[Cite as State v. Owens, 2012-Ohio-1722.]
COURT OF APPEALS MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
-vs-
RONALD K. OWENS
Defendant-Appellant
JUDGES: Hon. W. Scott Gwin, P. J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.
Case No. 2011 CA 0008
OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case Nos. 06 CR 0081, 06 CR 0120
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 18, 2012 APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHARLES HOWLAND DAVID BIRCH PROSECUTING ATTORNEY 2 West Winter Street JOCELYN STEFANCIN Delaware, Ohio 43015 ASSISTANT PROSECUTOR 60 East High Street Mt. Gilead, Ohio 43338
Wise, J.
{¶1} Appellant Ronald K. Owens appeals the decision of the Court of Common
Pleas, Morrow County, which ordered him to serve a term in prison upon revocation of
community control. The relevant procedural facts leading to this appeal are as follows.
{¶2} In April 2007, appellant pled guilty in the Morrow County Court of Common
Pleas to one count of drug possession, a fifth-degree felony. The trial court accepted
appellant’s plea and thereupon sentenced him to community control sanctions.
{¶3} On May 15, 2011, appellant was stopped by Officer Keith Jackson in
Westerville, Ohio, for displaying expired license plates. A search of appellant’s vehicle
ensued, as further discussed infra.
{¶4} On May 26, 2011, the State filed a motion to revoke appellant’s
community control. The State therein alleged that (1) appellant had possessed
narcotics or controlled substances, (2) appellant had committed additional crimes, (3)
appellant had been under the influence of alcohol, and (4) appellant had not completed
his community service as ordered by the court. {¶5} A hearing on the motion to revoke was conducted on June 3, 2011. The
State called Officer Jackson as its sole witness. Following the hearing, the court found
that appellant had violated the terms and conditions of community control, and the
court imposed a prison sentence of eleven months. A judgment entry was issued on
June 17, 2011.
{¶6} On July 13, 2011, appellant filed a notice of appeal. He herein raises the
following sole Assignment of Error:
{¶7} “I. THE TRIAL COURT ERRED BY FINDING THAT THE APPELLANT
VIOLATED HIS COMMUNITY CONTROL CONDITIONS IN VIOLATION OF
APPELLANT’S DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT
TO THE UNITED STATES CONSTITUTION.”
I.
{¶8} In his sole Assignment of Error, appellant contends the trial court erred
and violated his due process rights in finding him in violation of his community control
sanctions. We disagree.
{¶9} “The privilege of probation [or community control] rests upon the
probationer's compliance with the probation conditions and any violation of those
conditions may properly be used to revoke the privilege.” State v. Russell, Lake
App.No. 2008-L-142, 2009-Ohio-3147, ¶ 7, quoting State v. Bell (1990), 66 Ohio
App.3d 52, 57, 583 N.E.2d 414. Because a revocation hearing is not a criminal trial, the
State only has to introduce evidence showing that it was more probable than not that
the person on probation or community control violated the terms or conditions of the
same. See State v. Stockdale (Sept. 26, 1997), Lake App. No. 96-L-172. The weight to be given to the evidence and the credibility of the witnesses are issues for the trier of
fact. See, e.g., State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180. Once a
trial court finds that a defendant violated community control conditions, it possesses
discretion to revoke the defendant's community control. In that event, appellate courts
should not reverse trial court decisions unless a court abused its discretion. State v.
Wolfson (May 25, 2004), Lawrence App. No. 03CA25, 2004-Ohio-2750, ¶ 7-¶ 8; State
v. Umphries (July 9, 1998), Pickaway App. No. 97CA45, 1998 WL 377768.
{¶10} Generally, probation revocation hearings are not subject to the rules of
evidence. State v. Redick, Fairfield App.No. 08 CA 73, 2009-Ohio-3850, ¶ 11.
Additionally, the Sixth Amendment right to confront witnesses, particularly as
interpreted under Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158
L.Ed.2d 177, does not apply to community control revocation hearings. See State v.
Crace, Fairfield App.No. 05CA93, 2006-Ohio-3027, ¶ 18. In such hearings, the right to
confrontation is a procedural protection under the Fourteenth Amendment. Id.
{¶11} As set forth by the United States Supreme Court in Gagnon v. Scarpelli
(1973), 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656, the due process
requirements of Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d
484, with regard to parole violation hearings, are applicable to probation revocation
proceedings. The minimal due process requirements for final revocation hearings
include:
{¶12} “ ‘(a) [W]ritten notice of the claimed violations of (probation or) parole; (b)
disclosure to the (probationer or) parolee of evidence against him; (c) opportunity to be
heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically
finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing
body such as a traditional parole board, members of which need not be judicial officers
or lawyers; and (f) a written statement by the factfinders as to the evidence relied on
and reasons for revoking (probation or) parole.’ ” Id., citing Morrissey, supra, at 489.
