State v. Johnson , 2015 Ohio 4802 ( 2015 )

[Cite as State v. Johnson, 2015-Ohio-4802.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
CASE NO. 13-15-08
PLAINTIFF-APPELLEE,
v.
CODY A. JOHNSON, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
CASE NO. 13-15-09
PLAINTIFF-APPELLEE,
v.
CODY A. JOHNSON, OPINION
DEFENDANT-APPELLANT.
Appeals from Seneca County Common Pleas Court
Trial Court No. 09-CR-0071 and 09-CR-0226
Judgments Affirmed
Date of Decision: November 23, 2015
APPEARANCES:
James W. Fruth for Appellant
Angela M. Boes for Appellee
Case Nos. 13-15-08, 13-15-09
WILLAMOWSKI, J.
{¶1} In this consolidated appeal, defendant-appellant, Cody A. Johnson,
appeals the judgments of the Common Pleas Court of Seneca County, Ohio,
finding him in violation of the terms of his community control,1 imposed on
Johnson upon a judicial release from prison, and sentencing him to serve the
previously-imposed prison terms. For the reasons that follow, we affirm the trial
court’s judgments.
Relevant Background
{¶2} On October 2, 2009, Johnson entered a plea of guilty to two counts
of burglary and four counts of assault in the Seneca County case number 09-CR-
0071. (R.12 at 40.) He was found guilty and sentenced to four years in prison on
the burglary charges, and to 180 days in jail on the assault charges. The sentences
were to be served concurrently. On October 5, 2009, Johnson entered a plea of
guilty to a seventeen-count Bill of Information, which included charges for
complicity to illegal use of food stamps or WIC program, forgery, receiving stolen
property, and misuse of credit cards, in the Seneca County case number 09-CR-
0226. (R.2 at 2, 5.) He was found guilty and sentenced to eleven months in prison
on each count, to be served concurrently. The sentence imposed in case 09-CR-
1
In its judgment entries, the trial court did not specify that it was revoking Johnson’s judicial release, using
the term community control only. Although not specifically stated in the trial court’s judgment entries, we
note that the trial court’s revocation of Johnson’s community control was technically a revocation of the
terms of community control previously ordered by the court as a term of Johnson’s judicial release. See
our discussion further in this opinion for the significance of the distinction.
2
Because two trial court records are before us, we use R.1 when referring to the Seneca County case
number 09-CR-0071; we use R.2 when referring to the Seneca County case number 09-CR-0226.
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0226 was to be served consecutively to the sentences imposed in case number 09-
CR-0071, resulting in a total sentence of four years and eleven months in prison.
{¶3} Johnson was granted judicial release in both cases on December 2,
2011. R.1 at 63, R.2 at 21.) As part of the conditions of the early judicial release,
Johnson was placed on community control for five years. (Id.) As part of the
community control conditions, Johnson was required to “abide by all laws
including, but not limited to, the laws related to firearms and dangerous ordinance
[sic].” (Id.)
{¶4} At the time relevant to the events at issue on this appeal, Johnson
lived in a residence that belonged to Mr. Best, with his mother, Kelly Johnson
(“Kelly”), who was Mr. Best’s girlfriend. (Tr. at 8-9, 32, 52.) On January 26,
2015, Johnson attempted to use a credit card belonging to Mr. Best in Kohl’s
department store in Findlay, Ohio. The purchase was denied and the police were
notified about the occurrence.
{¶5} On January 30, 2015, Johnson’s probation officer, Scott Basinger
(“Officer Basinger”), filed a Notification of Alleged Judicial Release Violations.
(R.1 at 89; R.2 at 47.) The notification listed five alleged violations, including
attempted use of a credit card without the permission of the owner. (Id.) The trial
court conducted a full revocation hearing. At the hearing, the State claimed that
Johnson attempted to use Mr. Best’s credit card at Kohl’s department store,
without Mr. Best’s permission. Johnson did not dispute the fact that he attempted
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to make purchases at Kohl’s with a credit card belonging to Mr. Best. He claimed,
however, that he did not act without Mr. Best’s permission. We summarize the
relevant testimony below.
