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Date: 06-13-2019
Case Style:
STATE OF OHIO -vs- JOHNATHON L. WHITMAN
Case Number: 18-COA-030 & 18-COA-031
Judge: Patricia A. Delaney
Court: COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
Plaintiff's Attorney: ANDREW N. BUSH
Defendant's Attorney: JOSEPH P. KEARNS, JR.
Description:
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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
Ashland County, Case No. 18-COA-030 & 18-COA031 3
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
Ashland County, Case No. 18-COA-030 & 18-COA031 4
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
Ashland County, Case No. 18-COA-030 & 18-COA031 5
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.
1 At sentencing, the trial court noted appellant was not charged for the straw containing methamphetamine.
Ashland County, Case No. 18-COA-030 & 18-COA031 6
{¶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.
Ashland County, Case No. 18-COA-030 & 18-COA031 7
{¶22} Appellant raises five assignments of error:
ASSIGNMENTS OF ERROR
{¶23} “I. THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF MORE
THAN ONE PRIOR OVI CONVICTION IN THE PRECEDING 20 YEARS.”
{¶24} “II. THE TRIAL COURT ERRED IN ALLOWING THE PRESENTATION OF
THE CASE AGAINST HIM BY THE STATE OF OHIO, LAB REPORTS NO TESTIFIED
TO.” (SIC).
{¶25} “III. THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL WHEREIN COUNSEL FAILED TO OBJECT TO THE INTRODUCTION OF
EVIDENCE AND FAILED TO REQUEST A LESSER-INCLUDED OFFENSE OF
PHYSICAL CONTROL.”
{¶26} “IV. THE CONVICTION OF THE DEFENDANT WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
{¶27} “V. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING
THE APPELLANT TO THE MAXIMUM JAIL SENTENCES IN THE OVI AND DRIVING
UNDER SUSPENSION MATTERS AND RUNNING THEM CONSECUTIVE TO EACH
OTHER.”
ANALYSIS
I.
{¶28} In his first assignment of error, appellant argues the trial court erred in
admitting evidence of two prior O.V.I. convictions. We disagree.
{¶29} Appellant was charged with, e.g., O.V.I. pursuant to R.C. 4511.19(A)(2).
That section states in pertinent part:
Ashland County, Case No. 18-COA-030 & 18-COA031 8
No person who, within twenty years of the conduct described
in division (A)(2)(a) of this section, previously has been convicted of
or pleaded guilty to a violation of this division, a violation of division
(A)(1) or (B) of this section, or any other equivalent offense shall do
both of the following:
(a) Operate any vehicle * * * within this state while under the
influence of alcohol, a drug of abuse, or a combination of them;
(b) Subsequent to being arrested for operating the vehicle, * *
*, being asked by a law enforcement officer to submit to a chemical
test or tests under section 4511.191 of the Revised Code, and being
advised by the officer in accordance with section 4511.192 of the
Revised Code of the consequences of the person's refusal or
submission to the test or tests, refuse to submit to the test or tests.
{¶30} A prior O.V.I. conviction within 20 years is an element of R.C. 4511.19(A)(2).
State v. Holland, 5th Dist. Stark No. 2011 CA 00104, 2012-Ohio-486, ¶ 19. In State v.
Hoover, 123 Ohio St.3d 418, 2009–Ohio–4993, the Ohio Supreme Court stated:
It is crucial to note that the refusal to consent to testing is not,
itself, a criminal offense. The activity prohibited under R.C.
4511.19(A)(2) is operating a motor vehicle while under the influence
of drugs or alcohol. A person's refusal to take a chemical test is
simply an additional element that must be proven beyond a
reasonable doubt along with the person's previous DUI
Ashland County, Case No. 18-COA-030 & 18-COA031 9
conviction to distinguish the offense from a violation of R.C.
4511.19(A)(1)(a). [Emphasis added.]
{¶31} We have therefore previously found that a trial court did not err in allowing
appellee to present evidence of a defendant’s prior conviction “as such was an element
of the offense for which the State bears the burden of proof.” Holland, supra, 2012-Ohio
486 at ¶ 21; see also, State v. Leasure, 4th Dist. No. 15CA3484, 2015-Ohio-5327, 43
N.E.3d 477 [prior O.V.I. conviction within 20 years is essential element of R.C.
