Preview:

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: MATTHEW J. ELKIN Kokomo, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General Of Indiana GARY DAMON SECREST Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JEFFREY S. GRABER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) )

No. 34A04-0604-CR-191

APPEAL FROM THE HOWARD SUPERIOR COURT The Honorable William C. Menges, Jr., Judge Cause No. 34D01-0307-FD-279

December 14, 2006

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issue Jeffrey Graber was convicted of criminal recklessness, a Class D felony, following a jury trial. He was sentenced to three years, with one year suspended and two years executed. He appeals his conviction, claiming insufficient evidence to support the verdict. Concluding that the State did not present sufficient evidence to support all the elements of criminal recklessness as a Class D felony, we reverse. Facts and Procedural History In July of 2003, Graber and Amber Fording were involved in a relationship. Fording was visiting her parents' house after spending the day with Gabriel Hartwig. Fording and her two daughters were in front of her parents' house when Graber pulled up to the house and parked his truck behind Hartwig's truck. Hartwig was in the cab of his truck making a phone call. After parking, Graber exited his truck and proceeded to yell at both Fording and Hartwig. To Hartwig, Graber yelled various statements such as, "You're through, slick." Tr. at 39. Graber also beat on Hartwig's window and slashed Hartwig's tires. When Hartwig did not get out of his truck, Graber eventually left. At some point during the altercation, the police were called and Officer Michael Harper was dispatched to investigate. Officer Harper took statements from both Hartwig and Fording in which they claimed to have seen Graber with a knife. At trial, however, both Hartwig and Fording testified they were not certain they had seen a knife. A jury found Graber guilty of criminal recklessness, and he now appeals.

2

Discussion and Decision I. Standard of Review Graber contends that the State failed to present evidence sufficient to sustain his conviction of criminal recklessness. In reviewing criminal cases, "`[i]t is the task of finders of fact, juries or judges, to determine in the first instance whether the evidence in a particular case adequately proves the elements of an offense.'" Clancy v. State, 829 N.E.2d 203, 207 (Ind. Ct. App. 2005), trans. denied (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)). "When a defendant contends on appeal that the State presented insufficient evidence to sustain a conviction, we neither reweigh the evidence nor judge the credibility of witnesses, and we affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt." Id. "Nevertheless, evidence of guilt of substantial and probative value, as required to affirm a conviction, requires more than a mere scintilla of evidence." Whitaker v. State, 778 N.E.2d 423, 425 (Ind. Ct. App. 2002), trans. denied. II. Criminal Recklessness Indiana Code section 35-42-2-2(b)(1) provides in pertinent part that a person who recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another person commits criminal recklessness. The same statute makes the offense a Class D felony if it is committed while the defendant is armed with a deadly weapon. Ind. Code

Download Jeffrey S. Graber v. State of Indiana.pdf

Indiana Law