State v. Kaimachiande

[Cite as State v. Kaimachiande, 2019-Ohio-1939.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-18-57
v.
KAI TIMOTHY KAIMACHIANDE, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. 2017 CR 164
Judgment Affirmed
Date of Decision: May 20, 2019
APPEARANCES:
Linda Gabriele for Appellant
David A. Walsh for Appellee
Case No. 8-18-57
SHAW, J.
{¶1} Defendant-appellant, Kai Kaimachiande (“Kaimachiande”), brings this
appeal from the October 3, 2018, judgment of the Logan County Common Pleas
Court revoking his community control and sentencing him to eleven months in
prison. On appeal he argues that the trial court abused its discretion by revoking his
community control and that the trial court erred by sua sponte “reopening” the
community control violation hearing for more testimony and evidence from the
State.
Relevant Facts and Procedural History
{¶2} On June 14, 2016, Kaimachiande was indicated for Illegal Processing
of Drug Documents in violation of R.C. 2925.23(B)(1), a felony of the fifth degree,
and Trafficking in Marijuana in violation of R.C. 2925.03(A)(2), a felony of the
fifth degree.1 He originally pled not guilty to the charges.
{¶3} Subsequently, Kaimachiande entered into a written negotiated plea
agreement wherein he agreed to plead guilty to the charge of Trafficking in
Marijuana as indicted, and in exchange the State agreed to dismiss the Illegal
Processing of Drug Documents charge. Kaimachiande’s plea was ultimately
accepted, and he was found guilty of Trafficking in Marijuana.2
1
The crimes allegedly occurred on different dates.
2
A judgment entry included in the record reflected what transpired at the change-of-plea hearing; however,
no transcript from the hearing was provided.
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{¶4} On December 5, 2016, Kaimachiande was sentenced to three years of
community control. The trial court’s entry stated that Kaimachiande would have to
abide by the conditions the probation department deemed appropriate and he was
ordered to abide by all laws, including but not limited to, the laws related to firearms.
Kaimachiande was notified that if he violated his community control he would be
subject to a twelve-month prison term.
{¶5} On December 6, 2016, Kaimachiande signed a “Conditions of
Supervision” sheet that ordered him to, inter alia, obey federal, state, and local laws
and ordinances, and prevented him from possessing or controlling a firearm or
ammunition.
{¶6} On July 19, 2018, the State filed a motion for Kaimachiande to show
cause why his community control should not be revoked. The State alleged that
Kaimachiande had two traffic offenses in Franklin County, and that during the
traffic offenses he was found in possession of a firearm, contrary to his conditions
of his community control.
{¶7} On October 2, 2018, a hearing was held on the allegations that
Kaimachiande had violated his community control. The State called three witnesses
at the hearing, beginning with Parole Officer Jeff Roman of the APA in Logan
County. Officer Roman testified that he was initially designated Kaimachiande’s
supervising community control officer, but he became the “inactive” officer due to
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Kaimachiande residing in Franklin County. Officer Roman explained that he
remained attached to the case in the event that a violation occurred so that he could
address the issue in Logan County, but Kaimachiande was “actively” supervised by
Officer Kyle Jackson of Franklin County.
{¶8} Nevertheless, Officer Roman testified that he initially met with
Kaimachiande on December 5, 2016, when Kaimachiande was first placed on
community control. Officer Roman testified that he reviewed the standard terms
and conditions of community control with “the defendant.” Officer Roman testified
that the terms were included in a written form, which Kaimachiande signed to
acknowledge his understanding. That form was introduced into evidence.
{¶9} As to the alleged community control violations in question, Officer
Roman testified that in July of 2018 he was notified that Kaimachiande had been
charged with traffic violations and with Having Weapons While Under Disability
in Franklin County. Officer Roman then testified that he filed a motion with the
trial court to revoke Kaimachiande’s community control based on those issues.
{¶10} Officer James Ruark of the Columbus Police Department then testified
regarding the alleged community control violations. Officer Ruark testified that he
initiated a traffic stop of Kaimachiande on July 8, 2018, around 1 or 1:30 a.m.
