[Cite as State v. Hand, 2016-Ohio-582.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                  :

                 Plaintiff-Appellee,            :
                                                                    No. 15AP-916
v.                                              :              (M.C. No. 2014 TRC 164178)

M. Thomas Hand,                                 :           (ACCELERATED CALENDAR)

                 Defendant-Appellant.           :



                                          D E C I S I O N

                                    Rendered on February 18, 2016


                 Richard C. Pfeiffer, Jr., City Attorney, Lara N. Baker, and
                 Melanie R. Tobias, for appellee.

                 William H. Truax, for appellant.

                       APPEAL from the Franklin County Municipal Court

BRUNNER, J.
        {¶ 1} Defendant-appellant, M. Thomas Hand, appeals from a decision of the
Franklin County Municipal Court, filed on September 16, 2015, finding probable cause
supporting an alleged violation of his terms of misdemeanor probation and imposing
modified conditions of community control. For the following reasons, we reverse.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On June 27, 2013, a police officer stopped and cited Hand for driving left of
center, failing to use a turn signal, and operating a vehicle while under the influence
("OVI"). The OVI charge was based on Hand's refusal to submit to a breath test and other
signs pointing to potential alcohol intoxication, including the traffic violations themselves,
indications on the horizontal gaze nystagmus test, and the detection by the arresting
officer of the odor of alcohol on his person.
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No. 15AP-916


       {¶ 3} Following the trial court's determination of various motions not relevant to
this appeal, Hand pled guilty on March 23, 2015 to an amended misdemeanor charge of
"Having physical control of vehicle while under the influence." R.C. 4511.194. The left of
center and failure to use a turn signal traffic violations were dismissed. The trial court
ordered Hand to serve 180 days in jail but suspended 177 of the days conditioned upon
successful completion of one year of community control and awarded 3 days of jail-time
credit for completion of a "Driver Intervention Program" ("DIP"). The trial court also
imposed a fine and costs, and ordered Hand to complete 80 hours of community service.
In addition to the standard conditions of supervision, Hand's community control or
probationary terms en toto were:
               Complete Community Service hours
               Attend DIP and complete any suggested follow up counseling
               No same or similar offense
               No new offenses of any kind
               Submit to alcohol/drug screen(s); no refusal of any tests
(Mar. 23, 2015 Sentencing Entry.)
       {¶ 4} On July 16, 2015, the probation department filed a statement of violations
alleging as follows:
               On 6/3/15, Thomas Hand was instructed to submit a
               urinalysis. Without hesitation and without attempting, the
               defendant stated that he could not. After an hour, at
               approximately 11am, the defendant was sent to American
               Court Services (ACS). He remained there until 6:40 pm but
               did not submit a urinalysis. He attempted only 1 time within
               that 7 ½ hour period with ACS.
       {¶ 5} The trial court held a hearing on the matter on September 15 and 16, 2015.
At the start of that hearing the trial court announced that, in the absence of a prosecutor,
it would conduct direct examination. On direct examination the probation officer testified
that, on June 3, 2015, she asked Hand to submit to urinalysis. She testified that she had
no suspicion (for example, that Hand might have been impaired) to justify asking Hand to
submit to testing; she simply did it because the court had ordered testing. However,
Hand said he was unable, at that time, to produce a urine sample for testing and did not,
at least initially, appear to try. She testified that Hand drank water and waited from 9:00
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No. 15AP-916


a.m. to after 6:40 p.m. without producing urine and admitted that if he were feigning
illness or malingering, that would have been an unusual performance. She also admitted,
that Hand explained to her that he suffers from congestive heart failure and kidney
problems that make it difficult for him to urinate with regularity. Exhibits introduced in
the trial court confirm that Hand suffers from congestive heart failure and kidney
problems, that such conditions are known to cause urinary difficulties, and that Hand
was, in fact, taking medications in an attempt to increase his urination rate.
       {¶ 6} Hand also testified during the hearing.        He explained that he had not
refused to submit to a drug test, but simply found that he could not physically manage to
pass urine on June 3, 2015. He recounted that he drank several glasses of water, waited
from 9:00 a.m. until 6:40 p.m., and attempted to pass urine, even running water in the
bathroom to try to mentally stimulate urination.
       {¶ 7} On September 16, 2015, the trial court orally announced its decision and
memorialized the decision by a written entry. It found a violation of Hand's probation,
ordered strict compliance with conditions already set, authorized the probation
department to take breath, urine, blood, or hair for testing purposes, and ordered Hand to
submit to installing an ignition interlock device on his vehicle.
       {¶ 8} Hand now appeals.
II. ASSIGNMENT OF ERROR
       {¶ 9} Hand presents a single assignment of error for review:
               THE TRIAL COURT'S VERDICT OF GUILTY TO THE
               PROBATION VIOLATION WAS AGAINST THE MANIFEST
               WEIGHT OF THE EVIDENCE AND THERE WAS
               INSUFFICIENT EVIDENCE TO SUPPORT THE SAME.
III. DISCUSSION
       {¶ 10} This court has previously explained the following:
               The privilege of probation rests upon the probationer's
               compliance with the conditions of probation and any violation
               of those conditions may properly be utilized to revoke the
               privilege. In a probation violation proceeding, the state need
               not prove the violation beyond a reasonable doubt. Rather,
               substantial evidence that a probationer willfully violated the
               terms of his or her probation is sufficient to support the
               revocation of probation. The decision whether to revoke
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No. 15AP-916


               probation rests within the sound discretion of the trial court.
               An "abuse of discretion" connotes more than an error of law
               or judgment; it implies that the court's attitude is arbitrary,
               unreasonable or unconscionable.
(Citations omitted.) State v. Mason, 10th Dist. No. 01AP-847, 2002-Ohio-2803, ¶ 20,
citing State v. Bell, 66 Ohio App.3d 52, 57 (5th Dist.1990); State v. McKnight, 10 Ohio
App.3d 312, 313 (12th Dist.1983); State v. Adams, 62 Ohio St.2d 151, 157 (1980); State v.
Mingua, 42 Ohio App.2d 35, 40 (10th Dist.1974). In relevant part, Hand's probation
order required him to "[s]ubmit to alcohol/drug screen(s); no refusal of any tests." Thus,
in this case the question is whether the evidence was sufficient and weighty enough to
justify finding that Hand's failure to produce a urine specimen when the court attempted
to test him was a refusal such that the trial court properly exercised its discretion in
finding there was substantial evidence to find he had violated the terms and conditions of
his community control sentence or probation.
       {¶ 11} The Supreme Court of Ohio has defined "willfully" as a descriptor which
"implies an act done intentionally, designedly, knowingly, or purposely, without
justifiable excuse." State v. Earlenbaugh, 18 Ohio St.3d 19, 21 (1985), citing Black's Law
Dictionary, 1434 (5th Ed.1979); see also Steward v. Columbus, 10th Dist. No. 97APG12-
1567 (Sept. 10, 1998). With due deference to the discretion exercised by the trial court, we
find the evidence before it was against the conclusion reached on whether Hand
"intentionally, designedly, knowingly, or purposely" refused to urinate "without justifiable
excuse." Id.
       {¶ 12} Even on direct examination by the trial court, the probation officer testified
as follows:
               Q: [O]n June 3rd, did you order Mr. Hand to submit to
               urinalysis?

               A: Yes.

               Q: What happened?

               A: He told me he was unable to

               ***
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No. 15AP-916


               So he immediately said he couldn't go. He did not try. He
               was given a cup to drink water and help him along the way.
               After an hour, I sent him to American Court Services for
               urinalysis there, at which time he was - - he did not.

(Tr. 11-12.)
       {¶ 13} On cross-examination, the probation officer testified in more detail about
the nature of Hand's difficulties:
               Q: Okay. Now, did Mr. Hand, on June 3rd, tell you that he
               suffers from medical conditions that made it difficult or hard
               for him to provide a urine sample?