Relevant Testimony
Officer Marshall
{¶6} Officer Doug Marshall (“Officer Marshall”), from the Findlay Police
Department, was the officer who investigated the case. He testified that on
January 26, 2015, he responded to a call from Kohl’s department store referencing
a possible stolen credit card. (Tr. at 68.) He spoke to the loss prevention officer
and the store manager, who informed him that an individual, who was later
identified as Johnson, and a few other people, approached the registers with over
$700.00 worth of merchandise and attempted to pay with a Kohl’s charge card.
(Tr. at 69-70.) They were asked for an ID and, upon not being able to present one,
they left the store because the purchase was denied. (Tr. at 70.) The store
manager informed Officer Marshall that upon this occurrence, she had called the
fraud department and learned that the card, which was registered to Mr. Best, had
been reported stolen. (Tr. at 70.)
{¶7} Officer Marshall testified that Mr. Best walked into the store as he
was watching a surveillance video of this attempted transaction. (Tr. at 70-71.)
Officer Marshall spoke with Mr. Best and showed him the video. (Tr. at 71-72.)
When Mr. Best saw Johnson’s picture on the video, he pointed at it and said, “That
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motherfucker has robbed me blind.” (Tr. at 72.) Mr. Best told Officer Marshall
that Johnson was his girlfriend’s son and “that he didn’t give any authorization for
anybody to use [the credit card] and then he went on to explain how it got stolen
or come [sic] up missing.” (Tr. at 72.) Officer Marshall further testified as
follows,
he explained to me that he was going through some boxes, found a
Fifth Third credit card and a Kohl’s credit card. He said he left them
laying out and later on that night, they come [sic] up missing. So he
said he went up and called to cancel the Fifth Third card and found
that there was [sic] some unauthorized charges on it. And there was
nothing with the Kohl’s card.
(Tr. at 72-73.)
{¶8} Mr. Best told Officer Marshall that he was scared of Johnson and
“that he had to sleep with a 2x4 up against his bedroom door at night.” (Tr. at 75.)
Mr. Best further told Officer Marshall “that any time the police showed up, that he
was told to be quiet and not answer the door, stuff like that.” (Tr. at 75.) Officer
Marshall commented that Mr. Best “very much feared for his safety in this whole
incident.” (Tr. at 75.) Officer Marshall also referred to Mr. Best’s comments
about an argument that Mr. Best had previously had with Kelly on the issue of
calling the police about the stolen credit cards. (Tr. at 77.) Reportedly, Mr. Best
did not call the police because Kelly was upset “that it would send her son back to
prison.” (Tr. at 77.)
{¶9} When Officer Marshall asked whether Mr. Best wanted to pursue
charges against Johnson, “[h]is initial response was he was kind of afraid that if he
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did, there would be some kind of retaliation, but he ended up deciding to.” (Tr. at
78.) Officer Marshall asked Mr. Best to prepare a written statement, to which Mr.
Best responded, “Can I think on that?” (Tr. at 78.) Mr. Best came the next day
with a friend, Bernie, to provide a written statement. (Tr. at 78-79.) Bernie then
wrote the statement for Mr. Best and Mr. Best signed it. (Tr. at 78-79.) This
handwritten statement was identified as State’s Exhibit 6, and it was submitted
into evidence. (Tr. at 79.) The statement indicated that Johnson did not have Mr.
Best’s permission to use the credit card. (Tr. at 80.)
{¶10} Officer Marshall prepared a report regarding his investigation of the
alleged unauthorized use of a credit card by Johnson. (Tr. at 76.) The report was
identified and submitted at the hearing as State’s Exhibit 5. (Tr. at 76.) It was
consistent with Officer Marshall’s testimony.
