[Cite as State v. Garner, 2016-Ohio-461.]


                                       COURT OF APPEALS
                                  TUSCARAWAS COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :      JUDGES:
                                            :      Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                  :      Hon. W. Scott Gwin, J.
                                            :      Hon. John W. Wise, J.
-vs-                                        :
                                            :
JASON GARNER                                :      Case No. 2015 AP 06 0031
                                            :
        Defendant-Appellant                 :      OPINION




CHARACTER OF PROCEEDING:                           Appeal from the New Philadelphia
                                                   Municipal Court, Case No. TRC
                                                   1205012A



JUDGMENT:                                          Affirmed




DATE OF JUDGMENT:                                  February 5, 2016




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

DOUGLAS JACKSON                                    NICOLE R. STEPHAN
339 Oxford Street                                  153 North Broadway
Dover, OH 44622                                    New Philadelphia, OH 44663
Tuscarawas County, Case No. 2015 AP 06 0031                                               2

Farmer, P.J.

       {¶1}    On March 10, 2015, Probation Officer Leslie Miller filed a motion to find

appellant, Jason Garner, in violation of his community control sanctions. Appellant had

been charged with domestic violence and assault while on community control for an OMVI

conviction dating back to March 2013. Appellant's community control had been previously

revoked on April 9, 2014 for consuming alcohol in violation of his community control

sanctions. Appellant was ordered to serve thirty days in jail on this first revocation.

       {¶2}    A hearing on the second motion to revoke was held on June 15, 2015. By

judgment entry filed June 16, 2015, the trial court found appellant had violated his

community control sanctions again by failing to abide by the law, and sentenced him to

thirty days in jail and extended his community control sanctions.

       {¶3}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

       {¶4}    "THE FINDING THAT THE DEFENDANT/APPELLANT JASON GARNER

VIOLATED HIS TERMS OF COMMUNITY CONTROL SANCTIONS WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE."

                                             II

       {¶5}    "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND THE

DEFENDANT/APPELLANT TO BE IN VIOLATION OF HIS COMMUNITY CONTROL

SANCTIONS."



                                             III
Tuscarawas County, Case No. 2015 AP 06 0031                                                3


      {¶6}     "THE TRIAL COURT VIOLATED THE MINIMUM DUE PROCESS

REQUIREMENTS AND GUARANTEES AT THE HEARING ON THE PROBATION

REVOCATION OF MR. GARNER'S COMMUNITY CONTROL SANCTIONS."

                                             I, II

      {¶7}     Appellant claims the trial court's finding of a violation of community control

sanctions was against the manifest weight of the evidence and the trial court abused its

discretion in so finding. We disagree.

      {¶8}     As explained by this court in State v. Ritenour, 5th Dist. Tuscarawas No.

2006AP010002, 2006-Ohio-4744, ¶ 36-37:



               In a probation revocation proceeding, the prosecution need not

      produce evidence establishing a probation violation beyond a reasonable

      doubt.     Rather, the prosecution must present substantial proof that a

      defendant violated the terms of his or her probation. State v. Hylton (1991),

      75 Ohio App.3d 778, 600 N.E.2d 821; State v. Mingua (1974), 42 Ohio

      App.2d 35, 327 N.E.2d 791; State v. Umphries (June 30, 1998), Pickaway

      App. No. 97CA45, unreported. Accordingly, in order to determine whether

      a defendant's probation revocation is supported by the evidence, a

      reviewing court should apply the "some competent, credible evidence"

      standard set forth in C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio

      St.2d 279, 376 N.E.2d 578. See State v. Umphries (July 9, 1998), Pickaway

      App. No. 97CA45; State v. Puckett (Nov. 12, 1996), Athens App. No.

      96CA1712. This highly deferential standard is akin to a preponderance of
Tuscarawas County, Case No. 2015 AP 06 0031                                                   4

       evidence burden of proof. See State v. Kehoe (May 18, 1994), Medina App.

       No. 2284-M. We see no difference in the standard of review between a

       probation violation and a violation of community control sanctions.

