STATE OF OHIO, Plaintiff-Appellee, v. ROBERT D. GRAFFIUS, Defendant-Appellant.
Case No. 18 CO 0008
SEVENTH APPELLATE DISTRICT COLUMBIANA COUNTY
November 21, 2019
2019-Ohio-4961
BEFORE: Cheryl L. Waite, Carol Ann Robb, David A. D’Apolito, Judges.
Application to Reopen Direct Appeal
JUDGMENT: Application Denied.
Atty. Robert Herron, Columbiana County Prosecutor, 105 South Market Street, Lisbon, Ohio 44432, for Plaintiff-Appellee
Robert D. Graffius, Pro se, #A750-471, Noble Correctional Institution, 15708 McConnelsville Road, Caldwell, Ohio 43724-8902.
{¶1} Appellant Robert D. Graffius has filed an application to reopen his appeal. Hе raises two assignments of error. Appellant first argues that, although the record reflects that the police officer who interviewed him read him his Miranda rights, the record fails to show he waivеd those rights. Appellant also argues that his counsel was ineffective for failing to follow the rules of evidence in attempting to admit an exculpatory photograph, pursuаnt to Miranda v. Arizona, 384 U.S. 436, 478-479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). For the reasons provided, Appellant‘s application for reopening is denied.
Factual and Procedural History
{¶2} On March 21, 2018, Appellant was convicted of one count of rape, a felony of the first degree in violation of
{¶3} On August 5, 2019, Appellant filеd an appeal with the Ohio Supreme Court. The Supreme Court denied jurisdiction. State v. Graffius, 2019-Ohio-4211. On August 22, 2019, Appellant filed an application to reopen his appeal based on two instances of alleged ineffective assistance of counsel. The state failed to file a response brief. We note that on October 3, 2019, Appellant filed a “MOTION FOR JUDGMENT ON THE PROCEEDINGS,” asserting that the state‘s failure to file a response brief amounts to a stipulation to his claims. However, a motion for judgment on the proceedings is a civil
Reopening
{¶4} Pursuant to
{¶5} In order to show ineffective assistance of appellate counsel, the apрlicant must meet the two-prong test outlined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pursuant to Strickland, the applicant must first demonstrate deficient performance of counsel and then must demonstrate resulting prejudice. Id. at 687. See also
ASSIGNMENT OF ERROR NO. 1
THEE [SIC] APPELLANT ROBERT D. GRAFFIUS WAS DENIED HIS INALIENABLE RIGHT TO A FAIR TRIAL WHEN THE STATE OF OHIO USED TAINTED EVIDENCE, GAINED WITHOUT WAIVER OF MIRANDA RIGHTS, TO SECURE CONVICTION.
{¶6} Appellаnt concedes that Officer Whitfield testified that he read Appellant his Miranda rights before conducting the interview at issue. However, Appellant argues that
{¶7} “When a suspect is questiоned in a custodial setting, the Fifth Amendment requires that he receive Miranda warnings to protect against compelled self-incrimination.” State v. Spring, 7th Dist. Jefferson No. 15 JE 0019, 2017-Ohio-768, 85 N.E.3d 1080, ¶ 22, appeal not allowed, 150 Ohio St.3d 1410, 2017-Ohio-6964, 78 N.E.3d 910, ¶ 22 (2017), citing State v. Wesson, 137 Ohio St.3d 309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 34 (2013); Miranda, supra.
{¶8} However, a suspect may knowingly and intelligently waive his Miranda rights and make a statement to law enforcement. A Miranda waiver does not need to be in writing in order to be valid. State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 68, citing North Carolina v. Butler, 441 U.S. 369, 373, 375-376, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). “Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused‘s uncoerced statement establishes an implied waiver of the right to remain silent.” Myers at ¶ 68, quoting Berghuis v. Thompkins, 560 U.S. 370, 384, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). Such uncoerced statements are sufficient to establish a waiver. Myers at ¶ 71.
