FOR PUBLICATION

                                                                          Jul 09 2014, 9:50 am




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

MICHAEL R. FISHER                               GREGORY F. ZOELLER
Marion County Public Defender Agency            Attorney General of Indiana
Indianapolis, Indiana
                                                JAMES B. MARTIN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

GEORGE MOSS,                                    )
                                                )
      Appellant-Defendant,                      )
                                                )
             vs.                                )      No. 49A02-1311-CR-961
                                                )
STATE OF INDIANA,                               )
                                                )
      Appellee-Plaintiff.                       )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Sheila A. Carlisle, Judge
                          Cause No. 49G03-1304-FA-25428


                                       July 9, 2014

                             OPINION – FOR PUBLICATION

VAIDIK, Chief Judge
                                     Case Summary

       In April 2013 George Moss and accomplice Todd Ruffin forced their way into Philip

Potenza and Randall Peterman’s home. The men robbed the roommates at gunpoint and

shot Peterman in the leg. Moss was convicted of burglary, two counts of robbery, criminal

confinement, and carrying a handgun without a license. The trial court sentenced Moss to

an aggregate term of forty years. Moss now appeals arguing that the trial court erred when

it refused to reopen the case to admit a transcript of a statement Moss intended to use to

prove his duress defense. He also seeks review of his forty-year sentence. We find that

the trial court did not err in refusing to reopen the case and that his sentence is not

inappropriate. We therefore affirm the trial court.

                             Facts and Procedural History

       The facts most favorable to the judgment follow. On April 16, 2013, Potenza was

playing video games with his roommate Peterman in their Indianapolis home. Tr. p. 55,

100. After Potenza received a phone call around 7:00 p.m. from Moss, whom he had

known for about five years, Potenza left to go meet Moss down the street in order to buy

an ounce of marijuana from him. Id. at 57, 59. Upon arriving at the meeting location, a

gray Dodge Charger was already waiting for Potenza. Id. at 59. Potenza noted that the

windows in the Charger had a very dark tint, and he could see only Moss seated in the

driver’s seat. Id. Potenza exited his car, walked to the passenger side of the Charger, and

sat inside. Id.

       Immediately after Potenza closed the door, a man wrapped his forearm around

Potenza’s neck and placed a gun to the back of his neck. Id. at 59-60. This man was later

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identified as Ruffin. Id. at 83-84. Moss then raised his hands and instructed Potenza,

“You’d better do everything that this guy says.” Id. at 60, 95. Moss had seen the gun at a

gas station just minutes before the meet-up, and he knew that Ruffin’s gun was loaded. Id.

at 153-54. Ruffin then told Potenza to empty his pockets, so he handed over his wallet,

which included about $120 in cash; his passport; social-security card; and identification

card. Id. at 60-61. Potenza also gave Ruffin his cell phone and car keys. Id. at 61, 72.

Ruffin then asked Potenza, “How do you get in your house?” Id. at 60. Potenza explained

that he did not have his house keys on him, which caused Ruffin to become more

aggressive. Id. Potenza then stated that he had his garage-door opener in his car, and

Ruffin told Moss to retrieve the garage-door opener from Potenza’s car. Id. at 60, 62.

       Moss then drove to Potenza and Peterman’s home; Ruffin held the gun to the back

of Potenza’s neck the entire time the three men were in the Charger, until the car pulled

into the driveway. Id. at 60-61. Upon their arrival, Moss and Ruffin immediately got out

of the car. Id. at 62. Potenza, who remained in the passenger seat with his hands up, asked,

“Do you want me to get out or whatever?” Id. at 62, 65. Ruffin replied yes and opened

the door for Potenza to exit. Id. at 62. Ruffin, however, did not know how to use the

garage-door opener, so he placed it in front of Potenza and told him to operate it. Id. at 63.

Potenza hit the button, and the garage door opened. Id. Ruffin immediately turned the gun

back on Potenza, and the three men entered the home through the garage. Id. at 66, 102.

Held at gunpoint by Ruffin, Potenza entered the living room first, followed by Moss. Id.

at 66. Ruffin continuously pressed the gun against the back of Potenza’s head as he forced

him into his own home. Id.

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       As soon as the men entered the living room, Ruffin demanded, “[G]ive me all your

money. Where’s the money at?” Id. at 66-67. Moss said nothing and remained standing

behind Potenza and Ruffin. Id. Peterman, who was sitting in a chair across the living

room, asked, “Who the hell are you, and what are you doing in my house?” Id. at 67.

