State v. Graham

Citation172 N.E.3d 841,164 Ohio St.3d 187
Decision Date17 December 2020
Docket NumberNo. 2016-1882,2016-1882
CourtUnited States State Supreme Court of Ohio
Parties The STATE of Ohio, Appellee, v. GRAHAM, Appellant.

164 Ohio St.3d 187
172 N.E.3d 841

The STATE of Ohio, Appellee,
GRAHAM, Appellant.

No. 2016-1882

Supreme Court of Ohio.

Submitted October 22, 2019
Decided December 17, 2020

Victor V. Vigluicci, Portage County Prosecuting Attorney, and Pamela J. Holder, Assistant Prosecuting Attorney, for appellee.

Donald Hicks ; and the Law Office of Donald Gallick, L.L.C., and Donald Gallick, Lakewood, for appellant.

Fischer, J.

164 Ohio St.3d 187


{¶ 1} This is an appeal of right from an aggravated-murder conviction and death sentence. A Portage County jury found appellant, Damantae Graham, guilty of multiple offenses, including aggravated murder and three accompanying death-penalty specifications: committing the aggravated murder during an aggravated robbery, an aggravated burglary, and a kidnapping. The jury recommended a sentence of death, and the trial court accepted the recommendation and sentenced Graham accordingly. For the reasons that follow, we affirm Graham's convictions but vacate his death sentence and remand the cause to the trial court for resentencing consistent with this opinion.


{¶ 2} Evidence introduced at trial showed that Graham, a 19-year-old, shot Nicholas Massa during the robbery of an apartment in Kent, Ohio. The state

164 Ohio St.3d 188

presented the testimony of, among others, the two surviving robbery victims and Graham's three codefendants.

A. Kremling plans to rob Haithcock

{¶ 3} Connor Haithcock, a 19-year-old, and Justin Lewandowski, a 20-year-old Kent State University student, were roommates at the Ryan Place apartments in Kent. Massa, an 18-year-old Kent State University student, often visited the apartment.

{¶ 4} Haithcock sold marijuana and "dabs," a concentrated form of tetrahydrocannabinol, also known as THC, from the apartment. Haithcock sold marijuana to 17-year-old Ty Kremling, his former high school classmate, on two occasions. On those occasions, Kremling noticed that Haithcock kept marijuana and a significant amount of money in a lockbox in the apartment.

{¶ 5} Soon after his second purchase of marijuana, Kremling decided to rob Haithcock. On Super Bowl Sunday, February 7, 2016, he began planning the robbery for later that day. Kremling asked two of his friends, Graham and 17-year-old Marquis Grier, if they would like to take part in a robbery. Kremling told them it would be easy, and he shared details with them: the location of the apartment, the valuable items in the apartment, and the intended target of the crime (Haithcock) and how he knew him. Graham and Grier agreed to participate.

{¶ 6} Kremling then called 17-year-old Anton Planicka, a friend who owned a truck. Kremling told Planicka that he needed a ride to Kent to commit a robbery. Planicka later testified that Kremling had told him it was a "sure thing" and had asked him if he "wanted in on it." Planicka agreed to participate.

{¶ 7} Kremling, Grier, Graham, and Planicka met at a house on McElrath Avenue in Ravenna. According to Planicka, Kremling said they were going to take everything from Haithcock. Planicka testified,

172 N.E.3d 853

"He [Kremling] said that he'd been there over the weekend and they had an Xbox One and money and drugs." They planned to use bandanas and hoodies cinched tightly to cover their faces. According to Grier, he and Graham each had a .380-caliber High Point semiautomatic handgun to use during the robbery.

B. Massa is killed during the planned robbery

{¶ 8} On the afternoon of February 7, Haithcock, Lewandowski, and Massa were at Haithcock's and Lewandowski's apartment. Haithcock and Massa were playing Xbox, and Lewandowski was hanging decorations on the wall, using a hammer.

{¶ 9} Shortly before 4:00 p.m., Planicka, Kremling, Grier, and Graham arrived at the Ryan Place apartment building. Planicka backed into a parking space at a nearby business and stayed in the truck. Kremling, Graham, and Grier entered

164 Ohio St.3d 189

the building, partially covered their faces with bandanas and hoodies as planned, and proceeded to Haithcock's and Lewandowski's third-floor apartment. Despite their disguises, Kremling, Grier, and Graham could be distinguished from each other by their physical characteristics: Kremling is tall and light-skinned, Grier is shorter than Kremling and is light-skinned, and Graham is short and dark-skinned.