              Once a court finds that a defendant violated the terms of probation,

       the decision whether to revoke probation lies within the court's sound

       discretion. See State v. Scott (1982), 6 Ohio App.3d 39, 452 N.E.2d

       517; Umphries, supra; State v. Conti (1989), 57 Ohio App.3d 36, 565 N.E.2d

       1286; State v. Daque (Aug. 11, 1997), Ross App. No. 96CA2256. Thus, a

       reviewing court will not reverse a trial court's decision absent an abuse of

       discretion. State v. Sheets (1996), 112 Ohio App.3d 1, 677 N.E.2d 818.



       {¶9}   In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law or

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

       {¶10} The affidavit of appellant's probation officer, Leslie Miller, claimed appellant

violated his community control sanctions by failing "to abide by the law, to wit: CRB

1500123 A-B" wherein appellant was charged with domestic violence and assault by

allegedly striking a former girlfriend outside a bar. T. at 7, 11. Ms. Miller testified this was

not appellant's first revocation in this case. T. at 8. A prior violation was found against

appellant for assaulting his then girlfriend. Id. Appellant's probation was continued and

he was ordered to serve thirty days in jail. Id.

       {¶11} The responding officer, Dover Police Captain Seth Ryan Lurie, testified the

victim told him appellant had punched her in the face, and he observed "a mark on one
Tuscarawas County, Case No. 2015 AP 06 0031                                                5


of her eyes, on the corner of an eye." T. at 11, 13; State's Exhibit A. Captain Lurie

explained appellant and another individual were involved in "mutual combat." Id.

      {¶12} At the conclusion of the hearing, the trial court found the following (T. at 19):



             THE COURT: Okay, all right. The standard of proof when you are

      on probation, Mr. Garner, is not proof beyond a reasonable doubt as it is on

      the new charge. The standard of proof is what's called a preponderance of

      the evidence. It's more likely than not that you violated the term of your

      probation as stated in the motion.

             On that basis I am going to find that you did violate your probation.

      You're not supposed to be at a bar. It’s like déjà vu all over again with the

      New Year's Eve thing. I'm going to find that you did violate and now we're

      going to talk about the sentence because, you know, for your probation

      officer to sit here and say oh yeah, he's abiding by his probation? Yeah, as

      far as we know until it all goes south in a bar so apparently you're not.

             So you are charged, you were convicted of driving under the

      influence of alcohol, you have a hundred and eighty days in jail imposed

      originally and I believe that you've served forty of those days if I'm correct

      because you had a prior revocation for, who did you beat the devil out of in

      that case, was that Jade Berger?
Tuscarawas County, Case No. 2015 AP 06 0031                                                6


       {¶13} Appellant admitted to the trial court that he was at a bar with his girlfriend

"and then I ran into my cousin and we had an argument and it spilled out into the street

and everything went haywire." T. at 23.

       {¶14} Upon review, we find the trial court's limited finding of not abiding by the law

and being at a bar to be within the revocation request and consistent with the evidence.

       {¶15} Although defense counsel requested a continuance of sentencing until after

the outcome of the new charges, it was made after the taking of evidence. T. at 21. It is

also clear from the trial court's frustration with appellant, the major concern was appellant

being at a bar when he was on probation for OMVI and this was his second revocation:

"You keep making mistakes. They all involve alcohol and your inability to control your

temper, two things that you can deal with easily but you just choose not to." T. at 26.

       {¶16} Assignments of Error I and II are denied.

                                             III

       {¶17} Appellant claims his due process rights were violated because a witness or

the victim did not testify to the incident. We disagree.

       {¶18} As stated in Assignments of Error I and II, the trial court's decision was

made separate and apart from the domestic violence and assault charges. The trial court

found appellant violated his community control by being at a bar, a violation of the terms

of his community control. T. at 19. Although aggravated by the allegation of a repeat

domestic violence offense, the trial court centered on appellant's ability or lack of ability

to make good choices. T. at 22, 26.

       {¶19} Upon review, we do not find any violation of appellant's due process rights.

       {¶20} Assignment of Error III is denied.
Tuscarawas County, Case No. 2015 AP 06 0031                                 7


      {¶21} The judgment of the New Philadelphia Municipal Court of Tuscarawas

County, Ohio is hereby affirmed.

By Farmer, P.J.

Gwin, J. and

Wise, J. concur.




SGF/sg 115
