[Cite as State v. Harrah, 2011-Ohio-4065.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      25449

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
RYAN CRAIG HARRAH                                    COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 08 12 3996

                                 DECISION AND JOURNAL ENTRY

Dated: August 10, 2011



        BELFANCE, Presiding Judge.

        {¶1}     Defendant-Appellant Ryan C. Harrah appeals from the judgment of the Summit

County Court of Common Pleas. For the reasons set forth below, we affirm.

                                                I.

        {¶2}     Mr. Harrah pleaded guilty to burglary and menacing by stalking. The trial court

sentenced him to a prison term of two years with two years suspended subject to his completion

of a period of community control. According to the terms of his community control, he could

not use substances of abuse or have contact with the victim, Robin Hutchinson, and was subject

to regular urine testing.

        {¶3}     In April 2010, approximately 17 months after his sentencing hearing, Mr. Harrah

entered VFW Post 1062 where he had, apparently, first met the victim while she was working as

a bartender. Lisa Smith, a lady auxiliary present at that Post, testified that Mr. Harrah sat down

at the bar, ordered a beer, and drank it. She also testified that she heard him ask about Ms.
                                               2


Hutchinson, who was not working that night. Mr. Harrah completed a membership application

and left.

        {¶4}   A few days later, Ms. Hutchinson contacted Probation Officer David Siko, Mr.

Harrah’s community control officer, and told him that Mr. Harrah had been at the VFW Post.

Probation Officer Siko investigated the matter and initiated a violation of community control

complaint against Mr. Harrah. The State alleged that Mr. Harrah had violated his community

control by consuming alcohol, having contact with Ms. Hutchinson, and also by failing to submit

a urine sample for testing in February 2009.

        {¶5}   The trial court held a hearing on the complaint and found that Mr. Harrah had

violated the terms of his community control. It revoked Mr. Harrah’s community control and

reimposed his prison term.

                                               II.

                                ASSIGNMENT OF ERROR I

        “THE TRIAL COURT ERRED IN FINDING THAT HARRAH VIOLATED HIS
        COMMUNITY CONTROL BECAUSE THE STATE PRESENTED
        INSUFFICIENT EVIDENCE TO SUPPORT ITS CLAIM OF COMMUNITY
        CONTROL VIOLATIONS AND BECAUSE SUCH A FINDING WAS
        AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

        {¶6}   Mr. Harrah argues that the trial court erred when it found that he had violated

conditions of his community control because its findings were not supported by sufficient

evidence. Mr. Harrah, however, does not actually address the issue of sufficiency in his brief

beyond quoting State v. Newman (July 10, 1991), 9th Dist. No. 14984. Because Mr. Harrah has

not developed an argument concerning the sufficiency of the evidence, we do not address it. See

App.R. 12(A)(2) and 16(A)(7).
                                                 3


       {¶7}    Mr. Harrah also argues that the trial court’s finding that he violated his

community control conditions was against the manifest weight of the evidence. Based upon

existing precedent, this Court has applied a criminal manifest weight standard in the context of a

manifest weight challenge to a community control violation. See State v. Rose, 9th Dist. No.

21750, 2004-Ohio-1614. At the time Rose was decided, however, this Court employed the

criminal manifest weight standard in both criminal and civil proceedings. See, e.g., State v.

Millie, 9th Dist. No. 03CA0125-M, 2004-Ohio-3707, at ¶6, citing Tewarson v. Simon (2001),

141 Ohio App.3d 103, 115.        Subsequent to Rose, the Ohio Supreme Court reiterated the

differences between the criminal and civil manifest weight standards. State v. Wilson, 113 Ohio

St.3d 382, 2007-Ohio-2202, at ¶¶24-26. We have not had occasion to revisit our precedent since

Wilson. As the parties have not put the issue squarely before us and our disposition in this case

is unaltered when applying either standard, we decline to revisit our precedent at this time.

       {¶8}    The State alleged that Mr. Harrah violated his community control by consuming

alcohol, failing to submit to a urine test, and having contact with Ms. Hutchinson. In order to

demonstrate a community control violation, the State did not have to prove that each alleged

violation occurred but, rather, that at least one of the alleged violations occurred. See State v.

Ricks, 9th Dist. No. 09CA0094-M, 2010-Ohio-4659, at ¶¶6-9 (affirming the trial court’s

community control violation determination where there was evidence establishing one of two

alleged community control violations).

       {¶9}    Mr. Harrah argues that the trial court’s finding that he violated his community

control was against the manifest weight of the evidence because his visit to the VFW Post did

not qualify as a community control violation. However, he does not dispute the State’s evidence

concerning other community control violations, instead contending that indirect contact with the
                                                4


victim does not justify the reimposition of his prison term. However, this argument addresses

the propriety of the trial court’s decision to revoke his community control and reimpose his

prison sentence, not whether the trial court’s determination that Mr. Harrah violated the terms of

his community control was against the manifest weight of the evidence.

