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Gene Graham

Other Oklahoma Exonerations
On August 15, 2012, 40-year-old Gene Graham was arrested in Delaware County, Oklahoma and charged with three counts of lewd conduct with a child for improperly touching the vaginal area and chest of an eight-year-old girl in a swimming pool.

Graham rejected an offer from the prosecution to plead guilty in return for a suspended sentence and went to trial in Delaware County District Court on September 30, 2013.

The girl, identified only as D.W., testified that on August 6, 2012, her mother dropped her and her friend, identified as S.R. at the Hickory Inn Motel swimming pool in Grove, Oklahoma. The pool was part of the complex, which included the inn and an RV park. D.W.’s grandparents handled maintenance and other jobs at the facility.

The girl testified that when Graham, who lived in the RV park, came to the pool with flipper fins and a scuba mask, she asked him his name. He told her and after swimming for a while, he left and returned with scuba masks for D.W. and her friend. D.W. said she put on the fins and a mask and attempted to swim the length of the pool, but began to struggle.

“It was getting hard to swim and he said let me help you,” she told the jury. “He first put his hand on my front private and then he slowly moved it to my hip."

D.W. admitted that she was worried about drowning and that Graham helped her to get to the portion of the pool where the water was four feet deep. From there, she swam to the three foot deep section where she could get her footing.

DW admitted she stayed at the pool after that because she “thought it was an accident.” A handyman at the complex testified that he walked by the pool and saw physical contact between Graham and the girl and reported it to D.W.’s grandparents.

D.W.’s grandfather testified that he went to the pool, but saw nothing amiss. He said Graham told him he was practicing his swimming skills for spear-fishing. The grandfather paid two more visits to the pool that afternoon and said he just saw the girls playing. Later, D.W.’s grandmother mentioned what the handyman had said to D.W.’s mother who checked at the pool and saw nothing that caused alarm.

Later, D.W. told S.R. that Graham’s hand had touched her vaginal area. S.R. told D.W.’s mother and police were notified.

S.R. testified that Graham moved his hand from D.W.’s “thigh to her chest.”

A police officer testified that on August 8, 2012, he came to the RV park to interview Graham. The officer testified that Graham asked him why he was there and that he told Graham “it was about being at a swimming pool with a couple of kids on the 6th.” The officer said Graham responded that he hadn’t touched anyone. The prosecution contended the comment reflected Graham’s consciousness of guilt.

Graham testified in his own defense. He denied that he touched the girl improperly and said that he merely tried to help a girl who was in difficulty in deep water reach a safe part of the pool. Graham said that D.W. “was struggling at the deep end of the pool and she looked like she was taking on water. She was gulping water is what it looked like. She was trying to dog paddle, but she couldn’t—she couldn’t keep her back legs up because of the fins.”

Graham said he swam out to her. “I asked her, I said, you need help?” he testified. “She couldn’t respond. So I held her up with one hand behind her stomach, asked her to kick her feet. She could not kick her feet.

“Then, when she couldn’t kick her feet, I had her grab—she grabbed ahold of me,” Graham said. “I wanted her to grab my shoulder, but she grabbed me all the way around my neck and I taxied her to the shallow end.”

Graham’s defense attorney asked Graham why he responded the way he did to the police officer, but the prosecution objected and the judge barred Graham from answering. The defense then sought to introduce evidence that one hour before the police officer’s arrival to question Graham, D.W.’s grandmother had served Graham an eviction notice based on complaints of “acts of perversion” with minors at the swimming pool. The defense attorney argued that was the reason that Graham made the comment that he hadn’t touched anyone—he already knew what the allegation was and therefore his comment did not reflect consciousness of guilt. The judge refused to allow the defense to introduce the eviction notice in evidence.
 
During closing argument, the Prosecutor emphasized the defendant's comment that he knew the police came to him because he was being accused of sex abuse because it was "everything we know about the scenario," even though the prosecutor knew the explanation had been excluded by the judge at the prosecutor's request. The defense attorney did not object to the argument.

On October 2, 2013, the jury acquitted Graham of two counts of lewd contact with a minor and convicted him of one count. He was sentenced to 13 years in prison.

In March 2015, the Oklahoma Court of Criminal Appeals reversed Graham’s conviction and ordered a new trial. The appeals court held that Graham should have been allowed to testify about the eviction notice and that the notice should have been admitted in evidence. The judge’s decision, the court ruled, was “clearly erroneous and an abuse of discretion.” The appellate court said that it would not address the argument that the prosecutor gave an improper closing argument because the issue had been waived since the trial defense attorney did not object at the time.

On February 5, 2016, the Delaware County District Attorney’s Office dismissed the charge and Graham was released.

– Maurice Possley

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Posting Date: 2/22/2016
State:Oklahoma
County:Delaware
Most Serious Crime:Child Sex Abuse
Additional Convictions:
Reported Crime Date:2012
Convicted:2013
Exonerated:2016
Sentence:13 years
Race:Caucasian
Sex:Male
Age at the date of crime:40
Contributing Factors:Perjury or False Accusation, Official Misconduct
Did DNA evidence contribute to the exoneration?:No