[Cite as State v. Highley,
2023-Ohio-3569.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Andrew J. King, J.
-vs- :
:
JOSHUA D. HIGHLEY : Case No. 2023CA00026
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2022CR00548
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 2, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT RICHARD D. HIXSON
20 South Second Street 3808 James Court
Fourth Floor Suite 2
Newark, OH 43055 Zanesville, OH 43701
Licking County, Case No. 2023CA00026 2
King, J.
{¶ 1} Defendant-Appellant, Joshua D. Highley, appeals his March 22, 2023
consecutive sentence by the Court of Common Pleas of Licking County, Ohio. He also
challenges the trial court's denial of his motion to suppress. Plaintiff-Appellee is the state
of Ohio. We affirm the trial court.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On September 1, 2022, the Licking County Grand Jury indicted Highley on
one count of aggravated possession of methamphetamine in violation of R.C. 2925.11,
one count of aggravated trafficking in methamphetamine in violation of R.C. 2925.03, and
one count of having weapons while under disability in violation of R.C. 2923.13. The
charges arose from a motor vehicle stop for fictious license plates and suspended driver's
license.
{¶ 3} On October 13, 2022, Highley filed a motion to suppress, claiming an illegal
expanded search of his vehicle. A hearing was held on November 23, 2022. By judgment
entries filed November 23, 2022 and January 31, 2023, the trial court denied the motion.
{¶ 4} On March 22, 2023, Highley pled no contest to the charges. By judgment
entry filed March 22, 2023, the trial court found appellant guilty, and sentenced him to an
aggregate term of five to six years in prison; minimum two years and maximum three
years on the trafficking count and three years on the weapons count, to be served
consecutively.
{¶ 5} Highley filed an appeal with the following assignments of error:
I
Licking County, Case No. 2023CA00026 3
{¶ 6} "THE TRIAL COURT ERRED IN GRANTING DEFENDANT/APPELLANT'S
MOTION TO SUPPRESS EVIDENCE."
II
{¶ 7} "THE TRIAL COURT'S IMPOSITION OF CONSECUTIVE SENTENCES IS
CONTRARY TO LAW AND UNSUPPORTED BY THE RECORD."
III
{¶ 8} "THE TRIAL COURT COURT ERRED WHEN IT SENTENCED
DEFENDANT/APPELLANT TO A MINIMUM SENTENCE OF TWO YEARS AND A
MAXIMUM SENTENCE OF THREE YEARS ON COUNT TWO, AS THE PRESUMPTIVE
RELEASE PROVISIONS OF R.C. 2967.271 ARE UNCONSTITUTIONAL."
I
{¶ 9} In his first assignment of error, Highley claims the trial court erred in denying
his motion to suppress. We disagree.
{¶ 10} As stated by the Supreme Court of Ohio in State v. Leak, 145 Ohio St.3d
165,
2016-Ohio-154,
47 N.E.3d 821, ¶ 12:
"Appellate review of a motion to suppress presents a mixed question
of law and fact." State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372,
797 N.E.2d 71, ¶ 8. In ruling on a motion to suppress, "the trial court
assumes the role of trier of fact and is therefore in the best position to
resolve factual questions and evaluate the credibility of witnesses." Id.,
citing State v. Mills, 62 Ohio St.3d 357, 366,
582 N.E.2d 972 (1992). On
appeal, we "must accept the trial court's findings of fact if they are supported
Licking County, Case No. 2023CA00026 4
by competent, credible evidence." Id., citing State v. Fanning,
1 Ohio St.3d
19, 20,
437 N.E.2d 583 (1982). Accepting those facts as true, we must then
"independently determine as a matter of law, without deference to the
conclusion of the trial court, whether the facts satisfy the applicable legal
standard." Id.
{¶ 11} As the United States Supreme Court held in Ornelas v. U.S., 517 U.S. 690,
699,
116 S.Ct. 1657,
134 L.Ed.2d 94 (1996):
We therefore hold that as a general matter determinations of
reasonable suspicion and probable cause should be reviewed de novo on
appeal. Having said this, we hasten to point out that a reviewing court
should take care both to review findings of historical fact only for clear error
and to give due weight to inferences drawn from those facts by resident
judges and local law enforcement officers.
