[Cite as State v. Graf, 2014-Ohio-3603.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. Sheila G. Farmer, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
ANITA L. GRAF : Case No. 13-CA-59
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County
Court of Common Pleas, Case No.
2012-CR-275
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: August 18, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX SAMUEL H. SHAMANSKY
Fairfield County Prosecuting Attorney DONALD L. REGENSBURGER
COLIN E. PETERS
By: TIANNI S. HARRISON KRYSTIN N. MARTIN
Assistant Prosecuting Attorney 523 South Third Street
239 W. Main Street, Ste. 101 Columbus, OH 43215
Lancaster, OH 43130
Fairfield County, Case No.13-CA-59 2
Baldwin, J.
{¶1} Appellant Anita L. Graf appeals a judgment of the Fairfield County
Common Pleas Court convicting her of complicity to illegal assembly or possession of
chemicals for the manufacture of drugs (R.C. 2925.041), trafficking in marijuana (R.C.
2925.03), and possession of marijuana (R.C. 2925.11), each count including a firearm
specification (R.C. 2941.141). Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} This case arose in the afternoon of June 19, 2012 when members of the
Fairfield County Sheriff's Office SCRAP Unit (Street Crime Reduction and Apprehension
Program) performed a “knock and talk” at appellant's rural Berne Township residence in
Fairfield County, Ohio. The Fairfield–Hocking Major Crimes Unit had received two
anonymous tips alleging that a marijuana grow operation and methamphetamine lab
were located on the property.
{¶3} Two people were known to live at the residence: appellant and her
boyfriend, Neil Morgan. Deputy Lyle Campbell knew appellant and Morgan from an
earlier encounter, also a “knock and talk,” involving an allegation of drug activity.
Morgan was alleged to be a member of an outlaw motorcycle gang called “The
Avengers.”
{¶4} The SCRAP Unit officers planned their approach prior to their arrival at
appellant's residence. Campbell would approach the front door, knock, and ask to speak
with appellant and Morgan, while four additional officers would spread out and take up
Fairfield County, Case No.13-CA-59 3
positions around the perimeter of the residence for “officer safety” and to ensure that no
one left through the back of the residence.
{¶5} When the officers arrived, one motorcycle was parked in front of the
residence, a Harley–Davidson model registered to Morgan. Appellant answered the
door when Campbell knocked. Campbell identified himself, stated he was there
because of complaints of drug activity, and asked if he could come in. Appellant stated
she needed to put her dog away and closed the door.
{¶6} Almost immediately as appellant closed the door, Sgt. Hamler advised
Campbell that two officers in the rear of the residence had observed marijuana plants
on a rear deck. Campbell knocked again and told appellant to come out. He heard
people inside saying “hang on,” but he decided to make an “exigent entry,” opened the
door partway, and announced “Sheriff's office, we're coming in.” As he entered the
residence, appellant and Morgan were walking toward the front door from the dining
room.
{¶7} Morgan and appellant were brought outside and officers swept the entire
residence to ensure no additional occupants were inside. They were detained outside
the residence awaiting the arrival of a search warrant.
{¶8} In the meantime, Deputy Luke Williams, also a member of the SCRAP
Unit, arrived at appellant's residence and immediately walked through appellant's yard
to the rear of the property for “officer safety.” He observed an elevated rear deck
containing seven potted marijuana plants. He notified the other officers immediately and
word spread to Campbell, who was attempting to speak to appellant at the front door.
Fairfield County, Case No.13-CA-59 4
{¶9} After a warrant was obtained, officers searched appellant’s house, her car,
and the outside property. In the main bedroom where appellant had placed her dog,
officers found an open safe containing cash, ammunition, marijuana, instructions for
cooking methamphetamine, and two firearms. Officers also found six sets of digital
scales, a bag of marijuana seeds, clippings from marijuana plants, and a book about
marijuana in the bedroom. In the living room officers found pipes commonly used to
smoke crack cocaine and methamphetamine, baggies, and marijuana seeds. Officers
found a device used to cook methamphetamine in a wood-burning stove in the
basement. In appellant’s car, officers found more marijuana and traces of
methamphetamine. Officers seized the marijuana plants that were growing on the back
deck.