4511.19(A)(2) which state was required to prove beyond reasonable doubt, trial court did
not err in admitting evidence of prior O.V.I. conviction, and did not err in refusing to accept
defendant’s proposed stipulation as to the existence of prior OVI conviction]; Parma v.
Benedict, 8th Dist. Cuyahoga No. 101480, 2015-Ohio-3340 [no error in admission of
evidence of prior O.V.I. conviction]; State v. Martin, 4th Dist. Scioto No. 04CA2946, 2005
Ohio-4059, ¶ 21 [appellant not unduly prejudiced by introduction of three prior O.V.I.
convictions when only one was needed under the statute because “prosecution simply
complied with its burden of proof”]; State v. Miller, 12th Dist. Warren No. CA2011-02-013,
2012-Ohio-997 [trial court errs in granting motion to bifurcate proceedings and exclude
evidence of prior O.V.I. conviction].
{¶32} Appellant argues, however, that the statute requires proof of only “a
conviction,” and evidence of two or more prior convictions is merely a sentencing factor
for the trial court to consider. We note, however, that pursuant to R.C. 4511.19(G)(1)(c),
the existence of two or more O.V.I. convictions within ten years elevates the instant O.V.I.
offense from a first-degree misdemeanor (punishable by up to six months in jail) to the
level of “a misdemeanor” (punishable by up to one year in jail).
Ashland County, Case No. 18-COA-030 & 18-COA031 10
{¶33} Appellant summarily argues that admission of evidence of two prior O.V.I.
conviction was prejudicial and led the jury to convict him of O.V.I. in the instant case in
the absence of other evidence. We disagree.
{¶34} The admission or exclusion of relevant evidence is a matter left to the sound
discretion of the trial court. Absent an abuse of discretion resulting in material prejudice
to the defendant, a reviewing court should be reluctant to interfere with a trial court’s
decision in this regard. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967).
{¶35} The evidence of appellant’s prior convictions consisted of certified copies of
the judgment entries of conviction. (Appellee’s Exhibits 4 and 5). Pursuant to R.C.
2945.75(B)(1), “[w]henever in any case it is necessary to prove a prior conviction, a
certified copy of the entry of judgment in such prior conviction together with evidence
sufficient to identify the defendant named in the entry as the offender in the case at bar,
is sufficient to prove such prior conviction.” Appellant does not point to any deficiency in
the evidence provided by appellee.
{¶36} Moreover, at no time prior to or during trial did appellant object to admission
of both prior convictions. An error not raised in the trial court must be plain error for an
appellate court to reverse. State v. Maitlen, 5th Dist. Licking No. 18-CA-46, 2019-Ohio
859, ¶ 29, citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978) at paragraph
one of the syllabus; Crim.R. 52(B). Pursuant to Crim.R. 52(B), “plain errors or defects
affecting substantial rights may be noticed although they were not brought to the attention
of the court.” The rule places several limitations on a reviewing court’s determination to
correct an error despite the absence of timely objection at trial: (1) “there must be an error,
i.e., a deviation from a legal rule,” (2) “the error must be plain,” that is, an error that
Ashland County, Case No. 18-COA-030 & 18-COA031 11
constitutes “an ‘obvious’ defect in the trial proceedings,” and (3) the error must have
affected “substantial rights” such that “the trial court’s error must have affected the
outcome of the trial.” State v. Dunn, 5th Dist. No. 2008-CA-00137, 2009-Ohio-1688, citing
State v. Morales, 10 Dist. Nos. 03-AP-318, 03-AP-319, 2004-Ohio-3391, at ¶ 19 (citation
omitted). The decision to correct a plain error is discretionary and should be made “with
the utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” Barnes, supra, quoting State v. Long, 53 Ohio St.2d 91, 372
N.E.2d 804 (1978), paragraph three of the syllabus.
{¶37} We find no error in admission of the prior convictions, and appellant makes
only a nebulous claim of prejudice, arguing that the mere mention of a prior conviction will
lead a jury to convict. As appellant concedes, the trial court gave a limiting jury instruction
stating that evidence of the prior convictions was admitted “for the sole and limited
purposes” of proving appellant had prior O.V.I. convictions within 20 years and could not
be used to determine whether he was operating a vehicle under the influence in the
instant case. (T. 119-120). The jury is presumed to follow the instructions of the trial
court. Pang v. Minch, 53 Ohio St.3d 186, 187, 559 N.E.2d 1313 (1990), paragraph four
of the syllabus. Appellant has not pointed to any evidence in the record that the jury failed
to do so in this case.
