                                                                          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
