Court of Appeals of Ohio, Second District, Montgomery
Court Case No. 2018-TRC-8339 Criminal Appeal from Municipal
LINDSAY E. BOZANICH, Attorney for Plaintiff-Appellee
MICHAEL MILLS Attorney for Defendant-Appellant
1} Defendant-appellant, John M. Loeber, appeals from
his conviction in the Dayton Municipal Court, following a
bench trial, for operating a vehicle while under the
influence of alcohol ("OVI"). In support of his
appeal, Loeber contends that the State failed to present
sufficient evidence that he operated a vehicle on the night
in question while under the influence of alcohol. For the
reasons outlined below, Loeber's conviction will be
and Course of Proceedings
2} On October 7, 2018, Loeber received a citation
charging him with two counts of OVI, one in violation of R.C.
4511.19(A)(1)(a) and the other in violation of R.C.
4511.19(A)(2). Loeber was also charged with operating a
vehicle without a valid driver's license, driving under a
financial responsibility law suspension, failing to reinstate
his license, and driving under suspension. Loeber pled not
guilty to all the charges and the matter proceeded to a bench
trial. At the beginning of trial, the State advised the trial
court that it was only moving forward with the two OVI
charges and that it was going to dismiss the other four
charges against Loeber.
3} In proceeding with its case, the State presented
testimony from Michael David Cox. Cox testified that at
approximately 8:00 p.m. on October 7, 2018, he was smoking a
cigarette on his front porch at 3225 Wellington Drive in
Dayton, Ohio. Cox testified that while he was on his porch he
observed a dark-colored, older-model SUV driving east on
Wellington Drive at a speed of 10 to 15 miles per hour. Cox
testified that the SUV was "ping-ponging" across
the road and weaving into yards. Cox also observed the SUV
drive through a stop sign and hit a curb. In addition, Cox
testified that the SUV almost hit a fence, light pole, and
other vehicles parked in the street.
4} During his testimony, Cox confirmed that he did
not see the driver or the license plate number of the SUV.
Cox testified that he also could not see the number of
occupants inside the SUV. Cox testified that he observed the
SUV's erratic driving for about 15 to 20 seconds before
he called 9-1-1 to report the SUV to police. Approximately 30
to 45 minutes later, police officers arrived at Cox's
residence to speak with him about the incident. Cox testified
that he provided the police with a written statement, which
was admitted into evidence as State's Exhibit 1.
Cox's written statement read as follows:
Driver was weaving across Wellington Drive. He hit a curb
twice and went up into a couple of yards. Only driving
between 10 or 15mph. Ran through a stop sign. I was afraid
for public safety. Driving dark SUV 1990's Suburban or
State's Exhibit 1.
5} The State also presented testimony from Officer
Kyle Bonner of the Dayton Police Department. Bonner testified
that on October 7, 2018, he responded to a report of a
dark-colored GMC or Suburban SUV driving in an erratic,
unsafe manner on Wellington Drive. Bonner also testified that
he found a vehicle matching the description of the SUV
observed by Cox only a couple of minutes after responding to
Wellington Drive. According to Bonner, the SUV, a 1995 blue
Chevy Suburban, was found parked in a suspicious manner in a
nearby driveway located on Pell Drive. Bonner testified that
Pell Drive is only a half mile away from Wellington Drive and
is located in the same residential area.
6} In describing the suspicious nature of how the
SUV was parked, Officer Bonner testified that the SUV was
positioned at an angle with only the rear-passenger wheel on
the driveway. Bonner testified that the SUV's front
wheels were located in the residence's flowerbed and
sidewalk leading to the front porch, while the
rear-driver's-side wheel was located in the grass. Bonner
also observed that the SUV's front bumper was hanging a
few inches over the front porch. According to Bonner, the
SUV's engine was not running.
7} Officer Bonner testified that upon seeing the
suspiciously-parked SUV, he pulled up behind the SUV to get
its license plate number. After pulling up behind the SUV,
Bonner observed someone, later identified as Loeber, sitting
in the driver's seat with no other occupants present.
Bonner testified that he then approached the vehicle and
observed Loeber swing the driver's side door open and
slowly attempt to exit the SUV. As a he approached the SUV,
Bonner testified that he detected moderate odors of an
alcoholic beverage and urine, and that the odors became
stronger as he got closer to Loeber. Bonner testified that he
had to help Loeber out of the ...