[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.



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                                             ___________________________________

                                                                  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.




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                                                            JUDGES