Officer Ruark testified that Kaimachiande made an improper left turn by failing to
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yield and that Kaimachiande almost collided with Officer Ruark’s police cruiser as
a result. Officer Ruark then stopped Kaimachiande’s vehicle.
{¶11} Officer Ruark testified that Kaimachiande provided an identification
card, but not a driver’s license. Kaimachiande claimed he was driving with
privileges, and when Officer Ruark asked to see them, Kaimachiande reached into
the driver’s side door pouch and he pulled out documents and a baggy containing a
green leafy substance. Kaimachiande admitted the substance was marijuana.
Officer Ruark had Kaimachiande step out of the vehicle and the vehicle was
searched. A Crown Royal bag was located underneath Kaimachiande’s seat. It
contained a .380 firearm and bullets.
{¶12} Officer Jonathan Johnson of the Columbus Police Department also
testified on behalf of the State, corroborating Officer Ruark’s testimony as he was
present at the scene. As a result of the July 8, 2018, incident, Kaimachiande was
charged with traffic offenses and he was later indicted for Having Weapons While
Under Disability. At the time of the community control violation hearing,
Kaimachiande had been convicted of the traffic offenses but his Having Weapons
While Under Disability charge had not yet proceeded to trial.
{¶13} The State rested its case and Kaimachiande elected not to put forth any
evidence on his own behalf beyond his cross-examination of the State’s witnesses.
The parties then gave closing arguments wherein defense counsel argued that the
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State had not identified Kaimachiande as the person Officer Roman had provided
with the “Conditions of Supervision” form, and that the State had offered no
“documentary” evidence indicating that charges had been brought against
Kaimachiande.
{¶14} After closing arguments were complete, the trial court addressed
Officer Roman, who was still in the courtroom, and asked him to read the email he
had received from the Franklin County officer who had notified Officer Roman of
the charges against Kaimachiande resulting from the July 8, 2018 incident. Defense
counsel moved to strike any such evidence and the trial court denied defense
counsel’s motion, indicating that the trial court already had a copy of the email in
its file and had already reviewed it prior to the hearing. The trial court then made
the email a “Court Exhibit” over defense counsel’s objection.
{¶15} Next, the trial court indicated that it could not recall if Officer Roman
had specifically identified Kaimachiande as the person who he had provided with
community control documentation during his testimony, so he allowed the State to
“reopen” its presentation and ask Officer Roman to identify Kaimachiande.
Defense Counsel again objected, and the objection was overruled.
{¶16} At the conclusion of the testimony, the trial court found that
Kaimachiande had violated his community control. Specifically, the trial court
determined that “the supervision violation relating to the gun and the ammunition
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possession are more than technical violations. The Court finds also that the
violation of license restriction is more than a technical violation.” (Oct. 2, 2018, Tr.
at 65). The trial court then sentenced Kaimachiande to serve an eleven month prison
term, noting that it was a downgrade from the originally stated twelve-month prison
term. A judgment entry memorializing Kaimachiande’s sentence was filed October
3, 2018. It is from this judgment that Kaimachiande appeals, asserting the following
assignments of error for our review.
Assignment of Error No. 1
The finding of the trial court was an abuse of discretion as the
decision was not supported by the evidence.
Assignment of Error No. 2
It was an abuse of discretion for the trial court to reopen the case
sua sponte and permit testimony and documentary evidence
required to prove necessary elements of the allegations.
{¶17} Due to the nature of the discussion, we elect to address the assignments
of error out of the order in which they were raised.
