McGraw v. State
| Decision Date | 29 October 1987 |
| Docket Number | No. 49S02-8710-CR-1016,49S02-8710-CR-1016 |
| Citation | 514 N.E.2d 621 |
| Parties | Kinnie McGRAW, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). |
| Court | Indiana Supreme Court |
George K. Shields, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
This cause comes to us on a petition to transfer from the Fourth District Court of Appeals. Transfer is sought by Appellee State of Indiana, claiming the Court of Appeals erred in finding the evidence insufficient to convict McGraw of robbery. The State contends the Court of Appeals improperly reweighed the evidence considered by the trial court. We agree and accordingly grant transfer and vacate the Court of Appeals opinion in its holding on the robbery conviction.
McGraw has also filed a petition to transfer claiming the Court of Appeals erred in finding the evidence sufficient to convict him of theft and escape. We find the Court of Appeals properly resolved those issues and accordingly affirm the Court of Appeals and adopt its opinion in its resolution of the issues of theft and escape.
The evidence presented at trial showed that on October 5, 1985, Indianapolis Police Officer Charles Coldman was aware of an outstanding warrant for the arrest of Kinnie McGraw for driving on a suspended license. Officer Coldman, upon observing McGraw washing his car in front of a residence, left his police vehicle, approached McGraw, and informed McGraw he was under arrest. McGraw attempted to run away but the officer caught him and was able to place his handcuffs on one of McGraw's hands despite McGraw's resistance.
McGraw continued to resist while the officer attempted to place him in his police vehicle. When McGraw attempted to prevent the officer from using his radio to call for help, the officer told McGraw not to touch the radio. However, when Officer Coldman released his hold on McGraw to open the car door, McGraw tore the radio away from the officer and ran away again. The officer caught up with McGraw and they again struggled. McGraw eventually threw the officer over his shoulder. McGraw then ran back across the street and started searching the ground, picking up his hat and searching again until he picked up the officer's handgun.
The officer testified he had not noticed his gun was missing until McGraw "flipped" him. Officer Coldman testified he was running toward McGraw to again apprehend him when he saw McGraw pick up the gun, step back and adjust the gun in his hand so that the gun was pointing in the direction of Officer Coldman and angled toward the ground. The officer stopped about five feet from McGraw when he saw the gun pointed at him. He was asked on direct examination:
"Q. And how was he holding your gun?
A. As I said, he was adjusting his grip on it. He eventually got it to where he had his finger on the trigger and was holding it in a normal position as you would hold it if you were going to shoot it.
Q. Okay. And where was the gun pointed at?
A. At that time it was pointed and angled down to the ground."
The officer further testified that McGraw was saying something in a threatening tone, although he could not understand the exact words. At this point, the men heard the sirens of approaching police cars and McGraw turned and ran, taking with him the officer's gun, radio and handcuffs.
The statute under which McGraw was charged provides:
A person who knowingly or intentionally takes property from another person or from the presence of another person:
(a) by using or threatening the use of force on any person; or
(b) by putting any person in fear; commits robbery, a Class C felony. However, the offense is a Class B felony if it is committed while armed with a deadly weapon or results in bodily injury to any person other than a defendant, and a Class A felony if it results in serious bodily injury to any person other than a defendant.
Ind.Code Ann. Sec. 35-42-5-1 (Burns 1985).
Where an appellant and two other prisoners overpowered police officers, took their guns and escaped, the appellant's contention that he did not intend to commit...
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Clemmons v. State
...verdict of the jury. Inasmuch as a crime of theft was an included offense in the crime of robbery, it merged therewith. McGraw v. State (1987), Ind., 514 N.E.2d 621. This cause is remanded to the trial court with instructions to expunge the conviction and sentence for theft. The trial court......
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Croney v. State, 49S00-8804-CR-398
...correctly takes the position that theft is an included offense of robbery. The State waives argument on this issue, citing McGraw v. State (1987), Ind., 514 N.E.2d 621, which holds that theft being an included offense of robbery, the theft conviction must be vacated once the robbery convict......