[Cite as State v. Johnson, 2015-Ohio-4802.]




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



STATE OF OHIO,
                                                          CASE NO. 13-15-08
       PLAINTIFF-APPELLEE,

      v.

CODY A. JOHNSON,                                          OPINION

       DEFENDANT-APPELLANT.


STATE OF OHIO,
                                                          CASE NO. 13-15-09
       PLAINTIFF-APPELLEE,

      v.

CODY A. JOHNSON,                                          OPINION

       DEFENDANT-APPELLANT.


                 Appeals from Seneca County Common Pleas Court
                   Trial Court No. 09-CR-0071 and 09-CR-0226

                                     Judgments Affirmed

                          Date of Decision: November 23, 2015


APPEARANCES:

        James W. Fruth for Appellant

        Angela M. Boes for Appellee
Case Nos. 13-15-08, 13-15-09


WILLAMOWSKI, J.
         {¶1} In this consolidated appeal, defendant-appellant, Cody A. Johnson,

appeals the judgments of the Common Pleas Court of Seneca County, Ohio,

finding him in violation of the terms of his community control,1 imposed on

Johnson upon a judicial release from prison, and sentencing him to serve the

previously-imposed prison terms. For the reasons that follow, we affirm the trial

court’s judgments.

                                         Relevant Background

         {¶2} On October 2, 2009, Johnson entered a plea of guilty to two counts

of burglary and four counts of assault in the Seneca County case number 09-CR-

0071. (R.12 at 40.) He was found guilty and sentenced to four years in prison on

the burglary charges, and to 180 days in jail on the assault charges. The sentences

were to be served concurrently. On October 5, 2009, Johnson entered a plea of

guilty to a seventeen-count Bill of Information, which included charges for

complicity to illegal use of food stamps or WIC program, forgery, receiving stolen

property, and misuse of credit cards, in the Seneca County case number 09-CR-

0226. (R.2 at 2, 5.) He was found guilty and sentenced to eleven months in prison

on each count, to be served concurrently. The sentence imposed in case 09-CR-


1
  In its judgment entries, the trial court did not specify that it was revoking Johnson’s judicial release, using
the term community control only. Although not specifically stated in the trial court’s judgment entries, we
note that the trial court’s revocation of Johnson’s community control was technically a revocation of the
terms of community control previously ordered by the court as a term of Johnson’s judicial release. See
our discussion further in this opinion for the significance of the distinction.
2
  Because two trial court records are before us, we use R.1 when referring to the Seneca County case
number 09-CR-0071; we use R.2 when referring to the Seneca County case number 09-CR-0226.

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Case Nos. 13-15-08, 13-15-09


0226 was to be served consecutively to the sentences imposed in case number 09-

CR-0071, resulting in a total sentence of four years and eleven months in prison.

       {¶3} Johnson was granted judicial release in both cases on December 2,

2011. R.1 at 63, R.2 at 21.) As part of the conditions of the early judicial release,

Johnson was placed on community control for five years. (Id.) As part of the

community control conditions, Johnson was required to “abide by all laws

including, but not limited to, the laws related to firearms and dangerous ordinance

[sic].” (Id.)

       {¶4} At the time relevant to the events at issue on this appeal, Johnson

lived in a residence that belonged to Mr. Best, with his mother, Kelly Johnson

(“Kelly”), who was Mr. Best’s girlfriend. (Tr. at 8-9, 32, 52.) On January 26,

2015, Johnson attempted to use a credit card belonging to Mr. Best in Kohl’s

department store in Findlay, Ohio. The purchase was denied and the police were

notified about the occurrence.

       {¶5} On January 30, 2015, Johnson’s probation officer, Scott Basinger

(“Officer Basinger”), filed a Notification of Alleged Judicial Release Violations.

(R.1 at 89; R.2 at 47.) The notification listed five alleged violations, including

attempted use of a credit card without the permission of the owner. (Id.) The trial

court conducted a full revocation hearing. At the hearing, the State claimed that

Johnson attempted to use Mr. Best’s credit card at Kohl’s department store,

without Mr. Best’s permission. Johnson did not dispute the fact that he attempted

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Case Nos. 13-15-08, 13-15-09


to make purchases at Kohl’s with a credit card belonging to Mr. Best. He claimed,

however, that he did not act without Mr. Best’s permission. We summarize the

relevant testimony below.