{¶38} We find the trial court did not abuse its discretion in admitting evidence of
appellant’s two prior O.V.I. convictions, nor does the admission of the evidence rise to the
level of plain error. Appellant’s first assignment of error is overruled.
Ashland County, Case No. 18-COA-030 & 18-COA031 12
II.
{¶39} In his second assignment of error, appellant argues the trial court erred in
permitting appellee to introduce evidence of the crime-lab test results through the trooper,
rather than requiring a crime-lab technician to testify. We disagree.
{¶40} Appellee’s Exhibit 1 is the report of the controlled-substance examination of
the Ohio State Highway Patrol crime lab, signed by Criminalist Alena V. Boyko and
containing the affirmations required by R.C. 4511.19(E). Pursuant to that section, such
a report “shall be admitted as prima-facie evidence of the information and statements that
the report contains,” unless the defendant or defendant’s attorney demands the testimony
of the person who signed the report within seven days of receiving the report. As
appellant concedes, Appellee’s Exhibit 1 contains the same language in the text of the
report itself. No such demand for the criminalist’s testimony was made in the instant case,
nor was any objection raised when Bishop testified to the lab results; nor was any
objection raised to admission of Appellee’s Exhibit 1.
{¶41} We have reviewed the decision to admit the lab report through the arresting
officer for plain error and find none. Appellant has not pointed to any flaw in the test
results, or to any prejudice that arose from Bishop testifying to the results as opposed to
the criminalist herself. Nor has he pointed to any deficiency in the testimony or any other
benefit that would have inured to him if the criminalist had testified.
{¶42} Appellant’s second assignment of error is therefore overruled.
III.
{¶43} In his third assignment of error, appellant argues he received ineffective
assistance of counsel. We disagree.
Ashland County, Case No. 18-COA-030 & 18-COA031 13
{¶44} To succeed on a claim of ineffectiveness, a defendant must satisfy a two
prong test. Initially, a defendant must show that trial counsel acted incompetently. See,
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims,
“a court must indulge a strong presumption that counsel's conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158
(1955).
{¶45} “There are countless ways to provide effective assistance in any given case.
Even the best criminal defense attorneys would not defend a particular client in the same
way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the
wide range of professionally competent assistance.” Id. at 690. Even if a defendant shows
that counsel was incompetent, the defendant must then satisfy the second prong of the
Strickland test. Under this “actual prejudice” prong, the defendant must show that “there
is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.
{¶46} The United States Supreme Court and the Ohio Supreme Court have held
a reviewing court “need not determine whether counsel's performance was deficient
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989) quoting
Strickland at 697, 104 S.Ct. 2052. Accordingly, we will direct our attention to the second
prong of the Strickland test.
Ashland County, Case No. 18-COA-030 & 18-COA031 14
{¶47} Appellant makes two claims of ineffective assistance of trial counsel: failure
to object and failure to request a jury instruction on a lesser-included offense. We will
examine each in turn.
{¶48} First, appellant cites the issues which arose in our review of the first and
second assignments of error, including failing to object to admission of more than one
prior O.V.I. conviction and failing to object to admission of the crime lab results through
the arresting officer. As noted supra, there was no error in admission of more than one
prior conviction, and no error in admission of the lab report without testimony of lab
personnel. Thus neither issue rises to the level of ineffective assistance.
{¶49} Appellant also points to counsel’s failure to object to Bishop’s testimony that
appellant had several operator’s-license suspensions on his driving history. We have
reviewed the statement in the context of his entire testimony and note Bishop stated he
checked appellant’s driver status through his in-car terminal and learned the following:
[Appellant] had several suspensions from out of different
Courts, for what exactly, I don’t know, but his license was suspended
so he didn’t currently have driving privileges, and that he had two
prior violations for drug convictions for operating under the influence
in 2014 and 2015.
