Court of Appeals of Ohio, Fifth District, Ashland
Appeals from the Ashland Municipal Court, Case Nos.
18TRC02922 & 18CRB00335
Plaintiff-Appellee: ANDREW N. BUSH Asst. Law Director
Defendant-Appellant: JOSEPH P. KEARNS, JR. MASON, MASON &
JUDGES: Hon. William B. Hoffman, P.J. Hon. Patricia A.
Delaney, J. Hon. Craig R. Baldwin, J. Case Nos. 18-COA-030
Appellant Johnathon L. Whitman appeals from the July 12, 2018
Journal Entry of the Ashland Municipal Court. Appellee is the
state of Ohio.
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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."
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. The plastic bag
containing plant material tested as .825 grams of marijuana.
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.
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.
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
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.
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
Appellant now appeals from the July 12, 2018 Journal Entries.
Appellant raises five assignments of error: