State v. Johnson
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[Cite as State v. Johnson, 2004-Ohio-667.] IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. Case No. 19810 vs. : T.C. Case No. 02-TRD-15499 HOWARD L. JOHNSON : (Criminal Municipal Court) : Defendant-Appellant Appeal from Dayton ........... OPINION Rendered on the 13th day of February , 2004. ........... ANDREW D. SEXTON, Assistant City Prosecutor, 335 West Third Street, Room 372, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee SEAN J. VALLONE, Atty. Reg. #00654053, 4612 Salem Avenue, Dayton, Ohio 45416 Attorney for Defendant-Appellant HOWARD L. JOHNSON, 1214 Lexington Avenue, Dayton, Ohio 45407 Defendant-Appellant ............. BROGAN, J. {¶1} Howard Johnson appeals from his conviction in the Dayton Municipal Court of operating a motor vehicle without a valid operator s license, failure to wear a seat belt, operating a motor vehicle without proof of financial responsibility, and operating a motor vehicle while under suspension of driving privileges. {¶2} 2 On the morning of August 7, 2002 Johnson was observed driving a car on Oxford Avenue in the City of Dayton by Dayton Officer Joseph Oldham who was in a marked cruiser. Oldham ran a computer check of the vehicle and learned that Howard Johnson Jr. listed as a driver of that vehicle was not a valid driver. After Johnson stopped his vehicle, Oldham observed that Johnson matched the description of the suspended driver. Oldham said his companion Officer Lock exited the cruiser and stopped Johnson for questioning. After verifying Johnson s identity and his suspended status, Johnson was cited for the violations previously mentioned. {¶3} Johnson moved to suppress the evidence of his identity as the driver on the basis the police officers did not have articulable suspicion to stop him. The trial court overruled Johnson s motion and we think properly so. Clearly Officer Lock had grounds to stop Johnson based on the articulable suspicion that Johnson was operating the vehicle without a valid operator s permit. See, State v. Stamper (February 18, 1993) Montgomery App. No. 13469. {¶4} It is, however, clear that Johnson cannot be convicted of operating a motor vehicle without a valid driver s license and driving while under a suspension of a license for the same act. The offenses are mutually exclusive. See, State v. Williams (1984), 17 Ohio App.3d 105; Cincinnati vs. Tribble (1983), 7 Ohio Misc. 2d 46. See our case of State v. Lesley (February 26, 1986), Montgomery App. No. 9402. {¶5} Accordingly, Johnson s conviction for operating a motor vehicle without a driver s license is hereby reversed and ordered Vacated. In all other 3 respects his convictions are Affirmed. ............. WOLFF, J., and YOUNG, J., concur. Copies mailed to: Andrew D. Sexton Sean J. Vallone Howard L. Johnson Hon. James Cannon
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