                                Relevant Testimony

                                     Officer Marshall

       {¶6} Officer Doug Marshall (“Officer Marshall”), from the Findlay Police

Department, was the officer who investigated the case.       He testified that on

January 26, 2015, he responded to a call from Kohl’s department store referencing

a possible stolen credit card. (Tr. at 68.) He spoke to the loss prevention officer

and the store manager, who informed him that an individual, who was later

identified as Johnson, and a few other people, approached the registers with over

$700.00 worth of merchandise and attempted to pay with a Kohl’s charge card.

(Tr. at 69-70.) They were asked for an ID and, upon not being able to present one,

they left the store because the purchase was denied. (Tr. at 70.) The store

manager informed Officer Marshall that upon this occurrence, she had called the

fraud department and learned that the card, which was registered to Mr. Best, had

been reported stolen. (Tr. at 70.)

       {¶7} Officer Marshall testified that Mr. Best walked into the store as he

was watching a surveillance video of this attempted transaction. (Tr. at 70-71.)

Officer Marshall spoke with Mr. Best and showed him the video. (Tr. at 71-72.)

When Mr. Best saw Johnson’s picture on the video, he pointed at it and said, “That

                                           -4-
Case Nos. 13-15-08, 13-15-09


motherfucker has robbed me blind.” (Tr. at 72.) Mr. Best told Officer Marshall

that Johnson was his girlfriend’s son and “that he didn’t give any authorization for

anybody to use [the credit card] and then he went on to explain how it got stolen

or come [sic] up missing.” (Tr. at 72.) Officer Marshall further testified as

follows,

       he explained to me that he was going through some boxes, found a
       Fifth Third credit card and a Kohl’s credit card. He said he left them
       laying out and later on that night, they come [sic] up missing. So he
       said he went up and called to cancel the Fifth Third card and found
       that there was [sic] some unauthorized charges on it. And there was
       nothing with the Kohl’s card.

(Tr. at 72-73.)

       {¶8} Mr. Best told Officer Marshall that he was scared of Johnson and

“that he had to sleep with a 2x4 up against his bedroom door at night.” (Tr. at 75.)

Mr. Best further told Officer Marshall “that any time the police showed up, that he

was told to be quiet and not answer the door, stuff like that.” (Tr. at 75.) Officer

Marshall commented that Mr. Best “very much feared for his safety in this whole

incident.” (Tr. at 75.) Officer Marshall also referred to Mr. Best’s comments

about an argument that Mr. Best had previously had with Kelly on the issue of

calling the police about the stolen credit cards. (Tr. at 77.) Reportedly, Mr. Best

did not call the police because Kelly was upset “that it would send her son back to

prison.” (Tr. at 77.)

       {¶9} When Officer Marshall asked whether Mr. Best wanted to pursue

charges against Johnson, “[h]is initial response was he was kind of afraid that if he
                                        -5-
Case Nos. 13-15-08, 13-15-09


did, there would be some kind of retaliation, but he ended up deciding to.” (Tr. at

78.) Officer Marshall asked Mr. Best to prepare a written statement, to which Mr.

Best responded, “Can I think on that?” (Tr. at 78.) Mr. Best came the next day

with a friend, Bernie, to provide a written statement. (Tr. at 78-79.) Bernie then

wrote the statement for Mr. Best and Mr. Best signed it. (Tr. at 78-79.) This

handwritten statement was identified as State’s Exhibit 6, and it was submitted

into evidence. (Tr. at 79.) The statement indicated that Johnson did not have Mr.

Best’s permission to use the credit card. (Tr. at 80.)

       {¶10} Officer Marshall prepared a report regarding his investigation of the

alleged unauthorized use of a credit card by Johnson. (Tr. at 76.) The report was

identified and submitted at the hearing as State’s Exhibit 5. (Tr. at 76.) It was

consistent with Officer Marshall’s testimony.

