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
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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).
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[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
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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.
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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.
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