       {¶10} Ms. Smith testified that Mr. Harrah came to the VFW Post, drank a beer, asked

about Ms. Hutchinson, and filled out a membership application. Mr. Harrah admitted that he

went to the VFW Post and that he submitted the application after learning that Ms. Hutchinson

still worked there. Although Mr. Harrah stated that he drank ginger ale while at the VFW, he did

admit that he consumed alcohol on a different occasion. Furthermore, in weighing the credibility

of the witnesses, the trial court could have reasonably declined to believe Mr. Harrah’s testimony

that he only drank ginger ale, and could have reasonably determined that Ms. Smith’s testimony

was more credible.

       {¶11} Probation Officer Siko also testified that Mr. Harrah missed a scheduled urine

test, a fact that Mr. Harrah does not dispute. Furthermore, Mr. Harrah does not dispute that his

imbibing alcohol or missing a urine test constitute violations of his community control.

       {¶12} Upon thorough review of all of the evidence, we cannot say that the trial court’s

finding that Mr. Harrah violated one or more terms of his community control was against the

manifest weight of the evidence.

       {¶13} Mr. Harrah’s first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       “THE TRIAL COURT ABUSED ITS DISCRETION BY RE-IMPOSING THE
       BALANCE OF HARRAH’S SENTENCE.”

       {¶14} Mr. Harrah argues that the trial court abused its discretion when it reimposed his

suspended prison term. The trial court’s decision to reimpose a suspended sentence on a
                                                 5


community control violator is reviewed for an abuse of discretion. State v. Walton, 9th Dist.

09CA009588, 2009-Ohio-6703, at ¶13, citing Rose at ¶14. An abuse of discretion implies that

the court’s attitude is unreasonable, arbitrary or unconscionable.      Walton at ¶13, citing

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.

       {¶15} Mr. Harrah argues that the trial court should not have reimposed his sentence

because he had obtained employment and housing, had started school, and had maintained

sobriety “for a significant period of time.” Additionally, he had not previously been found in

violation of his community control conditions. According to Mr. Harrah, because “there was a

way to monitor [him] in the community short of a prison sentence[,] [t]he trial court clearly

abused its discretion in sentencing [him] to prison[.]”

       {¶16} Mr. Harrah, however, admitted that he had been drinking only four days before

the hearing, undermining his arguments about his sobriety. Further, while he had not been

previously found to be in violation of his community control conditions, the trial court could

weigh this factor in making its decision. Mr. Harrah has not provided this Court with legal

authority suggesting that the trial court was prohibited from revoking his community control and

reimposing his sentence because he had not had any previous community control violations.

       {¶17} Before reimposing Mr. Harrah’s prison term, the trial court explained its thought

process to Mr. Harrah. It commented that, while missing the urine test and consuming alcohol

did violate his community control conditions, they “certainly wouldn’t be cause for me to send

you to prison.” It, however, noted that “[i]n dealing with someone who is on community control

for a menacing by stalking charge, the red flags go up.”        It continued, remarking on its

incredulity about Mr. Harrah’s explanation about his presence at the VFW Post:

       “You are telling me that you happened to be over there because of some property
       that you own, that you are going to own when you[r] uncle dies, you think might
                                                   6


        die in four months, but you are not a doctor, but it is going to be yours. * * * [I]f
        you knew that she didn’t work there, why were you asking? If you were asking
        just to be sure, why did you fill out the application? If you filled out the
        application, and then learned that she was still working there, why wouldn’t you
        get rid of it, instead of saying to the people, as the letter indicates, don’t tell her I
        was there?”

The trial court expressed its concern for the victim’s safety and that it believed that Mr. Harrah

knew that he should stay away from the victim, which included her place of employment. It

summarized its thoughts saying, “I can’t think of any legitimate reason for you to be [at the VFW

Post] at all.”

        {¶18} This was not a case where Mr. Harrah happened to be out in public and

accidentally ran into the victim or people who knew the victim. He did not walk into a random

business where he could not have expected to encounter Ms. Hutchinson. Mr. Harrah went to

the VFW Post knowing, at the very least, that she had worked there in the past and asked about

her. Even presuming that he honestly believed that she no longer worked there, instead of

quickly leaving once he realized she did, he submitted a membership application.

        {¶19} The trial court did not revoke Mr. Harrah’s community control lightly.                It

considered the evidence presented and weighed Mr. Harrah’s explanation for his presence at the

VFW Post. We cannot say that the trial court’s decision to revoke Mr. Harrah’s community

control was arbitrary, capricious, or unconscionable. Accordingly, this Court cannot conclude

that the trial court abused its discretion when it reimposed Mr. Harrah’s prison term.

        {¶20} His second assignment of error is overruled.

                                                  III.

        {¶21} Mr. Harrah’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                                   Judgment affirmed.
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       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT


MOORE, J.
CONCURS

CARR, J.
CONCURS IN JUDGMENT ONLY, SAYING:

       {¶22} I concur in judgment only. Although Harrah couches his argument in terms of

weight and sufficiency, he really argues that his conduct did not constitute indirect contact with

the victim as a matter of law. Because he argues that his conduct did not legally give rise to a

violation of the conditions of his community control so that there was no legal justification to

reimpose his prison sentence, I would not address the weight or sufficiency of the evidence.
                                        8



APPEARANCES:

CHRISTOPHER R. SNYDER, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