               A: He did.

               Q: Did he tell you of his congestive heart failure?

               A: He did.

               Q: Okay. Did he tell you that that caused him to have kidney
               problems as well?

               A: He did.

               Q: Okay. And in light of that, you still requested - - insisted
               that he provide a urine sample, correct?

               A: Yes.
(Tr. 15.)
       {¶ 14} On the topic of whether Hand was refusing or malingering, the probation
officer testified under cross-examination as follows:
               Q: Did [Hand] verbally - - Did he in any way indicate to you,
               verbally or otherwise, that he was refusing to provide you with
               a sample of urine on June 3rd?

               A: No.

               Q: Okay. And, in fact, he did submit to alcohol/drug testing in
               the sense that he tried.

               A: He - - I don't believe that he did.
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No. 15AP-916


                   Q: Okay. Would you agree that it would be unusual for a
                   person who is merely malingering to hold his urine for a
                   period from 9:00 in the morning until 6:101 [sic] at night?

                   A: It's unusual, yes.

(Tr. 18.) Moreover, exhibits introduced at the trial court confirm that Hand suffered from
congestive heart failure, that such a condition is known to cause urinary difficulties, and
that Hand was, in fact, taking medications in an attempt to increase his ability to pass
urine.
           {¶ 15} Hand also testified on direct examination by his attorney during the hearing
and confirmed that he did not refuse to submit to testing but rather found he could not
physically produce a sample.
                   Q: Once you arrived, did [the probation officer] ask you to
                   submit to a urinalysis test?

                   A: Yes.

                   Q: Okay. Did you know in advance that she was going to be
                   making that request of you prior to that date?

                   A: No.

                   Q: You've heard her testimony about what transpired. Do you
                   - - Did you sit out in the hallway and try to drink enough water
                   to provide a sample?

                   A: Yes.

                   Q: After a couple of hours, that didn't work, correct?

                   A: Correct.

                   Q: Did she then send you over to American Court Services?

                   A: Yes, she did.

                   Q: What time did you arrive there?


1   The transcript elsewhere reflects that 6:40 p.m. was the time Hand departed ACS.
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No. 15AP-916


               A: Approximately 11:00.

               Q: What time did you leave there?

               A: 6:40 at night.

               Q: What did you do while you were there?

               A: I sat by the front desk the entire time. They told me I
               couldn't have any more water.

               Q: Did you drink any water while you were there?

               A: They allowed me three cups of water prior to me
               attempting, because I had no urge or whatever; so they
               allowed me three cups.

               Q: Sorry - -

               A: They allowed me three cups of water prior to me
               attempting to go to the restroom.

               Q: Yes. Did they ask you to stop drinking water?

               A: Yes.

               Q: Okay. Did you have the urge to urinate while you were
               there?

               A: No, I did not.

               Q: Did you attempt at the end to try to nevertheless give a
               sample?

               A: Yes, I did. The nice gentleman even turned on the water in
               the bathroom to try to make the conditions right so I could go,
               and I still couldn't go.

               Q: Did you intentionally or purposely withhold providing a
               sample that day?

               A: No, I did not.

(Tr. 30-32.)
       {¶ 16} In addition, this case presents a somewhat unusual circumstance:
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No. 15AP-916


               The Court: I find myself in the unusual position of not having
               a prosecutor here to do direct examination of the witness. As a
               result, my intent - - Based on the fact that this is an allegation
               of a violation of probation as ordered by this Court, my intent
               is to perform the direct examination myself. I find this
               unusual, but I'm not sure that I see any other way to get the
               testimony out in court.
               [Defense]: I don't disagree with you, and I know that as a
               former prosecutor you have quite - - experience in getting - -
               using direct examination.

               The Court: I hope I can remember how to do it. It does put
               you in the awkward position of objecting to any question that
               I might offer. If you have an objection to the form of a
               question, please feel free to make it. I will rule on it, and I - -
               Although the rules of evidence don't apply strictly to this
               hearing, I'm certainly willing to entertain any concerns you
               might have to make sure that we make this as clear a record as
               possible.

