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10/29/87 KINNIE MCGRAW v. STATE INDIANA

Filed: October 29, 1987.

KINNIE MCGRAW, APPELLANT (DEFENDANT BELOW),
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



Appeal from Marion Superior Court, Criminal Division Room 3, The Honorable John R. Barney, Jr., Judge, No. CR85-244C. Court of Appeals No.: 49A02-8611-CR-388.

Pivarnik, J., DeBRULER, Givan and Dickson, JJ., concur. Shepard, C.j., Dissents and would affirm the Court of Appeals.

Author: Pivarnik

PIVARNIK, J.

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 ...


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