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State v. Whitman

Court of Appeals of Ohio, Fifth District, Ashland

June 10, 2019

STATE OF OHIO Plaintiff-Appellee
v.
JOHNATHON L. WHITMAN Defendant-Appellant

          Appeals from the Ashland Municipal Court, Case Nos. 18TRC02922 & 18CRB00335

          For Plaintiff-Appellee: ANDREW N. BUSH Asst. Law Director

          For Defendant-Appellant: JOSEPH P. KEARNS, JR. MASON, MASON & KEARNS

          JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J. Case Nos. 18-COA-030 & 18-COA-031

          OPINION

          DELANEY, J.

         {¶1} Appellant Johnathon L. Whitman appeals from the July 12, 2018 Journal Entry of the Ashland Municipal Court. Appellee is the state of Ohio.

         {¶2} This case is related to, but not consolidated with, Fifth District Court of Appeals, Ashland County case number 18-COA-031, which arose from related Ashland Municipal Court case number 18TRC02922.

         FACTS AND PROCEDURAL HISTORY

         {¶3} The following facts are adduced from the record of appellant's jury trial, at which Sgt. Bradley Bishop of the Ohio State Highway Patrol was the sole witness.

         {¶4} This case arose on March 15, 2018, around 9:30 p.m. when Bishop was on routine patrol northbound on Township Road 555 in Ashland County, near U.S. Route 30. Bishop described this portion of roadway as narrow with no markings. As he approached a stop sign on Route 30, he observed headlights coming toward him in his lane of travel. He stopped, and saw the silhouette of a vehicle sitting in the southbound lane. The headlights coming toward him were those of a vehicle going around the stopped vehicle, which had to enter Bishop's lane to do so. Once the second vehicle had safely passed, Bishop stopped to take a closer look at the parked vehicle sitting in the roadway.

         {¶5} Bishop described the location of the vehicle stopped in the roadway as less than 100 feet from U.S. Route 30, in the southbound lane of travel on Township Road 555. The vehicle was not pulled over onto the berm; it was fully in the roadway. The location of the vehicle required other southbound traffic to go around it.

         {¶6} As he approached the stopped vehicle, he discovered appellant sitting in the driver's seat, asleep or otherwise unresponsive. Appellant's foot was on the brake and a key was in the ignition. Bishop tapped on the driver's window to wake appellant but he remained unresponsive. Bishop noticed there was no front tag on the vehicle, and the rear temporary tag had expired in October. Bishop went to his cruiser to run the vehicle information and to contact dispatch.

         {¶7} He returned to the vehicle and again attempted to wake the driver with no success. At this point Bishop suspected a medical problem or potential overdose, although he could see appellant was breathing. Bishop opened the driver's door and appellant "came to." Bishop immediately smelled the odor of raw marijuana emanating from the vehicle and questioned appellant about why he was stopped in the roadway.

         {¶8} Bishop described his training and experience in detection of substance abuse and recognition of impaired drivers. He is a 20-year veteran of the Ohio State Highway Patrol and has completed hundreds of impaired-driving investigations. He immediately noticed appellant's eyes were bloodshot and glassy with dilated pupils, and appellant was confused.

         {¶9} Bishop asked appellant to step out of the vehicle and when he did so, appellant was unaware that a hat on his lap fell to the ground. As he bent over to retrieve it, Bishop detected the odor of marijuana emanating from appellant's person. A pat-down search of appellant yielded rolling papers and an empty plastic bag that smelled like marijuana.

         {¶10} Appellant said the vehicle broke down and he was waiting for his aunt to bring him a key, but Bishop pointed out the key was in the ignition. Appellant said he had traveled to Mansfield to "meet a girl from Facebook" and he had been stopped on the roadway for about 15 minutes. When asked what time it was, though, appellant believed it was "between 11 and 12" when the time was actually shortly after 10:00 p.m. Bishop asked how appellant drove the car, purportedly with no key, and appellant then said he was out of gas and waiting for his aunt and uncle to bring him gas. Appellant at first said his aunt owned the vehicle, but the expired registration and vehicle title were in the name of a male friend whom appellant the claimed had let him use the vehicle for the last six months.

