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