       {¶11} Officer Marshall testified that “a couple nights later,” he spoke to the

Kohl’s cashier who was at the register when Johnson attempted to use Mr. Best’s

credit card. (Tr. at 74.) The cashier indicated that Johnson identified himself as

Mr. Best. (Tr. at 74.) Another exhibit represented a statement prepared by that

cashier. (See State’s Ex. 7.) This statement described the details of the occurrence

and was consistent with Officer Marshall’s testimony. (Tr. at 80; State’s Ex. 7.)

Officer Marshall also called Kohl’s fraud department and confirmed that the credit

card at issue had been reported stolen. (Tr. at 82.)




                                         -6-
Case Nos. 13-15-08, 13-15-09


         {¶12} On cross-examination, Officer Marshall admitted that Mr. Best’s

statement in State’s Ex. 6 was not notarized.                      (Tr. at 83-84.)         He was then

presented with another statement, identified in the transcript before us as

Defendant’s Ex. B., which was notarized and purported to be the actual

handwritten statement of Mr. Best.3                   (Tr. at 84.)       The statement was dated

February 13, 2015, which was over two weeks after the events at issue. (Tr. at 87;

Def.’s Ex. B.) It read,

         This whole thing was a big misunderstanding between Cody, Kelly,
         and Gene. Cody asked Kelly if it would be okay to use Gene’s card.
         She told him I probably wouldn’t mind. I was upset because I
         thought Cody took my card without asking. I don’t want to pursue
         charges against Cody. If Cody would have asked me for money to
         go shopping, I would have given it to him. I’m doing this of my
         own free will.

(Tr. at 84-85; Def.’s Ex. B.)

         {¶13} Officer Marshall admitted that he could not exclude the possibility

that Bernie influenced Mr. Best when writing the statement identified as State’s

Ex. 6. (Tr. at 85.) Likewise, he could not exclude the possibility that Kelly

influenced Mr. Best into providing the statement identified as Defendant’s Ex. B.

(Tr. at 87.) He then testified that he knew of no reason why Bernie would try to

influence Mr. Best’s statement, but he knew that Kelly would have a reason to


3
  In the record before us, Exhibit B consists of one page with what appears to be a notarized signature of
Mr. Best, dated February 13, 2015. No statement by Mr. Best is contained on this page. A piece of paper
is attached to Exhibit B with a paper clip. This piece of paper is not notarized and appears to be cut away
from a bigger sheet of paper. It contains a statement described in the transcript, as quoted above. The
parties do not challenge authenticity or reliability of Exhibit B. Therefore, our note herein does not affect
the resolution of the issues before us.

                                                   -7-
Case Nos. 13-15-08, 13-15-09


influence Mr. Best into providing the newer statement “to keep her son out of

prison.” (Tr. at 90.)

                                  Officer Basinger

       {¶14} Another witness on behalf of the State was Officer Basinger. He

testified that he had concerns that Mr. Best was being victimized by Johnson, and

that Johnson and Kelly were taking advantage of Mr. Best’s generosity. (Tr. at 42,

53.) According to Officer Basinger, the police department reported to him that on

January 26, 2015, Johnson used Mr. Best’s credit card at the local Kohl’s

department store without Mr. Best’s permission. (Tr. at 11-13.) Officer Basinger

spoke to Mr. Best, who told him that he “was very unhappy with Cody Johnson

using his credit card without his permission.” (Tr. at 14.) Mr. Best told Officer

Basinger that Johnson did not have permission to use the credit card. (Tr. at 16.)

Reportedly, Mr. Best wanted Johnson “removed” from the residence because he

was “too scared and worried for his well-being, safety, with Mr. Johnson there.”

(Tr. at 15.) Officer Basinger placed Johnson in custody and took him to the

Hancock County Justice Center.         (Tr. at 13.)    Johnson reportedly made an

unsolicited statement to officer Basinger “that he accidentally used [Mr. Best’s]

card,” thinking the card was his. (Tr. at 29.) Based on these facts, Officer

Basinger filed the notice of violation at issue. (Tr. at 11-12, 27.)

