[Cite as State v. Griffeth, 2011-Ohio-4426.]


                                         COURT OF APPEALS
                                      RICHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                   :      JUDGES:
                                                :
                                                :      Hon. Patricia A. Delaney, P.J.
                        Plaintiff-Appellee      :      Hon. Sheila G. Farmer, J.
                                                :      Hon. John W. Wise, J.
-vs-                                            :
                                                :      Case No. 10-CA-115
EDWIN GRIFFETH                                  :
                                                :
                                                :
                       Defendant-Appellant      :      OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Richland County Court of
                                                    Common Pleas Case No. 04-CR-680D


JUDGMENT:                                           AFFIRMED

DATE OF JUDGMENT ENTRY:                             August 30, 2011


APPEARANCES:

For Plaintiff-Appellee:                                For Defendant-Appellant:

JAMES J. MAYER, JR.                                    RHYS B. CARTWRIGHT-JONES
Richland County Prosecutor                             42 N. Phelps St.
38 S. Park St., 2nd Fl.                                Youngstown, Ohio 44503
Mansfield, Ohio 44902

DANIEL J. BENOIT
Assistant Prosecuting Attorney
(Counsel of Record)
Delaney, P.J.
       {¶1}   Defendant-Appellant, Edwin Griffeth, appeals the judgment of the

Richland County Court of Common Pleas, finding him guilty of community control

violations and continuing him on probation. The State of Ohio is Plaintiff-Appellee.

       {¶2}   Appellant was originally convicted of two counts of sexual battery, after

pleading guilty to a Bill of Information. The trial court sentenced Appellant to four years

in prison on one count and sentenced him to community control on the second count.

After serving two years of his prison sentence, Appellant was granted judicial release

and was placed on community control sanctions for five years.

       {¶3}   Initially, Appellant was under the supervision of the Adult Parole Authority

(APA). His terms of probation included having no contact with any man or woman who

had physical custody of children unless he had the permission of his supervising parole

officer. An additional term required him to refrain from riding in a car with a female

without the knowledge and permission of his parole officer.

       {¶4}   While being supervised by the APA, Appellant applied for a travel permit

for a trip to Florida with his mother. In actuality, Appellant had purchased airline tickets

for himself and a female named Jennifer Leech.

       {¶5}   In November, 2008, Appellant engaged in a confrontation with Leech’s ex-

husband, John Mayer, who was a chief probation officer for the APA. Subsequent to

this confrontation, Appellant’s supervision was transferred to the Richland County

Probation Office to avoid any conflict of interest with the APA supervision of Appellant.

Jason Hoover became Appellant’s probation officer under Richland County’s

supervision. At that time, the Richland County Probation Department included a no

contact order with Ms. Leech into Appellant’s terms of probation.
       {¶6}   In December, 2008, Appellant appeared before the trial court for a status

conference to ensure that he understood the terms of probation. At that time, Appellant

stated that he did not go on a trip to Florida with Ms. Leech and that if Ms. Leech had

been in Florida at the same time as he was, it was a coincidence. Subsequently, it was

determined that Appellant purchased tickets for himself and Ms. Leech together.

       {¶7}   Hoover discovered, prior to this December status conference, that Leech

was living in a home that Appellant owned and was also driving a car registered to

Appellant’s employer, A&E Motors, free of charge. Hoover also discovered that

Appellant’s son was living at the residence of Ms. Leech. Based on these revelations,

probation violations were filed and a hearing was held.        The violations stated that

Appellant had violated condition 19D of his probation conditions, specifically, (1) that he

had contact with Jennifer Leech, and that she was living in his residence at 424

Vanderbilt Road, (2) that he had contact with Jennifer Leech, and that he was furnishing

her a car from his employer; and (3) that he had had contact with Jennifer Leech, and

that his son was living in her residence at 208 Rhein Street in Richland County.        He

was also charged with violating condition 18, which required him to be “truthful,

respectful, and cooperative with all law enforcement officers, supervision officers, and

court personnel at all times. During your probation review on 12-1-08, you told the

Judge that you had no contact with Jennifer Leech but later it was determined that you

were dishonest to that fact.”

       {¶8}   Appellant denied the violations, and the evidentiary hearing was held on

April 13, 2010, and May 19, 2010. The trial court found Appellant guilty in regards to

violations 1, 2, and 4, as set forth in paragraph seven above.        The third violation,
regarding Appellant’s son living in Leech’s residence, was dismissed for failing to state

a direct violation by Appellant of his conditions of probation. The trial court referred

Appellant to the Community Alternative Center and was continued on probation.

       {¶9}   Appellant raises three Assignments of Error:

       {¶10} “I. THE TRIAL COURT ERRED IN FINDING MR. GRIFFETH LIABLE

FOR ALLEGEDLY VIOLATING AN UNCONSTITUTIONAL TERM OF COMMUNITY

CONTROL.