Potenza had known Moss for five years, and Peterman knew him through Potenza;

however, neither Potenza nor Peterman had ever met Ruffin before. Id. at 59, 65, 103. As

Peterman made his statement and attempted to stand up, Ruffin shot him in the leg. Id. at

68, 103. Peterman grabbed his leg in an attempt to stop the bleeding, but he did not

immediately make any other movements in fear he would be shot again. Id. at 104. In

shock, Potenza ran into the middle of the living room with his hands up and announced he

had money in his room and would get it; Ruffin followed Potenza into his room. Id. at 69-

70. Potenza was alarmed by the sound of the gun and “had never seen anybody get shot

before, so it was pretty shocking.” Id. at 69. Moss “kind of . . . cringed a little bit from

seeing somebody get shot,” but he did not really react. Id. at 70.

       In his room, Potenza gave Ruffin $30, but Ruffin was not pleased with this amount

of money and declared, “This is it?” Id. at 71. Potenza replied, “This is all I have. You

can search everything. You can take whatever you want. I just don’t want anybody else

to get hurt.” Id. at 72. As Ruffin and Potenza made their way back to the living room,

Potenza heard Peterman say to Moss, “Here’s my keys,” and that he had money in both a

pair of pants and a cooler in his closet. Id. at 72-73, 105. Peterman gave Moss the keys.

Id. at 73, 105. Moss then walked to Peterman’s bedroom, opened the closet, took out the

pants and the cooler, and tossed the pants to Ruffin in the living room; Ruffin went through

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the pants. Id. at 74-75, 105-06. Ruffin then shouted for Moss to “hurry up.” Id. at 106.

Immediately after going through the cooler, Moss ran out of the garage door they had

entered through. Id. at 76.

       Ruffin lowered his gun and said he knew Potenza and Peterman were going to call

the cops, but they assured him that they would just go to the hospital. Id. at 77. Ruffin

then said, “Well, we’re going to do it like this,” and looked as if he was going to bring the

gun up again. Id. Peterman was “pretty sure [he] was about to die.” Id. at 107. However,

Ruffin suddenly turned and ran out of the garage, leaving the door open. Id. at 78. A few

seconds later, Ruffin ran back in the room, pointed his gun at Peterman, and demanded he

hand over his phone. Id. at 79. Moss yelled, “Let’s go. We got ‘em,” and Ruffin ran back

out the garage door, this time closing it behind him. Id. at 79, 107. Neither Potenza nor

Peterman ever saw Ruffin point his gun at Moss. Id. at 97, 124. Ruffin also said nothing

threatening to Moss during the robbery. Id. at 174,183. After making sure Moss and Ruffin

were gone for good, Potenza helped Peterman to his car and drove him to St. Francis

Hospital. Id. at 81, 110.

       The same day of the incident, Indianapolis Metropolitan Police Department Officer

Michael Ollanketo interviewed Potenza. Id. at 38. Potenza told Officer Ollanketo that he

had been robbed at gunpoint at his home; he gave a basic description of Moss and Ruffin

and indicated that he had spoken on the phone with Moss before the incident. Id. at 39.

Also that same day, Detective Jon Green took a statement from Peterman after he was

transported to Methodist Hospital. Id. at 39, 49. Detective Green said Peterman was

coherent but clearly medicated and in a lot of pain, and Detective Green could tell “he

                                             5
really wasn’t focused on having a conversation.” Id. at 46, 49. Peterman explained to

Detective Green that he had been sitting at home when Potenza returned with Moss and

Ruffin, who was pointing a gun at the back of Potenza’s head. Id. at 50. And, when

Peterman asked Ruffin who he was, Ruffin shot him in the leg. Id. Peterman also told

Detective Green that Moss had his hands in the air and looked as if he was being held up

too. Id. at 112. A transcript was later made of this statement. Peterman’s time at the

hospital “was pretty much a blur,” and he “[did not] remember much” about it because he

was “in shock.” Id. at 111, 121.

       The next day, Peterman’s sister discovered that his .45 Taurus handgun had also

been stolen. Id. at 116. That same day, Potenza, who was friends with Moss on Facebook,

went through Moss’s friends and was able to find and identify Ruffin by pictures; he

emailed the pictures to the police. Id. at 83-84. Potenza and Peterman each later identified

both Moss and Ruffin in separate photo arrays. Id. at 83-86, 134-35.