{¶11} Officer Marshall testified that “a couple nights later,” he spoke to the
Kohl’s cashier who was at the register when Johnson attempted to use Mr. Best’s
credit card. (Tr. at 74.) The cashier indicated that Johnson identified himself as
Mr. Best. (Tr. at 74.) Another exhibit represented a statement prepared by that
cashier. (See State’s Ex. 7.) This statement described the details of the occurrence
and was consistent with Officer Marshall’s testimony. (Tr. at 80; State’s Ex. 7.)
Officer Marshall also called Kohl’s fraud department and confirmed that the credit
card at issue had been reported stolen. (Tr. at 82.)
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Case Nos. 13-15-08, 13-15-09
{¶12} On cross-examination, Officer Marshall admitted that Mr. Best’s
statement in State’s Ex. 6 was not notarized. (Tr. at 83-84.) He was then
presented with another statement, identified in the transcript before us as
Defendant’s Ex. B., which was notarized and purported to be the actual
handwritten statement of Mr. Best.3 (Tr. at 84.) The statement was dated
February 13, 2015, which was over two weeks after the events at issue. (Tr. at 87;
Def.’s Ex. B.) It read,
This whole thing was a big misunderstanding between Cody, Kelly,
and Gene. Cody asked Kelly if it would be okay to use Gene’s card.
She told him I probably wouldn’t mind. I was upset because I
thought Cody took my card without asking. I don’t want to pursue
charges against Cody. If Cody would have asked me for money to
go shopping, I would have given it to him. I’m doing this of my
own free will.
(Tr. at 84-85; Def.’s Ex. B.)
{¶13} Officer Marshall admitted that he could not exclude the possibility
that Bernie influenced Mr. Best when writing the statement identified as State’s
Ex. 6. (Tr. at 85.) Likewise, he could not exclude the possibility that Kelly
influenced Mr. Best into providing the statement identified as Defendant’s Ex. B.
(Tr. at 87.) He then testified that he knew of no reason why Bernie would try to
influence Mr. Best’s statement, but he knew that Kelly would have a reason to
3
In the record before us, Exhibit B consists of one page with what appears to be a notarized signature of
Mr. Best, dated February 13, 2015. No statement by Mr. Best is contained on this page. A piece of paper
is attached to Exhibit B with a paper clip. This piece of paper is not notarized and appears to be cut away
from a bigger sheet of paper. It contains a statement described in the transcript, as quoted above. The
parties do not challenge authenticity or reliability of Exhibit B. Therefore, our note herein does not affect
the resolution of the issues before us.
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influence Mr. Best into providing the newer statement “to keep her son out of
prison.” (Tr. at 90.)
Officer Basinger
{¶14} Another witness on behalf of the State was Officer Basinger. He
testified that he had concerns that Mr. Best was being victimized by Johnson, and
that Johnson and Kelly were taking advantage of Mr. Best’s generosity. (Tr. at 42,
53.) According to Officer Basinger, the police department reported to him that on
January 26, 2015, Johnson used Mr. Best’s credit card at the local Kohl’s
department store without Mr. Best’s permission. (Tr. at 11-13.) Officer Basinger
spoke to Mr. Best, who told him that he “was very unhappy with Cody Johnson
using his credit card without his permission.” (Tr. at 14.) Mr. Best told Officer
Basinger that Johnson did not have permission to use the credit card. (Tr. at 16.)
Reportedly, Mr. Best wanted Johnson “removed” from the residence because he
was “too scared and worried for his well-being, safety, with Mr. Johnson there.”
(Tr. at 15.) Officer Basinger placed Johnson in custody and took him to the
Hancock County Justice Center. (Tr. at 13.) Johnson reportedly made an
unsolicited statement to officer Basinger “that he accidentally used [Mr. Best’s]
card,” thinking the card was his. (Tr. at 29.) Based on these facts, Officer
Basinger filed the notice of violation at issue. (Tr. at 11-12, 27.)