       {¶11} “II. THE TRIAL COURT ERRED IN FINDING MR. GRIFFETH LIABLE

ABSENT SUBSTANTIAL PROOF OF THE ALLEGED VIOLATIONS.

       {¶12} “III. THE TRIAL COURT ERRED IN FINDING MR. GRIFFETH LIABLE

ABSENT PRIOR DISCLOSURE OF THE EVIDENCE AGAINST HIM.”

                                             I.

       {¶13} In his first assignment of error, Appellant argues that the prohibition

against his association with Jennifer Leech violated his constitutional rights.

Specifically, he argues that such a prohibition violates his right to freedom of association

under the First Amendment of the United States Constitution.

       {¶14} Pursuant to R.C. 2951.02, trial courts are granted broad discretion in

setting conditions of probation. Specifically, R.C. 2951.02(C) provides that “ * * * [i]n the

interests of doing justice, rehabilitating the offender, and insuring his good behavior, the

court may impose additional requirements on the offender * * *. Compliance with the

additional requirements shall also be a condition of the offender's probation or other

suspension.” See State v. Jones (1990), 49 Ohio St.3d 51, 550 N.E.2d 469, citing State

v. Livingston (1976), 53 Ohio App.2d 195, 196-197, 372 N.E.2d 1335, 1337, citing
United States v. Strada (D.C.Mo.1974), 393 F.Supp. 19; People v. Dominguez (1967),

256 Cal.App.2d 623, 64 Cal.Rptr. 290; Williams v. State (Tex.Crim.App.1975), 523

S.W.2d 953; see, also, Lakewood v. Davies (1987), 35 Ohio App.3d 107, 519 N.E.2d

860, paragraph two of the syllabus. A trial court’s discretion in imposing conditions of

probation is not limitless. “Such conditions cannot be overly broad so as to

unnecessarily impinge upon the probationer's liberty.” Jones, supra, at 52, citing State v.

Maynard (1988), 47 Ohio App.3d 76, 547 N.E.2d 409.

       {¶15} The Ohio Supreme Court in Jones held, “[i]n determining whether a

condition of probation is related to the ‘interests of doing justice, rehabilitating the

offender, and insuring his good behavior,’ courts should consider whether the condition

(1) is reasonably related to rehabilitating the offender, (2) has some relationship to the

crime of which the offender was convicted, and (3) relates to conduct which is criminal

or reasonably related to future criminality and serves the statutory ends of probation.

See, e.g., United States v. Tolla (C.A.2, 1986), 781 F.2d 29, 32-33; State v. Maynard,

supra, at paragraph two of the syllabus; State v. Livingston, supra; Howland v. Florida

(Fla.App.1982), 420 So.2d 918, 919; Rodriguez v. Florida (Fla.App.1979), 378 So.2d 7;

Nitz v. State (Alaska App.1987), 745 P.2d 1379.” Id., at 53.

       {¶16} Additionally, the court justified prohibitions on associations as follows: “[A]

person by reason of his conviction of a public offense enjoys a reduced expectation of

privacy.” FN1 Id. 81 Cal.App.3d at 182, 146 Cal.Rptr. at 417. See, also, Commonwealth

v. Reggie (1979), 264 Pa.Super. 427, 429, 399 A.2d 1125, 1126 (condition of probation,

imposed on defendant convicted of corruption of a minor and indecent assault, that he

“stay away from juveniles and young adults” upheld); In re Dunn (1971), 158 Mont. 73,
488 P.2d 902 (condition of probation, imposed on a defendant convicted of the sale of

dangerous drugs, that he not be found in the company of anyone under eighteen held to

be within the discretion of the trial court); Hardman v. Hardman (1988), 185 Ga.App.

519, 521, 364 S.E.2d 645, 647 (condition of probation, imposed on a defendant indicted

for child molestation and contributing to the deprivation of a minor and who pleaded

guilty to simple battery, that he not have any unsupervised contact with females under

the age of fourteen held not to be an abuse of discretion); Howland v. Florida, supra

(condition of probation, imposed on a defendant convicted of negligent child abuse, that

he not reside with any children under sixteen upheld as being reasonably related to the

crime and future criminality); United States v. Tolla, supra (condition of probation,

imposed on a defendant convicted of income tax evasion based on false statements

made under oath, that she refrain from teaching young people upheld as being

reasonably related to rehabilitating the defendant and protecting the public).” Jones,

supra, at 54.

       {¶17} “FN1 Numerous federal courts have upheld conditions that limit a

probationer's freedom to engage in otherwise lawful activities. United States v. Gracia

(C.A.2, 1985), 755 F.2d 984, 991 (probationer who refused to testify under a grant of

immunity before grand jury investigating a terrorist group lawfully prohibited from

associating with known or suspected terrorists or their associates); United States v.