       Ten days after the incident, Officer Erik Forestal took Moss into custody. Id. at 30.

That same day, Officer Forestal recovered the handgun taken from Potenza and Peterman’s

home at Moss’s residence, after Moss disclosed the location of the gun in an interview with

Detective Chester Gooch. Id. at 30, 35-36, 138. During the first part of Moss’s interview

with Detective Gooch, he denied knowing Ruffin or seeing his face, but he later admitted

Ruffin was the other man present during the robbery. Id. at 177.

       The State eventually charged Moss with Count I: Class A felony burglary; Count II:

Class A felony robbery; Count III: Class B felony robbery; Count V: Class B felony



                                             6
criminal confinement; and Count VII: Class C felony carrying a handgun without a

license.1 Appellant’s App. p. 88-97. A bench trial was held.

        At trial, Moss presented a duress defense. Moss testified that Ruffin pointed a gun

at him and told him that Ruffin would kill him if he did not do everything he was told to

do.2 Tr. p. 153-54. According to Moss, Ruffin forced him to call Potenza and then made

him get in the driver’s seat of the Charger and drive it to the meeting location. Id. at 154-

55. Moss testified that although he tried to tell Ruffin that Potenza and Peterman did not

have much in their home to steal, Ruffin kept telling him, “Just do everything I tell you to

do, and I won’t kill you.” Id. at 156-57.

        When defense counsel requested that the transcript of Peterman’s statement given

to Detective Green at the hospital be marked as defense exhibit A, the State objected to the

admission of the transcript as an exhibit but not to the transcript being marked; defense

counsel did not respond to this objection. Id. at 52. Large portions of the statement were

read into the record during Peterman’s direct and cross-examinations. Id. at 111-13, 122-

24. When asked about the statement, which included Peterman saying that he saw Ruffin

point his gun at Moss and that Moss “had his hands up like he was pretty much being held

up, too,” Peterman explained that his prior recollection was not accurate. Id. at 112. That

is, Peterman clarified that Ruffin “never” pointed his gun at Moss and Ruffin and Moss



        1
            The State charged Moss and Ruffin in the same information. Moss was charged with Counts I,
II, III, V, and VII. Ruffin was charged with counts I, II, III, IV, V, and VI.
        2
         Per Indiana Code § 35-41-3-8, which states the defense of duress does not apply to a person that
“committed the offense against the person as defined in Ind. Code 35-42”, the defense of duress does not
apply to Moss’s criminal confinement and robbery convictions, because they fall within section 35-42.
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“pretty much just acted like a team.” Id. at 113; see also id. at 123-24 (Peterman reiterated

he never saw Ruffin point the gun at Moss). Additionally, Peterman testified that it looked

like the two men knew what they were doing, and Ruffin never threatened or ordered Moss

around. Id. at 113, 124 (“I’m a hundred percent [sure] he never pointed the gun at Moss.”)

Moss also testified that Ruffin made no life-threatening statements to Moss while they were

in front of Potenza and Peterman. Id. at 174, 183.

         Peterman’s statements to Detective Green were also discussed during the cross-

examination of Detective Green and Moss’s closing argument. Id. at 51-52, 195-196. The

defense rested without seeking to formally introduce the statement into the record, but after

closing arguments, defense counsel said he would like the court to have an opportunity to

look at the statement. Id. at 184, 205. After clarifying that the statement was not yet in

evidence, the trial court stated “all the evidence has been completed. I can’t allow anyone

to reopen the evidence, especially after you’ve made your arguments and the Court has

indicated to you what things it’s pondering and just interested in as far as the law.” Id. at

205-06. The trial court returned a judgment of guilty on all counts. Appellant’s App. p.

19-20.

         The sentencing hearing was held in October 2013, and due to double-jeopardy

concerns, the trial court reduced Moss’s conviction for Count I: Class A felony burglary to

a Class B felony and Count V: Class B felony criminal confinement to a Class D felony.

