State v. Patton

[Cite as State v. Patton, 2019-Ohio-2902.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
KEVIN PATTON : Case No. 18CA81
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2018-CR-0070
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 15, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOSEPH C. SNYDER JOHN C. O’DONNELL, III
38 South Park Street 10 West Newlon Place
Mansfield, OH 44902 Mansfield, OH 44902
Richland County, Case No. 18CA81 2
Wise, Earle, J.
{¶ 1} Defendant-appellant Kevin Patton appeals the August 23, 2018 judgment
of the Richland County Court of Common Pleas which revoked his community control.
Plaintiff-appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On February 23, 2017, Patton was placed on post-release control under the
supervision of parole officer Nathan Hall. After absconding from supervision he was
charged with escape. Patton pled guilty to the charge and was placed on two years
community control, also with Hall, on May 8, 2018.
{¶ 3} On July 18, 2018, Hall was made aware of a police report involving an
assault, and naming the victim as R.C. The report did not mention the suspects by name,
but a witness to the incident described them as four black men who had fled the scene in
two vehicles – a red Jeep Cherokee and a green Ford Mustang. Hall recognized the
vehicle descriptions as matching vehicles he had seen at Patton’s residence on numerous
occasions. Hall was aware that Patton’s girlfriend drove the Ford Mustang and his sister
drove the Jeep Cherokee.
{¶ 4} Based on that knowledge, Hall went to R.C’s home and presented R.C with
a photograph of Patton. R.C stated Patton was one of the four men who assaulted him.
He explained that one of the men had first engaged him in a verbal altercation and then
punched him in the face causing him to fall to the ground. The other three men then joined
the first in kicking and stomping R.C as he lay on the ground. Castle sustained injuries to
his legs, shoulder, and face.
Richland County, Case No. 18CA81 3
{¶ 5} Patton’s behavior violated rule one of his rules of community control, which
required Patton to obey all laws, federal, state and local. Additionally, he was not to
associate with known felons. Hall discovered that one of the other men involved has a
felony record. Hall filed a probation violation with the trial court and a hearing was held
on the matter on August 22, 2018.
{¶ 6} At the hearing, Hall testified and to the above outlined facts. Patton
presented testimony from his girlfriend and his sister, and testified on his own behalf. All
three admitted they were at the scene, but denied Patton’s participation in the assault.
Rather, they alleged three persons known to them assaulted Castle, and they fled the
scene because Patton was on community control and post-release control and could not
be involved in the altercation per the rules of his release.
{¶ 7} After hearing the evidence, the trial court found Patton guilty of violating his
community control by committing an assault, but not guilty of associating with a felon. The
trial court revoked Patton’s community control and sentenced him to six months for
escape and imposed his remaining 18 months post release control time for an aggregate
total of two years.
{¶ 8} Patton filed an appeal and the matter is now before this court for
consideration. He raises one assignment of error:
I
{¶ 9} "DEFENDANT/APPELLANT WAS DENIED HIS FIFTH AMENDMENT DUE
PROCESS OF LAW WHEN HE HAS DENIED CONFRONTATION WITH THE WITNESS
AGAINST HIM."
Richland County, Case No. 18CA81 4
{¶ 10} In his sole assignment of error, Patton first argues he was denied his Fifth
Amendment right to confrontation because the trial court relied upon hearsay evidence
regarding his involvement in the assault to revoke his community control. We disagree.
{¶ 11} At the outset, we note that counsel for Patton did not object to the testimony
he now complains of, and in fact conceded that hearsay is admissible in probation
revocation proceedings. T. 44. The Ohio Supreme Court has held that, if hearsay is “not
objected to, it ‘may properly be considered and given its natural probative effect as if it
were at law admissible, the only question being with regard to how much weight should
be given thereto.’ ” State v. Saffell, 9th Dist. Wayne No. 15AP0041, 2016-Ohio-5283 ¶ 9
quoting Dudukovich v. Lorain Metro. Hous. Auth., 58 Ohio St. 2d 202, 208, 389 N.E.2d
1113 (1979) and State v. Petro, 148 Ohio St. 473, 76 N.E.2d 355 (1947), paragraph eight
of the syllabus. We therefore find Officer Hall’s testimony was sufficient to establish
Patton’s violation of community control.
{¶ 12} Patton next argues that Hall’s testimony was the sole crucial evidence
presented at the hearing and thus cannot support the trial court’s decision revoking his
community control. We disagree.
{¶ 13} Probation revocation hearings are generally not subject to the rules of
evidence. The 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. State v. Ball, 5th Dist. No. 2008CA A 07
0046, 2009-Ohio-2006 ¶ 31, citing State v. Thompson, 6th Dist. Wood App. No. WD-06-
034, 2007-Ohio-2665 ¶ 44, and State v. Ohly, 166 Ohio App. 3d 808, 2006-Ohio-2353,
853 N.E.2d 675 (6th Dist.).
Richland County, Case No. 18CA81 5
{¶ 14} Patton, his sister and his girlfriend all testified on Patton’s behalf. Each
admitted they were at the scene of the assault, corroborating Hall’s testimony. Each
claimed however, that Patton did not participate in the assault. The weight to be given to
the evidence and the credibility of the witnesses are issues for the trier of fact. State v.
Jamison, 49 Ohio St. 3d 182, 552 N.E.2d 180(1990), certiorari denied, 498 U.S. 881, 111
S. Ct. 228, 112 L.Ed.2d 183(1990). The trial court clearly found the testimony of Patton
and his witnesses denying his involvement incredible. We may reverse the trial court's
subsequent decision to revoke Patton's community control only upon a finding that the
trial court abused its discretion. Columbus v. Bickel, 77 Ohio App. 3d 26, 38, 601 N.E.2d
61(1991). An abuse of discretion connotes more than an error in law or judgment; it
implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v.
Maurer, 15 Ohio St. 3d 239, 253, 473 N.E.2d 768(1984). We find no abuse of discretion.
{¶ 15} Finally, Patton appears to argue the trial court was biased as it relied upon
“other acts” to achieve its “obvious desire” to send Paton to prison. However, “[t]he trial
court which placed the defendant on probation will be considered a “neutral and
detached” hearing body for purposes of ordering defendant's probation revoked, unless
there is evidence to demonstrate that undue bias, hostility, or absence of neutrality
existed on the part of the court. (Gagnon v. Scarpelli [1973], 411 U.S. 778, 786, 93 S. Ct.
1756, 1762, 36 L. Ed. 2d 656, applied.)” State v. Murr, 35 Ohio App. 3d 159, 520 N.E.2d
264 (6th Dist. 1984), syllabus.
{¶ 16} Patton makes no such showing. The trial court outlined Patton’s abysmal
adjustment to post-release control/community control before revoking his community
Richland County, Case No. 18CA81 6
control. T. 44-46. We find this does not constitute reliance of “other acts” nor does it
demonstrate bias.
{¶ 17} The sole assignment of error is overruled.
{¶ 18} The judgment of the Richland County Court of Common Pleas is affirmed.
By Wise, Earle, J.
Gwin, P.J. and
Wise, John, J. concur.
EEW/rw