Lawson (C.A.10, 1982), 670 F.2d 923, 930 (probationer convicted of failing to file

income tax returns lawfully prohibited from membership in tax protest organizations);

United States v. Villarin Gerena (C.A.1, 1977), 553 F.2d 723, 726-727 (police officer

convicted of civil rights violation in carrying out an arrest lawfully required to resign from
police force during period of his probation); Malone v. United States (C.A.9, 1974), 502

F.2d 554, 556-557, certiorari denied (1975), 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d

824 (a sympathizer with the Irish Republic movement convicted of gunrunning lawfully

prohibited from associating with Irish cultural, political or social organizations); Berra v.

United States (C.A.8, 1955), 221 F.2d 590, 598, affirmed (1956), 351 U.S. 131, 76 S.Ct.

685, 100 L.Ed. 1013 (union business manager convicted of tax evasion as a result of

failure to report kickback income lawfully prohibited from holding union office or

employment); United States v. Tolla, supra.” Id.

       {¶18} The standard in Ohio for determining whether a probation prohibition is

unconstitutional is a rational basis test. In other words, if the restriction of association is

reasonably related to a government purpose without being unduly restrictive, the law

cannot be found to violate the constitution. Id. As the Jones court pointed out, in

certain scenarios, any prohibition could be considered to be “unreasonable.” We do not

find that the restriction in the present case was unreasonable.

       {¶19} Appellee draws a persuasive picture of the rational basis for the

prohibition against allowing Appellant to associate with Leech.

       {¶20} Appellant was originally convicted in 2004 on two counts of sexual battery,

wherein he had sexual intercourse with two high school classmates of his son. Both

victims attended parties at Appellant’s home and were drugged prior to the sexual

conduct.

       {¶21} Appellant’s first probation officer, after he was transferred out of APA

jurisdiction, explained that the restriction regarding Jennifer Leech was originally placed

upon Appellant because Ms. Leech has a juvenile child and Appellant was forbidden
from having contact with any children.         Appellant would, through his relationship with

Ms. Leech, have access to a juvenile female. Since Appellant was convicted of sexual

conduct with minor females, his prohibition from having contact with Leech, and

therefore potential access to her daughter, is reasonably related to Appellant’s future

criminal behavior and serves the statutory ends of probation. Jones, supra.

       {¶22} Another term of Appellant’s probation under the APA was that he was

prohibited from having a relationship with a woman or man who had physical custody of

a child unless his supervision officer had knowledge of the relationship and gave

Appellant permission to engage in the relationship. He was also prohibited from riding

in or driving a car with a female in the vehicle without the knowledge and approval of his

APA officer.

       {¶23} Appellant signed and agreed to these conditions in exchange for his early

release from prison.

       {¶24} While under APA supervision, Appellant was found to be in a car with

Leech and an exchange occurred between Appellant and Leech’s ex-husband, who was

an APA supervisor.      We find the State’s argument to be persuasive that adding a

restriction of association between Appellant and Leech based on this albeit uncharged

parole violation, to have a rational basis in the law.

       {¶25} Additionally, we note, as Appellee does, that Appellant has gone to great

lengths to hide his relationship with Leech, thereby lending credence to the

implementation of this specific restriction.

       {¶26} Appellant’s first assignment of error is overruled.

                                                   II.
       {¶27} In Appellant’s second assignment of error, he alleges that the trial court

erred in finding him guilty of the probation violations because substantial proof did not

exist to support the violations.

       {¶28} A community control revocation is not a criminal trial; therefore, the state

is not required to establish a violation of the terms of community control “beyond a

reasonable doubt.” State v. Pavlich, 6th Dist. No. E-10-011, 2011-Ohio-802, ¶7, citing

State v. Ryan, 3d Dist. No. 14–06–55, 2007–Ohio–4743, ¶ 7, citing State v. Hylton

(1991), 75 Ohio App.3d 778, 600 N.E.2d 821. Instead, the state must show “substantial”

proof that the offender violated the terms of his or her community control sanctions.

Ryan, supra.

       {¶29} Substantial evidence is akin to a preponderance-of-the-evidence burden

of proof. State v. Ohly, 166 Ohio App.3d 808, 853 N.E.2d 675, 2006-Ohio-2353, at ¶18,

citing State v. Hayes (Aug. 10, 2001), 6th Dist. No. WD-00-075. Substantial evidence is

considered to consist of more than a mere scintilla of evidence, but somewhat less than

a preponderance. State v. Gomez (Feb. 18, 1994), 11th Dist. No. 93-L-080, citing Laws

v. Celebrezze (4th Cir., 1966), 368 F.2d 640, 642, and Marker v. Finch (D.C.Del.1971),

322 F.Supp. 905, 910, fn. 7.

       {¶30} “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, 583 N.E.2d 414.

