[Cite as State v. Miller, 2011-Ohio-269.]


                                         COURT OF APPEALS
                                      RICHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT




STATE OF OHIO                               :       JUDGES:
                                            :       Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                  :       Hon. Sheila G. Farmer, J.
                                            :       Hon. Patricia A. Delaney, J.
-vs-                                        :
                                            :
JACKIE MILLER                               :       Case No. 10CA50
                                            :
        Defendant-Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Court of Common Pleas,
                                                Case No. 06CR1025



JUDGMENT:                                       Affirmed




DATE OF JUDGMENT ENTRY:                          January 20, 2011




APPEARANCES:

For Plaintiff-Appellee                                     For Defendant-Appellant

KIRSTEN PSCHOLKA-GARTNER                                   RYAN M. HOOVLER
38 South Park Street                                       1 Park Avenue West
Mansfield, OH 44902                                        Suite 300
                                                           Mansfield, OH 44902
Richland County, Case No. 10CA50                                                         2

Farmer, J.

      {¶1}   Dating back to 2007 and before, appellant, Jackie Miller, has a long

history of committing crimes (forgery, theft, criminal damaging, disorderly conduct),

being placed on community control, and violating community control. On February 3,

2010, appellant was charged with violating her most recent community control order. A

hearing was held on March 24, 2010. By community control violation journal entry filed

March 25, 2010, the trial court found appellant guilty of violating her community control,

and sentenced her to an aggregate term of thirty months in prison.

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

consideration. Assignment of error is as follows:

                                            I

      {¶3}   "THE COMMUNITY CONTROL VIOLATION WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE."

                                            I

      {¶4}   Appellant claims the trial court's decision that she violated the terms of her

community control were against the manifest weight of the evidence as the decision

was not based upon any credible evidence or testimony. We disagree.

      {¶5}   "The privilege of probation 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. Bell (1990), 66 Ohio App.3d 52, 57.         "Because a

community control revocation hearing is not a criminal trial, the State does not have to

establish a violation with proof beyond a reasonable doubt."           State v. Wolfson,

Lawrence App. No. 03CA25, 2004-Ohio-2750, ¶7. Instead, the state need only present
Richland County, Case No. 10CA50                                                       3


"substantial proof" that a defendant willfully violated the community control conditions.

State v. Hylton (1991), 75 Ohio App.3d 778, 782. "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." State v.

Alderson (August 31, 1999), Meigs App. No. 98CA12. Once a trial court finds that a

defendant violated the terms of his/her probation, the decision whether to revoke

probation lies within the trial court's sound discretion. State v. Scott (1982), 6 Ohio

App.3d 39. 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 (1983) 5 Ohio St.3d 217.

       {¶6}   The trial court found appellant was terminated from Tiffin CBCF before

successfully completing the program (Probation Violation No. 1), and illegally

possessed Suboxone, a prescription medication (Probation Violation No. 2). At the

conclusion of the hearing, the trial court stated the following:

       {¶7}   "In terms of the original offense in this case, you and a Patricia Tolliver

cashed $9,035 in forged checks stolen from (inaudible) Charles Patterson. Before that

you had convictions for criminal damaging, disorderly conduct, petit theft and grand

theft. You went to prison on February 16th, 2007 for grand theft. I was hoping after

being in prison you would decide you would do whatever it took to stay out of prison and

consequently put you on probation in this case back on August 13th, 2007, which would

have been shortly after you were released from prison.
Richland County, Case No. 10CA50                                                        4


       {¶8}   "At the time of the probation review in October 2007, you were testing

clean, but by March you had gotten a probation violation. You went out of county, Stark

County, you committed a new theft offense. Despite that, you returned to your former

habit, I still gave you an additional chance of probation, with the residential program,

which you were admitted to CROSSWAEH after probation violation sentencing, and

now we have a situation (inaudible) not only did you violate the program for a number of

other residents. That's unforgivable, bringing drugs into an institution like that." March

24, 2010 T. at 37-38.

       {¶9}   Appellant argues the trial court's decision was based upon hearsay.

       {¶10} " 'Hearsay' is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted." Evid.R. Rule 801(C).

