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.
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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.
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[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
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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
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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
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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).
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[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
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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.
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