{¶ 12} The Fourth Amendment to the United States Constitution guarantees "[t]he
right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." The stop of a vehicle and the detention of its
occupants by law enforcement, for whatever purpose and however brief the detention
may be, constitutes a seizure for Fourth Amendment purposes. Delaware v. Prouse, 440
U.S. 648, 653,
99 S.Ct. 1391,
59 L.Ed.2d 660 (1979), citing United States v. Martinez-
Fuerte,
428 U.S. 543, 556-558,
96 S.Ct. 3074,
49 L.Ed.2d 1116 (1976). "Where a police
Licking County, Case No. 2023CA00026 5
officer stops a vehicle based upon probable cause that a traffic violation has occurred or
was occurring, the stop is not unreasonable under the Fourth Amendment to the United
States Constitution[.]" Dayton v. Erickson,
76 Ohio St.3d 3, 11-21,
665 N.E.2d 1091
(1996). Officers may search the vehicle without a warrant under the automobile
exception, which:
"allows police to conduct a warrantless search of a vehicle if there is
probable cause to believe that the vehicle contains contraband and exigent
circumstances necessitate a search or seizure." State v. Mills, 62 Ohio
St.3d 357, 367,
582 N.E.2d 972 (1992), citing Chambers v. Maroney,
399
U.S. 42, 48,
90 S.Ct. 1975,
26 L.Ed.2d 419 (1970). A vehicle's mobility is
the traditional exigency for the automobile exception to the warrant
requirement. Id., citing California v. Carney,
471 U.S. 386, 393,
105 S.Ct.
2066,
85 L.Ed.2d 406 (1985). Therefore, "[i]f a car is readily mobile and
probable cause exists to believe it contains contraband, the Fourth
Amendment … permits police to search the vehicle without more."
Pennsylvania v. Labron, 518 U.S. 938, 940,
116 S.Ct. 2485,
135 L.Ed.2d
1031 (1996), citing
Carney at 393.
Additionally, "the smell of marijuana, alone, by a person qualified to
recognize the odor, is sufficient to establish probable cause to search a
motor vehicle, pursuant to the automobile exception to the warrant
requirement. There need not be other tangible evidence to justify a
warrantless search of the vehicle." Id. [Chambers v. Maroney] at 48. See
Licking County, Case No. 2023CA00026 6
also State v. Farris, 109 Ohio St.3d 519,
2006-Ohio-3255 (reaffirming that
the smell of [burnt] marijuana in the passenger compartment of a vehicle
establishes probable cause for a warrantless search of the passenger
compartment, but not of the trunk). " 'When there is probable cause to
search for contraband in a car, it is reasonable for police officers … to
examine packages and containers without a showing of individualized
probable cause for each one.' " State v. Vega, 154 Ohio St.3d 569, 2018-
Ohio-4002 116 N.E.3d 1262 ¶ 14[,] quoting Wyoming v. Houghton,
526 U.S.
295, 302,
119 S.Ct. 1297,
143 L.Ed.2d 408 (1999).
State v. Graves, 5th Dist. Ashland No.
22COA001,
2022-Ohio-4130, ¶ 43-44.
{¶ 13} In United States v. Ross, 456 U.S. 798, 825,
102 S.Ct. 2157,
72 L.Ed.2d
572 (1982), the Supreme Court of the United States held: "the scope of the warrantless
search authorized by that [automobile] exception is no broader and no narrower than a
magistrate could legitimately authorize by warrant. If probable cause justifies the search
of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its
contents that may conceal the object of the search."
{¶ 14} In his motion to suppress, Highley did not contest probable cause to stop
him; he argued the officers did not have probable cause to expand their search and open
containers in his vehicle.
{¶ 15} Detective Kyle Boerstler with the Licking County Sheriff's Office and
assigned to the Central Ohio Drug Enforcement Task Force, testified he received
Licking County, Case No. 2023CA00026 7
information from a confidential source that Highley was in possession of a large amount
of methamphetamine and was at the home of a known drug dealer; the detective was
informed of the vehicle Highley would be driving. November 23, 2022 T. at 10. Detective
Boerstler and others went to the residence. Id. The detective located the vehicle in the
area and ran the license plates and Highley's driver's license; the plates were fictitious
and his driver's license was suspended.