{¶15} On cross-examination, Officer Basinger admitted that at the time of
the hearing Johnson had not been charged with “any type of theft of credit card.”
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Case Nos. 13-15-08, 13-15-09
(Tr. at 32.) Officer Basinger was then presented with Defendant’s Exhibit B, and
agreed that “[t]here appears to be a signature” that purports to be Mr. Best’s
signature and that it “appears to be legitimate.” (Tr. at 35, 36.) Officer Basinger
confirmed that there was a notary clause and a signature underneath. (Tr. at 35.)
He noted, however that this document was prepared on February 13, 2015, which
was over two weeks after the events at issue and after Mr. Best had told officer
Basinger that Johnson did not have permission to use his card. (Tr. at 51.)
{¶16} Even though the alleged victim in this case, Mr. Best, had been
subpoenaed, he did not appear in court at the hearing. (Tr. at 55; R.1 at 96.)
Trial Court’s Decision and Appeal
{¶17} The trial court found that Johnson violated the terms of his
community control4 by attempting to use a credit card without the permission of
the owner. (R.1 at 97, 101; R.2 at 54, 58.) Therefore, the trial court imposed the
original sentences in each of the cases, with credit for time served. Johnson now
appeals the trial court’s judgments, raising two assignments of error for our
review, as quoted below.
No. 1: APPELLANT DID NOT RECEIVE THE EFFECTIVE
ASSISTANCE OF COUNSEL AND, AS A RESULT, WAS
ALSO DENIED HIS SIXTH AMENDMENT RIGHTS
No. 2: THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION IN FINDING APPELLANT GUILTY
BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO
SUPPORT THE FINDING THAT APPELLANT ATTEMPTED
4
See our comment in note 1, supra.
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Case Nos. 13-15-08, 13-15-09
TO MISUSE A CREDIT CARD AND VIOLATED THE
TERMS OF HIS JUDICIAL RELEASE
Preliminary Matters
{¶18} Although not specifically stated in the trial court’s judgment entries,
we note that the trial court’s revocation of Johnson’s community control was
technically a revocation of the terms of community control previously ordered by
the court as a term of Johnson’s judicial release. We have made the following
observation in State v. Alexander, 3d Dist. Union No. 14-07-45, 2008-Ohio-1485,
¶ 7:
As this Court has previously noted, “the rules dealing with a
violation of an original sentence of community control (R.C.
2929.15) should not be confused with the sections of the Revised
Code regarding early judicial release (R.C. 2929.20) even though the
language of R.C. 2929.20(I) contains the term ‘community control’
in reference to the status of an offender when granted early judicial
release.” State v. Mann, 3rd Dist. No. 3-03-42, 2004-Ohio-4703, at ¶
6. The difference between R.C. 2929.15 and 2929.20 is that under
R.C. 2929.15, the defendant’s original sentence is community
control, and he or she will not receive a term of incarceration unless
he or she violates the community control sanctions. Id., at ¶ 7, citing
State v. McConnell, 143 Ohio App.3d 219, 224-225, 757 N.E.2d
1167, 2001-Ohio-2129, citing State v. Gardner, 3rd Dist. No. 14-99-
24, 1999-Ohio-938. By contrast, when a defendant is granted
judicial release, he or she has already served a period of
incarceration, and the remainder of that prison sentence is suspended
pending either the successful completion of a period of community
control or the defendant’s violation of a community control sanction.
Id., at ¶ 8, citing R.C. 2929.20(I). Should the defendant violate the
terms of the community control sanctions while on judicial release,
the trial court may reimpose the remainder of the original sentence.
Id., citing R.C. 2929.20(I); State v. Wiley, 148 Ohio App.3d 82, 772
N.E.2d 160, 2002-Ohio-460.