{¶ 10} According to Kremling, Graham knocked on the apartment door and Lewandowski opened it. Graham and Grier barged into the living room with their guns drawn. Graham ordered Lewandowski to drop the hammer he was holding. He dropped it and put his hands in the air.

{¶ 11} Graham ordered Haithcock, Lewandowski, and Massa to sit on the living-room couches. According to Haithcock, the short, dark-skinned man (later identified as Graham) was doing the talking. He asked Haithcock, "Where's the money[?] [W]here's the dope[?]" Haithcock said that it was all in the lockbox on the kitchen table. Grier took the dabs and marijuana from the lockbox. Graham put a gun to Haithcock's head, demanding money. Haithcock gave Graham $500 or $600 from his pocket. The robbers then demanded more money.

{¶ 12} Haithcock told the robbers that there might be more money in his bedroom. Graham told Grier to take Haithcock to the bedroom to look. Kremling accompanied them. Meanwhile, Graham stayed in the living room guarding Massa and Lewandowski, who remained seated on the couch with their hands up. At trial, Lewandowski described what happened next:

Nick [Massa] looked over at me and the short, dark-skinned male [Graham] said, what the f[—] are you looking at him for? If you look over at him again I'm gonna shoot you. And Nick immediately replied you're not going to shoot me. And as soon as he did that, the short, dark-skinned male shot him [in the chest].

C. Perpetrators flee the scene and split up

{¶ 13} After hearing the gunshot, Grier and Kremling hurried into the living room and saw that Massa had been shot. According to Kremling, Grier asked Graham if he had just shot him, and Graham said, "[Y]eah." The three of them ran out of the apartment and fled in Planicka's truck. According to Planicka, Grier asked Graham, "[W]hy do you have to always be doing hot sh[—] like that[?]" and Graham replied, "He thought sh[—] was sweet and I wasn't playing." Graham then gave each

172 N.E.3d 854

of them $100 from what he had taken from Haithcock.

164 Ohio St.3d 190

{¶ 14} They returned to the house in Ravenna, where they divided up the marijuana. Graham told them that they did not have to worry about getting caught, because the gun had jammed, so the shell casing had not ejected. He showed them the casing. The four of them left the house separately. Graham told Grier a couple days later that he had broken up the gun and thrown it in a wooded area.

D. Police investigation

{¶ 15} After the three robbers left his apartment, Lewandowski called 9-1-1 and reported the shooting. Haithcock got on the phone and told the operator that Ty Kremling was one of the robbers. During the trial, Haithcock testified that he had recognized Kremling by "[h]is height, * * * his build, the way he carried himself, [and] the way he walked." Shortly after the 9-1-1 call, the police and medics arrived, and Massa was pronounced dead at the scene.

{¶ 16} On the afternoon of February 7, Detective Richard Soika began looking for Kremling and the getaway truck—Planicka's green, four-door truck had been captured on video by a camera positioned near Haithcock's and Lewandowski's apartment. Soika contacted AT&T and requested that he receive alerts on the location of Kremling's phone. Police located Kremling in the Stow area and arrested him. The next morning, Kremling admitted his involvement in the robbery. Kremling said that he had not intended to kill anyone but that he had intended to rob Haithcock for drugs and money. Kremling would not disclose the names of the other perpetrators.

{¶ 17} On February 8, the police learned that Planicka had been the getaway driver. Further investigation identified Graham and Grier as suspects, and the police obtained their physical descriptions and photos. On February 10, Grier was arrested. Grier admitted his involvement in the robbery but claimed he had not expected anyone to get hurt. Meanwhile, the police learned that Graham was staying at a house in Ravenna, and a task force found him hiding in a room inside that house.

{¶ 18} On February 12, Soika interviewed Graham at the Portage County sheriff's office. Graham said, "I wasn't there," when he was questioned about his involvement in the robbery and murder.

E. Medical examiner's testimony

{¶ 19} Dr. George Sterbenz, the chief deputy medical examiner for Summit County, conducted Massa's autopsy....

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