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

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