Id.- 10 -
Case Nos. 13-15-08, 13-15-09
{¶19} Although with respect to sentencing, “an original sentence of
community control” differs from community control imposed as part of judicial
release conditions, the courts have used the same standard for revocation hearings
in both situations. Id. at ¶ 8, citing State v. Ryan, 3d Dist. Union No. 14-06-55,
2007-Ohio-4743, ¶ 7; see also State v. Westrick, 196 Ohio App.3d 141, 2011-
Ohio-1169, 962 N.E.2d 818, ¶ 23 (3d Dist.) (citing Gagnon v. Scarpelli, 411 U.S.
778, 93 S.Ct. 1756, 1757, 36 L.Ed.2d 656 (1973), a probation revocation case
when reviewing a judicial release revocation hearing). Therefore, in our analysis
below we rely on cases that dealt with both community control and judicial release
revocation hearings.
First Assignment of Error—Ineffective Assistance of Counsel
{¶20} In his first assignment of error Johnson alleges that his trial counsel
was ineffective at the revocation hearing. In order to prevail on a claim of
ineffective assistance of counsel, a criminal defendant must first show that the
counsel’s performance was deficient in that it fell “below an objective standard of
reasonable representation.” State v. Keith, 79 Ohio St.3d 514, 534, 684 N.E.2d 47(1997). Second, the defendant must show “that the deficient performance
prejudiced the defense so as to deprive defendant of a fair trial.” Id., citing
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). In order to demonstrate prejudice, the defendant must prove a reasonable
probability that the result of the trial would have been different but for his or her
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counsel’s errors. Id. In applying these standards, the court must “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751,
772 N.E.2d 81, ¶ 108, quoting Strickland at 669. Therefore, the court must be
highly deferential in its scrutiny of counsel’s performance. State v. Walker, 90
Ohio App.3d 352, 359, 629 N.E.2d 471 (3d Dist.1993), quoting Strickland at 689.
{¶21} We apply this standard to the following assertions of ineffectiveness
raised by Johnson in this assignment of error: failure to object to hearsay evidence,
failure to take reasonable steps to preserve Johnson’s right to confrontation, failure
to issue a subpoena to compel a witness appearance, and failure to object to
proceeding without the presence and testimony of the purported victim. All of
these claims relate to the absence at the hearing of the victim in this case, Mr.
Best. Johnson alleges that allowing the State to use documentary evidence and
hearsay in place of Mr. Best’s testimony on the stand, without objection,
constituted ineffective assistance of counsel.
{¶22} As we have previously recognized, “[c]ommunity control revocation
hearings are not subject to the rules of evidence, and therefore, the use of hearsay
is permissible.” Alexander, 3d Dist. Union No. 14-07-45, 2008-Ohio-1485, ¶ 11,
citing Ryan, 3d Dist. Union No. 14-06-55, 2007-Ohio-4743, ¶ 9. Nevertheless,
although the use of hearsay is permissible at community control revocation
hearings, we have noted that
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the admission of hearsay evidence at a community control
revocation hearing can compromise the probationer’s due process
right to confront adverse witnesses. [Columbus v. Bickel, 77 Ohio
App.3d 26, 36-37, 601 N.E.2d 61 (10th Dist.1991).] This right
protects a probationer’s right to confront and cross-examine adverse
witnesses at a revocation hearing unless the sentencing court
specifically finds good cause for not allowing the confrontation of a
witness. Id. The introduction of hearsay evidence into a revocation
hearing is reversible error when that evidence is the only evidence
presented and is crucial to a determination of a probation violation.
State v. Ohly, 166 Ohio App.3d 808, 816, 853 N.E.2d 675.
Ryan at ¶ 9.
