MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 16 2019, 5:56 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral 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
Monika P. Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James E. Ross, Jr., January 16, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1262
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Michael A.
Appellee-Plaintiff Christofeno, Judge
Trial Court Cause No.
20C01-1610-F1-8
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1262 | January 16, 2019 Page 1 of 9
[1] James E. Ross, Jr., appeals his conviction of Level 1 felony attempted murder. 1
He presents multiple issues for our review, which we consolidate and restate as:
1. Whether the trial court abused its discretion when it denied
Ross’ motion for mistrial based on the “drumbeat” repetition of
testimony from three witnesses who heard the victim state Ross
was the shooter; and
2. Whether the trial court abused its discretion when it admitted
into evidence deleted text messages found on Ross’ phone.
We affirm.
Facts and Procedural History 2
[2] On October 17, 2016, Maurice Graves visited Maria Villegas’ house, which was
equipped with a video surveillance system. While there, he received a phone
call from Ross. Ross stated, “Hey, I heard you been trying to kill me.” (Tr.
Vol. III at 221.) Graves testified he told Ross, “there’s been a couple time that I
seen you and you didn’t see me, and I could have easily had you.” (Id. at 223-
4) (errors in original). Ross responded, “All right. That’s all I wanted to
know,” (id. at 224), and he hung up.
1
Ind. Code § 35-42-1-1 (2014); Ind. Code § 35-41-5-1 (2014) (attempt)
2
We held oral argument in this case on December 6, 2018, in the Indiana Court of Appeals Courtroom at the
Indiana Statehouse. We thank counsel for their able presentations.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1262 | January 16, 2019 Page 2 of 9
[3] Later that evening, Antonio Williams arrived at Villegas’ home looking for
Graves. Williams wanted to sell marijuana to Graves and displayed the
marijuana and a gun to both Graves and Villegas. Williams and Graves left
Villegas’ home with Charles Jackson 3 to go to a gas station, where they
purchased cigarellos. Williams and Graves were both armed. As the men were
walking, Jackson noticed Williams was texting on his phone. After the men
made their purchases, they started to walk back to Villegas’ house. On the way,
Williams said something about “unexpected things happening.” (Id. at 243.)
Based on Williams’ comment, Graves drew his gun. When the men arrived at
Villegas’ back yard, two men, later identified as Rasheed Davis and Ross, came
from behind the shed in the backyard and started shooting at Graves. Graves
fired his weapon and was running away when he realized he had been shot.
[4] Corporal Jason Gruber responded to a call of an injured person. When he
arrived, he began applying pressure to Graves’ wound. While Corporal Gruber
was rendering aid, Graves said to him, “if you wanna know who to look for, it’s
James.” (Id. at 11.) Sergeant Daniel Mayer then arrived at the scene and
started assisting Graves, who was “writhing in pain.” (Id. at 26.) Afraid
Graves might not survive his injuries, Sergeant Mayer asked Graves who shot
him, to which Graves replied, “James.” (Id. at 28.) An ambulance arrived and
transported Graves to the hospital. When Ross was taken out of the
3
Jackson had arrived at Villegas’ house earlier in the evening.
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ambulance, Officer Brandon Stevens heard Graves scream twice that he had
been shot by “James Ross.” (Id. at 40.)
[5] Graves was shot twice in the buttocks and twice in his right upper arm. The
police viewed the footage from the surveillance camera at Villegas’ home and
saw Ross shooting at Graves. In addition, the police found slugs and a jacket in
the area where Graves had been shot and a firearm outside Villegas’ fence.
Police interviewed Graves at the hospital, and he again identified Ross as the
shooter. He also picked Ross out of a lineup provided by police. Police then
arrested Ross, who at the time was carrying an iPhone and a gun.