Determination of the credibility of the witnesses is for the trier of fact. State v. Swiger

(1966), 5 Ohio St.2d 151, 156, 214 N.E.2d 417. A trial court's finding of a violation of

community control will not be disturbed on appeal absent an abuse of discretion.
Pavlich, supra. An abuse of discretion implies more than an error of law or judgment;

instead, it connotes that the trial court's attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d

1140. When applying the abuse of discretion standard, an appellate court may not

simply substitute its judgment for that of the trial court. Id.

       {¶31} In order to comport with due process, a trial court must adhere to the

following conditions when ruling on a defendant’s guilt in relation to a probation

violation: “(a) written notice of the claimed violations; (b) disclosure of evidence against

the defendant; (c) the opportunity to be heard in person and to present witnesses and

documentary evidence; (d) the right to confront and cross-examine adverse witnesses;

(e) a neutral and detached hearing body; and (f) a written statement by the fact finders

as to the evidence relied on and reasons for revocation.” Pavlich, supra, at ¶25, citing

State v. McKeithen, 3d Dist. No. 9–08–29, 2009–Ohio–84, ¶ 22, quoting State v. Miller

(1975), 42 Ohio St.2d 102, 104, 326 N.E.2d 259, quoting Morrissey v. Brewer (1972),

408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484.

       {¶32} Accordingly, we must determine if the trial court abused its discretion in

finding that Appellant violated his conditions of probation. A review of the record does

not support a finding that the trial court abused its discretion.

       {¶33} To the contrary, the record shows that Leech lived in a house owned by

Appellant, that Appellant’s son lived in Leech’s home, and that Leech drove a car that

came from the car dealership that Appellant worked at. Though Appellant’s mother

testified that she was responsible for leasing the apartment to Leech, there was no

paperwork to that effect. Additionally, Appellant’s mother testified that she gave Leech
the car to drive.    Again, there is no documentation to that effect.         The evidence

presented at the hearing through Appellant’s probation officers show that Appellant

attempted to hide his relationship with Leech and that during the status conference

hearing in December, 2008, he lied to the court regarding that relationship. The trial

court was within its purview to assign credibility of the witnesses as it saw fit. Sufficient

evidence existed to support a finding that Appellant violated his conditions of probation.

       {¶34} Appellant’s second assignment of error is overruled.

                                                III.

       {¶35} In Appellant’s third assignment of error, he argues that his due process

rights were violated because he was not granted discovery prior to his revocation

hearing.

       {¶36} Crim. R. 32.3, which governs probation revocation hearings, does not

expressly provide for a right to discovery prior to the revocation hearing. Revocation of

probation implicates two due process requirements. The trial court is first required to

conduct a preliminary hearing to determine whether there is probable cause to believe

that the defendant has violated the terms of his probation. Gagnon v. Scarpelli (1973),

411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656; Morrissey v. Brewer (1972), 408 U.S.

471, 92 S.Ct. 2593, 33 L.Ed.2d 484. At the hearing the trial court must comply with the

terms set out in ¶15, infra. Appellant was afforded each of these rights at his hearing.

       {¶37} Crim. R. 16 applies to criminal proceedings.          A probation revocation

hearing is not criminal in nature, and therefore we hold that Crim. R. 16 is inapplicable

to revocation hearings. See State v. Parsons (Nov. 26, 1996), 2nd Dist. No. 96 CA 20,
1996 WL 665004. We would observe, however, that during the hearing, it appeared

that trial counsel was familiar with any and all exhibits presented by the prosecution.

       {¶38} Finding no due process violation and moreover, no prejudice to Appellant,

we overrule his third assignment of error.

       {¶39} The judgment of the Richland County Court of Common Pleas is affirmed.

By: Delaney, P.J.

Farmer, J. and

Wise, J. concur.



                                          HON. PATRICIA A. DELANEY



                                          HON. SHEILA G. FARMER



                                          HON. JOHN W. WISE


                    IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                              FIFTH APPELLATE DISTRICT

STATE OF OHIO                                :
                                             :
                    Plaintiff-Appellee       :
                                             :
                                             :
-vs-                                         :   JUDGMENT ENTRY
                                             :
EDWIN GRIFFETH                               :
                                             :
                    Defendant-Appellant      :   Case No. 10-CA-115
                                             :
   For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Richland County Court of Common Pleas is affirmed. Costs assessed

to Appellant.



                                         _________________________________
                                         HON. PATRICIA A. DELANEY


                                         _________________________________
                                         HON. SHEILA G. FARMER


                                         _________________________________
                                         HON. JOHN W. WISE
