The Indiana Court of Appeals affirmed a man’s 40-year sentence for his role in the robbery of two people after he set up a drug deal with one of the victims.
George Moss knew Philip Potenza and Randall Peterman. Moss set up a deal to sell marijuana to Potenza down the street from Potenza’s home, where he lived with Peterman. When Moss showed up, Todd Ruffin pointed a gun at Moss and demanded everything on him. The men then went to Potenza’s home, where they robbed Peterman. Peterman was shot in the leg in the process.
Police spoke with Peterman while he was in the hospital, and he said that it appeared Moss was also being held up by Ruffin and had his hands in the air. Peterman later said at Moss’ trial this statement was inaccurate and that he did not remember much about his time at the hospital because he was in shock. He testified he never saw a gun pointed at Moss and the two acted like a team.
Moss presented a duress defense at his trial, claiming Ruffin pointed the gun at him and told him he would be killed if he did not do everything he was told. The defense wanted Peterman’s statement marked as defense exhibit A; the state objected to admission as an exhibit but not to the transcript being marked. After closing arguments, the defense wanted to have the court look at the statement, but the trial court denied it. Moss was found guilty of felony burglary, two counts of robbery, criminal confinement and carrying a handgun without a license.
In George Moss v. State of Indiana, 49A02-1311-CR-961, the Court of Appeals declined to find that the trial court abused its discretion by not reopening the case to admit the statement taken during Peterman’s interview with police at the hospital.
“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,” Chief Judge Nancy Vaidik wrote.
The judges also rejected Moss’ request to have his sentences run concurrently, which would reduce his overall sentence from 40 years to 30 years. They pointed to his instigation and participation in the crimes and his criminal history.