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.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1262 | January 16, 2019   Page 3 of 9
      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


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1262 | January 16, 2019   Page 4 of 9
      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.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1262 | January 16, 2019   Page 9 of 9
