STATE OF OHIO v. JAMES L. GRAHAM, JR.
Appellate Case Nos. 26205 26206
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
March 13, 2015
2015-Ohio-896
Trial Court Nos. 11-CR-274 13-CR-2145/2 (Criminal Appeal from Common Pleas Court)
Rendered on the 13th day of March, 2015.
MATHIAS H. HECK, JR., by TIFFANY C. ALLEN, Atty. Reg. No. 0089369, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorneys for Plaintiff-Appellee
ADAM J. ARNOLD, 120 West Second Street, Suite 1502, Dayton, Ohio 45402 Attorney for Defendant-Appellant
HALL, J.
{¶ 1} James Graham appeals from his convictions for aggravated robbery,
I. FACTS
{¶ 2} The facts are not in dispute. On July 15, 2013, Dayton police officers Travis Eaton and his partner were dispatched to Grandview Hospital to meet a woman who had been robbed and sexually assaulted. The woman told the officers that she and another woman were walking down Main Street near East Norman Avenue when they encountered two African-American men—one heavier set; the other tall, thin, and shirtless. They called over to the women, and the women approached. When the women neared, the victim saw that the shirtless man was holding what appeared to be a shotgun wrapped in blue clothing. The man then pointed the gun at her head and said, ” ‘You all are going to follow us into the back alley.’ ” (Tr. 10). They walked down the alley behind East Norman and stopped behind the fourth or fifth house. The shirtless man told the women to undress and empty out their purses, which they did. Out of the house to the right of where they stood came a heavier-set man wearing gray boxer briefs. The shirtless man leveled his gun at the victim and said, ” ‘You‘re going to go in there and you‘re going to do whatever the F Dave tells you.’ ” (Tr. 11). After they went inside the house, “Dave” sexually assaulted the victim. Afterwards, she ran out of the house to the hospital.
{¶ 3} The victim also told Officer Eaton “that later on through her encounter that she discovered that the male that was holding the gun was named J.R. or Junior or
{¶ 4} Armed with this information, Officer Eaton and his partner drove to East Norman Avenue and turned down the back alley. After passing four or five houses, they saw items on the ground that looked like they came from a woman‘s purse—combs, hair bands, and the like. Officer Eaton called a backup unit, and when it arrived, the officers surrounded the house to the right of the items that they found on the ground. Eaton peered through an open window into the living room and saw sleeping a heavy-set man wearing gray boxer briefs. When another officer began knocking on the front door, Officer Eaton, through the window, ordered the man to answer the door, which he did. This exchange followed:
“We asked him his name.” – “Dave.” (Tr. 18).
“We asked him if anyone else was in the house.” – “[Y]eah, * * * family and everybody [i]s here.” (Id.)
“We asked him who everybody was.” – ” ‘Junior and them.’ ” (Id.)
{¶ 5} The officers then entered the house and found “Junior” (Graham), who matched the victim‘s description of the shirtless man holding the gun. They arrested Graham and placed him in the back of a police cruiser. They then obtained consent from the owner of the house to search it. Officer Eaton found a pellet gun that looked like a rifle wrapped in a blue t-shirt.
{¶ 6} The police took Graham to the police station where he was twice interviewed by Detective Ross Nagy. During the second interview, Graham made incriminating statements. The content of these statements is not in the record.
{¶ 7} Graham was indicted of two counts of aggravated robbery (deadly weapon),
{¶ 8} Graham moved to suppress all of the evidence seized in the house and the statements that he made later at the police station. After a hearing, the trial court sustained Graham‘s motion as to the evidence seized in the house, concluding that, by entering the house without a warrant, the officers violated the Fourth Amendment.1 But the court overruled the motion as to Graham‘s statements, concluding, based on New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990), that the exclusionary rule does not apply because probable cause existed to arrest Graham.
{¶ 9} Graham pleaded no contest to the indicted charges, and the trial court found him guilty as charged. The court sentenced Graham to 10 years in prison for each aggravated robbery offense, to 11 years for complicity to commit rape, and to 11 years for rape. (The kidnapping offenses merged into the two aggravated robbery offenses.) The court ordered Graham to serve the sentences concurrently. At the time he committed these offenses, Graham was on community control in another case. The court found that
{¶ 10} Graham filed a notice of appeal in both cases.
II. ANALYSIS
{¶ 11} Graham assigns two errors to the trial court. The first alleges that the court erred by not suppressing his statements to police. And the second alleges that the court erred by imposing the maximum sentence for the complicity to commit rape and rape offenses.
A. The Motion to Suppress
{¶ 12} Graham contends that his statements should be suppressed as “fruit of the poisonous tree” because they are the product of the illegal search of the house.
{¶ 13} The issue here was addressed by the U.S. Supreme Court in New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990). In Harris, police found the body of a victim murdered in her apartment. Various facts gave police probable cause to believe that the defendant had killed her. Without first obtaining an arrest warrant, officers went to the defendant‘s apartment to arrest him. They knocked on the door, and when the defendant opened it, they showed their guns and badges. The officers entered, arrested the defendant, and took him to the police station. There the defendant signed a written inculpatory statement.
{¶ 14} The issue in Harris was whether the defendant‘s written statement “should have been suppressed because the police, by entering [the defendant‘s] home without a warrant and without his consent, violated Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), which held that the Fourth Amendment prohibits the police from effecting a warrantless and nonconsensual entry into a suspect‘s home in order to make a routine felony arrest.” Harris at 16. The Supreme Court concluded that the statement should not have been suppressed, holding that “where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State‘s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton.” Id. at 21.
{¶ 15} The facts here are the same, mutatis mutandis, as those in Harris. Thus Graham‘s statements to police are not subject to suppression.
{¶ 16} The first assignment of error is overruled.
B. The Maximum Sentences
{¶ 17} In the second assignment of error, Graham contends that the maximum sentences imposed for complicity to commit rape and rape are contrary to law because the trial court failed to follow the procedures in
{¶ 18} Graham misstates current sentencing law.
{¶ 19}
{¶ 20} The standard of review in
{¶ 21} The second assignment of error is overruled.
{¶ 22} The trial court‘s judgment is affirmed.
FAIN, J., concurs.
DONOVAN, J., concurs in judgment only.
Copies mailed to:
Mathias H. Heck
Tiffany C. Allen
Adam J. Arnold
Hon. Michael W. Krumholtz