[6] Police requested a warrant to search Ross’ iPhone for further evidence of the
crime. The affidavit in support of the search warrant referenced the call
between Ross and Graves prior to the shooting. In the deleted messages on the
iPhone, police found a text message conversation between Ross and an
individual later identified as Williams that began at 9:55 p.m. and ended at
10:30 p.m. The text messages indicated Graves’ location at the time, including
information about when Jackson, Williams, and Graves left the gas station to
walk to Villegas’ home, and reported that Graves was armed. Police then
requested a second search warrant to obtain the cell phone records for the
iPhone. On October 26, 2016, the State charged Ross with Level 1 felony
attempted murder.
[7] On May 2, 2017, Ross filed a motion to suppress all evidence from the cell
phone. He argued the first warrant to search the phone was overbroad, lacked
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particularity, and did not indicate a nexus between the iPhone and the crime.
The trial court held a hearing on the matter on August 2, 2017. After the
hearing, the trial court directed the parties to file supplemental briefs on the
matter. On September 19, 2017, the trial court denied Ross’ motion to
suppress.
[8] Ross’ trial began on February 19, 2018. At the trial, Corporal Gruber, Sergeant
Mayer, and Officer Stevens testified that Graves identified Ross as the man who
shot him. Ross objected as each of them testified and moved for mistrial after
the third officer testified, based on the drumbeat fashion of the officers’
testimony. The trial court denied Ross’ motion for mistrial, and the
proceedings continued. Graves testified to the events of the evening, including
his conversations with the officers. The State entered into evidence, over Ross’
objection, the text messages between Williams and Ross. After a six-day trial,
the jury returned a guilty verdict against Ross. The trial court convicted Ross
and later sentenced him to forty years.
Discussion and Decision
Denial of Motion for Mistrial
[9] Whether to grant a mistrial is a decision left to the sound discretion of the trial
court. Pavey v. State, 764 N.E.2d 692, 698 (Ind. Ct. App. 2002), trans. denied.
“The trial court’s decision is afforded great deference on appeal because the trial
court is in the best position to gauge the surrounding circumstances of the event
and its impact on the jury.” Id. “The declaration of a mistrial is an extreme
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1262 | January 16, 2019 Page 5 of 9
action which is warranted only when no other recourse could remedy the
perilous situation.” Id.
[10] During Ross’ trial, three different officers testified Graves identified Ross as the
shooter prior to receiving treatment at the hospital for his injuries. Ross claims
this drumbeat repetition of Graves identification of him “improperly bolstered
the credibility of Maurice Graves and substantially prejudiced [Ross].” (Br. of
Appellant at 30.) Our Indiana Supreme Court confronted a similar issue in
Modesitt v. State, 578 N.E.2d 649 (Ind. 1991).
[11] In Modesitt, three witnesses testified regarding the victim’s out of court
statements about the incident. The victim then testified. Our Indiana Supreme
Court overturned Modesitt’s convictions and ordered a new trial because
“statements could not be introduced to bolster the testimony of what might
otherwise be regarded as a weak witness. Numerous witnesses could not be
used to testify to the same statement given by a particular witness, thereby
creating the prohibited drumbeat of repetition.” Id. at 653.
[12] Ross argues the same drumbeat repetition resulted in him receiving an unfair
trial. Ross outlines the three officers’ testimony and his objections thereto.
First, Corporal Gruber testified that while he was tending Graves’ wounds,
Graves said, “if you wanna know who to look for it’s James.” (Tr. Vol. III at
13.) Similarly, Officer Mayer asked Graves who shot him, and Graves told
Officer Mayer the shooter was “James.” (Id. at 28.) Finally, Officer Steven
testified he heard Graves scream at the hospital that he had been shot by
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1262 | January 16, 2019 Page 6 of 9
“James Ross.” (Id. at 40.) After the officers’ testimony, Graves testified
regarding the entire incident, including his statements to the officers, and then
he again identified Ross in court as the shooter.