T. 34.
{¶50} The trial court then recessed for lunch, and when Bishop returned to the
stand, appellee moved on to questions about Bishop’s decision to arrest. Therefore
Bishop’s final statement about the prior convictions is ambiguous at best. As we
discussed supra, evidence of those prior convictions was properly introduced and referred
Ashland County, Case No. 18-COA-030 & 18-COA031 15
to throughout the trial so we are unwilling to discern prejudice to appellant from this
isolated comment.
{¶51} Appellant also asserts trial counsel should have objected to admission of
his certified driving record from the B.M.V., but offers no basis for such an objection. The
certified copy of the B.M.V. driving record is admissible pursuant to R.C. 2945.75(B)(2)
and appellant points to no deficiency in the record. The certified copy of his driving record
was a topic of discussion outside the presence of the jury, defense trial counsel requested
redactions, and the trial court agreed.
{¶52} The instances of failure to object cited by appellant may be reasonably
attributed to trial strategy. Trial strategy and even debatable trial tactics do not establish
ineffective assistance of counsel. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815,
848 N.E.2d 810, ¶ 101. Strategic choices made after substantial investigation “will seldom
if ever” be found wanting. Strickland, supra, 466 U.S. at 681, 104 S.Ct. 2052. Moreover,
the failure to object to error, alone, is not enough to sustain a claim of ineffective
assistance of counsel. State v. Crawford, 5th Dist. No. 07 CA 116, 2008-Ohio-6260, 2008
WL 5077638, ¶ 72, appeal not allowed, 123 Ohio St.3d 1474, 2009-Ohio-5704, 915
N.E.2d 1255, citing State v. Fears, 86 Ohio St.3d 329, 347, 715 N.E.2d 136 (1999).
Ultimately we find no reasonable probability the outcome of the trial would have been
different had appellant’s argued objections been raised. See, State v. Graber, 5th Dist.
No. 2002CA00014, 2003-Ohio-137, 2003 WL 124283, ¶ 154, appeal not allowed, 101
Ohio St.3d 1466, 2004-Ohio-819, 804 N.E.2d 40.
{¶53} Appellant also summarily argues defense trial counsel should have
“requested a lesser-included offense of physical control.” Although not specified,
Ashland County, Case No. 18-COA-030 & 18-COA031 16
presumably appellant infers defense trial counsel should have requested a jury instruction
on physical control.
{¶54} We note appellant has not presented us with any authority in support of his
premise that physical control is a lesser-included offense of O.V.I. under the
circumstances of the instant case. In fact, the offense of physical control is not
necessarily a lesser-included offense of O.V.I. Weiler, Oh. Driving Under Influence L.
2:15 (2018 ed.). R.C. 4511.194(B)(1) states in pertinent part, “[n]o person shall be in
physical control of a vehicle * * * if, at the time of the physical control, * * * [t]he person is
under the influence of alcohol, a drug of abuse, or a combination of them.” “Physical
control” means being in the driver's position of the front seat of a vehicle * * * and having
possession of the vehicle's * * * ignition key or other ignition device.” R.C. 4511.194(A)(2).
{¶55} Even if we were to assume physical control is a lesser-included offense of
O.V.I. in the instant case, a trial court is required to give a jury instruction on a lesser
included offense “only where the evidence presented at trial would reasonably support
both an acquittal on the crime charged and a conviction upon the lesser included offense.”
State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), at paragraph two of the
syllabus. We find that the evidence presented at trial would not reasonably support an
acquittal on O.V.I. and a conviction on physical control. Thomas, supra, at paragraph two
of the syllabus.
{¶56} An instruction on physical control would be required only if the jury could
have reasonably found that appellant did not operate the vehicle. State v. Hlinovsky, 7th
Dist. Belmont No. 09 BE 19, 2011-Ohio-6421, ¶ 95; see also, State v. Landers, 2d Dist.
Greene No. 2015-CA-74, 2017-Ohio-1194. In the instant case, appellant admitted to
Ashland County, Case No. 18-COA-030 & 18-COA031 17
driving the vehicle from Mansfield and no evidence has ever been offered to the contrary.
We have reviewed the videotape of Bishop’s interaction with appellant and appellant
freely admits he drove the vehicle from Mansfield and was alone in the vehicle.