Id. at 22. The court found Moss’s two young children, his remorse, the results of the

robbery, and the courtroom full of his friends and family as mitigating circumstances. Tr.

p. 249-50. In aggravation, the court considered Moss’s extensive criminal history. Id. at

                                             8
255. The court specifically found Moss’s juvenile crimes of battery, attempted auto theft,

and conversion, as well as his adult crimes of carrying a handgun without a license as both

a misdemeanor and a felony, possession of cocaine, dealing and possession of marijuana,

resisting law enforcement, driving while suspended, and theft convictions as aggravating

circumstances. Id. at 254-55. Before sentencing Moss, the trial court stated:

       So what does this criminal history tell us about you? . . . [Y]ou’re repeating
       criminal behavior after you’ve been given opportunities to reform your
       behavior through – beginning with sentences that didn’t even involve jail
       time, to sentences that were probationary, to short periods of executed
       sentences with long periods of suspended time. . . . In all of this criminal
       history, I only found one probation that actually ended successfully. . . . So
       it just appears from your prior criminal history that you’re not going to stop
       criminal behavior and that you’re not learning anything from the
       opportunities the courts have given you.

Id. at 251-52. The court found that Moss’s extensive criminal history outweighed any

mitigating circumstances. Id. at 255. Moss was sentenced to ten years on Count I, thirty

years on Count II, ten years on Count III, 545 days on Count V, and four years on Count

VII. Appellant’s App. p 23. Count III was to be served consecutive to Count II, and all

other counts were to be served concurrently, for an aggregate sentence of forty years in the

Department of Correction. Id.

       Moss now appeals.

                                 Discussion and Decision

       Moss raises two issues on appeal. First, Moss contends the trial court abused its

discretion by not reopening the case to admit the statement taken during Peterman’s

interview with Detective Green at the hospital. Second, Moss argues his sentence is

inappropriate in light of the nature of his offenses and his character.

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                              I. Motion to Reopen the Case

       Moss contends the trial court abused its discretion when it denied his request to

reopen the case and admit the transcript of the statement taken during Peterman’s interview

with Detective Green at the hospital. The granting of permission to reopen a case is

generally within the discretion of the trial court, and the decision will be reviewed only to

determine whether there has been an abuse of discretion. Ford v. State, 523 N.E.2d 742,

745 (Ind. 1988). A party should be afforded the opportunity to reopen its case to submit

the evidence which could have been part of its case-in-chief. Id. Factors the trial court

uses to weigh its discretion include whether there is any prejudice to the opposing party,

whether the party seeking to reopen appears to have rested inadvertently or purposely, the

stage of the proceedings at which the request is made, and whether any real confusion or

inconvenience would result from granting the request. Id. at 745-46. Two conditions must

be met in order for an appellate court to set aside the ruling of a trial court made in the

exercise of its discretion: 1) the action complained of must have been unreasonable in light

of all attendant circumstances or it must have been clearly unattainable and 2) the action

was prejudicial to the rights of the complaining party. Id. at 746.

       As a preliminary matter, the State argues that Moss waived this issue because

defense counsel did not make a formal motion to reopen the case. Nevertheless, because

we prefer to decide cases on the merits, we will assume that defense counsel moved to

reopen the case to admit the transcript of Peterman’s statement. Even if the court had

reopened the case and admitted Peterman’s statement, it would have been for impeachment

purposes only, not as substantive evidence to prove Moss’s defense of duress. This is

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because the statement is hearsay.       Moss argues that defense counsel laid a proper

foundation for the admission of Peterman’s prior inconsistent statement under Indiana

Evidence Rule 801(d)(1). Appellant’s Br. p. 9. He is incorrect. Indiana Evidence Rule

801(d) states that a statement is not hearsay if:

       (1) The declarant testifies and is subject to cross-examination about a prior
       statement, and the statement: (A) is inconsistent with the declarant’s
       testimony and was given under penalty of perjury at a trial, hearing, or other
       proceeding or in a deposition.

       Although Peterman testified and was subject to cross-examination, the statement

was not given under oath. It was therefore inadmissible hearsay. At best, Peterman’s prior

inconsistent statement was admissible only to impeach him, not as substantive evidence to

prove that Moss was also under the threat of Ruffin’s gun. See Young v. State, 746 N.E.2d

920, 926 (Ind. 2001) (“Ordinarily, prior inconsistent statements are used to impeach, not

as substantive evidence of the matter reported.”) But the statement was already discussed

during Peterman’s direct and cross-examination in an attempt to impeach him.

Specifically, Peterman was asked questions about the statement and significant parts of it

were read into the record. Peterman admitted his prior statement was not accurate.

Because the statement was used during Moss’s case-in-chief for the only purpose it could

have been used—impeachment—it was not error for the trial court to refuse to reopen the

case after the defense rested. During his case-in-chief, Moss’s impeachment of Peterman

was complete, and admitting the transcript of Peterman’s statement to Detective Green

would have been cumulative.