{¶13} In the case sub judice, the trial court heard testimony from Officer Jackson
at the hearing on June 3, 2011. Officer Jackson testified that while on patrol on May
15, 2011, he ran appellant’s tag number and registration and found them to be expired.
Tr. at 15. Officer Jackson recalled that he pulled alongside appellant’s vehicle at a stop
light and observed appellant as the operator. Id. The officer subsequently pulled back,
and then caught up and activated his overhead lights. Tr. at 15, 16. Appellant’s vehicle
slowed down, but then “kind of shot across three lanes of traffic” and proceeded down
a service road. Tr. at 16. After making a stop of the vehicle at a dead end, Officer
Jackson detected an odor of alcohol coming from appellant’s person. Tr. at 17. The
officer then asked appellant to submit to field sobriety testing. Id. According to Jackson,
appellant replied: "This ain't my first rodeo, I'm pleading the fifth. I'm not taking any of
your tests or answering any questions." Tr. at 18. Officer Jackson testified that he
looked at the substance another officer found while subsequently searching appellant’s
vehicle. Tr. at 18-19. The substance was recognized by Officer Jackson as crack
cocaine. Tr. at 19. He also testified that a fellow officer brought field test results to him,
indicating the presence of cocaine. Tr. at 20. Officer Jackson described how a field test
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Owens, 2012-Ohio-1722.]
COURT OF APPEALS MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO
Plaintiff-Appellee
-vs-
RONALD K. OWENS
Defendant-Appellant
JUDGES: Hon. W. Scott Gwin, P. J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.
Case No. 2011 CA 0008
OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case Nos. 06 CR 0081, 06 CR 0120
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 18, 2012 APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHARLES HOWLAND DAVID BIRCH PROSECUTING ATTORNEY 2 West Winter Street JOCELYN STEFANCIN Delaware, Ohio 43015 ASSISTANT PROSECUTOR 60 East High Street Mt. Gilead, Ohio 43338
Wise, J.
{¶1} Appellant Ronald K. Owens appeals the decision of the Court of Common
Pleas, Morrow County, which ordered him to serve a term in prison upon revocation of
community control. The relevant procedural facts leading to this appeal are as follows.
{¶2} In April 2007, appellant pled guilty in the Morrow County Court of Common
Pleas to one count of drug possession, a fifth-degree felony. The trial court accepted
appellant’s plea and thereupon sentenced him to community control sanctions.
{¶3} On May 15, 2011, appellant was stopped by Officer Keith Jackson in
Westerville, Ohio, for displaying expired license plates. A search of appellant’s vehicle
ensued, as further discussed infra.
{¶4} On May 26, 2011, the State filed a motion to revoke appellant’s
community control. The State therein alleged that (1) appellant had possessed
narcotics or controlled substances, (2) appellant had committed additional crimes, (3)
appellant had been under the influence of alcohol, and (4) appellant had not completed
his community service as ordered by the court. {¶5} A hearing on the motion to revoke was conducted on June 3, 2011. The
State called Officer Jackson as its sole witness. Following the hearing, the court found
that appellant had violated the terms and conditions of community control, and the
court imposed a prison sentence of eleven months. A judgment entry was issued on
June 17, 2011.
{¶6} On July 13, 2011, appellant filed a notice of appeal. He herein raises the
following sole Assignment of Error:
{¶7} “I. THE TRIAL COURT ERRED BY FINDING THAT THE APPELLANT
VIOLATED HIS COMMUNITY CONTROL CONDITIONS IN VIOLATION OF
APPELLANT’S DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT
TO THE UNITED STATES CONSTITUTION.”
I.
{¶8} In his sole Assignment of Error, appellant contends the trial court erred
and violated his due process rights in finding him in violation of his community control
sanctions. We disagree.
