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State v. Graves

Court of Appeals of Nebraska

August 13, 2013

State of Nebraska, appellee,
v.
James W. Graves, appellant

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Richardson County: Daniel E. Bryan, Jr, Judge.

Benjamin Beethe, of Morrissey, Morrissey & Dalluge, for appellant.

Jon Bruning, Attorney General, and Carrie A. Thober for appellee.

Pirtle and Riedmann, Judges, and Mullen, District Judge, Retired.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Pirtle, Judge.

This is a direct appeal from two plea-based criminal convictions for first degree sexual assault. James W. Graves was originally charged with 12 criminal offenses: four counts of first degree sexual assault, two counts of first degree sexual assault of a child, and one count each of terroristic threats, stalking, third degree domestic assault, attempted strangulation, first degree criminal trespassing, and tampering with a witness.

Pursuant to a plea agreement, Graves pled guilty to two counts of first degree sexual assault and the State dismissed the remaining 10 charges. First degree sexual assault is a Class II felony which carries a possible punishment of 1 to 50 years' imprisonment. Before accepting Graves' plea, the court advised him of his rights and the possible punishments for the offenses, all of which Graves indicated he understood.

Graves was sentenced on count I, first degree sexual assault, to 25 to 30 years' imprisonment with credit for 489 days served. He was sentenced on count II, first degree sexual assault, to 15 to 25 years' imprisonment. This sentence was ordered to be served consecutively to the sentence imposed in count I.

Graves is a 29-year-old single male with one dependent child. He was expelled from high school during his junior year and sent to a school for expelled students in Lincoln, Nebraska. Graves then returned to his high school and completed his requirements for graduation. Graves' employment included summer jobs as a laborer. His criminal history is contained on three pages in the presentence investigation report and includes refusal to submit to a test, driving under the influence, possession of marijuana, possession of drug paraphernalia, possession of a controlled substance, minor in possession, criminal mischief, assault, disturbing the peace, numerous traffic-related offenses, and the present charges.

The State provided the following factual basis:
[R.E.] would testify that she became involved in a dating relationship with Graves in October 2007. [R.E's] date of birth is [in] August . . . 1993. . . . Graves' date of birth is [in] October . . . 1983. . . . On January 1, 2008, Graves had sexual intercourse with [R.E.], which included penile, digital and oral penetration of [R.E.'s] vagina. [R.E.] would testify that she also had penile vaginal intercourse with Graves on August 6, 2008. . . . All of these events took place at Graves' residence in Salem, Richardson County, Nebraska.

Graves has assigned three errors on appeal: (1) that his sentences are excessive, (2) that he had ineffective assistance of counsel, and (3) that the district court judge failed to recuse himself.

Graves' brief states that "the offense [was] one of [a] consensual sexual boyfriend/girlfriend relationship." Brief for appellant at 10. The presentence investigation report reveals Graves subjected R.E. to repeated acts of sexual abuse and violence for over 3 years. Their first sexual encounter occurred in January 2008 when R.E. was just 14 years old and Graves was 24 years old. R.E. estimated that she and Graves had sex approximately 250 times between January 2008 and October 2009. The physical abuse and violence began after R.E.'s 15th birthday. Graves told R.E. that he would kill her if she ever told her mother about their relationship. He also threatened to kill himself if she ever left him. R.E. finally got a protection order against Graves in July 2011 after he broke into her bedroom window at 4 a.m. and violently assaulted her. Graves hit R.E. in her face, put his hands around ...


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