(Tr. 5-6.) Neither side has raised this issue on appeal and defense counsel did not object
to the procedure at the trial level. Moreover, we recognize that probation violation
hearings are less formal than other case proceedings, that the same strictures on evidence
are not rigorously enforced, and that a trial court, having retained jurisdiction over the
probationer, has the power to inquire and act upon its own motion and discretion. R.C.
2929.25(B); State v. Theisen, 167 Ohio St. 119 (1957), syllabus (decided based on former
R.C. 2951.09). Nevertheless, judicial partiality is "a paradigmatic example of structural
constitutional error," and even its appearance is to be avoided. State v. Sanders, 92 Ohio
St.3d 245, 278 (2001), citing Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991); Ohio
Jud.Cond.R 1.2. While it was not inappropriate for the trial court to have acted as both
prosecutor and judge in this probation violation hearing (because of the nature of the
hearing), we explicitly do not favor the evidence the trial judge elicited over evidence
presented by parties in according the trial court deference. However, there is an element
of discomfort in that the evidence elicited for the trial court's review and determination on
judgment was in part that produced by the trial court, itself, on behalf of the State.
       {¶ 17} However, based on our review of the record elicited by the trial court and
defense counsel, we find nothing to support the allegation that Hand refused to submit to
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No. 15AP-916


a urinalysis test. The testimony from witnesses and the contents of the exhibits show that
Hand has medical conditions that make it difficult for him to urinate and that he sat in
full view of probation officers or testing personnel for nearly ten hours without urinating
(despite drinking water and even making an attempt with running water to stimulate an
urge to produce a specimen for testing). Other than the bare fact that Hand did not
urinate upon command, there is nothing in the record to support the trial court's
conclusion that Hand willfully refused the test and therefore, implicitly, was malingering
regarding his inability to urinate.
       {¶ 18} The State's brief cites a line of cases for the proposition that a probation
violation need not be willful for a court to take action: Bearden v. Georgia., 461 U.S. 660
(1983); State v. Qualls, 50 Ohio App.3d 56 (10th Dist.1988); State v. Harian, 8th Dist.
No. 97269, 2012-Ohio-2492; State v. Norris, 5th Dist. No. 2010CA0070, 2010-Ohio-
6007; State v. Conn, 11th Dist. No. 2010-P-0067, 2011-Ohio-5865. However, each of the
cases cited by the State (as the State's brief quite properly and candidly admits) provides
that relaxation of the willfulness element is appropriate where allowing the probationer to
continue under the same terms of probation would pose a threat to the public. For
example, in Bearden, the United States Supreme Court reversed a decision that revoked
the probation of a man with a ninth grade education because he could not find a job. In so
doing the Supreme Court remarked as follows:
               We do not suggest that, in other contexts, the probationer's
               lack of fault in violating a term of probation would necessarily
               prevent a court from revoking probation. For instance, it may
               indeed be reckless for a court to permit a person convicted of
               driving while intoxicated to remain on probation once it
               becomes evident that efforts at controlling his chronic
               drunken driving have failed. Cf. Powell v. Texas, 392 U.S. 514
               (1968); Robinson v. California, 370 U.S. 660 (1962).* * * In
               contrast to a condition like chronic drunken driving, however,
               the condition at issue here -- indigency -- is itself no threat to
               the safety or welfare of society.
Id. at 668, fn. 9. See also Qualls at 59-60 (affirming revocation of probation where
violations may not have been willful but ongoing behavioral effects of untreated mental
illness made the probationer a danger to the community); Harian at ¶ 30 (affirming
revocation for failure to qualify for court-mandated treatment program based on a mental
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No. 15AP-916