       {¶15} On cross-examination, Officer Basinger admitted that at the time of

the hearing Johnson had not been charged with “any type of theft of credit card.”

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Case Nos. 13-15-08, 13-15-09


(Tr. at 32.) Officer Basinger was then presented with Defendant’s Exhibit B, and

agreed that “[t]here appears to be a signature” that purports to be Mr. Best’s

signature and that it “appears to be legitimate.” (Tr. at 35, 36.) Officer Basinger

confirmed that there was a notary clause and a signature underneath. (Tr. at 35.)

He noted, however that this document was prepared on February 13, 2015, which

was over two weeks after the events at issue and after Mr. Best had told officer

Basinger that Johnson did not have permission to use his card. (Tr. at 51.)

           {¶16} Even though the alleged victim in this case, Mr. Best, had been

subpoenaed, he did not appear in court at the hearing. (Tr. at 55; R.1 at 96.)

                                Trial Court’s Decision and Appeal

           {¶17} The trial court found that Johnson violated the terms of his

community control4 by attempting to use a credit card without the permission of

the owner. (R.1 at 97, 101; R.2 at 54, 58.) Therefore, the trial court imposed the

original sentences in each of the cases, with credit for time served. Johnson now

appeals the trial court’s judgments, raising two assignments of error for our

review, as quoted below.

           No. 1: APPELLANT DID NOT RECEIVE THE EFFECTIVE
           ASSISTANCE OF COUNSEL AND, AS A RESULT, WAS
           ALSO DENIED HIS SIXTH AMENDMENT RIGHTS

           No. 2: THE TRIAL COURT ERRED AND ABUSED ITS
           DISCRETION IN FINDING APPELLANT GUILTY
           BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO
           SUPPORT THE FINDING THAT APPELLANT ATTEMPTED

4
    See our comment in note 1, supra.

                                              -9-
Case Nos. 13-15-08, 13-15-09


       TO MISUSE A CREDIT CARD AND VIOLATED THE
       TERMS OF HIS JUDICIAL RELEASE

                               Preliminary Matters

       {¶18} Although not specifically stated in the trial court’s judgment entries,

we note that the trial court’s revocation of Johnson’s community control was

technically a revocation of the terms of community control previously ordered by

the court as a term of Johnson’s judicial release. We have made the following

observation in State v. Alexander, 3d Dist. Union No. 14-07-45, 2008-Ohio-1485,

¶ 7:

       As this Court has previously noted, “the rules dealing with a
       violation of an original sentence of community control (R.C.
       2929.15) should not be confused with the sections of the Revised
       Code regarding early judicial release (R.C. 2929.20) even though the
       language of R.C. 2929.20(I) contains the term ‘community control’
       in reference to the status of an offender when granted early judicial
       release.” State v. Mann, 3rd Dist. No. 3-03-42, 2004-Ohio-4703, at ¶
       6. The difference between R.C. 2929.15 and 2929.20 is that under
       R.C. 2929.15, the defendant’s original sentence is community
       control, and he or she will not receive a term of incarceration unless
       he or she violates the community control sanctions. Id., at ¶ 7, citing
       State v. McConnell, 143 Ohio App.3d 219, 224-225, 757 N.E.2d
       1167, 2001-Ohio-2129, citing State v. Gardner, 3rd Dist. No. 14-99-
       24, 1999-Ohio-938. By contrast, when a defendant is granted
       judicial release, he or she has already served a period of
       incarceration, and the remainder of that prison sentence is suspended
       pending either the successful completion of a period of community
       control or the defendant’s violation of a community control sanction.
       Id., at ¶ 8, citing R.C. 2929.20(I). Should the defendant violate the
       terms of the community control sanctions while on judicial release,
       the trial court may reimpose the remainder of the original sentence.
       Id., citing R.C. 2929.20(I); State v. Wiley, 148 Ohio App.3d 82, 772
       N.E.2d 160, 2002-Ohio-460.

Id.