Id. Detective Boerstler observed Highley exit
the residence, enter the vehicle, and drive away. T. at 12. A marked cruiser stopped
Highley. T. at 13. Detective Boerstler, who was following in an unmarked vehicle,
observed Highley's right arm "so far under the driver's seat" that he was either "stuffing a
gun or something under the seat at that time." T. at 12-13.
{¶ 16} Detective Boerstler was trained in detecting the odor of raw and burnt
marijuana. T. at 8-9. Upon approaching Highley's vehicle, he detected an immediate
distinct strong odor of marijuana. T. at 14. Highley denied the vehicle was his and
claimed he knew nothing about what was inside the vehicle. T. at 23. Highley was
removed from the vehicle and a loaded firearm was found under the driver's seat. T. at
17; State's Exhibits 1C and 1D. A panda backpack was located on the floorboard of the
front passenger compartment containing methamphetamine. T. at 18-19; State's Exhibits
1G and 1H. A lockbox was located in the trunk which also contained methamphetamine.1
T. at 19-20; State's Exhibits 1I and 1J. The detective did not have a search warrant. T.
at 29-30. He explained had nothing been found in the vehicle, it still would have been
1No testimony was given as to whether the lockbox was unlocked or locked during the
suppression hearing. The state recited the facts at the change of plea hearing which
were agreed to by both parties; the state mentioned the lockbox was unlocked.
Appellant's Brief at 5; March 22, 2023 T. at 10.
Licking County, Case No. 2023CA00026 8
impounded and towed because of the fictitious plates and the driver's suspended license,
and because the vehicle was parked on business property. T. at 21-22. An inventory
search would have been conducted pursuant to police department policy to safeguard
any property in the vehicle and the drugs and weapon would have been found. T. at 22-
23, 33; State's Exhibit 3.
{¶ 17} Detective Hayden Walpole also with the Licking County Sheriff's Office and
assigned to the Central Ohio Drug Enforcement Task Force, testified he was in a marked
cruiser and pulled Highley over after receiving a radio call from Detective Boerstler on the
fictitious plates and suspended driver's license. T. at 35-36. Highley stopped his vehicle
in a car wash bay of a business. T. at 36. Detective Walpole removed Highley from his
vehicle. T. at 37-38. Highley told him he had some "roaches" in the vehicle, but the
vehicle belonged to his buddy; any contents in the vehicle belonged to someone else. T.
at 38.
{¶ 18} Detective Todd Green with the Newark Police Department and assigned to
the Central Ohio Drug Enforcement Task Force, testified he had observed Highley driving
the subject vehicle "numerous times." T. at 45. He was also trained in detecting the odor
of raw and burnt marijuana. T. at 44. When he approached Highley's vehicle, he detected
a strong odor of raw marijuana. T. at 46. Detective Green read Highley his Miranda
rights. Id. A tow truck was called because the vehicle was parked in a business car wash
bay, it had fictitious plates, Highley did not have a valid driver's license, and he was under
arrest; "[s]o the tow truck's called for three or four different reasons." T. at 48.
{¶ 19} In its January 31, 2023 judgment entry denying the motion to suppress, the
trial court found:
Licking County, Case No. 2023CA00026 9
the State possessed sufficient reasonable suspicion to stop the defendant
on the basis of the fictitious plates on the vehicle and his own lack of a
driver's license. On the basis of the smell of raw marijuana, the State further
possesses the ability to search the entire vehicle, and pursuant to the City
of Newark Police Department's impoundment policy to search the entire
vehicle and every locked container in it.