                                  II. Inappropriate Sentence


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       Moss also contends that his aggregate forty-year sentence is inappropriate in light

of the nature of his offenses and his character. He argues that given his passive role in

these offenses, his sentences should be served concurrently, which would result in a

sentence of thirty years. The Indiana Constitution authorizes independent appellate review

and revision of a trial court’s sentencing decisions. Brown v. State, 10 N.E.3d 1, --- (Ind.

2014). “We implement this authority through Indiana Appellate Rule 7(B), which provides

that we may revise a sentence authorized by statute if, after due consideration of the trial

court’s decision we find the sentence is inappropriate in light of the nature of the offense

and the character of the offender.” Id. (quotations omitted.) “We have long said that

sentencing is principally a discretionary function in which the trial court’s judgment should

receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008)

(citing Morgan v. State, 675 N.E.2d 1067, 1072 (Ind. 1996)). In determining whether a

sentence is appropriate the court looks at the culpability of the defendant, the severity of

the crime, the damage done to others, and myriad other factors that come to light in a given

case. Id. at 1224. Moss bears the burden on appeal of persuading us that his sentence is

inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).

       Moss received the advisory sentence for each of his offenses. See Ind. Code § 35-

50-2-4 to 7. Count II: Class A felony robbery and Count III: Class B felony robbery were

to be served consecutively, totaling forty years. His other sentences were to be served

concurrently, for an aggregate sentence of forty years. This is within statutory range.

       As to the nature of the offenses, but for Moss’s instigation and participation, this

incident could not have occurred. Only Moss knew Potenza and Peterman beforehand.

                                             12
And only Moss knew Potenza’s address and telephone number, which he used to set up the

meeting. Additionally, Moss retrieved Potenza’s garage-door opener out of Potenza’s car

and drove Ruffin’s car to Potenza and Peterman’s home. Also, serious bodily injury

occurred to Peterman when Ruffin shot him in the leg. Although Moss did not pull the

trigger or shoot Peterman, Moss “is still guilty under the theory of accomplice liability.”

Brown, 10 N.E.3d at ---. Moss argues that “there was no way [he] could have anticipated

that . . . Ruffin would shoot Peterman in such a spontaneous, arbitrary fashion.”

Appellant’s Br. p. 20. However, Moss saw Ruffin’s loaded gun before he and Ruffin met

up with Potenza. Id. Without Moss’s instigation and participation the crimes could not

have occurred; Moss alone brought all of the players together. Moss’s involvement and

the nature of the crimes support his forty-year sentence.

       In evaluating Moss’s criminal character, this Court has stated that “[t]he

significance of a criminal history in assessing a defendant’s character is based on the

gravity, nature, and number of prior offenses in relation to the current offense.” Boling v.

State, 982 N.E.2d 1055, 1060 (Ind. Ct. App. 2013) (citing Rutherford v. State, 866 N.E.2d

867, 874 (Ind. Ct. App. 2007)). Even a minor criminal history is a poor reflection of a

defendant’s character. Id. Moss, however, does not have a minor criminal history. Moss’s

juvenile and adult offenses include battery, auto theft, criminal conversion, carrying a

handgun without a license, possession of cocaine, dealing in marijuana, possession of

marijuana, criminal recklessness, resisting law enforcement, driving while license

suspended, and theft. Presentence Investigation Report at 4-8. Moss has violated probation

numerous times and failed to comply with mandated community service. Id. at 4-8. Moss

                                            13
has also been arrested sixteen times and has eight prior convictions, including two

misdemeanor convictions and six felony convictions. Id. at 8. Moss’s first adjudication

occurred when he was eleven years old. Id. Moss began using marijuana at the age of

thirteen and reported his last use on April 26, 2013, after the events in this case. Id. at 12.

He also began illegally using Percocet, Vicodin, and Lortab at the age of twenty-three and

began using these drugs regularly at age thirty-one; he reported taking up to two pills a day

also until April 26, 2013. Id. Moss’s criminal history shows that he is a habitual offender,

and unfortunately, his criminal behavior has escalated to involve multiple victims and

serious violence against those victims.      Moss’s aggregate forty-year sentence is not

inappropriate given the nature of the offenses and his character.

       Affirmed.

NAJAM, J., and BROWN, J. concur.




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