{¶9} “The privilege of probation [or community control] rests upon the
probationer's compliance with the probation conditions and any violation of those
conditions may properly be used to revoke the privilege.” State v. Russell, Lake
App.No. 2008-L-142, 2009-Ohio-3147, ¶ 7, quoting State v. Bell (1990), 66 Ohio
App.3d 52, 57, 583 N.E.2d 414. Because a revocation hearing is not a criminal trial, the
State only has to introduce evidence showing that it was more probable than not that
the person on probation or community control violated the terms or conditions of the
same. See State v. Stockdale (Sept. 26, 1997), Lake App. No. 96-L-172. The weight to be given to the evidence and the credibility of the witnesses are issues for the trier of
fact. See, e.g., State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180. Once a
trial court finds that a defendant violated community control conditions, it possesses
discretion to revoke the defendant's community control. In that event, appellate courts
should not reverse trial court decisions unless a court abused its discretion. State v.
Wolfson (May 25, 2004), Lawrence App. No. 03CA25, 2004-Ohio-2750, ¶ 7-¶ 8; State
v. Umphries (July 9, 1998), Pickaway App. No. 97CA45, 1998 WL 377768.
{¶10} Generally, probation revocation hearings are not subject to the rules of
evidence. State v. Redick, Fairfield App.No. 08 CA 73, 2009-Ohio-3850, ¶ 11.
Additionally, the Sixth Amendment right to confront witnesses, particularly as
interpreted under Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158
L.Ed.2d 177, does not apply to community control revocation hearings. See State v.
Crace, Fairfield App.No. 05CA93, 2006-Ohio-3027, ¶ 18. In such hearings, the right to
confrontation is a procedural protection under the Fourteenth Amendment. Id.
{¶11} As set forth by the United States Supreme Court in Gagnon v. Scarpelli
(1973), 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656, the due process
requirements of Morrissey v. Brewer (1972), 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d
484, with regard to parole violation hearings, are applicable to probation revocation
proceedings. The minimal due process requirements for final revocation hearings
include:
{¶12} “ ‘(a) [W]ritten notice of the claimed violations of (probation or) parole; (b)
disclosure to the (probationer or) parolee of evidence against him; (c) opportunity to be
heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically
finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing
body such as a traditional parole board, members of which need not be judicial officers
or lawyers; and (f) a written statement by the factfinders as to the evidence relied on
and reasons for revoking (probation or) parole.’ ” Id., citing Morrissey, supra, at 489.
{¶13} In the case sub judice, the trial court heard testimony from Officer Jackson
at the hearing on June 3, 2011. Officer Jackson testified that while on patrol on May
15, 2011, he ran appellant’s tag number and registration and found them to be expired.
Tr. at 15. Officer Jackson recalled that he pulled alongside appellant’s vehicle at a stop
light and observed appellant as the operator. Id. The officer subsequently pulled back,
and then caught up and activated his overhead lights. Tr. at 15, 16. Appellant’s vehicle
slowed down, but then “kind of shot across three lanes of traffic” and proceeded down
a service road. Tr. at 16. After making a stop of the vehicle at a dead end, Officer
Jackson detected an odor of alcohol coming from appellant’s person. Tr. at 17. The
officer then asked appellant to submit to field sobriety testing. Id. According to Jackson,
appellant replied: "This ain't my first rodeo, I'm pleading the fifth. I'm not taking any of
your tests or answering any questions." Tr. at 18. Officer Jackson testified that he
looked at the substance another officer found while subsequently searching appellant’s
vehicle. Tr. at 18-19. The substance was recognized by Officer Jackson as crack
cocaine. Tr. at 19. He also testified that a fellow officer brought field test results to him,
indicating the presence of cocaine. Tr. at 20. Officer Jackson described how a field test
is completed and what the test results indicate. Tr. at 20-21. {¶14} Officer Jackson further related that he transported appellant to the police
station and attempted to read the defendant the BMV 2255 form. Tr. at 21, 22. Officer
Jackson noted that when he began to read the form aloud, appellant placed his hands
over his ears and started saying "blah, blah, blah." Tr. at 22.
{¶15} Appellant’s essential claim in the present appeal is that Officer Jackson’s
testimony was not sufficiently based on first-hand knowledge and thus did not afford
minimum due process guarantees under Gagnon, supra. However, upon review, we
find there was sufficient evidence that appellant violated the terms of his community
control by, at minimum, possessing illegal drugs and consuming alcohol, and the trial
court did not abuse its discretion or violate appellant’s due process rights in its decision
to revoke community control sanctions.
{¶16} Appellant's sole Assignment of Error is overruled.
{¶17} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Morrow County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Farmer, J., concur.
___________________________________
JUDGES JWW/d 0327
IN THE COURT OF APPEALS FOR MORROW COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : RONALD K. OWENS : : Defendant-Appellant : Case No. 2011 CA 0008
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Morrow County, Ohio, is affirmed.
Costs assessed to appellant.
JUDGES