Court of Appeals of Indiana | Memorandum Decision 18A-CR-1262 | January 16, 2019 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Elizabeth A. Bellin

Elkhart, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Monika P. Talbot

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

James E. Ross, Jr.,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

January 16, 2019

Court of Appeals Case No.

18A-CR-1262

Appeal from the Elkhart Circuit 

Court

The Honorable Michael A. 

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 2 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 History2

[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 3 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 Jackson3 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 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1262 | January 16, 2019 Page 5 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 6 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 7 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 8 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 9 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.