                                       - 10 -
Case Nos. 13-15-08, 13-15-09


       {¶19} Although with respect to sentencing, “an original sentence of

community control” differs from community control imposed as part of judicial

release conditions, the courts have used the same standard for revocation hearings

in both situations. Id. at ¶ 8, citing State v. Ryan, 3d Dist. Union No. 14-06-55,

2007-Ohio-4743, ¶ 7; see also State v. Westrick, 196 Ohio App.3d 141, 2011-

Ohio-1169, 962 N.E.2d 818, ¶ 23 (3d Dist.) (citing Gagnon v. Scarpelli, 411 U.S.

778, 93 S.Ct. 1756, 1757, 36 L.Ed.2d 656 (1973), a probation revocation case

when reviewing a judicial release revocation hearing). Therefore, in our analysis

below we rely on cases that dealt with both community control and judicial release

revocation hearings.

          First Assignment of Error—Ineffective Assistance of Counsel

       {¶20} In his first assignment of error Johnson alleges that his trial counsel

was ineffective at the revocation hearing.      In order to prevail on a claim of

ineffective assistance of counsel, a criminal defendant must first show that the

counsel’s performance was deficient in that it fell “below an objective standard of

reasonable representation.” State v. Keith, 79 Ohio St.3d 514, 534, 684 N.E.2d 47

(1997).   Second, the defendant must show “that the deficient performance

prejudiced the defense so as to deprive defendant of a fair trial.” Id., citing

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). In order to demonstrate prejudice, the defendant must prove a reasonable

probability that the result of the trial would have been different but for his or her

                                       - 11 -
Case Nos. 13-15-08, 13-15-09


counsel’s errors. Id. In applying these standards, the court must “indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751,

772 N.E.2d 81, ¶ 108, quoting Strickland at 669. Therefore, the court must be

highly deferential in its scrutiny of counsel’s performance. State v. Walker, 90

Ohio App.3d 352, 359, 629 N.E.2d 471 (3d Dist.1993), quoting Strickland at 689.

       {¶21} We apply this standard to the following assertions of ineffectiveness

raised by Johnson in this assignment of error: failure to object to hearsay evidence,

failure to take reasonable steps to preserve Johnson’s right to confrontation, failure

to issue a subpoena to compel a witness appearance, and failure to object to

proceeding without the presence and testimony of the purported victim. All of

these claims relate to the absence at the hearing of the victim in this case, Mr.

Best. Johnson alleges that allowing the State to use documentary evidence and

hearsay in place of Mr. Best’s testimony on the stand, without objection,

constituted ineffective assistance of counsel.

       {¶22} As we have previously recognized, “[c]ommunity control revocation

hearings are not subject to the rules of evidence, and therefore, the use of hearsay

is permissible.” Alexander, 3d Dist. Union No. 14-07-45, 2008-Ohio-1485, ¶ 11,

citing Ryan, 3d Dist. Union No. 14-06-55, 2007-Ohio-4743, ¶ 9. Nevertheless,

although the use of hearsay is permissible at community control revocation

hearings, we have noted that

                                        - 12 -
Case Nos. 13-15-08, 13-15-09


       the admission of hearsay evidence at a community control
       revocation hearing can compromise the probationer’s due process
       right to confront adverse witnesses. [Columbus v. Bickel, 77 Ohio
       App.3d 26, 36-37, 601 N.E.2d 61 (10th Dist.1991).] This right
       protects a probationer’s right to confront and cross-examine adverse
       witnesses at a revocation hearing unless the sentencing court
       specifically finds good cause for not allowing the confrontation of a
       witness. Id. The introduction of hearsay evidence into a revocation
       hearing is reversible error when that evidence is the only evidence
       presented and is crucial to a determination of a probation violation.
       State v. Ohly, 166 Ohio App.3d 808, 816, 853 N.E.2d 675.

Ryan at ¶ 9.