         {¶11} Bishop noted the night was extremely cold and he placed appellant in his patrol car to question him further. Appellant said he smoked marijuana "a few hours ago" and had last smoked methamphetamine "a few weeks ago." Appellant submitted to standardized and non-standardized field sobriety tests. His performance on the horizontal gaze nystagmus test indicated he was not under the influence of alcohol, but his performance on the walk-and-turn and one-leg stand tests indicated to Bishop he was impaired. Appellant was able to successfully count backwards and to recite a portion of the alphabet.

         {¶12} Bishop arrested appellant for O.V.I. on the basis of the odor of marijuana, appellant's admission to smoking marijuana, and the discovery of the baggie and rolling papers. Bishop also cited appellant's bloodshot, glassy eyes, dilated pupils, and his performance on the field-sobriety tests.

         {¶13} Upon checking appellant's driving status through his in-car computer, Bishop discovered appellant had no driving privileges and was operating under a 12-point license suspension. He also had two prior O.V.I. convictions, in 2014 and 2015.

         {¶14} Appellant was asked to submit to a chemical test and was advised of the consequences of refusal. Appellant refused to submit to a urine test. The B.M.V. 2255 form, admitted at trial as Appellee's Exhibit 2, indicates appellant refused to submit to chemical testing and was placed on an administrative license suspension pursuant to R.C. 4511.191. The form further notes the trooper's reasonable grounds for an O.V.I. arrest included "asleep at wheel, glassy eyes, indication of drug use, SFSTs."

         {¶15} During a vehicle inventory search, troopers found a small amount of marijuana in the center console of the vehicle and another pack of rolling papers. A small portion of a cut straw containing white powdery residue was found on the center of the driver's-side floor mat. These items were submitted to the O.S.P. crime lab for analysis. The straw and residue tested positive for methamphetamine.[1] The plastic bag containing plant material tested as .825 grams of marijuana.

         {¶16} Appellee's exhibits at trial included the videotape of appellant's arrest; certified copies of appellant's two prior O.V.I. convictions; a certified copy of his B.M.V. driving history indicating he was under a 12-point suspension at the time of this arrest; the crime lab reports; and Bishop's impaired-driver report.

         {¶17} Appellant was charged by Uniform Traffic Ticket (U.T.T.) with one count of O.V.I. (third offense) pursuant to R.C. 4511.19(A)(1)(a); one count of O.V.I. pursuant to R.C. 4511.19(A)(2); one count of driving under 12-point suspension pursuant to R.C. 4510.37; and one count of expired tags pursuant to R.C. 4503.11. The U.T.T. notes appellant has two prior O.V.I. convictions and that the dates of those convictions are 2014 and 2015.

         {¶18} Appellant was also charged with one count of marijuana possession pursuant to R.C. 2925.11(C)(3), a misdemeanor of the fourth degree, and one count of possession of drug paraphernalia pursuant to R.C. 2925.14(C), a minor misdemeanor.

         {¶19} Appellant entered pleas of not guilty and the matter proceeded to trial by jury on July 11, 2018. Appellant moved for a judgment of acquittal pursuant to Crim.R. 29(A) at the close of appellee's evidence but the motion was overruled. Appellant was found guilty as charged. The trial court sentenced appellant to jail terms of 365 days upon the first O.V.I. count and 180 days upon the D.U.S. count, to be served consecutively. The trial court further sentenced appellant to a jail term of 30 days upon the count of possession of drug paraphernalia, to be served concurrently with the traffic charges.

         {¶20} At sentencing, the trial court noted this was appellant's third O.V.I. offense in 10 years. The trial court observed appellant refused to take responsibility for his creation of a highly-dangerous situation: passed out in a blacked-out vehicle in the middle of a roadway, at night. The trial court noted appellant "seemed stoned" on the video and was disrespectful to Bishop. The trial court found this was the worst form of the offense, meriting the maximum sentence, based upon the circumstances of appellant passed out in the roadway, his history of O.V.I. arrests; his lack of driving privileges and auto insurance; and the fact that he could have gone to prison instead for the straw containing methamphetamine.

         {¶21} Appellant now appeals from the July 12, 2018 Journal Entries.

         {¶22} Appellant raises five assignments of error:

         ASSIGNMENTS ...


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