“Operation” was not in dispute at any point during the stop. To find appellant not guilty of
O.V.I., but guilty of physical control, the jury would have to find that appellant did not
cause “movement” of the vehicle, but was in “physical control” of the vehicle because he
was in the driver's seat and in possession of the ignition key. Viewing the evidence in the
light most favorable to appellant, the record fails to support a finding that he did not cause
“movement” of the vehicle. State v. Burnett, 2018-Ohio-109, 109 N.E.3d 61, ¶ 25 (2nd
Dist.). By appellant’s own account, he operated the vehicle.
{¶57} Having found no basis for an instruction upon physical control, defense trial
counsel was not ineffective in failing to request one.
{¶58} We find appellant did not receive ineffective assistance of defense trial
counsel and his third assignment of error is overruled.
IV.
{¶59} In his fourth assignment of error, appellant argues his convictions are
against the manifest weight of the evidence. We disagree.
{¶60} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review
for a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio
Supreme Court held, “An appellate court’s function when reviewing the sufficiency of the
Ashland County, Case No. 18-COA-030 & 18-COA031 18
evidence to support a criminal conviction is to examine the evidence admitted at trial to
determine whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.”
{¶61} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶62} Appellant summarily argues his convictions are against the manifest weight
of the evidence because there was insufficient evidence of the timing of his alleged
operation of the vehicle; Bishop smelled “raw” marijuana, not “smoked” marijuana;
appellant was able to complete the non-standardized field sobriety tests; and his eyes
might have been dilated for reasons other than drug use. The minor deficiencies in the
evidence appellant points to go to the credibility of the witness and the evidence, which
was for the trial court to resolve. State v. Staton, 5th Dist. Knox No. 14CA13, 2014-Ohio
5131, ¶ 21. Appellant argues the evidence of the field sobriety tests and the trooper's
testimony are insufficient to establish his guilt beyond a reasonable doubt, but the weight
Ashland County, Case No. 18-COA-030 & 18-COA031 19
of the evidence and the credibility of the witnesses are determined by the trier of fact.
State v. Yarbrough, 95 Ohio St.3d 227, 2002–Ohio–2126, 767 N.E.2d 216, ¶ 79.
Moreover, the testimony of a single witness, if believed by the trier of fact, is sufficient to
support a conviction. State v. Cunningham, 105 Ohio St.3d 197, 2004–Ohio–7007, 824
N .E.2d 504, at ¶ 51–57. In the case sub judice, the jury credited the uncontroverted
testimony of a patrol sergeant trained and experienced in detection of O.V.I. State v.
Nash, 5th Dist. Stark No. 2014CA00159, 2015-Ohio-3361, ¶ 20. We note the trooper's
testimony is also corroborated by the videotape which permitted the jury to observe
appellant's demeanor for themselves. Id.
{¶63} Upon our review of the record, including the videotape, we find appellant's
convictions are not against the manifest weight of the evidence. The jury, as the trier of
fact, was in the best position to weigh the evidence and judge the credibility of the witness
on the issue of whether appellant operated his vehicle while under the influence of a drug
of abuse. “[A] conviction is not against the manifest weight of the evidence simply because
the trier of fact believed the prosecution testimony.” State v. Williams, 12th Dist. Warren
No. CA2012–08–080, 2013–Ohio–3410, ¶ 35.
{¶64} Any rational trier of fact could have found the essential elements of O.V.I.,
D.U.S., possession of marijuana, and possession of drug paraphernalia proven beyond
a reasonable doubt. Nor is this the exceptional case in which the evidence weighs heavily
against a conviction. Appellant's fourth assignment of error is therefore overruled.
V.
{¶65} In his fifth assignment of error, appellant argues the trial court erred in
sentencing him to a maximum jail term. We disagree.
Ashland County, Case No. 18-COA-030 & 18-COA031 20
{¶66} Generally, misdemeanor sentencing is within the sound discretion of the
trial court and will not be disturbed upon review if the sentence is within the limits of the
applicable statute. State v. Thadur, 2016-Ohio-417, 59 N.E.3d 602, ¶ 11 (5th Dist.), citing
State v. Smith, 9th Dist. Wayne No. 05CA0006, 2006-Ohio-1558, 2006 WL 826128, ¶ 21,
internal citation omitted. See, also, State v. Chadwick, 5th Dist. Knox No. 08CA15, 2009
Ohio-2472, 2009 WL 1485036, ¶ 30. In order to find an abuse of discretion, the reviewing
court must determine that the trial court’s decision was unreasonable, arbitrary, or
unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5
Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). A decision is unreasonable if it is
unsupportable by any sound reasoning process. AAAA Ents., Inc. v. River Place
Community Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990)
(arguments on abuse of discretion typically contend a decision was unreasonable, rather
than unconscionable or arbitrary).