{¶9} Officer Whitfield testified that he advised Appellant of each Miranda warning, reading to Appellant from a warning card before he began the interview with Appellant. (Trial Tr. Vol. I, p. 179.) Aсcording to Officer Whitfield, Appellant answered questions regarding the subject incident and did not appear upset until asked about the
{¶10} In fact, Appellant concedes that he answerеd questions from Officer Whitfield after he was advised of his Miranda rights. He claims that his refusal to voluntarily provide a DNA sample provides evidence that he did attempt to exercise his right to remain silent per Miranda. The record does not support Appellant‘s assertion. Appellant does not deny that he voluntarily answered Officer Whitfield‘s questions nor does he claim that he requested counsel at any time during his interview. Thus, the uncoerced statements made by Appellant after he was given his Miranda warnings established an implied waiver of his rights. Counsel‘s failure to raise the issue on appeal cannot result in a determination that his counsel provided deficient performance.
{¶11} Additionally, Appellant cannot demonstrate prejudice. Even if his statement to Officer Whitfield had been excluded, the record contains ample evidence supporting Appellant‘s conviction. The jury heard the testimony of Clarrissia Miller, thе Sexual Assault Nurse Examiner who performed the victim‘s examination. Graffius at ¶ 10. Miller testified that she observed an abrasion to the victim‘s periurethral area, the presence of light blood, аnd significant swelling. She also noted that the victim was unable to tolerate a speculum due to the amount of swelling. She testified that these injuries are indicative of force and are not consistent with consensual acts. During the examination, a single sperm cell and semen were found. The DNA testing of the cell matched Appellant‘s DNA sample. Appellant‘s DNA samрle was obtained through a search warrant and Appellant does not dispute the validity of the warrant. Further, the jury heard testimony that Appellant repeatedly called and tеxted the victim‘s phone after the incident. In fact, one
ASSIGNMENT OF ERROR NO. 2
THEE [SIC] APPELLANT ROBERT D. GRAFFIUS WAS DENIED FAIR OPPORTUNITY TO PRESENT A COMPLETE DEFENSE WHEN TRIAL COUNSEL FAILED TO PROPERLY PRESERVE EXCULPATORY EVIDENCE FOR ADMISSION.
{¶12} Appellant argues that his counsel was ineffective for failing to raise as error the trial court‘s decision to grant the state‘s motion in limine prohibiting the defense from introducing a photograph at trial. According to Appellant, the photograph is a “selfie” which shows him relаxing in bed with the victim. He argues that this photograph is evidence the victim consented to the sexual activity.
{¶13} According to the trial transcripts, the trial court allowed defense counsel to show the photograph to Sergeant Wade Boley during his testimony but did not immediately rule on defense counsel‘s request to admit the photograph into evidence. (Trial Tr. Vol. I, рp. 227-230.) Sgt. Boley did not testify as to what was depicted in the photograph. His testimony was limited to stating that the photograph showed a picture of Appellant‘s bedroom. The cоurt explained that it would not rule on counsel‘s request to admit the photograph into evidence until it could be authenticated. On March 20, 2018,
{¶14} Regardless, this photograph, even if it shows what Appellant claims, would not serve to help him. The victim admitted in her testimony that she went to lay down in Appellаnt‘s bed and, shortly thereafter, he joined her in the bed. (Trial Tr. Vol. II, pp. 294-295.) She testified that she asked him what he was doing and he replied that he just wanted to listen to music. She explained that the two of them were in bed for a few minutes before Appellant made a sexual advance. The photograph, at best, could only serve to prove that the victim and Appellant were lying in bed together at some point. Because the victim admitted that she and Appellant were in bed together for at least a period of time prior to Appellant‘s sexual advances, the photograph is irrelevant. The photograph does not, in and of itself, prove that the sexual activity was consensual. Failure to admit the phоtograph into evidence was not error and appellate counsel is not ineffective for failing to raise the issue on appeal. Accordingly, Appellant‘s seсond assignment of error is without merit.
Conclusion
{¶15} As previously stated, in order to show ineffective assistance of appellate counsel, Appellant must demonstrate deficient performance of counsel and resulting prejudice. Appellant has failed to show a genuine issue as to whether he was deprived
JUDGE CHERYL L. WAITE
JUDGE CAROL ANN ROBB
JUDGE DAVID A. D’APOLITO
NOTICE TO COUNSEL
This document constitutes a final judgment entry.