FILED
Nov 02 2016, 8:23 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Darren Bedwell Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Agency – Appellate Division
Indianapolis, Indiana Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James L. McGraw, November 2, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1603-CR-566
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable James B. Osborn,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G17-1509-F5-32010
Bradford, Judge.
Court of Appeals of Indiana | Opinion 49A02-1603-CR-566 | November 2, 2016 Page 1 of 7
Case Summary
[1] At some point prior to September of 2015, Appellant-Defendant James
McGraw and Kirsten Lance were involved in a romantic relationship. On
September 6, 2015, Lance, accompanied by her mother, went to McGraw’s
residence to remove Lance’s belongings. While at McGraw’s residence, Lance
and McGraw argued about the removal of certain possessions. At some point
during this argument, McGraw struck Lance in the face with the back of his
hand. This contact was observed by other witnesses at the scene.
[2] On September 9, 2015, Appellee-Plaintiff the State the Indiana (“the State”)
charged McGraw with two counts of Level 5 felony battery resulting in bodily
injury to a pregnant woman and one count of Class A misdemeanor domestic
battery. Eventually, the case proceeded to a bench trial, during which the trial
court found Lance to be an unavailable witness and struck her testimony.
Following conclusion of the State’s case-in-chief, McGraw moved for dismissal
of the charges pursuant to Indiana Trial Rule 41(B) (“Trial Rule 41(B)”). The
trial court granted McGraw’s motion, allowed the State to proceed on the
lesser-included offense of Class A misdemeanor battery, and found McGraw
guilty of this lesser-included offense. The trial court then sentenced McGraw to
a term of 365 days, with sixty-five of those days suspended.
[3] On appeal, McGraw contends that because the trial court’s sentencing order
reflects that the original charges were dismissed, but does not designate that the
dismissal of the charges constituted an adjudication of the charges on the
Court of Appeals of Indiana | Opinion 49A02-1603-CR-566 | November 2, 2016 Page 2 of 7
merits, the sentencing order must be amended to clearly reflect as such. The
State argues that no amendment to the sentencing order is necessary.
Concluding that no correction to the sentencing order is necessary, we affirm.
Facts and Procedural History
[4] At some point prior to September of 2015, McGraw and Lance were engaged in
a romantic relationship. During at least part of this time, Lance resided with
McGraw at his residence. After the relationship ended, Lance asked her
mother to go with her to McGraw’s residence to retrieve some personal
belongings. Lance indicated that she wanted to do so while McGraw was not
present.
[5] On September 6, 2015, Lance, who was pregnant, and her mother went to
McGraw’s residence. Shortly after entering McGraw’s residence, Lance exited
the residence carrying a television, which she loaded in her mother’s vehicle.
Lance then went back inside McGraw’s home to collect certain other items. At
the time, there was a great deal of commotion on the street outside McGraw’s
residence as members of the Indianapolis Fire Department had responded to a
nearby unrelated incident.
[6] While Lance was inside collecting other items, McGraw returned home.
McGraw inquired as to why the television was in Lance’s mother’s vehicle.
Lance’s mother responded “if it’s yours, take it … I don’t want any part of it if
Court of Appeals of Indiana | Opinion 49A02-1603-CR-566 | November 2, 2016 Page 3 of 7
it’s yours.” Tr. p. 141. McGraw then removed the television from Lance’s
mother’s vehicle and placed it in his own.
[7] About that time, Lance exited McGraw’s residence with a rolling laundry
basket which appeared to be full of women’s clothing and a twelve-pack of
Pepsi. McGraw approached Lance and the two began to argue. During this
argument, the laundry basket was knocked over and its contents spilled onto the
street. Also during this argument, McGraw struck Lance in the face with the
back of his hand. At least one of the firefighters who had responded to the
nearby unrelated incident observed the confrontation between McGraw and
Lance and contacted police. When Indianapolis Metropolitan Police Officers
Brenda Fekkes and Calvin Tipton arrived at the scene, they observed that
McGraw had gone inside his residence and Lance, who still appeared to be
upset, had blood on the inside of her mouth. Officers Fekkes and Tipton then
placed McGraw under arrest.