illness that made the probationer a danger to society); Norris at ¶ 22 (finding revocation
proper although the probationer may not have willfully violated his probation where
mental health evaluation showed that the probationer was a danger to society because of
an out of control antisocial personality disorder); Conn at ¶ 21 (placing a sex-offending
probationer in prison where there was no place where she could reside while on probation
where she would not be exposed to children).
       {¶ 19} We recognize that the Conn decision contains language to the effect that
there is generally "no requirement that the state prove willfulness before the court can
revoke a defendant's community control." Conn at ¶ 18.             However, we have not
interpreted or applied that statement inversely, that is, that community control must be
revoked for a violation, whether or not it was proved to be willful. We have previously
stated that, to be sufficient, evidence of a violation of probation must support a finding
that it was willful, unless there is, as discussed in Bearden, Qualls, Harian, Norris, and
Conn, an ongoing threat to public safety or welfare that justifies revocation. See, e.g.,
Mason at ¶ 20; State v. Thomas, 10th Dist. No. 13AP-985, 2014-Ohio-2912, ¶ 10. Some
courts have recognized that " '[i]t is a violation of the Equal Protection Clause of the U.S.
Constitution to revoke a defendant's probation simply because she is too poor to pay
restitution where the record contains no evidence that the failure to pay, was willful or
intentional or that failure to obtain employment, in order to pay was willful or
intentional.' " State v. Burgette, 4th Dist. No. 13CA50, 2014-Ohio-3483, ¶ 12, quoting
State v. Wolfson, 4th Dist. No. 03CA25, 2004-Ohio-2750, ¶ 20.
       {¶ 20} Here, Hand's DIP evaluation in his original sentence resulted in a report to
the trial court that Hand had "[s]light or no problem," and no recommendation for further
evaluation or treatment. It appears from the record that the trial court's own evaluation
at sentencing was consistent, because it did not order Hand to abstain from alcohol
consumption during probation (trial court remarking that "as of now I'm not going to
order no consumption"). (Tr. 36.)
       {¶ 21} Moreover, a violation of Hand's probation, by the express terms of the trial
court's entry, occurs upon "refusal" of a test. An element of the will is implicit in the
concept of "refusal." Black's Law Dictionary, for example, defines "refusal" in relevant
part as, "[t]he denial or rejection of something offered or demanded (the lawyer's refusal
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No. 15AP-916


to answer questions was based on the attorney-client privilege)." Black's Law Dictionary
1472 (10th Ed.2014).     As a related example, the Oxford English Dictionary defines
"refuse" in verb form as "[t]o decline to do something; to express or show determination
not to do something." (Emphasis added.) Oxford English Dictionary (3d Ed.2009).
Thus, even were willfulness not a separate requirement for finding a probation violation,
implicit in the concept of "refusal" is the notion that will is inherent in its exercise.
Refusal does not inhere in an honest statement, "I cannot." It is rather found in the
statement, "I will not." The evidence at the hearing before the trial court was all to the
effect that Hand could not urinate, not that he would not urinate.
       {¶ 22} Because the record is devoid of any indication that Hand willfully refused to
comply with the testing requirements of his probation, we find that the trial court abused
its discretion in finding that Hand's inability to produce a urine sample for sobriety
testing was willful. We further find that, since the trial court explicitly determined in its
original sentence that it would not order "no consumption" and because the trial court
made no further finding at the revocation hearing that Hand's use of alcohol would
continue to pose a threat to the safety or welfare of society, the trial court abused its
discretion in finding a violation based on "refusal of a[] test[]." (Mar. 23, 2015 Sentencing
Entry.) We therefore sustain Hand's assignment of error.
IV. CONCLUSION
       {¶ 23} Because the record does not supply evidence that Hand willfully refused to
submit to alcohol and drug testing and because there is no other evidence in the record to
support a conclusion that Hand's consumption of alcohol poses a danger to society, we
reverse the Franklin County Municipal Court's finding of a violation of Hand's terms and
conditions of community control or probation.
                                                                       Judgment reversed;
                                                                          cause remanded.
                            KLATT and HORTON, JJ., concur.
