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State v. Loeber

Court of Appeals of Ohio, Second District, Montgomery

December 27, 2019

STATE OF OHIO Plaintiff-Appellee
v.
JOHN M. LOEBER Defendant-Appellant

          Trial Court Case No. 2018-TRC-8339 Criminal Appeal from Municipal Court

          LINDSAY E. BOZANICH, Attorney for Plaintiff-Appellee

          MICHAEL MILLS Attorney for Defendant-Appellant

          OPINION

          WELBAUM, P.J.

         {¶ 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 affirmed.

         Facts 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 GMC.

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 ...


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