[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.
