[Cite as State v. Loeber, 2019-Ohio-5358.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 28410
                                                  :
 v.                                               :   Trial Court Case No. 2018-TRC-8339
                                                  :
 JOHN M. LOEBER                                   :   (Criminal Appeal from Municipal Court)
                                                  :
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                             OPINION

                          Rendered on the 27th day of December, 2019.

                                             ...........

LINDSAY E. BOZANICH, Atty. Reg. No. 0097356, Assistant Prosecuting Attorney, City
of Dayton Prosecutor’s Office, 335 West Third Street, Room 372, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

MICHAEL MILLS, Atty. Reg. No. 0092133, 371 West First Street, Second Floor, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant

                                             .............




WELBAUM, P.J.
                                                                                       -2-


       {¶ 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
                                                                                       -3-


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
                                                                                        -4-


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 SUV because Loeber

was off balance. Bonner also testified that, when Loeber exited his vehicle, Bonner

observed a urine stain on Loeber’s pants where Loeber had relieved himself.

       {¶ 8} Continuing, Bonner testified that after assisting Loeber out of the SUV,

Loeber had difficulty standing on his own. Bonner testified that he and another officer

had to catch Loeber from falling over and had to help him stand on his feet. Bonner also

testified that Loeber’s speech was slurred and that Loeber appeared confused.

       {¶ 9} Because Loeber was unstable on his feet, Bonner testified that he placed

Loeber in the back of his police cruiser so that he could speak to him. Before placing

Loeber in his cruiser, Bonner performed a pat-down search to ensure that Loeber did not
                                                                                       -5-


have any weapons on his person. During the pat-down search, Loeber advised Bonner

that the only item on his person was the keys to his SUV. Bonner testified that he

retrieved the keys from Loeber’s pants pocket after receiving Loeber’s permission to

remove them.

       {¶ 10} Video footage from Bonner’s cruiser camera, which was admitted as State’s

Exhibit 3, confirmed that once Loeber was in Bonner’s police cruiser, Bonner advised

Loeber of his Miranda rights. After Loeber waived his Miranda rights, Bonner then asked

Loeber: “Where were you headed to tonight?” State’s Exhibit 3. Loeber, who was

speaking in a slow, confused manner, responded: “I was home, I was on my couch.” Id.

Bonner then explained to Loeber that he was found sitting in the front-seat of his SUV

and again asks Loeber “where were you coming from * * * where were you going?” Id.

In response, Loeber admitted to Bonner that he had come home from “St. Anthony’s”

where he had a “couple of beers.” Id. Bonner testified that St. Anthony’s was a church

hosting a fish fry that evening.

       {¶ 11} On cross-examination, Officer Bonner confirmed that he had never

observed Loeber’s SUV in motion.        Bonner also confirmed that Loeber had never

specifically stated that he had driven home from St. Anthony’s, but only indicated that he

had come home from St. Anthony’s. Bonner, however, testified that because there was

a witness who saw the SUV in motion, he decided to charge Loeber with OVI as opposed

to a physical control violation.

       {¶ 12} After presenting the foregoing testimony and evidence, the State rested its

case. The defense presented no testimony or evidence, but moved for an acquittal

under Crim.R. 29. The trial court granted the acquittal for the OVI charge under R.C.
                                                                                         -6-


4511.19(A)(2) on grounds that the State failed to establish that Loeber had an OVI

conviction within the past 20 years. However, because the trial court found that there

was sufficient circumstantial evidence establishing that Loeber had operated a vehicle

while under the influence of alcohol, the trial court denied Loeber’s Crim.R. 29 motion as

to the OVI charge under R.C. 4511.19(A)(1)(a), and found him guilty of that charge.

After finding Loeber guilty, the trial court sentenced Loeber to serve 180 days in jail with

60 days suspended. The trial court also suspended Loeber’s driver’s license for four

years, placed him on basic probation for six months, and ordered him to pay a fine of

$850.

        {¶ 13} Loeber now appeals from his OVI conviction, raising a single assignment of

error for review.



                                  Assignment of Error

        {¶ 14} Under his sole assignment of error, Loeber contends that the State failed to

present sufficient evidence supporting his OVI conviction. Specifically, Loeber argues

that the State failed to establish the required element that he operated a vehicle on the

evening in question. We disagree.