{¶ 20} We agree. Here, detectives received a confidential tip that Highley was in
possession of a large amount of methamphetamine and was at the home of a known drug
dealer; they were told what vehicle Highley would be driving. Prior to stopping his vehicle,
Highley made furtive movements under his driver's seat. Upon conducting an
uncontested valid stop of the vehicle, the detectives detected a strong odor of raw
marijuana. Highly admitted to having "roaches" in the vehicle. The marijuana odor and
admissions gave the detectives probable cause to search for contraband in the vehicle,
including the panda backpack. The detectives found methamphetamine in the backpack
and a loaded weapon under the driver's seat; they had probable cause to search the
entire vehicle for additional contraband. In addition, the contraband would have been
discovered because the vehicle was subject to an inventory search for towing purposes.
{¶ 21} Because there is ample evidence to support the detectives' actions, we
decline to review the state's argument relative to Highley's lack of standing to challenge
the expanded search.
Licking County, Case No. 2023CA00026 10
{¶ 22} Upon review, we find the trial court did not err in denying Highley's motion
to suppress.
{¶ 23} Assignment of Error I is denied.
II
{¶ 24} In his second assignment of error, Highley claims the trial court erred in
sentencing him to consecutive sentences. We disagree.
{¶ 25} This court reviews felony sentences using the standard of review set forth
in R.C. 2953.08. State v. Marcum, 146 Ohio St.3d 516,
2016-Ohio-1002,
59 N.E.3d 1231,
¶ 22; State v. Howell, 5th Dist. Stark No. 2015CA00004,
2015-Ohio-4049, ¶ 31.
Subsection (G)(2) sets forth this court's standard of review as follows:
(2) The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence
and remand the matter to the sentencing court for resentencing. The
appellate court's standard for review is not whether the sentencing court
abused its discretion. The appellate court may take any action authorized
by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
Licking County, Case No. 2023CA00026 11
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶ 26} "Clear and convincing evidence is that measure or degree of proof which is
more than a mere 'preponderance of the evidence,' but not to the extent of such certainty
as is required 'beyond a reasonable doubt' in criminal cases, and which will produce in
the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established." Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118 (1954), paragraph
three of the syllabus.
{¶ 27} R.C. 2929.14(C)(4) governs consecutive sentences and states the
following:
(4) If multiple prison terms are imposed on an offender for convictions
of multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender's conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
Licking County, Case No. 2023CA00026 12
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶ 28} R.C. 2953.08(G)(2) requires this court to review the record de novo and
decide whether the record clearly and convincingly does not support the consecutive-
sentence findings. State v. Gwynne, --- Ohio St.3d ---, 2022-Ohio-4607, --- N.E.3d ---, ¶
1. When imposing consecutive sentences, a trial court must state the required findings
at the sentencing hearing. State v. Bonnell,
140 Ohio St.3d 209,
2014-Ohio-3177,
16
N.E.3d 659, ¶ 29. Because a court speaks through its journal, the court should also
incorporate its statutory findings into the sentencing entry.
Id. While a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry, "it has no obligation to state reasons
to support its findings." Id. at ¶ 37. As long as the reviewing court can discern that the
trial court engaged in the correct analysis and can determine the record contains evidence
to support the findings, consecutive sentences should be upheld. Id. at ¶ 29.
Licking County, Case No. 2023CA00026 13
{¶ 29} Our review is a two-step process. The first step is whether the trial court
made the requisite findings under R.C. 2929.14(C)(4); the second step is whether the trial
court's decision to impose consecutive sentences is not clearly and convincingly
supported by the record. Gwynne at ¶ 25-26. We are required "to focus on both the
quantity and quality of the evidence in the record that either supports or contradicts the
consecutive-sentence findings." Id. at ¶ 29.
{¶ 30} In his appellate brief at 10, Highley admits that the trial court recited the
requisite statutory findings on the record regarding consecutive sentences and the
sentences are within the statutory range; he argues the record does not support the trial
court's imposition of consecutive sentences. He points out he did not have any violations
while on pretrial release, "was becoming a productive member of society by obtaining
employment," and despite his criminal history, had never been to prison.
{¶ 31} During the sentencing hearing, the trial court stated it was imposing
consecutive sentences because "consecutive sentences are necessary to protect the
public, not disproportionate to the seriousness of your conduct or the danger you pose to
the public, and that your criminal history necessitates consecutive sentences." March 22,
2023 T. at 20. The trial court journalized this finding in its judgment entry on sentencing
filed March 22, 2023.
