[Cite as State v. Mason, 2012-Ohio-5463.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                    JUDGES:
                                                 Hon. W. Scott Gwin, P. J.
        Plaintiff-Appellee                       Hon. William B. Hoffman, J.
                                                 Hon. John W. Wise, J.
-vs-
                                                 Case No. 2012 CA 00075
LAWRENCE MASON

        Defendant-Appellant                      OPINION




CHARACTER OF PROCEEDING:                      Criminal Appeal from the Canton Municipal
                                              Court, Case Nos. 2011TRC08570 and
                                              2011CRB04459

JUDGMENT:                                     Affirmed in Part; Reversed in Part and
                                              Remanded


DATE OF JUDGMENT ENTRY:                       November 26, 2012



APPEARANCES:

For Plaintiff-Appellee                        For Defendant-Appellant

JOSEPH MARTUCCIO                              KIRK A. MIGDAL
CANTON LAW DIRECTOR                           411 Wolf Ledges Parkway
TYRONE D. HAURITZ                             Suite 400
CANTON PROSECUTOR                             Akron, Ohio 44311-1053
KATIE ERCHICK
ASSISTANT CITY PROSECUTOR
218 Cleveland Avenue SW
Post Office Box 24218
Canton, Ohio 44701-4218
Stark County, Case No. 2012 CA 00075                                                   2

Wise, J.

      {¶1}   Appellant Lawrence D. Mason, II, appeals his conviction in the Canton

Municipal Court following a no contest plea on one count of operating a motor vehicle

while impaired, one count of operating a motor vehicle while under the influence of

drugs or alcohol, one count of possession of drugs, and one count of possession of

drug paraphernalia.

      {¶2}   Appellee is the State of Ohio.

                      STATEMENT OF THE FACTS AND CASE

      {¶3}   The relevant facts and background are as follows:

      {¶4}   On Sunday, October 30, 2011, at approximately 7:29 p.m., Trooper

Saengsiphanh of the Ohio State Highway Patrol initiated a traffic stop with Appellant on

I-77 southbound at milepost 107, in the city of Canton, McKinley Township, Stark

County, Ohio. (T. at 9-10). Trooper Saengsiphanh had been dispatched to that location

after the Canton Post of the Ohio State Highway Patrol received a grab DUI call. (T. at

10). The grab DUI caller stated that Appellant was having trouble maintaining his lane,

was traveling in and out of his lane, and had almost side-swiped two vehicles on two

separate occasions. (T. at 11).

      {¶5}   Upon approaching Appellant’s vehicle, Trooper Saengsiphanh asked

Appellant if he was okay, to which he replied that he was tired. (T. at 10). As Appellant

was going through his glove box to find his insurance card, Trooper Saengsiphanh

observed a medicine bottle containing green leafy vegetation, which was later confirmed

to be marijuana. (T. at 10). Appellant told Trooper Saengsiphanh that he had smoked

marijuana Friday night, Saturday night, and early Sunday morning. (T. at 10).
Stark County, Case No. 2012 CA 00075                                                   3


       {¶6}   Trooper Saengsiphanh asked Appellant to perform field sobriety tests to

determine whether Appellant was impaired. (T. at 10). Appellant performed the

horizontal gaze nystagmus (HGN) test, the one-leg stand test and the walk and turn

test. Appellant did not exhibit any clues for the HGN test. (T. at 11). Appellant swayed,

put his foot down, and hopped on the one-leg stand test. (T. at 11). Appellant did not

take the correct number of heel to toe steps on the walk and turn test. (T. at 12). Based

on Trooper Saengsiphanh's observations of Appellant and based on Appellant's

performance on the field sobriety tests, Trooper Saengsiphanh concluded that Appellant

was impaired. (T. at 12).

       {¶7}   Trooper Saengsiphanh cited Appellant for operating a motor vehicle while

impaired in violation of R.C. §4511.19(A)(1)(a). Appellant was also cited for possession

of drugs under R.C. §2925.11(C)(3)(a) and/or possession of drug paraphernalia under

R.C. § 2925.14.

       {¶8}   On February 21, 2012, after receiving Appellant's urinalysis results, the

State added the charge of operating a vehicle with a prohibited amount of marijuana

metabolite in his urine, a “per se” violation of R.C. §4511.19(A)(1)(j)(viii)(II).

       {¶9}   Appellant filed a Motion to Suppress Evidence, arguing that the

standardized field sobriety test results and the urinalysis results should be suppressed

because the evidence was unreliable and the law enforcement officer lacked probable

cause to conduct a traffic stop.

       {¶10} Appellant also filed a Motion to Dismiss, arguing that R.C. §4511.19(A)(1)

(j)(viii)(ll) violates the Equal Protection Clause and the Privileges and Immunities

Clause.
Stark County, Case No. 2012 CA 00075                                                      4


       {¶11} On March 27, 2012, a hearing was held on both motions. At the hearing,

Appellant withdrew his argument that the law enforcement officer lacked probable cause

to make a traffic stop.

       {¶12} On March 28, 2012, the trial court issued two separate judgment entries

denying both of Appellant's motions. The following day, Appellant entered a no contest

plea and was found guilty on all counts.

       {¶13} For the offense under R.C. §4511.19(A)(1)(a), the trial court imposed a

$375.00 fine plus court costs and sentenced Appellant to 180 days in jail, suspending

all but seventy-two hours on condition of good behavior for two years.

       {¶14} For the offense under Subsection (A)(1)(j)(viii)(ll), the trial court imposed a

$375.00 fine plus court costs.

       {¶15} Appellant now appeals, assigning the following errors for review:

                                 ASSIGNMENTS OF ERROR

       {¶16} “I. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S

MOTION TO DISMISS BECAUSE R.C. 4511.19(A)(1)(j)(viii)(II) VIOLATES THE EQUAL

PROTECTION CLAUSES OF THE U.S. CONSTITUTION AND OF THE OHIO

CONSTITUTION.

       {¶17} “II. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S

MOTION TO SUPPRESS EVIDENCE BECAUSE THE FIELD SOBRIETY TESTS

WERE UNRELIABLE FOR INDICATING IMPAIRMENT.

       {¶18} “III. THE TRIAL COURT ERRED IN DENYING THE APPELLANTS

MOTION TO DISMISS BECAUSE R.C. 4511.19(A)(1)(j)(viii)(II) AS APPLIED TO THE
Stark County, Case No. 2012 CA 00075                                                   5


APPELLANT VIOLATES THE EQUAL PROTECTION CLAUSES OF THE U.S.

CONSTITUTION AND OF THE OHIO CONSTITUTION.”

                                             I., III.

       {¶19} In his First and Third Assignments of Error, Appellant argues that the trial

court erred in denying his motion to dismiss. We disagree.

       {¶20} More specifically, Appellant argues that R.C. §4511.19(A)(1)(j)(viii)(II) is

unconstitutional, both on its face and as applied, claiming that it violates the equal

protection clauses of the U.S. and Ohio Constitutions.

       {¶21} In the case sub judice, Appellant was charged with violation of both R.C.

§4511.19(A)(1)(a) and R.C. §4511.19(A)(1)(j)(viii)(II) which state:

       {¶22} “(A)(1)No person shall operate any vehicle, streetcar, or trackless trolley

within this state, if, at the time of the operation, any of the following apply:

       {¶23} (a) The person is under the influence of alcohol, a drug of abuse, or a

combination of them.

       {¶24} “ * * *

       {¶25} “(j) Except as provided in division (K) of this section, the person has a

concentration of any of the following controlled substances or metabolites of a

controlled substance in the person's whole blood, blood serum or plasma, or urine that

equals or exceeds any of the following:

       {¶26} “ * * *

       {¶27} “(viii) Either of the following applies:

       {¶28} “ * * *
Stark County, Case No. 2012 CA 00075                                                      6


         {¶29} “(II) As measured by gas chromatography mass spectrometry, the person

has a concentration of marihuana metabolite in the person's urine of at least thirty-five

nanograms of marihuana metabolite per milliliter of the person's urine or has a

concentration of marihuana metabolite in the person's whole blood or blood serum or

plasma of at least fifty nanograms of marihuana metabolite per milliliter of the person's

whole blood or blood serum or plasma.”