        {¶ 15} “When a defendant challenges the sufficiency of the evidence, [he] is

arguing that the State presented inadequate evidence on an element of the offense to

sustain the verdict as a matter of law.” State v. Matthews, 2d Dist. Montgomery No.

27718, 2018-Ohio-2424, ¶ 7, citing State v. Hawn, 138 Ohio App.3d 449, 471, 741 N.E.2d

594 (2d Dist.2000). “ ‘An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to
                                                                                             -7-


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.’ ”   Id., quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus.

       {¶ 16} Here, Loeber was found guilty of operating a vehicle while under the

influence of alcohol in violation of R.C. 4511.19(A)(1)(a). That statute provides: “No

person shall operate any vehicle * * * within this state, if, at the time of the operation * * *

[t]he person is under the influence of alcohol, a drug of abuse, or a combination of them.”

(Emphasis added.) R.C. 4511.19(A)(1)(a).

       {¶ 17} The term “operate” is statutorily defined as “to cause or have caused

movement of a vehicle, streetcar, or trackless trolley.” R.C. 4511.01(HHH). “Notably,

and in relation to movement of a vehicle, R.C. 4511.01(HHH) employs both the present

tense (‘to cause’) and, alternatively, the past tense (to ‘have caused’), in defining the

conduct to which that section applies.          The past tense indicates action already

completed.”    State v. Halpin, 2d Dist. Clark No. 07CA78, 2008-Ohio-4136, ¶ 24.

Therefore, “[f]or purposes of R.C. 4511.19, to ‘have caused’ movement of a vehicle is a

fact that may be proved by circumstantial evidence, which inherently possesses the same

probative value as direct evidence.’ ” Id., citing Jenks.

       {¶ 18} “Circumstantial evidence is proof of certain facts and circumstances from

which a [factfinder] may infer other connected facts that usually and reasonably follow

according to common experience.” State v. Sims, 191 Ohio App.3d 622, 2010-Ohio-
                                                                                          -8-


6228, 947 N.E.2d 227, ¶ 19 (2d Dist.); State v. Farley, 2d Dist. Montgomery No. 24632,

2012-Ohio-1093, ¶ 17.      If the State relies on circumstantial evidence to prove an

essential element of an offense, it is not necessary “for such evidence to be irreconcilable

with any reasonable theory of innocence in order to support a conviction.” Jenks at

paragraph one of the syllabus.

       {¶ 19} On several occasions, this court has found the operation-of-a-vehicle

element satisfied through the presentation of circumstantial evidence. See, e.g., State

v. Burnett, 2018-Ohio-109, 109 N.E.3d 61, ¶ 3-4, 29 (2d Dist.) (finding sufficient evidence

of operation where the investigating officer observed the defendant by himself in the

driver’s seat of a truck sunk in mud with “lots of tracks where the vehicle had been slipping

and sliding around,” “obvious marks where the truck had gone off the road,” and “multiple

tire patterns where the truck had gone back and forth and slid around”); Dayton v. Ahmad,

2d Dist. Montgomery No. 24165, 2011-Ohio-2302, ¶ 61 (finding sufficient evidence of

operation where the defendant was found in the driver’s seat of the vehicle with the key

in the ignition); State v. Cochran, 2d Dist. Montgomery No. 22240, 2008-Ohio-3612, ¶ 6-

7, 22-27 (finding sufficient evidence of operation where the defendant was found in the

driver’s seat of a vehicle that was running and parked in a grassy area off the road).

       {¶ 20} In this case, when considering the video evidence and the trial testimony of

Cox and Officer Bonner, a reasonable factfinder could have found that Loeber was

operating the SUV shortly before Bonner arrived at his residence. Specifically, Cox’s

testimony and written statement established that Cox observed a dark-colored 1990s

model SUV driving east on Wellington Drive in an erratic, reckless manner. Officer

Bonner’s testimony established that, shortly after Cox called 9-1-1 and reported what he
                                                                                        -9-


saw to police, Bonner located an SUV matching the description of the SUV observed by

Cox parked in a suspicious manner on a residential driveway on Pell Drive, which is just

a half mile east of Wellington Drive.    Due to the matching description of the SUVs

observed by Cox and Bonner, the direction and close proximity of the SUVs, and the

suspicious manner in which the SUV found by Bonner was parked, it could be reasonably

inferred that Bonner had located the SUV that Cox observed driving erratically on

Wellington Drive.