{¶67} Furthermore, there is no requirement that a trial court, in sentencing on
misdemeanor offenses, specifically state its reasons on the record. State v. Harpster, 5th
Dist. Ashland No. 04COA061, 2005-Ohio-1046, 2005 WL 567319, ¶ 20.
{¶68} R.C. 2929.21(A) first states that “[a] court that sentences an offender for a
misdemeanor * * * shall be guided by the overriding purposes of misdemeanor
sentencing. * * *.” The overriding purposes of misdemeanor sentencing are to protect the
public from future crime by the offender and others and to punish the offender. R.C.
2929.21(A). In order to achieve those purposes, a sentencing court must consider “the
impact of the offense upon the victim and the need for changing the offender's behavior,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
Ashland County, Case No. 18-COA-030 & 18-COA031 21
or the victim and the public.” Id.; Thadur, supra, 2016-Ohio-417 at ¶ 13, citing State v.
Coleman, 4th Dist. Scioto No. 05CA3037, 2006-Ohio-3200, 2006 WL 1719348, ¶ 21.
{¶69} In addition, R.C. 2929.21(B) states in pertinent part as follows: “A sentence
imposed for a misdemeanor * * * shall be reasonably calculated to achieve the two
overriding purposes of misdemeanor sentencing set forth in division (A) of this section,
commensurate with and not demeaning to the seriousness of the offender's conduct and
its impact upon the victim, and consistent with sentences imposed for similar offenses
committed by similar offenders.”
{¶70} Thus, under R.C. 2929.21(A) and (B), in order to achieve the purposes of
protecting the public from future crime and punishing the offender, the sentencing court
is to inter alia consider the offender's conduct, the impact of the offender's conduct on the
victims, and the consistency of the sentence with sentences for similar offenses. Thadur,
supra, 2016-Ohio-417 at ¶ 15.
{¶71} A jail term for a misdemeanor shall be served consecutively with any other
jail term when the trial court specifies it is to be served consecutively. R.C. 2929.41(B)(1)
(with the aggregate term not to exceed 18 months). In contrast to consecutive prison
terms for felonies imposed under R.C. 2929.14(C)(4), trial courts are authorized to order
consecutive jail terms for misdemeanor offenses (up to 18 months) without making
consecutive sentence findings. State v. Burley, 7th Dist. No. 16 MA 0076, 2017-Ohio-378,
83 N.E.3d 322, ¶ 10, citing State v. Alexander, 8th Dist. No. 102708, 2016-Ohio-204,
2016 WL 299272, ¶ 4.
{¶72} The 365-day jail term is within the statutory range for an O.V.I. offense if the
offender has two prior convictions within 10 years. R.C. 4511.19(G)(1)(c). The trial court
Ashland County, Case No. 18-COA-030 & 18-COA031 22
specified the 180-day sentence upon the D.U.S. offense was to be served concurrently,
and the 30-day sentence for drug paraphernalia was to be served concurrently. The trial
court explicitly noted this was the worst form of the offense; this is appellant’s third O.V.I.
in a short period of time. He was stopped with no headlights or other illumination of his
vehicle, in the roadway, a very short distance from Route 30. The trial court characterized
this as a highly-dangerous situation, and we agree based upon the videotape. The trial
court noted appellant “seemed stoned” on the videotape and was disrespectful to Bishop.
Appellant failed to take any responsibility for his actions. Appellant did not appreciate
that he was not charged with a felony for the methamphetamine residue in the straw found
at his feet. Appellant had no vehicle insurance and nine prior convictions for driving under
suspension. Under these circumstances, we are unable to find that the trial court abused
its discretion in finding that anything less than a maximum sentence would demean the
seriousness of the offense.
{¶73} Appellant’s fifth assignment of error is overruled.
Outcome: Appellant’s five assignments of error are overruled and the judgment of the
Ashland Municipal Court is affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: