[Cite as State v. Heimberger, 2018-Ohio-3001.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 9-17-45

        v.

DEBRA A. HEIMBERGER,                                      OPINION

        DEFENDANT-APPELLANT.




                    Appeal from Marion County Municipal Court
                            Trial Court No. TRC 1703179

                                     Judgment Affirmed

                              Date of Decision: July 30, 2018




APPEARANCES:

        Nathan Witkin for Appellant

        Stephen E. Chaffin for Appellee
Case No. 9-17-45


ZIMMERMAN, J.

       {¶1} Defendant-appellant, Debra Heimberger (“Heimberger”), appeals the

October 17, 2017 judgment of the Marion County Municipal Court of her conviction

of OVI, in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of the first degree.

                           Facts and Procedural History

       {¶2} This appeal stems from the events that occurred on the morning of April

14, 2017, when Heimberger was cited for operating a vehicle while under the

influence, or drug of abuse, in violation of R.C. 4511.19(A)(1)(a), and for failure to

drive in marked lanes, in violation of R.C. 4511.33. Heimberger entered pleas of

not guilty to both charges and the matter was set for trial.

       {¶3} Prior to trial, Heimberger filed a motion to suppress the evidence

obtained as a result of the traffic stop. In her motion, Heimberger argued: that there

was no lawful cause for the stop; that the field sobriety tests were not administered

in substantial compliance with the standards of the National Highway Traffic Safety

Administration; and that her statements were obtained in violation of her Fifth

Amendment rights. Following an evidentiary hearing on the motion, the trial court

denied the request concluding: that Trooper Overly “had probable cause to stop the

Defendant; that the Walk and Turn Standardized Field Sobriety Test was

administered in substantial compliance with the NHTSA standards; that the


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Defendant was not in custody pertaining to arrest but rather for safety purposes and

as part of the investigation; and that there was probable cause to arrest the Defendant

considering the totality of the circumstances”. (Doc. 34).

       {¶4} The case proceeded to a jury trial in the trial court on October 11, 2017,

whereupon a jury convicted Heimberger of operating a vehicle while under the

influence of a drug of abuse.       Contemporaneously, the trial court dismissed

Heimberger’s marked lanes violation charge.

       {¶5} On October 17, 2017, the trial court sentenced Heimberger to 30 days

in jail, suspending 27 days. It is from this entry that Heimberger appeals, presenting

the following assignments of error for our review.

                        ASSIGNMENT OF ERROR NO. I

       THE TRIAL COURT IMPROPERLY EXCLUDED EXPERT
       TESTIMONY FROM DEFENDANT’S COUNSELOR.

                       ASSIGNMENT OF ERROR NO. II

       THE TRIAL COURT IMPROPERLY EXCLUDED LAY
       WITNESS    TESTIMONY  FROM   DEFENDANT’S
       COUNSELOR.

                       ASSIGNMENT OF ERROR NO. III

       THE TRIAL COURT ERRED IN FINDING REASONABLE
       SUSPICION AT THE TIME THAT IS [SIC] THE TROOPER
       INITIATED THE TRAFFIC STOP.



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                       ASSIGNMENT OF ERROR NO. IV

        THE     DEFENDANT-APPELLANT’S     STATEMENTS
        REGARDING HER USE OF MEDICATIONS SHOULD HAVE
        BEEN SUPPRESSED AS HAVING BEEN GATHERED IN
        VIOLATION OF HER FIFTH AMENDMENT RIGHTS.

                        ASSIGNMENT OF ERROR NO. V

        THE FINDING OF THE JURY THAT DEFENDANT-
        APPELLANT VIOLATED R.C. 4511.19 BEYOND A
        REASONABLE DOUBT WAS BEYOND THE MANIFEST
        WEIGHT OF THE EVIDENCE.

        {¶6} Due to the nature of Heimberger’s assignments of error, we elect to

address them out of order.

                             Assignment of Error No. III

        {¶7} In her third assignment of error, Heimberger contends that the trial court

erred in finding that Trooper Overly had a reasonable suspicion to initiate a traffic

stop. We disagree.

                                 Standard of Review

        {¶8} A motion to suppress evidence presents a mixed question of law and

fact.   State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶8.             “When

considering 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 (1992).


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Therefore, a reviewing court “must accept the trial court’s findings of fact if they

are supported by competent, credible evidence.” Id. “Accepting these facts as true,

the appellate court must then independently determine, without deference to the

conclusion to the trial court, whether the facts satisfy the applicable legal standard.”

Id., citing State v. McNamara, 124 Ohio App.3d 706.

                                       Analysis

       {¶9} The investigatory stop of an automobile is a seizure for purposes of the

Fourth amendment and, consequently, must be based on a law enforcement officer’s

reasonable suspicion “that a motorist has committed, is committing, or is about to

commit a crime”. State v. Harrison, 3d Dist. Logan No. 8-14-16, 2015-Ohio-1419,

citing State v. Dillehay, 3d Dist. Shelby No. 17-12-07, 2013-Ohio-327, ¶13, citing

State v. Johnson, 3d Dist. Hancock No. 5-07-43, 2008-Ohio-1147, ¶16; State v.

Aldridge, 3d Dist. Marion No. 9-13-54, 2014-Ohio-4537, ¶10, quoting State v.

Mays, 119 Ohio St.3d 406, 2008-Ohio-4539, ¶7. In justifying the stop, the officer

“must be able to point to specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant the intrusion”. Terry v.

Ohio, 392 U.S. 1, 21; State v. Bobo, 37 Ohio St.3d 177, 178. The reasonableness of

the officer’s actions is evaluated in light of the totality of the circumstances




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surrounding the stop. State v. Freeman, 64 Ohio St.2d 291, paragraph one of the

syllabus.

       {¶10} Whether a police officer had “an objective and particularized

suspicion that criminal activity was afoot must be based on the entire picture – a

totality of the surrounding circumstances”. State v. Andrews, 57 Ohio St.3d 86, 87,

citing United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690. “[The]

circumstances are to be viewed through the eyes of the reasonable and prudent

police officer on the scene who must react to events as they unfold.” Id. at 87-88.

“A court reviewing the officer’s actions must give due weight to his experience and

training and view the evidence as it would be understood by those in law

enforcement.” Id, at 88.

       {¶11} Further, when a radio dispatch to law enforcement is based on

information provided by an informant’s tip, “the determination of reasonable

suspicion will be limited to an examination of the weight of reliability due that tip.

The appropriate analysis, then, is whether the tip itself has sufficient indicia of

reliability to justifying the investigative stop.” Maumee v. Weisner, 87 Ohio St.3d

295. Relevant factors in this determination include “the informant’s veracity,

reliability, and basis of knowledge”. Id. In making this determination, courts

consider whether the informant can be classified as an anonymous tipster, a known


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confidential informant, or an identified citizen informant. Id. at 300. As a general

rule, “an identified citizen informant may be highly reliable and, therefore, a strong

showing as to the other indicia of reliability may be unnecessary * * *”. Id.

However, in the case sub judice, because Trooper Overly also observed

Heimberger’s driving, this Court does not need to consider whether the tip alone

was sufficient to provide him with reasonable suspicion to justify stopping

Heimberger’s vehicle.

       {¶12} Here, Trooper Overly initiated a traffic stop of Heimberger based upon

information relayed to him via a radio dispatch and upon his actual observation of

the manner in which Heimberger operated her vehicle. The record reveals that on

the date in question, Holly Schauber (“Schauber”), the citizen informant, called 911

and informed the dispatcher that a vehicle was being operated “very erratically and

swerving all over the road”, “was going to kill someone”, “had forced at least two

semi-trucks off the road”, and “had been in the grassy median, almost hitting

oncoming traffic, and swerved back into her lane of travel”. Schauber identified the

vehicle to be a U-Haul van (“van”). Thereafter, after coming into contact with

Heimberger’s van, Trooper Overly observed it make a marked lane violation before

he initiated his stop.




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       {¶13} In this case, Schauber provided the dispatcher with her location and

contact information, along with a description of Heimberger’s vehicle and

information relative to Heimberger’s erratic driving. The record supports that

Schauber was an identified citizen informant. Thus, we are able to attribute a higher

degree of reliability to the information that she provided during her 911 call. (See

generally, Illinois v. Gates, 462 U.S. 213, 233-234). Furthermore, upon responding

to the dispatch report, Trooper Overly observed Schauber’s vehicle behind the van

driven by Heimberger. These facts provide credibility to Schauber’s account and

sufficient indicia of reliability to justify Trooper Overly’s traffic stop. See State v.

Rapp, 9th Dist. Wayne No. 12CA0062, 2013-Ohio-4408, ¶11. Thus, after reviewing

the record, we conclude that Trooper Overly’s stop of Heimberger occurred upon

reasonable suspicion based upon the information provided by Schauber as well as

upon his own observations. As such, Heimberger’s third assignment of error is not

well taken and overruled.

                             Assignment of Error No. IV

       {¶14} In her fourth assignment of error, Heimberger contends that her

statements (to Trooper Overly) regarding her use of medications should have been

suppressed because they were gathered in violation of her Fifth Amendment rights.

Specifically, Heimberger argues that because she was in the back seat of Trooper


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Overly’s patrol car when asked if she was taking any medications, she was subject

to a custodial interrogation and should have been advised of her Miranda warnings.

                                  Standard of Review

       {¶15} A review of the denial of a motion to suppress involves mixed

questions of law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

¶8, citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). At a suppression hearing,

the trial court assumes the role of trier of fact and, as such, is in the best position to

evaluate the evidence and the credibility of witnesses. (Id.) When reviewing a

ruling on a motion to suppress, deference is given to the trial court's findings of fact

so long as they are supported by competent, credible evidence. (Id.) With respect

to the trial court's conclusions of law, however, our standard of review is de novo,

and we must decide whether the facts satisfy the applicable legal standard. State v.

McNamara, 124 Ohio App.3d 706, 710 (1997).

                                        Analysis

       {¶16} A defendant has the constitutional right against self-incrimination

under both the Fifth Amendment to the United States Constitution and Section 10,

Article I of the Ohio Constitution. In interpreting this right, it has been held that the

state may not use statements stemming from a custodial interrogation of the




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defendant unless it demonstrates the use of certain procedural safeguards to secure

the privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436.

       {¶17} The U.S. Supreme Court and the Supreme Court of Ohio have

developed case law pertaining to Miranda warnings in the context of roadside traffic

stops. In Berkemer v. McCarty, 468 U.S. 420, the U.S. Supreme Court held that

roadside questioning of a motorist detained pursuant to a routine traffic stop did not

constitute ‘custodial interrogation’ for purposes of the Miranda rule, so that pre-

arrest statements a motorist made in answer to such questioning were admissible

against the motorist. If that person “thereafter is subjected to treatment that renders

him ‘in custody’ for practical purposes, he will be entitled to the full panoply of

protection prescribed by Miranda.” Id. at 440.

       {¶18} Heimberger direct us to State v. Farris, 109 Ohio St.3d 519, 2006-

Ohio-3255, in which the Ohio Supreme Court found the driver was “subjected to

treatment” that rendered him in custody and entitled him to Miranda warnings. In

Farris, after stopping a driver for speeding, the police officer noticed the odor of

burnt marijuana coming from inside the car. The officer asked the driver to step out

of the car, patted the driver down, and placed him in the front seat of the patrol car.

Without providing Miranda warnings, the officer asked the driver about noticing

the smell of marijuana and told him he was going to search the car. The driver then


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admitted that a marijuana pipe was in a bag in the trunk. The Ohio Supreme Court

held that “the officer’s treatment of Farris after the original stop placed Farris in

custody for practical purposes”. Id. at ¶14. The Court, quoting Berkemer, held the

only relevant inquiry in determining whether a person was in custody is “how a

reasonable [person] in the suspect’s position would have understood [their]

situation”. Id. The Court found that a reasonable person in Farris’s position would

have understood himself to be in custody of a police officer because the officer:

patted Farris down; took Farris’s car keys; instructed Farris to enter the cruiser; and

told Farris he was going to search his car. Id. Thus, the Court held that the driver’s

pre-warning and post-warning statements were inadmissible.

       {¶19} Comparing Farris to the case before us, we find Farris to be

distinguishable because Heimberger was not “subjected to treatment” which a

reasonable person would have understood to be in police custody. In the case sub

judice, once Heimberger stepped out of her vehicle, Trooper Overly asked if he

could pat her down (for officer safety) before placing her in the back seat of his

patrol car. Then, before placing Hiemberger in his patrol car, Trooper Overly told

Heimberger “have a seat in my patrol car so I can move your vehicle off the

roadway”. When placed into the patrol car, Heimberger was not handcuffed and

was not under arrest. It is clear to us that Heimberger’s placement in the patrol car


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was for safety purposes under the facts presented. Accordingly, we find that

Trooper Overly’s questions and Heimberger’s statements were made prior to being

placed in custody.

       {¶20} Furthermore, after Trooper Overly Mirandized Heimberger and placed

her under arrest, the record reflects that Heimberger, on the drive to the jail, made

multiple voluntary statements regarding her medications, thus limiting the claim that

her prior statement (i.e. medications she had taken) should have been suppressed.

       {¶21} As such, Heimberger’s fourth assignment of error is not well taken and

overruled.

                        Assignment of Error Nos. I and II

       {¶22} We find Heimberger’s first and second assignments of error to be

interrelated and therefore, we will address them together.

       {¶23} In her first and second assignments of error, Heimberger claims that

the trial court improperly excluded the expert and lay testimony of her counselor.

Heimberger asserts that she was deprived of offering evidence relating to her

defense that she was suffering from a panic disorder that influenced her poor

driving.




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                                   Standard of Review

       {¶24} The decision to admit or exclude evidence is a matter that rests within

the broad discretion of the trial court and its decision in such matters will not be

disturbed by a reviewing court absent an abuse of discretion that has caused material

prejudice. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044. An abuse of

discretion implies an “arbitrary, unreasonable, unconscionable” attitude on the part

of the court. State v. Adams, 62 Ohio St.2d 151 (1980).

                                        Analysis

       {¶25} Here, Heimberger was charged with OVI and a marked lanes

violation. As to her “panic attack” defense, the video of Heimberger’s traffic stop

reveals that after Trooper Overly stopped Heimberger, no mention was made that

she was suffering from a panic attack. (See generally, Exhibit A). The only

comments Heimberger made to Trooper Overly was that she was having trouble

operating the van and that she could not see out her rear-view mirror. And at trial,

when questioned as to whether she was anxious (at the time of the stop), Heimberger

testified that she was no longer anxious because she was outside of the construction

zone and was able to see better.

       {¶26} Addressing the issue of the trial court’s denial of the expert testimony

of Heimberger’s counselor, the record reflects (i.e. proffer of evidence) that such


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evidence was underdeveloped and not relevant.          In her proffered testimony,

Christine Polak (“Polak”), Heimberger’s counselor, testified that the counseling

sessions (with Heimberger) occurred after the filing of charges and that

Heimberger’s recount (of her encounter with Trooper Overly) had some “red flags”

as to whether or not she was having a panic attack. (Trial Tr. 87-89). And, on cross-

examination, Polak testified that she was not sure whether Heimberger was having

a panic attack at the time of the stop. (Trial Tr. at 90). Therefore, the basis of the

“expert’s” opinion was seemingly flawed and the trial court’s decision not to permit

such evidence to go before the jury was within its broad discretion.

       {¶27} In analyzing the denial of Polak as a lay witness, Evid.R. 701, which

governs opinion testimony by lay witnesses, provides:

       “If the witness is not testifying as an expert, his testimony in the
       form of opinions or inferences is limited to those opinions or
       inferences which are (1) rationally based on the perception of the
       witness and (2) helpful to a clear understanding of his testimony
       or the determination of a fact in issue.”

Consistent with Evid.R. 701, a lay witness may testify regarding another’s

demeanor or emotional state if the testimony is based upon personal observations

and first-hand perceptions. State v. Kovac, 150 Ohio App.3d 676, 691, 2002-Ohio-

6784. In the case sub judice, Polak did not personally observe Heimberger at the

time of the stop. Polak was only privy to Heimberger’s recollection of the stop


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during subsequent counseling sessions. Therefore, after reviewing the record, we

find the trial court did not abuse its discretion when barring Polak as a lay witness

for foundational reasons.

       {¶28} Since the record fails to reflect that the trial court abused its discretion

when it excluded Polak’s testimony, Heimberger’s first and second assignments of

error are overruled.

                             Assignment of Error No. V

       {¶29} In her fifth assignment of error, Heimberger argues that her OVI

conviction was against the manifest weight of the evidence.

                                 Standard of Review

       {¶30} In determining whether a conviction is against the manifest weight of

the evidence, a reviewing court must examine the entire record, “ ‘weigh[ ] the

evidence and all reasonable inferences, consider[ ] the credibility of the witnesses

and determine[ ] whether in resolving conflicts in the evidence, the jury clearly lost

its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered’ ”. State v. Thompkins, 78 Ohio St.3d 380, at

387, (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175. A reviewing court

must, however, allow the trier of fact appropriate discretion on matters relating to

the weight of the evidence and the credibility of the witnesses. State v. DeHass, 10


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Ohio St.2d 230 (1967), paragraph one of the syllabus. When applying the manifest

weight standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily

against the conviction’, should an appellate court overturn the trial court’s judgment.

State v. Huller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶9, quoting State v.

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶119.

                                       Analysis

       {¶31} In this assignment of error, Heimberger challenges her OVI conviction

under R.C. 4511.19(A)(1)(a). That statute provides, in relevant part: “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”. R.C. 4511.19(A)(1)(a). On appeal, Heimberger challenges the evidence

presented by the State, claiming: that the caller/informant was prone to

exaggeration; that Trooper Overly lacked evidence in finding Heimberger impaired;

and that the evidence obtained while Trooper Overly was on the stand was presented

by the prosecutor, not Trooper Overly.

       {¶32} In our review of the evidence, the State called two witnesses at trial,

Schauber, the citizen informant, and Trooper Overly. Schauber testified that on the

morning of April 14, 2017, she was traveling northbound on U.S. 23, in the vicinity

of the Delaware State Park, driving behind a U-Haul van. Schauber testified that


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the van was “driving erratically and swerving all over the road, way far in the left,

clear over into the grass, cutting in front of traffic on the right side, almost hit a

semi. Cars were having to veer off so that they could be safe and get through.”

(Trial Tr. at 37). Schauber further testified, about driving behind Heimberger’s van,

“I was scared, when I called 9-1-1 I remember I was like ‘she’s gonna kill

somebody’. So I wanted to get away from her but I was too scared to, like, if she

was in the right lane I was too scared to go past her”. (Id. at 38-39).

       {¶33} The State also called Trooper Overly to the stand. Trooper Overly

testified that he has been with the Ohio State Highway Patrol since 2011 and was

trained in alcohol and drug detection and field sobriety testing. (Id. at 50-52).

Trooper Overly testified that he was on duty the morning of April 14, 2017, and at

approximately 10:50 a.m., he received a call from dispatch in reference to a U-Haul

van (driven by Heimberger). (Id. at 54). Trooper Overly testified that he responded

to the call and personally observed Heimberger’s van weaving within its lane and

cross the center line by approximately two feet. (Id. at 58). Trooper Overly stated

at that point he activated his emergency lights and sirens and followed Heimberger

for over two minutes before Heimberger finally pulled the van over and in doing so,

blocked the left-hand lane of traffic. (Id. at 63).




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       {¶34} Trooper Overly testified that once he made contact with Heimberger,

he observed her eyelids to be droopy and her speech was slowed and slurred. (Id.

at 65). According to Trooper Overly, he requested Heimberger to step out of the U-

Haul van and to sit in the back seat of his cruiser so that he could move the van from

its stopped location to the right-side of the roadway for safety purposes. (Id. at 67-

68).

       {¶35} Trooper Overly further testified that, after moving the van but before

administering field sobriety tests on Heimberger, he asked why she was driving

erratically and inquired if she was taking any medications. Heimberger advised the

trooper that she was on several different types of medications but only could recall

Prozac and Xanax.         Heimberger volunteered (to Trooper Overly) that her

medications “make her dizzy, slows down her reaction time”. (Id. at 72).

       {¶36} Trooper Overly testified that he proceeded to administer several field

sobriety tests on Heimberger, noting that she had extremely constricted pupils,

which would indicate a possible sign of narcotic use. Trooper Overly also testified

that he asked Heimberger if she had any recent head injuries or concussions,

learning that Heimberger was in a car accident on April 3, 2017 and that because of

the car accident, she takes Tramadol, (Id. at 73). Trooper Overly testified that

Tramadol is a narcotic.


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       {¶37} Trooper Overly also identified State’s Exhibit A, a video of his

interactions with Heimberger at the scene. In the video, Trooper Overly asks

Heimberger if she is able to complete some standardized field sobriety tests, i.e. the

walk and turn test and the one leg stand test. During his instructions regarding the

walk and turn test, Heimberger lost her balance several times and was weaving side

to side. After his instructions, and after attempting to take a step, Heimberger

advises Trooper Overly that she is unable to complete the test because it is hurting

her back. (Trial Tr. at 77). The video reveals at this point that Trooper Overly stops

the walk and turn test but does perform one last test, the Romberg test, which is a

test to observe signs of drug impairment. During this test, Trooper Overly observed

Heimberger swaying from side to side and also observed eyelid tremors, both signs

of drug impairment.

       {¶38} Heimberger took the stand in her own defense. She testified that on

April 14, 2017 she was driving a U-Haul van from Columbus to Fostoria. She

testified that while in Columbus, she encountered some road construction which

made her anxious. However, when questioned as to whether she had difficulty

driving the van outside of the construction zone, where Trooper Overly observed

her, Heimberger stated “No, because I could see better on the road, so I could stay

in my lane”. (Id. at 135).


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       {¶39} Based on the foregoing testimony and the exhibits entered into

evidence, we find the record contains competent and credible evidence to support

the jury’s finding of Heimberger guilty of OVI. The testimony provided by

Schauber (that Heimberger was driving erratically and was weaving all over the

road), of Trooper Overly’s testimony (that Heimberger’s speech was slowed and

slurred, that her eyelids were droopy, and that he found indicators of drug

impairment when administering field sobriety tests), together with Heimberger’s

admission of taking numerous medications was sufficient to gain a conviction for

OVI.    Moreover, the jury was “in the best position to take into account

inconsistencies, along with the witnesses’ manner and demeanor, and determine

whether the witness’ testimony is credible”. State v. Miller, 3d Dist. Seneca No.

13-12-52, 2013-Ohio-3194, ¶48, citing State v. Thompson, 3d Dist. Crawford No.

3-10-23, 2011-Ohio-3631, ¶31, citing Seasons Coal Co. v. Cleveland, 10 Ohio St.3d

77, 80 (1984). Because the jury was in the best position to resolve issues of

credibility, and because evidence weighs in favor of the conviction, we cannot find

that the jury “lost its way” and created such a manifest miscarriage of justice in

convicting Heimberger of OVI. Thus, Heimberger’s conviction was not against the

manifest weight of the evidence and her fifth assignment of error is overruled.




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         {¶40} Having found no error prejudicial to the Appellant herein in the

particulars assigned and argued, we affirm the Appellant’s conviction in the trial

court.

                                                              Judgment Affirmed
SHAW and PRESTON, J.J., concur.

/jlr




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