[8] Three days, later, on September 9, 2015, the State charged McGraw with two
counts of Level 5 felony battery resulting in bodily injury to a pregnant woman
and one count of Class A misdemeanor domestic battery. McGraw’s jury trial
was scheduled to begin on December 3, 2015. During voir dire, McGraw
interrupted the proceedings by standing up and angrily complaining about the
trial, his attorney, and the complaining witness. As a result of McGraw’s
actions, the trial court declared a mistrial, held McGraw in direct contempt of
court, and sentenced McGraw to thirty-days in the Marion County Jail. On
February 22, 2016, McGraw waived his right to a jury trial.
Court of Appeals of Indiana | Opinion 49A02-1603-CR-566 | November 2, 2016 Page 4 of 7
[9] Also on February 22, 2016, the trial court conducted a bench trial. During
defense counsel’s cross-examination of Lance regarding money potentially
missing from McGraw’s bank account, the State objected on the grounds that
Lance had invoked her Fifth Amendment rights to that specific line of
questioning during her deposition. The State did not offer use immunity to
Lance. Finding that Lance was not an available witness because McGraw was
unable to cross-examine her fully, the trial court struck Lance’s previous
testimony and excused her from the proceedings.
[10] After the State presented its remaining witnesses and rested its case, McGraw
moved for an involuntary dismissal of the charges pursuant to Trial Rule 41(B).
The trial court granted McGraw’s motion. However, with respect to the first
Level 5 felony battery charge, the trial court allowed the State to proceed with
the lesser-included charge of Class A misdemeanor battery. The trial court
found McGraw guilty of the lesser-included charge of Class A misdemeanor
battery and sentenced him to a term of 365 days with 65 days suspended. This
appeal follows.
Discussion and Decision
[11] On appeal, McGraw contends that the trial court’s sentencing order must be
corrected. Specifically, McGraw claims that while the sentencing order reflects
that the original charges were dismissed, it does not designate that the dismissal
of the charges constituted an adjudication of the charges on the merits.
McGraw further claims that because this is an important distinction in criminal
Court of Appeals of Indiana | Opinion 49A02-1603-CR-566 | November 2, 2016 Page 5 of 7
matters, the sentencing order must be amended to clearly reflect as such. In
support, McGraw cites to Trial Rule 41(B), which provides as follows:
(B) Involuntary dismissal: Effect thereof. After the plaintiff or
party with the burden of proof upon an issue, in an action tried
by the court without a jury, has completed the presentation of his
evidence thereon, the opposing party, without waiving his right
to offer evidence in the event the motion is not granted, may
move for a dismissal on the ground that upon the weight of the
evidence and the law there has been shown no right to relief.
The court as trier of the facts may then determine them and
render judgment against the plaintiff or may decline to render
any judgment until the close of all the evidence. If the court
renders judgment on the merits against the plaintiff or party with
the burden of proof, the court, when requested at the time of the
motion by either party shall make findings if, and as required by
Rule 52(A). Unless the court in its order for dismissal otherwise
specifies, a dismissal under this subdivision or subdivision (E) of this
rule and any dismissal not provided for in this rule, other than a
dismissal for lack of jurisdiction, operates as an adjudication upon
the merits.
(Emphases added).
[12] For its part, the State contends that remand is unnecessary because Indiana’s
successive prosecution and joinder statutes would bar it from attempting to re-
prosecute the dismissed charges. However, we need not consider the State’s
contention in light of the plain language of Trial Rule 41(B). Again, Indiana
Trial Rule 41(B) clearly states that unless the trial court’s order specifies
otherwise, a dismissal under Trial Rule 41(B) “operates as an adjudication upon
the merits.” In this case, the trial court’s order does not specify otherwise. As
Court of Appeals of Indiana | Opinion 49A02-1603-CR-566 | November 2, 2016 Page 6 of 7
such, we conclude that there is no need to remand the case to correct the
sentencing order.
[13] The judgment of the trial court is affirmed.
Pyle, J., and Altice, J., concur.
Court of Appeals of Indiana | Opinion 49A02-1603-CR-566 | November 2, 2016 Page 7 of 7