[13] Our Indiana Supreme Court adopted Federal Evidence Rule 801(d)(1) as a test
governing the admissibility of prior statements as substantive evidence in
Modisett:
[W]e hold that, from this point forward, a prior statement is
admissible as substantive evidence only if the declarant testifies at
trial and is subject to cross examination concerning the
statement, and the statement is (a) inconsistent with the
declarant’s testimony, and was given under oath subject to the
penalty of perjury at a trial, hearing, or other proceeding, or in a
deposition, or (b) consistent with the declarant’s testimony and is
offered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive,
or (c) one of identification of a person made after perceiving the
person.
Modisett, 578 N.E.2d at 653-4. Here, Graves’ prior statements identifying Ross
as the shooter were admissible because Graves testified at trial, was subject to
cross-examination, and the statement was “one of identification of a person
made after perceiving the person.” Id. at 654. Additionally, the relevant
statements were brief and consistent with Graves’ testimony. Therefore, the
trial court did not abuse its discretion when it denied Ross’ request for mistrial.
See, e.g., McGrew v. State, 673 NE.2d 787, 796 (Ind. Ct. App. 1996) (unlike
Modisett, where the “drumbeat” repetition consisted of lengthy detailed
testimony of the abuse allegation, the statements in McGrew were “brief and
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1262 | January 16, 2019 Page 7 of 9
consistent” with the victim’s later statements, and thus the admission of the
testimony “is not cause for reversal”), reh’g denied, relevant portions summarily
affirmed in McGrew v. State, 682 N.E.2d 1289, 1292 (Ind. 1997).
Admission of Evidence
[14] We review rulings regarding the admission of evidence for an abuse of
discretion, which occurs “when a decision is clearly against the logic and effect
of the facts and circumstances before the court.” Johnson v. State, 992 N.E.2d
955, 957 (Ind. Ct. App. 2013), trans. denied. We do not reweigh the evidence or
assess the credibility of witnesses. Id. Instead, we “consider conflicting
evidence in a light most favorable to the trial court’s ruling.” Id.
[15] Ross argues the trial court abused its discretion when it admitted deleted text
messages found on his iPhone by police because those text messages were
seized in violation of his rights under the Fourth Amendment of the United
States Constitution and Article 1, Section 11 of the Indiana Constitution. We
need not address those arguments, however, because any error in the admission
of the deleted text messages was harmless.
[16] An error in admitting evidence does not require reversal unless it affects the
substantial rights of a party. Stewart v. State, 754 N.E.2d 492, 496 (Ind. 2001).
“The improper admission of evidence is harmless error 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.” Barker v. State, 695 N.E.2d 925, 931
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1262 | January 16, 2019 Page 8 of 9
(Ind. 1998), reh’g denied. The erroneous admission of evidence may also be
harmless if that evidence is cumulative of other evidence admitted. Donaldson v.
Indianapolis Pub. Transp. Corp., 632 N.E.2d 1167, 1172 (Ind. Ct. App. 1994).
[17] Here, the State presented surveillance video of Ross shooting Graves, forensic
evidence that the bullets in and around Graves matched the gun Ross was
carrying gun when arrested, and Graves’ testimony outlining the call between
Graves and Ross and the ensuing events culminating in Graves’ shooting.
Based on the substantial independent evidence presented, we conclude any
alleged error in the admission of the deleted text messages from Ross’ iPhone
was harmless. See Hunter v. State, 72 N.E.3d 928, 932 (Ind. Ct. App. 2017)
(“improper admission of evidence is harmless error when the erroneously
admitted evidence is merely cumulative of other evidence before the trier of
fact”), trans. denied.
Conclusion
[18] The trial court did not abuse its discretion when it denied Ross’ request for
mistrial. Additionally, any error in the admission of the deleted text messages
from Ross’ phone was harmless because the deleted text messages were merely
cumulative of other substantial evidence of Ross’ guilt that was before the jury.
Accordingly, we affirm.
[19] Affirmed.
Baker, J., and Robb, J., concur.
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