{¶23} Ryan does not mandate an unconditional exclusion of hearsay
evidence. Rather, under its standard, exclusion is required if two conditions are
satisfied: (1) hearsay evidence is the only evidence presented for establishing the
violation and (2) no good cause exists for allowing the testimony without the
confrontation of a witness. Id.; see also State v. Miller, 42 Ohio St.2d 102, 106,
326 N.E.2d 259 (1975) (recognizing “an exception to the confrontation
requirement in parole revocation hearings where ‘the hearing officer specifically
finds good cause for not allowing confrontation’ ”), quoting Morrissey v. Brewer,
408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The United States
Supreme Court, recognizing the right to confrontation as a procedural protection at
the revocation hearing, noted that “the process should be flexible enough to
consider evidence including letters, affidavits, and other material that would not be
admissible in an adversary criminal trial.” Morrissey at 489, accord State v.
Smith, 4th Dist. Scioto No. CA 1847, 1990 WL 178142, *1 (Nov. 14, 1990).
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Case Nos. 13-15-08, 13-15-09
Furthermore, “The admission into evidence of a hearsay statement pursuant to a
firmly rooted hearsay exception does not violate a defendant’s right of
confrontation.” State v. Dever, 64 Ohio St.3d 401, 1992-Ohio-41, 596 N.E.2d 436(1992), paragraph three of the syllabus, citing White v. Illinois, 502 U.S. 346, 112
S.Ct. 736, 116 L.Ed.2d 848 (1992). The Ohio Supreme Court has recognized that
“ ‘[a]dmission under a firmly rooted hearsay exception satisfies the constitutional
requirement of reliability because of the weight accorded longstanding judicial and
legislative experience in assessing the trustworthiness of certain types of out-of-
court statements.’ ” Id. at 417, quoting Idaho v. Wright, 497 U.S. 805, 817, 110
S.Ct. 3139, 111 L.Ed.2d 638 (1990).
{¶24} Considering these principles, we hold that Johnson has not
established that his right to confrontation was violated by his counsel’s failure to
object to the hearsay testimony and by proceeding to the hearing without Mr. Best
present. “[F]ailure to object to error, alone, is not enough to sustain a claim of
ineffective assistance.” State v. Campbell, 69 Ohio St.3d 38, 52-53, 630 N.E.2d
339 (1994), quoting State v. Holloway, 38 Ohio St.3d 239, 244, 527 N.E.2d 831(1988). “Trial counsel’s strategic choices must be accorded deference and cannot
be examined through the distorting effect of hindsight.” State v. Conway, 109
Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 115 (2006), citing Strickland,
466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674. Nothing in the record shows
that the decision to proceed to the hearing without Mr. Best’s presence was
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anything other than a strategic choice by Johnson’s trial counsel, who wanted to
use a document purporting to be Mr. Best’s sworn affidavit to Johnson’s benefit.
{¶25} Furthermore, nothing in the record indicates that if Johnson’s
counsel had objected to the hearsay statements on the basis of confrontation right,
the trial court would have been required to exclude them. Conversely, there is
sufficient evidence that would have allowed the trial court to find that “good
cause” existed “for not allowing the confrontation of a witness.” Ryan, 3d Dist.
Union No. 14-06-55, 2007-Ohio-4743, at ¶ 9. Both Officer Marshall and Officer
Basinger indicated that Mr. Best was scared of Johnson and that Johnson’s mother
had influence over Mr. Best, having previously pressured him to not file charges.
{¶26} Finally, several hearsay exceptions would allow for the introduction
of Mr. Best’s statements without violating Johnson’s right to confrontation. For
example, Officer Marshall’s testimony that Mr. Best pointed to Johnson when
watching Kohl’s surveillance video and stated, “That motherfucker has robbed me
blind,” could be construed as an “excited utterance” under Evid.R. 803(2). See
Dever, 64 Ohio St.3d at 417, 1992-Ohio-41, 596 N.E.2d 436 (recognizing that
hearsay statements did not violate the accused’s right of confrontation under the
exception for “spontaneous declarations”), citing White, 502 U.S. 346, 112 S.Ct.
736, 116 L.Ed.2d 848 (1992). The officers’ testimony about Mr. Best expressing
that he was scared of Johnson could be classified under Evid.R. 803(3) as “[t]hen
existing, mental, emotional, or physical condition.”