       {¶23} Ryan does not mandate an unconditional exclusion of hearsay

evidence. Rather, under its standard, exclusion is required if two conditions are

satisfied: (1) hearsay evidence is the only evidence presented for establishing the

violation and (2) no good cause exists for allowing the testimony without the

confrontation of a witness. Id.; see also State v. Miller, 42 Ohio St.2d 102, 106,

326 N.E.2d 259 (1975) (recognizing “an exception to the confrontation

requirement in parole revocation hearings where ‘the hearing officer specifically

finds good cause for not allowing confrontation’ ”), quoting Morrissey v. Brewer,

408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The United States

Supreme Court, recognizing the right to confrontation as a procedural protection at

the revocation hearing, noted that “the process should be flexible enough to

consider evidence including letters, affidavits, and other material that would not be

admissible in an adversary criminal trial.” Morrissey at 489, accord State v.

Smith, 4th Dist. Scioto No. CA 1847, 1990 WL 178142, *1 (Nov. 14, 1990).

                                       - 13 -
Case Nos. 13-15-08, 13-15-09


Furthermore, “The admission into evidence of a hearsay statement pursuant to a

firmly rooted hearsay exception does not violate a defendant’s right of

confrontation.” State v. Dever, 64 Ohio St.3d 401, 1992-Ohio-41, 596 N.E.2d 436

(1992), paragraph three of the syllabus, citing White v. Illinois, 502 U.S. 346, 112

S.Ct. 736, 116 L.Ed.2d 848 (1992). The Ohio Supreme Court has recognized that

“ ‘[a]dmission under a firmly rooted hearsay exception satisfies the constitutional

requirement of reliability because of the weight accorded longstanding judicial and

legislative experience in assessing the trustworthiness of certain types of out-of-

court statements.’ ” Id. at 417, quoting Idaho v. Wright, 497 U.S. 805, 817, 110

S.Ct. 3139, 111 L.Ed.2d 638 (1990).

       {¶24} Considering these principles, we hold that Johnson has not

established that his right to confrontation was violated by his counsel’s failure to

object to the hearsay testimony and by proceeding to the hearing without Mr. Best

present. “[F]ailure to object to error, alone, is not enough to sustain a claim of

ineffective assistance.” State v. Campbell, 69 Ohio St.3d 38, 52-53, 630 N.E.2d

339 (1994), quoting State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831

(1988). “Trial counsel’s strategic choices must be accorded deference and cannot

be examined through the distorting effect of hindsight.” State v. Conway, 109

Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 115 (2006), citing Strickland,

466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. Nothing in the record shows

that the decision to proceed to the hearing without Mr. Best’s presence was

                                       - 14 -
Case Nos. 13-15-08, 13-15-09


anything other than a strategic choice by Johnson’s trial counsel, who wanted to

use a document purporting to be Mr. Best’s sworn affidavit to Johnson’s benefit.

       {¶25} Furthermore, nothing in the record indicates that if Johnson’s

counsel had objected to the hearsay statements on the basis of confrontation right,

the trial court would have been required to exclude them. Conversely, there is

sufficient evidence that would have allowed the trial court to find that “good

cause” existed “for not allowing the confrontation of a witness.” Ryan, 3d Dist.

Union No. 14-06-55, 2007-Ohio-4743, at ¶ 9. Both Officer Marshall and Officer

Basinger indicated that Mr. Best was scared of Johnson and that Johnson’s mother

had influence over Mr. Best, having previously pressured him to not file charges.

       {¶26} Finally, several hearsay exceptions would allow for the introduction

of Mr. Best’s statements without violating Johnson’s right to confrontation. For

example, Officer Marshall’s testimony that Mr. Best pointed to Johnson when

watching Kohl’s surveillance video and stated, “That motherfucker has robbed me

blind,” could be construed as an “excited utterance” under Evid.R. 803(2). See

Dever, 64 Ohio St.3d at 417, 1992-Ohio-41, 596 N.E.2d 436 (recognizing that

hearsay statements did not violate the accused’s right of confrontation under the

exception for “spontaneous declarations”), citing White, 502 U.S. 346, 112 S.Ct.

736, 116 L.Ed.2d 848 (1992). The officers’ testimony about Mr. Best expressing

that he was scared of Johnson could be classified under Evid.R. 803(3) as “[t]hen

existing, mental, emotional, or physical condition.”

