Sr., May 23, 2017

Appellant-Defendant, Court of Appeals Case No. 71A04-1612-CR-2850 v. Appeal from the St. Joseph Superior Court. The Honorable Elizabeth C. Hurley, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 71D08-1511-F1-13

Shepard, Senior Judge

[1] Emmanuel Ross, Sr. got a ride to Roger Winn’s home, the place where Ross

and his girlfriend Alicia Underwood had arranged to meet. This led to two

separate physical altercations—one at the house and one in Winn’s truck—and

Court of Appeals of Indiana | Memorandum Decision 71A04-1612-CR-2850 | May 23, 2017 Page 1 of 5 six criminal charges against Ross. A jury found Ross guilty on one count of 1 battery with moderate bodily injury and one count of failure to return to lawful 2 detention. We affirm.

Issue [2] Did the trial court abuse its discretion by allowing the State to question

Underwood on re-direct about the reason for the threats Ross made after he

fled?

Facts and Procedural History [3] On November 5, 2015, the date of the altercations, Ross was housed at

DuComb Community Corrections Center in St. Joseph County. Ross had

applied for a pass from the center to purchase clothing for work and was to

return to the center by 1 p.m. He also made plans, which were beyond the

provisions of his pass, to visit Underwood at Winn’s house. Underwood

considered Winn to be like an uncle.

[4] According to Underwood, things proceeded amicably at first, discussing their

baby, whom they had agreed to place for adoption, and enjoying photographs

of the child. She testified that things turned for the worse, however, when she

and Ross began to argue about her new boyfriend.

1 Ind. Code § 35-42-2-1(d)(1) (2014). 2 Ind. Code § 35-44.1-3-4(c) (2014).

Court of Appeals of Indiana | Memorandum Decision 71A04-1612-CR-2850 | May 23, 2017 Page 2 of 5 [5] Upon returning home, Winn heard Underwood and Ross arguing about her

new boyfriend. He intervened only after he saw that the argument had turned

physical, with Ross putting his hands and forearm on and around Underwood’s

neck, ultimately causing her to lose consciousness. Ross then began to fight

with Winn, choking him in the process, causing Winn to lose consciousness.

After she regained consciousness, Underwood attempted to call 911 during

Ross and Winn’s struggle. Winn regained consciousness and saw Ross chasing

Underwood to prevent the call.

[6] Somehow the situation de-escalated and Ross apologized, telling the two that

he was sorry, that they “were supposed to be family,” and that he did not know

why he just snapped. Tr. p. 28. The three got into Winn’s 1977 Ford F-150—

Winn was driving, with Ross sitting between him and Underwood on the bench

seat—so they could get Underwood to work on time. Ross, however, became

agitated after speaking to someone on his cell phone and telling the person that

he planned to kill the three of them—meaning Underwood, Winn, and himself.

[7] Ross suddenly jammed his foot onto Winn’s right foot, causing the truck to

accelerate. The only way Winn could reduce speed was to turn off the ignition.

Once the truck rolled to a stop, Underwood jumped from the truck to flag down

help. Ross tried to follow Underwood, but Winn pulled him back into the

truck. The two then began to struggle as the truck rolled backwards. While

Winn placed the truck in park, Ross bit Winn’s ear, causing it to bleed, and

later require stitches. Meanwhile, Underwood had caught the attention of a

Court of Appeals of Indiana | Memorandum Decision 71A04-1612-CR-2850 | May 23, 2017 Page 3 of 5 passing motorist and a police officer. Once Ross saw the officer, he ran from

the truck, eluding police for nearly two weeks before his capture.

[8] Ross on appeal asks us to determine that he was prejudiced by the admission of

testimony about threats Ross made against Underwood after the incident.

Discussion and Decision [9] The scope and extent of testimony on re-direct examination is subject to the

trial court’s discretion, reversed only upon a showing of an abuse of that

discretion. Meagher v. State, 726 N.E.2d 260 (Ind. 2000). If a new matter is

raised on cross-examination, it is entirely appropriate to allow the opposing

party to respond. Id.

[10] Winn testified that he arrived at his home in time to wash up from delivering

papers and prepare to take Underwood to her first day of work. He was aware

that Underwood and Ross had arranged to meet at his house while Ross was

released on his pass. Both Underwood and Winn testified that Ross was

arguing about Underwood’s new boyfriend. Underwood testified that she had

placed their baby for adoption with Ross’ consent.

[11] On direct examination, Underwood testified that Ross was upset about her

dating someone new. During cross-examination, she was asked if she and Ross

were arguing about the baby. She testified that they were arguing about her

new boyfriend. Over objection, on re-direct, she was asked if she had spoken

with police officers about threats Ross made to her after November 5, 2015.

Court of Appeals of Indiana | Memorandum Decision 71A04-1612-CR-2850 | May 23, 2017 Page 4 of 5 Her testimony was limited to her statement that Ross was the person who made

threats against her by phone.

[12] When Ross took the stand, he testified that he was upset and arguing about the

decision to place the baby for adoption. Allowing Underwood to testify about

the topic of their argument was not an abuse of discretion. Arguing about the

loss of contact with a child he had fathered could have provided an explanation

for his actions. However, other evidence revealed that he was jealous over his

former girlfriend’s new boyfriend. The jury weighed the evidence and assessed

the credibility of the witnesses and concluded otherwise.

Conclusion [13] In light of the foregoing, we affirm the trial court’s decision.

Kirsch, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A04-1612-CR-2850 | May 23, 2017 Page 5 of 5