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{¶27} In light of the foregoing factors and applying the strong presumption
that the trial counsel’s conduct fell within the wide range of reasonable
professional assistance, we hold that Johnson did not establish his claim of
ineffective assistance of counsel at his revocation hearing. Accordingly, we
overrule the first assignment of error.
Second Assignment of Error—Sufficiency of the Evidence
{¶28} The decision to revoke community control rests “within the sound
discretion” of the trial court. State v. Moore, 3d Dist. Union No. 14-08-40, 2009-
Ohio-678, ¶ 12. Thus, we will not reverse the trial court’s decision absent an
abuse of that discretion. Id.; State v. Berry, 2012-Ohio-4660, 980 N.E.2d 1087, ¶
33 (3d Dist.). Because abuse of discretion connotes more than an error in
judgment, we will not substitute our judgment for that of the trial court, and will
only reverse the trial court’s decision if the trial court’s attitude was unreasonable,
arbitrary, or unconscionable. Id.{¶29} Johnson asserts that the trial court’s finding of violation was in error
because the State did not satisfy its burden of proof. In order to support revocation
of community control, the state must establish that the defendant violated
conditions of his release. Ryan, 3d Dist. Union No. 14-06-55, 2007-Ohio-4743, ¶
7. Unlike in criminal proceedings, however, the state is not required to prove its
case beyond a reasonable doubt. Id. Rather, the evidence of a violation only
needs to be substantial in nature to justify the revocation. Id.- 16 -
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{¶30} The argument in this assignment of error is based on the premise that
“the only evidence against Johnson was the product of hearsay.” (App’t Br. at
15.) Johnson claims that this evidence should have been disregarded and without
it, there would have been insufficient proof of violation. (Id.) Therefore,
Johnson’s argument in this assignment of error could more appropriately be
characterized as an evidentiary challenge. But because no objection was made in
the trial court to the hearsay evidence being admitted, we do not review the
evidentiary issue here.5 See State v. Peagler, 76 Ohio St.3d 496, 501, 668 N.E.2d
489 (1996) (“A court of appeals cannot consider the issue for the first time without
the trial court having had an opportunity to address the issue.”). We thus review
all evidence and testimony, as admitted by the trial court, in deciding whether the
State provided substantial proof of Johnson violating his community control
sanctions.
{¶31} Through the testimony of Officer Marshall and the reports submitted
as State’s Exhibits 5, and 7, the State showed that Johnson attempted to use Mr.
Best’s Kohl’s charge card on January 26, 2015. Officer Marshall and Officer
Basinger further testified that in the course of their investigation they learned that
Johnson did not have permission to use Mr. Best’s card. Thus, the State satisfied
its burden of establishing substantial evidence that Johnson violated the terms of
his community control by using a credit card without the permission of the owner.
5
But see our discussion of the hearsay issue raised in the first assignment of error.
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{¶32} We note that we are not reviewing this case for the weight of the
evidence, as Johnson challenges sufficiency only. Therefore, in our re
{¶33} view of this assignment of error we need not consider contradictory
evidence submitted by Johnson. We recognize, however, that the trial court, being
in the better position to observe the witnesses and hear their testimony, is entitled
to deference on issues of witness credibility and weight of the evidence. See Ryan,
3d Dist. Union No. 14-06-55, 2007-Ohio-4743, at ¶ 7, citing State v. Miller, 10th
Dist. Franklin No. 03AP-1004, 2004-Ohio-1007.
{¶34} For the foregoing reasons, we overrule the second assignment of
error.
Conclusion
{¶35} Having reviewed the arguments, the briefs, and the record in this
case, we find no error prejudicial to Appellant in the particulars assigned and
argued. The judgments of the Common Pleas Court of Seneca County, Ohio, are
therefore affirmed.
Judgments Affirmed
SHAW and PRESTON, J.J., concur.
/hlo
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