Ronald Graham v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 30, 2017
• Docket: 49A05-1705-CR-1028
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Oct 30 2017, 10:08 am

this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ronald Graham, October 30, 2017 Appellant-Defendant, Court of Appeals Case No. 49A05-1705-CR-1028 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark Stoner, Appellee-Plaintiff Judge Trial Court Cause No. 49G06-1104-FA-26410

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1028 | October 30, 2017 Page 1 of 5 [1] Ronald Graham appeals following his convictions for class A felony attempted

robbery and class A misdemeanor carrying a handgun without a license. On

appeal, Graham argues that the State presented insufficient evidence to support

his attempted robbery conviction.

[2] We affirm.

Facts & Procedural History

[3] On November 16, 2010, Cory Trotter agreed to meet Graham at an

Indianapolis gas station to sell Graham marijuana. When Trotter arrived at the

gas station, he got into Graham’s car, bringing a bag containing five ounces of

marijuana with him. Graham and Trotter spoke briefly before Graham reached

behind his seat and pulled out a handgun. Graham pointed the gun at Trotter

and said “[y]ou know what this is.” Transcipt at 44. Graham ordered Trotter

not to move and told him “[t]his is how you going to get done. This is all part

of the game.” Id. at 45. Graham then told Trotter to put his hands on the

window, but instead of doing so, Trotter tried to grab the gun. A struggle

ensued, during which Graham’s car rolled out of the gas station parking area

and onto a grassy embankment. The struggle culminated in Graham shooting

Trotter three times. Trotter then stumbled out of the car and ran into the gas

station for help. Graham, who is partially paralyzed, got out of his car and

limped away on his crutches, taking the gun with him.

[4] As a result of these events, the State charged Graham with attempted murder

and attempted robbery, both class A felonies, as well as class A misdemeanor

Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1028 | October 30, 2017 Page 2 of 5 carrying a handgun without a license. A jury trial was held in September 2011,

at the conclusion of which Graham was found guilty as charged. Graham was

sentenced to thirty years, and his convictions were affirmed on direct appeal.

Graham subsequently filed a petition for post-conviction relief, which was

granted on February 19, 2016. As a result, Graham’s convictions were vacated.

[5] On March 20, 2017, the State retried Graham at a bench trial. At the

conclusion of the evidence, the trial court acquitted Graham of attempted

murder, but found him guilty of attempted robbery and carrying a handgun

without a license. Graham was sentenced to twenty years executed, and this

appeal ensued.

Discussion & Decision

[6] Graham argues that the State presented insufficient evidence to support his

attempted robbery conviction. Specifically, he argues that Trotter’s testimony

should be disregarded as incredibly dubious. The standard of review for

sufficiency claims is well settled; this court will neither reweigh the evidence nor

judge the credibility of witnesses. Jackson v. State, 925 N.E.2d 369, 375 (Ind.

2010). Rather, we will consider only the evidence favorable to the judgment

and all reasonable inferences therefrom. Alvies v. State, 905 N.E.2d 57, 61 (Ind.

Ct. App. 2009). The uncorroborated testimony of a single witness is sufficient

to support a conviction, even where the witness in question is the victim. Ferrell

v. State, 565 N.E.2d 1070, 1072-73 (Ind. 1991).

Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1028 | October 30, 2017 Page 3 of 5 [7] The doctrine of incredible dubiosity, however, allows a reviewing court to

reevaluate the credibility of a witness when “a sole witness presents inherently

improbable testimony and there is a complete lack of circumstantial evidence.”

Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind. 2007). “Application of this rule is

rare and the standard to be applied is whether the testimony is so incredibly

dubious or inherently improbable that no reasonable person could believe it.”

Id. The rule does not apply when testimony is corroborated by additional

witnesses or circumstantial evidence. Thompson v. State, 765 N.E.2d 1273, 1274

(Ind. 2002).

[8] In order to support the attempted robbery conviction, the State was required to

prove that Graham took a substantial step toward intentionally taking property

from Trotter by force, resulting in serious bodily injury to Trotter. See Ind.

Code § 35-42-5-1 (2013); Ind. Code § 35-41-5-1. Trotter testified that he met

Graham at a location Graham had selected to carry out a drug deal, and that

Graham had given him a false name. Trotter testified further that Graham did

not purchase the marijuana as they had agreed, and instead produced a

handgun, pointed it at Trotter, and ordered him not to move and to put his

hands on the window. When Trotter tried to disarm Graham, Graham shot

him three times. This evidence is plainly sufficient to support Graham’s

attempted robbery conviction.

[9] Nevertheless, Graham argues that Trotter’s testimony is incredibly dubious,

relying principally on Trotter’s admission that he lied to investigators several

times about the reason for his meeting with Graham in an apparent attempt to

Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1028 | October 30, 2017 Page 4 of 5 hide his own illegal activities. This is not a proper basis on which to invoke the

incredible dubiosity rule. “The rule applies only when a witness contradicts

herself or himself in a single statement or while testifying, and does not apply to

conflicts between multiple statements.” Carter v. State, 31 N.E.3d 17, 31 (Ind.

Ct. App. 2015), trans. denied. Graham’s remaining arguments are blatant

requests to reweigh the evidence and judge the credibility of witnesses, which

we will not indulge. There is nothing inherently improbable about Trotter’s

testimony, and it was plainly sufficient to support Graham’s attempted robbery

conviction.

[10] Judgment affirmed.

[11] Baker, J. and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1705-CR-1028 | October 30, 2017 Page 5 of 5