       {¶11} Evid.R. 101 governs the scope of the evidence rules. Subsection (C)(3)

states the following:

       {¶12} "These rules (other than with respect to privileges) do not apply in the

following situations:

       {¶13} "(3) Miscellaneous criminal proceedings. Proceedings for extradition or

rendition of fugitives; sentencing; granting or revoking probation; proceedings with

respect to community control sanctions; issuance of warrants for arrest, criminal

summonses and search warrants; and proceedings with respect to release on bail or

otherwise."

       {¶14} The Supreme Court of Ohio explained the following in Columbus v. Bickel

(1991), 77 Ohio App.3d 26, 36-37:
Richland County, Case No. 10CA50                                                         5


       {¶15} "Evid.R. 101(C) specifically excepts application of the Rules of Evidence,

including the hearsay rule, from probation revocation hearings. The rationale for the

exception is that, since a probation revocation hearing is an informal proceeding, not a

criminal trial, the trier of fact should be able to consider any reliable and relevant

evidence to determine whether the probationer has violated the conditions of his

probation. Miller, supra, 42 Ohio St.2d at 106, 71 O.O.2d at 76, 326 N.E.2d at 262.

Still, the admission of hearsay evidence at a probation revocation hearing can

compromise the probationer's due process right to confront adverse witnesses.

Although a probationer's right to confront and cross-examine adverse witnesses at a

probation revocation hearing is not absolute, that right is preserved by the fourth

requirement of Gagnon [v. Scarpelli (1973), 411 U.S. 778], supra, unless the sentencing

court specifically finds good cause for not allowing the confrontation."

       {¶16} In State v. Partin, Richland App. No. 07CA104, 2008-Ohio-3904, ¶14, this

court stated, "[t]he admission of hearsay evidence into a probation revocation hearing

can only be construed as reversible error when it constituted the sole, crucial evidence

in support of the probation violation determination."

       {¶17} Appellant's probation officer, Debbie Jackson, testified as to the terms and

conditions of appellant's probation. T. at 7-10. Ms. Jackson testified she was notified

by Tiffin CBCF that appellant was terminated from the program as appellant was in

possession of an illegal drug, "Suboxone," which is a prescription medication, but

considered contraband in the facility. T. at 10-11.

       {¶18} Tiffin CBCF case manager, Brandi Bishop, testified appellant was

terminated from the facility for bringing in Suboxone.        T. at 16.    Admittedly, this
Richland County, Case No. 10CA50                                                          6


information was in the form of hearsay statements that Ms. Bishop had received from

other "clients" of the facility. T. at 16-21. Upon a search of appellant's locker, superglue

was found as well as a pair of pants with slits in the waistband and a pair of shoes

wherein the soles could be completely removed.           T. at 19-20.    Superglue is not

permitted in the facility, and the pants and shoes were an indication of appellant "hiding

the stuff." T. at 19, 24. Based on this information, appellant was terminated from the

program. T. at 21.

       {¶19} Appellant testified she admitted to having the superglue in order to fix her

broken partial plate, and an employee let her keep it. T. at 28, 31.

       {¶20} It is undisputed that appellant was terminated from the program she was

required to complete.    The fact that she denies the validity of the reasons for the

termination does not alter the fact that she did not complete the program. Although the

termination was based on hearsay, this is not fatal to the trial court's decision, as

hearsay testimony is permissible in probation revocation hearings.

       {¶21} Upon review, we find the trial court did not err in finding appellant had

violated the terms of her probation as there was sufficient evidence to establish the

violations.

       {¶22} The sole assignment of error is denied.
Richland County, Case No. 10CA50                                                 7


      {¶23} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Delaney, J. concur.




                                        _s/ Sheila G. Farmer_________________




                                        _s/ W. Scott Gwin___________________




                                        _s/ Patricia Delaney__________________

                                                       JUDGES

SGF/sg 107
Richland County, Case No. 10CA50                                                  8


             IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO


                             FIFTH APPELLATE DISTRICT


STATE OF OHIO                            :
                                         :
       Plaintiff-Appellee                :
                                         :
-vs-                                     :         JUDGMENT ENTRY
                                         :
JACKIE MILLER                            :
                                         :
       Defendant-Appellant               :         CASE NO. 10CA50




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs to

appellant.




                                         s/ Sheila G. Farmer_________________




                                         _s/ W. Scott Gwin___________________




                                         _s/ Patricia Delaney__________________

                                                          JUDGES
