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Moss v. State

Court of Appeals of Indiana

July 9, 2014

GEORGE MOSS, Appellant-Defendant,
STATE OF INDIANA, Appellee-Plaintiff

Page 441

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

ATTORNEY for APPELLANT: MICHAEL R. FISHER, Marion County Public Defender Agency, Indianapolis, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana; JAMES B. MARTIN, Deputy Attorney General, Indianapolis, Indiana.

VAIDIK, Chief Judge. NAJAM, J., and BROWN, J. concur.


Page 442

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 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

Page 443

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.

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 ...

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