{¶10} Appellant was indicted by the Fairfield County Grand Jury with one count
of illegal assembly of chemicals for the manufacture of drugs, trafficking in marijuana,
and possession of marijuana. Appellant moved to suppress the evidence obtained
during the search of the home. The parties stipulated that the testimony taken and
evidence presented during Morgan’s suppression hearing would be the same, and that
the ruling on the motion to suppress filed by Morgan would be identical to the ruling in
appellant’s case.
{¶11} Photos of the property taken on June 19, 2012 were introduced at
Morgan’s suppression hearing. The photos depict a small bungalow-style home with a
front door directly in the center, approached by a sidewalk and steps requiring a short
descent to approach the house. The home is surrounded by a yard in front of a wooded
area to the rear, with outbuildings, a motor home, and a tarp-covered vehicle. In front of
Fairfield County, Case No.13-CA-59 5
the covered vehicle is a yellow sign which is illegible in the photos but according to the
uncontroverted testimony of appellant states “No Trespassing.” A “no trespassing” sign
is also posted in the front window of the residence. A door is visible at the side of the
house. The elevated rear deck upon which the marijuana was observed is only visible
from the rear of the property. The deck does not extend the length of the house and is
sheltered on one side by a wall. The elevated deck contains seven pots of readily-
apparent marijuana which can be seen through the balusters of the deck in the
photographs.
{¶12} After the hearing, the court overruled Morgan’s motion to suppress, and
therefore appellant’s motion to suppress was also overruled.
{¶13} The case proceeded to jury trial. Appellant was found guilty of complicity
on count one, illegal assembly of chemicals for the manufacture of drugs. She was
found guilty of trafficking in marijuana and possession of marijuana, and to complicity on
both offenses. She was also convicted of the firearm specifications. The court found
that counts two and three and the associated complicity charges merged for sentencing,
and the state elected to proceed on count two, trafficking in marijuana. Appellant was
sentenced to eighteen months incarceration on count one and fourteen months
incarceration on count two, to be served consecutively, and consecutive to the firearm
specifications on each count. The court suspended the sentence on count one for a
three year period of community control, to begin upon appellant’s release from prison.
{¶14} Appellant assigns three errors on appeal to this Court:
{¶15} “I. THE OFFICERS’ ENTRY INTO THE CURTILAGE OF THE HOME
WAS A SEARCH IN VIOLATION OF APPELLANT’S RIGHTS UNDER THE FOURTH
Fairfield County, Case No.13-CA-59 6
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTION 14 OF THE OHIO CONSTITUTION.
{¶16} “II. APPELLANT WAS CONVICTED IN THE ABSENCE OF EVIDENCE
SUFFICIENT TO SUPPORT A FINDING OF GUILTY IN VIOLATION OF HER RIGHT
TO DUE PROCESS AS GUARANTEED BY THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION.
{¶17} “III. THE STATE FAILED TO PROVE EVERY ELEMENT OF THE
OFFENSES FOR WHICH APPELLANT WAS CONVICTED, AND THUS HER
CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
I.
{¶18} Appellant argues that the trial court erred in overruling her motion to
suppress, as the officers’ entry into the curtilage of the home was a search in violation
of the Fourth Amendment.
{¶19} In State v. Morgan, 5th Dist. Fairfield No. 13-CA-30, 2014-Ohio-1900, we
found that the entry into the curtilage in the instant case was a violation of the Fourth
Amendment and the trial court therefore erred in overruling the suppression motion filed
by Neil Morgan, appellant’s co-defendant. The parties in this case stipulated that the
evidence on appellant’s suppression motion would be identical to that presented in
Morgan’s case. For the reasons stated in this Court’s opinion in Morgan, supra,
appellant’s first assignment of error is sustained.
Fairfield County, Case No.13-CA-59 7
II., III.
{¶20} Appellant’s second and third assignments of error both challenge the
evidentiary support for her convictions, and are rendered moot by our disposition of
assignment of error number one.
{¶21} The judgment of the Fairfield County Common Pleas Court is reversed.
This matter is hereby remanded to that court for further proceedings consistent with this
opinion. Costs are assessed to appellee.
By: Baldwin, J.
Gwin, P.J. and
Farmer, J. concur.