Second Assignment of Error
{¶18} In Kaimachiande’s second assignment of error, he argues that the trial
court abused its discretion by sua sponte reopening the case after closing arguments
and by permitting evidence to establish, what he terms, necessary “elements” of the
community control violation allegations. Specifically, Kaimachiande contends that
the State rested its case in this matter without a “scintilla” of proof that
Kaimachiande was read the “Conditions of Supervision” by Officer Roman,
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indicating that there was no proper identification of Kaimachiande. He also argues
that there was no documentary proof of the traffic convictions or the Having
Weapons While Under Disability charge. Kaimachiande argues that the trial court
improperly attempted to “fix” what he contends amounted to insufficient proof
offered by the State by reopening the matter sua sponte, and allowing the State to
present additional evidence. Kaimachiande contends that the trial court effectively
usurped the role of the prosecutor and became an advocate on behalf of the State.
Standard of Review
{¶19} The general rule in Ohio is that “the question of opening up a case for
the presentation of further testimony is within the sound discretion of the trial court,
and the court’s action in that regard will not be disturbed on appeal unless under the
circumstances it amounted to an abuse of discretion.” Columbus v. Grant, 1 Ohio
App.3d 96, 97, 439 N.E.2d 907 (10th Dist.1981); State v. Yevtukh, 5th Dist. Ashland
No. 01COA01426, 2002-Ohio-762. An abuse of discretion implies that the trial
court acted unreasonably, arbitrarily, or unconscionably. Blakemore v. Blakemore,
5 Ohio St. 3d 217, 219 (1983). When applying the abuse of discretion standard, a
reviewing court may not simply substitute its judgment for that of the trial court. Id.
Relevant Authority
{¶20} It is well-settled that the Rules of Evidence do not apply to community
control revocation hearings. See e.g. State v. Newsome, 4th Dist. Hocking No.
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17CA2, 2017-Ohio-7488, ¶ 21; Evid.R. 101(C)(3). Thus hearsay or other evidence
that may have been inadmissible during a criminal trial can be permissible in a
community control revocation hearing.3 State v. Ohly, 166 Ohio App. 3d 808, 6th
Dist. Erie No. E-05-052, 2006-Ohio-2353, ¶ 21.
{¶21} Moreover, because a community control revocation hearing is not a
criminal trial, the State is not required to establish a violation of the terms of
community control beyond a reasonable doubt. State v. Davis, 8th Dist. Cuyahoga
No. 105299, 2017-Ohio-8873, ¶ 14, appeal not allowed, 152 Ohio St. 3d 1465, 2018-
Ohio-1795, citing State v. Hayes, 8th Dist. Cuyahoga No. 87642, 2006-Ohio-5924,
¶ 11, citing State v. Payne, 12th Dist. Warren No. CA2001-09-081, 2002-Ohio-
1916. Instead, the quantum of evidence required to establish a violation and to
revoke a community control sanction must be “substantial.” State v. Hylton, 4th
Dist. Gallia No. 90CA13, 75 Ohio App. 3d 778, 782 (1991). In a community control
violation hearing, the trial court must consider the credibility of the witnesses and
make a determination based on substantial evidence. Hayes at ¶ 11. “Substantial
evidence has been defined as being more than a scintilla of evidence, but less than
a preponderance.” State v. McCants, 1st Dist. Hamilton No. C-120725, 2013-Ohio-
2646, ¶ 11, citing State v. Middlebrooks, 5th Dist. Tuscarawas No. 2010 AP080026,
2011-Ohio-4534.
3
However, courts have held it may be error if a trial court relies exclusively on hearsay in a community
control revocation hearing. See State v. Newsome, 4th Dist. Hocking No. 17CA2, 2017-Ohio-7488.
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Analysis
{¶22} In this case, Kaimachiande argued to the trial court in closing
argument that there was no testimony from Officer Roman to identify Kaimachiande
as the person Officer Roman had discussed the “Conditions of Supervision” with
contained in State’s Exhibit 1. After closing arguments, the trial court indicated that
it did not recall whether Kaimachiande was specifically identified by Officer
Roman. The prosecutor responded that while Officer Roman did not “specifically
point out the defendant[,] [h]e did state that the defendant was the one that he had
met with to sign the terms and conditions of supervision and that [Kaimachiande’s]
signature was on that document[.]” (Tr. at 49). Nevertheless, the trial court asked
the State if it wanted to reopen its case at that point to identify the defendant. The
State did reopen its case and Officer Roman further identified Kaimachiande over
objection.
