State v. Graham
2014 Ohio 3149
Ohio Ct. App.2014Background
- Graham was convicted by jury of heroin possession and heroin trafficking; the trial court merged the drug convictions.
- The court sentenced Graham to ten years for trafficking with five years of postrelease control, and additionally 180 days in jail for direct contempt for interrupting sentencing.
- The court ordered forfeiture of Graham's Chevrolet Tahoe and the money found on him and under the center console.
- Roads provided information leading to the stop and searches that yielded 139.5 grams of heroin and $1,365; evidence showed heroin sales and concealment in Dayton travels.
- Graham lied about prior felony convictions during pretrial and trial, leading to contempts and a court-contempt finding.
- On appeal, Graham challenged the Howard charge, contempt finding, and sentencing; the appellate court affirmed the trial court’s rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Howard charge deadlock instruction | Graham argues the court erred by not using exact Howard language. | Graham contends the modification prejudiced the jury. | No plain error; instruction substantially complied with Howard. |
| Contempt finding | Graham contends the contempt finding was an abuse of discretion. | Graham interrupted the court despite warnings; conduct impeded the proceedings. | Not an abuse of discretion; direct criminal contempt supported. |
| Ten-year heroin sentence | The sentence was excessive and not supported by law. | Sentence within statutory range; lack of remorse not sole justification. | Not clearly and convincingly contrary to law; within range under R.C. 2919.14(A)(1). |
Key Cases Cited
- State v. Howard, 42 Ohio St.3d 18, 537 N.E.2d 188 (1989) (Howard charge approved as non-coercive alternative to Allen)
- State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596 (2011) (plain-error standard for unobjected jury instructions)
- State v. Underwood, 3 Ohio St.3d 12, 444 N.E.2d 1332 (1983) (waiver of objections to jury instructions; plain-error review)
- State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 904 (1978) (standard for plain-error review)
- State v. Mulhern, 4th Dist. Vinton No. 02CA565, 2002-Ohio-5982 (2002) (variation in Howard language can comply with Howard)