Judge John Wilson
A Grand Jury voted a true bill on menacing in the second and third degree charges against Graham, among others. Yet, it voted a no true bill on the criminal possession of a weapon charge, which was dismissed. The court found while the evidence submitted to the grand jury was legally sufficient to support the counts of menacing in the third degree and harassment in the second degree, the true bill voted by them on the second degree menacing charge was inconsistent with the dismissal of the criminal possession charge. As such, it concluded the inconsistency rendered the true bill voted for the menacing in the second degree count repugnant and insufficient. It stated the theory of repugnancy was that a defendant should not be convicted for a crime for which the jury found defendant did not commit an essential element. Here, the court noted Graham could not have menaced complainant with a weapon, as necessary for a second degree menacing charge, yet not have been in possession of said weapon. It ruled the failure to find a true bill on the criminal possession charge negates the menacing in the second degree charge, granting dismissal with leave to replead.
