James E. Ross, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 17, 2018
• Docket: 18A-CR-897
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Oct 17 2018, 8:35 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Elizabeth A. Bellin Curtis T. Hill, Jr. Elkhart, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

James E. Ross, Jr., October 17, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-897 v. Appeal from the Elkhart Circuit Court State of Indiana, The Honorable Michael Appellee-Plaintiff Christofeno, Judge Trial Court Cause No. 20C01-1702-MR-3

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-897 | October 17, 2018 Page 1 of 9 [1] James E. Ross, Jr., appeals his convictions for two counts of Murder,1 arguing

that (1) the trial court improperly admitted crime scene and autopsy

photographs when their prejudicial effect outweighed their probative value; and

(2) the sentence imposed was inappropriate in light of the nature of the offenses

and his character. Finding no error and that the sentence is not inappropriate,

we affirm.

Facts

[2] On September 16, 2016, Ross drove to Cheri Avery’s duplex house in Elkhart.

Avery lived downstairs, and her neighbors, Antonio and Anthony McClain,

lived upstairs. Ross had a loaded pistol on his person that Avery noticed when

she answered the door. Ross informed Avery that he did not want other people

visiting her home and that there would be a “problem” if an individual named

Cappo showed up. Tr. Vol. IV p. 56-58. Ross then left.

[3] Later, at roughly 3:00 p.m. that afternoon, Cappo arrived at Avery’s house to

collect some belongings. Shortly thereafter, at 3:30 p.m., Ross returned to

Avery’s house to discover that Cappo was there as well. Ross became upset and

started yelling at Avery. Hearing the yells, Antonio and Anthony came

downstairs to investigate the situation. Antonio was armed with a revolver on

his waistband and Anthony was unarmed. Antonio asked Ross who he was and

1 Ind. Code § 35-42-1-1.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-897 | October 17, 2018 Page 2 of 9 why he was yelling at Avery. Ross either did not respond or told both men to

mind their own business. Id. 157-58. The confrontation started to escalate, and

more people got involved. Multiple witnesses were present and watched this

scene unfold.

[4] Antonio eventually pulled out his gun but did not aim the gun at Ross. Ross

responded by pointing his gun at Antonio and shooting him in the face. After

watching Antonio collapse from his gunshot wound, Anthony raised his hands.

Ross then shot Anthony in the face as well. Both died on the scene. Nearly all

the bystanders fled the area.

[5] Ross did not flee. Rather, he stayed behind and called 911. Elkhart Police

Sergeant Drew Neese and Lieutenant Karl Miller responded to the call and

arrived at Avery’s house to investigate. Ross admitted to shooting both Antonio

and Anthony but claimed that he shot them in self-defense. Sergeant Neese

confiscated Ross’s weapon and took Ross into custody. Throughout the entire

ordeal, Ross willingly worked with the police, provided them with information,

answered questions, and even submitted to DNA testing.

[6] Ross has an extensive criminal history both as a juvenile and as an adult. He

has been previously charged and convicted of misdemeanor theft, disorderly

conduct, failure to stop after an accident, misdemeanor driving with a

suspended license, and felony attempted murder. App. Vol. II p. 116-18.

Additionally, he has been on and has violated probation multiple times. Id.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-897 | October 17, 2018 Page 3 of 9 [7] On February 23, 2017, the State charged Ross with two counts of murder. The

jury trial began on February 5, 2018. Throughout the entirety of the trial, the

State offered into evidence multiple crime scene and autopsy photographs that

featured explicit images of Antonio and Anthony’s bodies. Ross objected to the

admission of those photos, claiming that their prejudicial effect outweighed

their probative value. The trial court overruled all objections and admitted the

photographs.

[8] The jury found Ross guilty as charged. After weighing both aggravating and

mitigating factors, the trial court ultimately sentenced Ross to two consecutive

65-year sentences for a total of 130 years in the Indiana Department of

Correction. Ross now appeals.

Discussion and Decision

[9] Ross presents two arguments on appeal: (1) the trial court improperly admitted

the crime scene and autopsy photographs because their prejudicial effect

outweighed their probative value; and (2) the 130-year sentence is inappropriate

in light of the nature of the offenses and his character.

I. Admission of Evidence

[10] We first address Ross’s argument that the trial court improperly admitted the

crime scene and autopsy photographs. Specifically, Ross argues that the State’s

photographs were both prejudicial and short on probative value because they

Court of Appeals of Indiana | Memorandum Decision 18A-CR-897 | October 17, 2018 Page 4 of 9 were duplicative, immaterial, and not necessary to prove any elements of the

case. Throughout the trial, Ross maintained that he acted in self-defense, and

he argues that these photographs confused the jury and distracted from the

genuine issues.

[11] When there is a challenge to a trial court’s admission of evidence, we will

reverse only when the decision is clearly against the logic and effect of the facts

and circumstances. Fansler v. State, 100 N.E.3d 250, 253 (Ind. 2018).

[12] Indiana Rule of Evidence 403 states that “[t]he court may exclude relevant

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

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

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

words, even if particular evidence is probative and could assist a jury in

reaching its decision, the trial court can still exclude the admission of said

evidence if it believes that the evidence will prejudice one party for any of the

aforementioned reasons.

[13] Ross claims that the photographs are not only highly prejudicial due to their

graphic nature but that they are also without any relevance or probative value.

Ross has already admitted to shooting both Anthony and Antonio, so he

maintains that the only relevant evidence was evidence pertaining to whether

he acted in self-defense. We find Ross’s argument unavailing.