      {¶ 21} Although Cox could not identify who was driving the SUV, and despite

Officer Bonner never seeing the SUV in motion, there was other circumstantial evidence

in the record that would have permitted a reasonable factfinder to conclude that Loeber

was the individual who had been operating the SUV in question. This includes, among

other things, the fact that Bonner had found Loeber sitting in the driver’s seat of the SUV

by himself. Bonner also observed Loeber attempting to exit the SUV with urine-stained

pants that contained the keys to the SUV shortly after the same SUV was seen in motion

just a half a mile away. These facts permitted a reasonable inference that Loeber was

the individual driving the SUV when Cox observed the SUV driving erratically on

Wellington Drive.

      {¶ 22} Although the video evidence established that Loeber initially told Officer

Bonner that he had been inside his home on the couch when the officers arrived at his

residence, the video indicates that Loeber then changed his story after Bonner explained

that he had actually been found inside his vehicle. At that point, Loeber admitted that he

had come home from “St. Anthony’s” where he had a “couple of beers.” State’s Exhibit

3. Although Loeber’s admission was that he had “come home” from St. Anthony’s as
                                                                                       -10-


opposed to “driving home,” we find it significant that Loeber never disputed the fact that

he drove the SUV when Bonner subsequently discussed the driving under the influence

charge with him.        Loeber’s lack of protest during their discussion supported the

reasonable inference that, by admitting he had come home from St. Anthony’s, Loeber

was admitting he drove home.

      {¶ 23} In an effort to demonstrate that the foregoing circumstantial evidence was

insufficient to establish the operation element of OVI, Loeber attempts to analogize the

facts of this case with the facts in State v. Anderson, 1st Dist. Hamilton No. C-160920,

2017-Ohio-8641, and Cleveland v. Dumas, 8th Dist. Cuyahoga No. 99558, 2013-Ohio-

4600. In Anderson, the defendant was found unconscious sitting in the driver’s seat of

a vehicle that was turned off and parked in a parking lot. Anderson at ¶ 2-3. The keys

to the vehicle were also in the ignition and the driver’s-side door was open. Id. at ¶ 3.

In Dumas, the defendant was found standing outside of his vehicle at a construction site.

Dumas at ¶ 16-17.        The courts in Anderson and Dumas found that the foregoing

circumstantial evidence was insufficient to establish that the defendants had operated the

vehicles in question.

      {¶ 24} Upon review, we find that the facts in Anderson and Dumas are

distinguishable from the present case. Unlike Anderson and Dumas, a witness observed

a vehicle matching the description of Loeber’s SUV in motion shortly before Officer

Bonner observed Loeber sitting in the driver’s seat of the SUV and exiting the vehicle.

Furthermore, unlike the defendant in Anderson, Loeber was not unconscious, and unlike

the defendant in Dumas, Loeber was observed sitting in the driver’s seat of the vehicle.

      {¶ 25} Loeber also cites several cases with different factual settings in an attempt
                                                                                        -11-


to argue what kind of circumstantial evidence would have been sufficient for the State to

prove its case. However, these cases are immaterial, as it is only necessary to focus on

what evidence was actually presented by the State.          Here, when focusing on the

evidence actually presented at trial, and when viewing that evidence in a light most

favorable to the State, we find that there was sufficient circumstantial evidence presented

to establish that Loeber had operated the SUV in question while under the influence of

alcohol.   Therefore, because there is no merit to any of Loeber’s arguments, his

sufficiency-of-the-evidence claim fails.

       {¶ 26} Loeber’s sole assignment of error is overruled.



                                       Conclusion

       {¶ 27} Having overruled Loeber’s sole assignment of error, the judgment of the

trial court is affirmed.

                                      .............



HALL, J. and TUCKER, J., concur.



Copies sent to:

Lindsay E. Bozanich
Michael Mills
Hon. Carl Sims Henderson