{¶ 32} The record demonstrates the trial court received and reviewed a
presentence investigation report, and heard statements from the prosecutor and defense
counsel. The presentence investigation report revealed Highley's criminal history which
included twenty-six misdemeanor and felony convictions spanning twelve years, from
2010 to 2022. While most of the offenses were traffic violations and driving under
Licking County, Case No. 2023CA00026 14
suspension, he had several convictions for driving under the influence of alcohol and/or
drugs, and convictions for possession of drug paraphernalia, possession of drug
instruments, aggravated possession of drugs, and trafficking in drugs. Highley received
treatment in lieu of prison time. The trial court noted Highley "had enough treatment in
the past for you to realize what was going on and to know what you needed to do. You
chose just to do something else." March 22, 2023 T. at 20. When Highley was stopped
by the detectives, his vehicle contained methamphetamine, marijuana, a digital scale,
drug paraphernalia, and a semiautomatic handgun. Id. at 10. While Highley may have
never done prison time, he has now upgraded to second degree felony drug convictions
and added a loaded weapon to the mix.
{¶ 33} After reviewing the entire record de novo and weighing the quality and
quantity of the evidence, we do not clearly and convincingly find that the evidence in the
record did not support the consecutive-sentence findings. In fact, there was ample
evidentiary support for the trial court to find that consecutive service was necessary to
protect the public from future crime or to punish Highley, consecutive sentences were not
disproportionate to the seriousness of Highley's conduct and to the danger he posed to
the public, and consecutive sentences were necessary to protect the public from future
crimes.
{¶ 34} Upon review, we find the trial court's imposition of consecutive sentences is
not contrary to law.
{¶ 35} Assignment of Error II is denied.
III
Licking County, Case No. 2023CA00026 15
{¶ 36} In his third assignment of error, Highley claims his indefinite sentence under
the Reagan Tokes Act, codified in R.C. 2967.271, is unconstitutional because the
presumptive release provisions of the statute violate the doctrine of separation of powers,
his right to a jury trial, and due process principals under the federal and state constitutions.
We disagree.
{¶ 37} We rejected the same challenges in State v. Householder, 5th Dist.
Muskingum No. CT2021-0026, 2022-Ohio-1542, ¶ 6:
For the reasons stated in the dissenting opinion of The Honorable W.
Scott Gwin in State v. Wolfe, 5th Dist. Licking No. 2020CA00021, 2020-
Ohio-5501, we find the Reagan Tokes Law does not violate Appellant's
constitutional rights to trial by jury and due process of law, and does not
violate the constitutional requirement of separation of powers. We hereby
adopt the dissenting opinion in Wolfe as the opinion of this Court. In so
holding, we also note the sentencing law has been found constitutional by
the Second, Third, Sixth, and Twelfth Districts, and also by the Eighth
District sitting en banc. See, e.g., State v. Ferguson, 2nd Dist. Montgomery
No. 28644, 2020-Ohio-4153; State v. Hacker, 3rd Dist. Logan No. 8-20-01,
2020-Ohio-5048; State v. Maddox, 6th Dist. Lucas No. L-19-1253, 2022-
Ohio-1350; State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-
Ohio-3837; State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-
470. Further, we reject Appellant's claim the Reagan Tokes Act violates
Licking County, Case No. 2023CA00026 16
equal protection for the reasons stated in State v. Hodgkin, 12th Dist.
Warren No. CA2020-08-048, 2021-Ohio-1353.
{¶ 38} The Supreme Court of Ohio recently upheld the constitutionality of the
Reagan Tokes Law, finding it is not violative of the separation of powers doctrine, a
defendant's right to a jury trial, and a defendant's procedural due process rights, and is
not void for vagueness. State v. Hacker, ___ Ohio St.3d ___, 2023-Ohio-2535, ¶ 25, 28,
40, 41.
{¶ 39} Assignment of Error III is denied.
{¶ 40} The judgment of the Court of Common Pleas of Licking County, Ohio is
hereby affirmed.
By King, J.
Gwin, P.J. and
Delaney, J. concur.