         {¶30} R.C. §4511.19 also provides as follows:

         {¶31} “(C) In any proceeding arising out of one incident, a person may be

charged with a violation of division (A)(1)(a) or (A)(2) and a violation of division (B)(1),

(2), or (3) of this section, but the person may not be convicted of more than one

violation of these divisions.”

         {¶32} Further, R.C. §2941.25(A) provides: “Where the same conduct by

defendant can be construed to constitute two or more allied offenses of similar import,

the indictment or information may contain counts for all such offenses, but the

defendant may be convicted of only one.”

         {¶33} Upon review of the Judgment Entry, we find that after accepting

Appellant’s no contest pleas in this matter and finding Appellant guilty, the trial court

sentenced Appellant on both R.C. §4511.19(A)(1)(a) and R.C. §4511.19(A)(1)(j)(viii)(II).

         {¶34} On the R.C. §4511.19(A)(1)(a) count, the trial court imposed a license

suspension,     points,   and    a   fine   of   $375.00   and    costs.   On    the   R.C.

§4511.19(A)(1)(j)(viii)(II) count, the trial court imposed a second fine of $375.00 and

costs.
Stark County, Case No. 2012 CA 00075                                                      7


       {¶35} Here, Appellant's sentences are clearly contrary to law. The two charges

should have been merged for purposes of sentencing and Appellant should have been

sentenced on one of the two charges, as elected by the prosecution. See State v.

Smucker (Dec. 18, 1992), Holmes App. No. CA-452; State v. Ryan (1984), 170 Ohio

App.3d 150; N. Olmsted v. Benning (Apr. 4, 2002), 8th Dist. No. 79548; Columbus v.

Ziegler (Mar. 3, 1992), 10th Dist. No. 91AP–1058.

       {¶36} Although Appellant did not raise this issue below, “a trial court's failure to

merge allied offenses of similar import constitutes plain error.” State v. Fairman, 2d Dist.

Montgomery No. 24299, 2011-Ohio-6489. As a result, we “must reverse the judgment of

conviction and remand for a new sentencing hearing at which the State must elect

which allied offense it will pursue against the defendant.” State v. Whitfield,124 Ohio

St.3d 319, 2010-Ohio-2.

       {¶37} We therefore remand this matter for resentencing so that the prosecution

can elect one of the two OVI offenses upon which Appellant shall be sentenced.

       {¶38} Appellant’s First and Third Assignments of Error are overruled.

                                             II.

       {¶39} In his Second Assignment of Error, Appellant argues that the trial court

erred in denying his motion to suppress.

       {¶40} There are three methods of challenging on appeal a trial court's ruling on

a motion to suppress. First, an appellant may challenge the trial court's findings of fact.

In reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning (1982),

1 Ohio St.3d 19; State v. Klein (1991), 73 Ohio App.3d 485; State v. Guysinger (1993),
Stark County, Case No. 2012 CA 00075                                                       8


86 Ohio App.3d 592. Second, an appellant may argue the trial court failed to apply the

appropriate test or correct law to the findings of fact. In that case, an appellate court can

reverse the trial court for committing an error of law. State v. Williams (1993), 86 Ohio

App.3d 37. Finally, assuming the trial court's findings of fact are not against the manifest

weight of the evidence and it has properly identified the law to be applied, an appellant

may argue the trial court has incorrectly decided the ultimate or final issue raised in the

motion to suppress. When reviewing this type of claim, an appellate court must

independently determine, without deference to the trial court's conclusion, whether the

facts meet the appropriate legal standard in any given case. State v. Curry (1994), 95

Ohio App.3d 93; State v. Claytor (1993), 85 Ohio App.3d 623; Guysinger. As the United

States Supreme Court held in Ornelas v. U.S. (1996), 116 S.Ct. 1657, 1663, “... as a

general matter determinations of reasonable suspicion and probable cause should be

reviewed de novo on appeal.”

       {¶41} Appellant argues that field sobriety tests are unhelpful in establishing

impairment due to use of marijuana. He claims that field sobriety tests have been

standardized to detect specific levels of alcohol consumption, and that performance on

these tests has not been studied with respect to marijuana consumption.

