[Cite as State v. Williams, 2012-Ohio-508.]


                                        COURT OF APPEALS
                                   TUSCARAWAS COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Sheila G. Farmer, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 2011AP050020
KIRK R. WILLIAMS

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Tuscarawas County Court
                                               of Common Pleas, Case No. 2008 CR 12
                                               0301


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                        February 9, 2012


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


RYAN STYER                                     JOSE IBORRA
Tuscarawas County Prosecutor                   2859 Aaronwood Avenue NE
PATRICK J. WILLIAMS                            Massillon, Ohio 44646
Assistant County Prosecutor
for Tuscarawas County
125 East High Avenue
New Philadelphia, Ohio 44663
Tuscarawas County, Case No. 2011AP050020                                                 2

Hoffman, P.J.


       (¶1)   Defendant-appellant Kirk Williams appeals his sentence entered by the

Tuscarawas County Court of Common Pleas. Plaintiff-appellee is the state of Ohio.

                                   STATEMENT OF THE CASE

       (¶2)   On March 4, 2011, the state of Ohio filed a motion to revoke or modify

Appellant’s community control.     The state alleged: on or about February 12, 2011,

Appellant caused or attempted to cause physical harm to Hallie Blanchard; on or about

February 3, 2011, Appellant failed to report to his supervising officer as instructed; and,

on or about February 12, 2011, he admitted to his supervising officer he had in his

possession or under his control marijuana and had been under the influence of alcohol.

       (¶3)   The trial court scheduled a hearing on the motion to revoke or modify on

April 4, 2011. At the hearing, the State dismissed count two. Following the close of

evidence, the trial court found Appellant violated the terms of his community control in

admitting to the use of alcohol.

       (¶4)   Via Judgment Entry of April 5, 2011, the trial court sentenced Appellant to

three years imprisonment, with credit for time served.

       (¶5)   Appellant now appeals, assigning as error:

       (¶6)   “I. DID SUBSTANTIAL PROOF EXIST THAT APPELLANT VIOLATED

HIS COMMUNITY CONTROL SANCTIONS?”

                                                I.

       (¶7)   A community control revocation hearing is not a criminal trial. State v.

White, Stark App. No.2009–CA–00111, 2009–Ohio–6447. The state therefore need not

establish a community control violation by proof beyond a reasonable doubt. White,
Tuscarawas County, Case No. 2011AP050020                                                        3

supra at ¶ 13; State v. Ritenour, Tuscarawas App. No.2006AP010002, 2006–Ohio–

4744 at ¶ 36; State v. Spencer, Perry App. No.2005–CA–15, 2006–Ohio–5543 at ¶ 12;

State v. Henry, Richland App. No.2007–CA–0047, 2008–Ohio–2474. As this Court

noted in Ritenour, “Rather, the prosecution must present substantial proof that a

defendant violated the terms of his or her probation ... 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 ... This

highly deferential standard is akin to a preponderance of evidence burden of proof ...”

State v. Ritenour, supra at ¶ 36. (Citations omitted). See also, State v. Gullet,

Muskingum App. No. CT2006–0010, 2006–Ohio–6564, ¶ 22–23.

      (¶8)        Once a court finds a defendant violated the terms of probation, the

decision whether to revoke probation lies within the court's sound discretion. State v.

White, supra at ¶ 14. (Citing State v. Ritenour, supra at ¶ 37). (Internal Citations

omitted). 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; State v.

Ritenour, supra at ¶ 37. An abuse of discretion connotes more than an error in law or

judgment;    it    implies   that   the   court's   attitude   is   unreasonable,   arbitrary   or

unconscionable. State v. Maurer (1984), 15 Ohio St.3d 239, 253, 473 N.E.2d 768.

      (¶9)        The trial court’s November 13, 2009 original sentence imposing

community control specifically states:

      (¶10) “It is hereby ORDERED that the Defendant is sentenced to five (5) years

of Community Control subject to the general supervision and control of the Adult
Tuscarawas County, Case No. 2011AP050020                                                  4


Probation Department under any terms and conditions that they deem appropriate,

including that the Defendant shall be prohibited from leaving the State without

permission of the Court or the Adult Probation Department. The Defendant shall abide

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

ordinance.

      (¶11) “The Court further imposes specific conditions as follows

      (¶12) “1. That the Defendant follow all rules of community control as previously

established by this Court;

      (¶13) “2. ***

      (¶14) “3. That the Defendant not consume alcohol or drugs, or enter into

establishments whose primary source of business is the sale of alcoholic beverages

and that the Defendant submit to random screening and a breathalyzer upon

demand;***”

      (¶15) At the April 4, 2011 hearing on the State’s motion to modify or revoke

Appellant’s community control, Appellant testified:

      (¶16) “Q. You, you, you indicated that she went out, you went to a buddy’s, and

you were drinking at your buddy’s, weren’t you?

      (¶17) “A. Yes, I did.

      (¶18) “Q. And you were irritated that you couldn’t fin-- locate her, weren’t you?

      (¶19) “A. I was a little bit upset - -

      (¶20) “Q. Okay.

      (¶21) “* * *

      (¶22) “Q. Okay, but you were drinking that night?
Tuscarawas County, Case No. 2011AP050020                                                    5


      (¶23) “A. Yes, I was.

      (¶24) “Q. In violation of your probation?

      (¶25) “A. Yes, I was. I --

      (¶26) “Q. And let’s go back to the beginning of this case. You were drinking and

you got in a, in an altercation that night too, didn’t you? That’s how this whole thing

happened, this felonious assault. You were in a bar drinking and you sucker punched

somebody in the face and shattered - -

      (¶27) “A. I didn’t sucker punch anybody.

      (¶28) “Q. - - their eye socket.”

      (¶29) Tr. at 34.

      (¶30) By Appellant’s own admission, he violated the terms of his community

control by drinking alcohol and entering a drinking establishment. Therefore, we find

substantial evidence was introduced establishing Appellant violated the terms of his

community control, and the trial court did not abuse its discretion in revoking the same.

      (¶31) The April 5, 2011 Judgment Entry of the Tuscarawas County Court of

Common Pleas is affirmed.

By: Hoffman, P.J.

Farmer, J. and

Wise, J. concur                              s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ Sheila G. Farmer __________________
                                             HON. SHEILA G. FARMER


                                             s/ John W. Wise______________________
                                             HON. JOHN W. WISE
Tuscarawas County, Case No. 2011AP050020                                          6


         IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO
                        FIFTH APPELLATE DISTRICT


STATE OF OHIO                             :
                                          :
       Plaintiff-Appellee                 :
                                          :
-vs-                                      :        JUDGMENT ENTRY
                                          :
KIRK R. WILLIAMS                          :
                                          :
       Defendant-Appellant                :        Case No. 2011AP050020


       For the reason stated in our accompanying Opinion, the April 5, 2011 Judgment

Entry of the Tuscarawas County Court of Common Pleas is affirmed.          Costs to

Appellant.




                                          s/ William B. Hoffman _________________
                                          HON. WILLIAM B. HOFFMAN


                                          s/ Sheila G. Farmer __________________
                                          HON. SHEILA G. FARMER


                                          s/ John W. Wise______________________
                                          HON. JOHN W. WISE