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Case Nos. 13-15-08, 13-15-09


       {¶27} In light of the foregoing factors and applying the strong presumption

that the trial counsel’s conduct fell within the wide range of reasonable

professional assistance, we hold that Johnson did not establish his claim of

ineffective assistance of counsel at his revocation hearing.        Accordingly, we

overrule the first assignment of error.

            Second Assignment of Error—Sufficiency of the Evidence

       {¶28} The decision to revoke community control rests “within the sound

discretion” of the trial court. State v. Moore, 3d Dist. Union No. 14-08-40, 2009-

Ohio-678, ¶ 12. Thus, we will not reverse the trial court’s decision absent an

abuse of that discretion. Id.; State v. Berry, 2012-Ohio-4660, 980 N.E.2d 1087, ¶

33 (3d Dist.).    Because abuse of discretion connotes more than an error in

judgment, we will not substitute our judgment for that of the trial court, and will

only reverse the trial court’s decision if the trial court’s attitude was unreasonable,

arbitrary, or unconscionable. Id.

       {¶29} Johnson asserts that the trial court’s finding of violation was in error

because the State did not satisfy its burden of proof. In order to support revocation

of community control, the state must establish that the defendant violated

conditions of his release. Ryan, 3d Dist. Union No. 14-06-55, 2007-Ohio-4743, ¶

7. Unlike in criminal proceedings, however, the state is not required to prove its

case beyond a reasonable doubt. Id. Rather, the evidence of a violation only

needs to be substantial in nature to justify the revocation. Id.

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Case Nos. 13-15-08, 13-15-09


           {¶30} The argument in this assignment of error is based on the premise that

“the only evidence against Johnson was the product of hearsay.” (App’t Br. at

15.) Johnson claims that this evidence should have been disregarded and without

it, there would have been insufficient proof of violation.                                 (Id.)   Therefore,

Johnson’s argument in this assignment of error could more appropriately be

characterized as an evidentiary challenge. But because no objection was made in

the trial court to the hearsay evidence being admitted, we do not review the

evidentiary issue here.5 See State v. Peagler, 76 Ohio St.3d 496, 501, 668 N.E.2d

489 (1996) (“A court of appeals cannot consider the issue for the first time without

the trial court having had an opportunity to address the issue.”). We thus review

all evidence and testimony, as admitted by the trial court, in deciding whether the

State provided substantial proof of Johnson violating his community control

sanctions.

           {¶31} Through the testimony of Officer Marshall and the reports submitted

as State’s Exhibits 5, and 7, the State showed that Johnson attempted to use Mr.

Best’s Kohl’s charge card on January 26, 2015. Officer Marshall and Officer

Basinger further testified that in the course of their investigation they learned that

Johnson did not have permission to use Mr. Best’s card. Thus, the State satisfied

its burden of establishing substantial evidence that Johnson violated the terms of

his community control by using a credit card without the permission of the owner.


5
    But see our discussion of the hearsay issue raised in the first assignment of error.

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Case Nos. 13-15-08, 13-15-09


         {¶32} We note that we are not reviewing this case for the weight of the

evidence, as Johnson challenges sufficiency only. Therefore, in our re

         {¶33} view of this assignment of error we need not consider contradictory

evidence submitted by Johnson. We recognize, however, that the trial court, being

in the better position to observe the witnesses and hear their testimony, is entitled

to deference on issues of witness credibility and weight of the evidence. See Ryan,

3d Dist. Union No. 14-06-55, 2007-Ohio-4743, at ¶ 7, citing State v. Miller, 10th

Dist. Franklin No. 03AP-1004, 2004-Ohio-1007.

         {¶34} For the foregoing reasons, we overrule the second assignment of

error.

                                    Conclusion

         {¶35} Having reviewed the arguments, the briefs, and the record in this

case, we find no error prejudicial to Appellant in the particulars assigned and

argued. The judgments of the Common Pleas Court of Seneca County, Ohio, are

therefore affirmed.

                                                               Judgments Affirmed

SHAW and PRESTON, J.J., concur.

/hlo




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