       {¶42} As acknowledged by the trial court, the horizontal gaze nystagmus test is

not considered reliable or credible as to marijuana use.1 NHTSA, Drugs and Human



1    We note that scientific research regarding the effectiveness of using standardized
field sobriety tests to detect impairment from marijuana indicates that horizontal gaze
nystagmus does in fact result from marijuana consumption, albeit less frequently or less
strongly than from alcohol consumption. Con Stough, et al. An Evaluation of the
Standardized Field Sobriety Tests for the Detection of Impairment Associated with
Cannibis with and without Alcohol 78 (2006). Because the Ohio Supreme Court
decisions have specifically addressed and relied on NHTSA materials, we are inclined
Stark County, Case No. 2012 CA 00075                                                   9

Performance Fact Sheets 11 (2004); see, also, Eugene R. Bertolli, et al., A Behavioral

Optometry/Vision Science Perspective on the Horizontal Gaze Nystagmus Exam for

DUI Enforcement, Forensic Examiner 31 (2007). Appellant in this case did not exhibit

any clues on the HGN test.

       {¶43} However, Trooper Saengsiphanh also testified that Appellant exhibited a

significant number of signs on two other field sobriety tests. Appellant swayed, put his

foot down, and hopped on the one-leg stand test. (T. at 11).2 Appellant did not take the

correct number of heel to toe steps on the walk and turn test. (T. at 12).

       {¶44} NHTSA materials indicate that these field sobriety tests would be affected

by marijuana consumption. Drugs and Human Performance Fact Sheets at 11:

       {¶45} “Effects on Driving: …. Epidemiology data from road traffic arrests and

fatalities indicate that after alcohol, marijuana is the most frequently detected

psychoactive substance among driving populations. Marijuana has been shown to

impair performance on driving simulator tasks and on open and closed driving courses

for up to approximately 3 hours. Decreased car handling performance, increased

reaction times, impaired time and distance estimation, inability to maintain headway,

lateral travel, subjective sleepiness, motor incoordination, and impaired sustained

vigilance have all been reported. Some drivers may actually be able to improve

performance for brief periods by overcompensating for self-perceived impairment. The

greater the demands placed on the driver, however, the more critical the likely

impairment. Marijuana may particularly impair monotonous and prolonged driving.


to accept NHTSA’s conclusions for purposes of this opinion. See, e.g., State v. Homan,
89 Ohio St.3d 421, 425, 2000-Ohio-212.
2
   We note that research indicates that the one leg stand is the most effective indicator
of impairment associated with the consumption of marijuana. Stough at 79.
Stark County, Case No. 2012 CA 00075                                                   10


Decision times to evaluate situations and determine appropriate responses increase.

Mixing alcohol and marijuana may dramatically produce effects greater than either drug

on its own.

      {¶46} “…

      {¶47} “DEC Profile: Horizontal gaze nystagmus not present; vertical gaze

nystagmus not present; lack of convergence present; pupil size normal to dilated;

reaction to light normal to slow; pulse rate elevated; blood pressure elevated; body

temperature normal to elevated. Other characteristic indicators may include odor of

marijuana in car or on subject’s breath, marijuana debris in mouth, green coating of

tongue, bloodshot eyes, body and eyelid tremors, relaxed inhibitions, incomplete

thought process, and poor performance on field sobriety tests.”

      {¶48} Based on the foregoing, we find that the trial court did not err in failing to

grant Appellant’s motion to suppress in this matter.
Stark County, Case No. 2012 CA 00075                                           11


      {¶49} Appellant’s Second Assignment of Error is overruled.

      {¶50} For the foregoing reasons, the judgment of the Canton Municipal Court,

Stark County, Ohio, is affirmed in part, reversed in part and remanded for further

proceedings consistent with the law and this opinion.



By: Wise, J.

Gwin, J., and

Hoffman, J., concur.

                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                             JUDGES


JWW/d 1113
Stark County, Case No. 2012 CA 00075                                                  12


             IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
LAWRENCE MASON                              :
                                            :
       Defendant-Appellant                  :         Case No. 2012 CA 00075




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Canton Municipal Court, Stark County, Ohio, is affirmed in part,

reversed in part and remanded for further proceedings consistent with this opinion.

       Costs assessed equally between Appellee and Appellant.




                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                                JUDGES
