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State v. Graham

Court of Appeals of Ohio, Second District, Montgomery

June 2, 2017

STATE OF OHIO Plaintiff-Appellee
v.
JAMES L. GRAHAM, JR. Defendant-Appellant

         Criminal Appeal from Common Pleas Court T.C. NO. 11-CR-274; 13-CR-2145/2

          ALICE B. PETERS, Attorney for Plaintiff-Appellee.

          ADAM JAMES STOUT, Attorney for Defendant-Appellant.

          JAMES L. GRAHAM, JR., Defendant-Appellant.

          OPINION

          DONOVAN, J.

         {¶ 1} Defendant-appellant James L. Graham, Jr., appeals a decision of the Montgomery County Court of Common Pleas, Criminal Division, overruling his post-sentence motion to withdraw his no contest pleas. Graham filed a timely notice of appeal with this Court on March 1, 2016.

         {¶ 2} We set forth the history of the case in State v. Graham, 2d Dist. Montgomery No. 26205, 26206, 2015-Ohio-896 (hereinafter "Graham I "), and repeat it herein in pertinent part:

*** 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.
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 something." (Tr. 9-10). This man was later identified as Graham.
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.)
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 ...

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