[14] First and foremost, evaluating whether an exhibit’s probative value is

substantially outweighed by the danger of unfair prejudice is a discretionary

Court of Appeals of Indiana | Memorandum Decision 18A-CR-897 | October 17, 2018 Page 5 of 9 task best performed by the trial court. Dunlap v. State, 761 N.E.2d 837, 842 (Ind.

2002).

[15] Second, the fact that photographs depict gory, revolting, or inflammatory

details of the crime is not a sufficient basis for reversal, unless they are without

relevance to any material issue. Perigo v. State, 541 N.E.2d 936, 939 (Ind. 1989).

Even gruesome and gory photographs with strong probative value are

admissible where they help interpret the facts of the case for the jury. Helsley v.

State, 809 N.E.2d 292, 296 (Ind. 2004). Though Ross believed the only issue

during his trial should have been the issue of self-defense, he is incorrect. The

State still had the burden to prove all elements of murder beyond a reasonable

doubt. As such, the State’s introduction of crime scene and autopsy

photographs was integral to the State’s case in describing the nature of the

crime and the consequences of Ross’s actions. Ross’s claim that the gruesome

photographs were inherently irrelevant to his criminal trial is unavailing.

[16] Moreover, the State proffered the photographs of the crime scene and of the

autopsy both to corroborate the testimony of its expert witness and to assist the

jurors in evaluating the nature of Ross’s criminal acts. Specifically, the expert

witness referenced the photographs to describe the level of trauma Antonio and

Anthony probably endured and the immediate effects of the close-range shots to

their heads. Tr. Vol. IV p. 231-32. The expert witness repeatedly utilized the

photographs to reconstruct the crime scene and to analyze the blood stain

patterns to refute the notion that Ross was acting in self-defense. Tr. Vol. VI p.

177-87. So, to Ross’s main argument, even if the only issue before the jury was

Court of Appeals of Indiana | Memorandum Decision 18A-CR-897 | October 17, 2018 Page 6 of 9 whether Ross acted in self-defense, the photographs would still be relevant as

applied to those claims.

[17] The State had valid reasons for introducing all the photographs despite their

graphic nature, and Ross objected to them as he saw fit. The trial court clearly

weighed the potential for prejudice in the photographs against their probative

value and made a decision well within its discretion. We find that the trial court

did not improperly admit the photographs over Ross’s objections.

II. Appropriateness

[18] We next address Ross’s argument that the trial court inappropriately sentenced

him to an aggregate term of 130 years in the Department of Correction. Indiana

Appellate Rule 7(B) states that a “Court may revise a sentence . . . if, after due

consideration of the trial court’s decision, the Court finds that the sentence is

inappropriate in light of the nature of the offense and the character of the

offender.” We consider a number of factors in determining whether a sentence

is inappropriate, such as the culpability of the defendant, the severity of the

crime, the damage done to others, and numerous other factors that arise in a

given case. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Additionally,

the defendant bears the burden of persuading us that his sentence is

inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-897 | October 17, 2018 Page 7 of 9 [19] The maximum sentence possible for a murder conviction, which the trial court

imposed in this case, is sixty-five years, and the minimum sentence is forty-five

years. Ind. Code § 35-50-2-3. The advisory sentence is fifty-five years. Id.

[20] First, as to the nature of the offenses, Ross shot and killed two individuals in the

head at point-blank range. Though the events leading up to the actual crimes

seemed relatively peaceful, Ross’s threats and warnings caused the situation to

escalate rapidly. Moreover, earlier that day, Ross had already warned Avery to

not allow Cappo in her home. Avery saw that Ross had a gun on his person,

and a reasonable person would interpret Ross’s words to be a serious threat.

[21] Ross is correct in pointing out that Antonio pulled out a gun. But Ross forgets

that he, himself, was armed with a gun throughout the entire altercation, so

despite his claims of self-defense, he was the catalyst that caused the ordeal to

spin out of control. Then, without any further provocation, Ross shot and killed

Anthony, who was unarmed and had his arms raised, immediately after killing

Antonio. These were serious crimes that resulted in two deaths. We do not find

that the nature of the offenses renders the sentence inappropriate.

[22] Second, as to the character of the offender, it is true that Ross was cooperative

with police throughout the entire investigation. Ross maintained a cool manner

and calmly answered the officers’ questions. Without hesitation, he even

admitted to committing the crimes. In Ross’s view, his cooperation renders the

two maximum sentences inappropriate. We cannot agree, in light of Ross’s

extensive criminal history both as a juvenile and as an adult. He has been

Court of Appeals of Indiana | Memorandum Decision 18A-CR-897 | October 17, 2018 Page 8 of 9 previously charged and convicted of misdemeanor theft, disorderly conduct,

failure to stop after an accident, misdemeanor driving with a suspended license,

and felony attempted murder. He has also violated probation multiple times.

Notwithstanding his calm demeanor on the night of the actual crime, Ross’s

history shows that he is unable or unwilling to comply with the rule of law

despite multiple opportunities to do so. The trial court reasonably found that

Ross was likely to reoffend given his repeated run-ins with the law. We do not

find the sentence inappropriate in light of Ross’s character.

[23] In sum, we do not find that the two consecutive sixty-five-year sentences were

inappropriate under Indiana Appellate Rule 7(B). In balancing the trial court’s

determination of the particularly violent and unprovoked nature of these crimes

against Ross’s criminal history and demeanor in carrying out these particular

acts, we cannot say that the trial court’s sentence is inappropriate. In

conclusion, we will not revise Ross’s sentence.

[24] The judgment of the trial court is affirmed

May, J., and Robb, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-897 | October 17, 2018 Page 9 of 9