{¶23} At the outset of our review, we emphasize that the decision in whether
to reopen a case is soundly within the discretion of the trial court. But even if we
were to somehow find that the trial court did abuse its discretion here, which we do
not, Kaimachiande did not suffer any prejudice as a result of the trial court’s actions
because Kaimachiande had been more than sufficiently identified by the State
through the testimony and the State’s exhibit presented during the State’s case-in-
chief.
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{¶24} In Officer Roman’s original testimony, he repeatedly and consistently
referred to “the defendant.” The State initially asked Officer Roman if he was “the
supervising probation officer for this defendant?” (Emphasis added.) (Tr. at 7).
Officer Roman stated that he was the “inactive officer” and explained what that
meant. Officer Roman then continued to refer to “the defendant” throughout his
testimony.
[W]hat I did initially when the defendant was placed on
community control here in Logan County, I sat down with the
defendant on December 5th of 2016, and I reviewed the conditions
with the defendant and went through the conditions. There were
one through five conditions up front, and then the defendant
basically [had to] acknowledge whether or not he understood
them. We went through them and then he signed the conditions
therein.
(Tr. at 7-8). That document, which contained Officer Roman’s signature and
Kaimachiande’s signature, was introduced into evidence.
{¶25} Moreover, during cross-examination, defense counsel asked, “[Y]ou
indicated that you had gone over this agreement with my client * * * December 5th
of 2016; is that correct?” (Emphasis added.) (Id. at 12). Officer Roman answered
in the affirmative. Then, following Officer Roman’s testimony, both Columbus
Police Officers identified Kaimachiande as the individual they interacted with
during the traffic stop on July 8, 2018, which led to his arrest.
{¶26} Notably, this Court has held, even in an actual criminal trial with a
much higher standard of proof, that
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Although no witness in court at trial specifically identifies the
accused by pointing to him, the collective effect of the testimony
in a case may be sufficient to eliminate any doubt in the minds of
the jurors as to the identity of the accused. [Lowther v. State, 18
Ohio C.C. (N.S.) 192 (1907)]. Circumstantial evidence may be
sufficient to establish the identity of the accused as the offender.
The test as to whether or not the circumstantial evidence is
sufficient is that the circumstances lead the jury to but one fair
and reasonable conclusion pointing to the accused to the exclusion
of all others.
State v. Cooper, 3d Dist. Logan No. 8-84-31, 1985 WL 7217, *3.
{¶27} Given the evidence in this case, we cannot find any prejudicial error
here as any identification during the “reopening” was superfluous, particularly given
the lower standard of proof in community control revocation hearings.
Kaimachiande was sufficiently identified throughout the matter and it was clear at
all times who was being referred to. Therefore his argument regarding it being error
to allow the State to reopen its case is not well-taken.
{¶28} Kaimachiande next argues that it was error for the trial court to ask
Officer Roman to read the email he received from the Franklin County Probation
Officer informing him of Kaimachiande’s charges in Franklin County after the
parties had given closing arguments. At the request of the trial court, Officer Roman
read the email from counsel table. When Kaimachiande objected, the trial court
indicated that it already had a copy of the letter in its file as the trial court was kept
updated on Kaimachiande’s status. The trial court indicated it had already reviewed
the letter, and the file, prior to the hearing. However, Kaimachiande argues that it
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was error for the trial court to permit such testimony, then to introduce the email as
“Court’s Exhibit 1” sua sponte.
{¶29} First, we again emphasize that this was a community control
revocation hearing and not a criminal trial, thus it was not subject to the rules of
evidence. Second, a trial court’s decision to reopen a case and what evidence to
admit are within a court’s sound discretion. Third, it is important to note that there
was no new substantive information in the email beyond what the trial court was
made aware of through the State’s witnesses. While Kaimachiande’s attorney
argued in closing argument that there was no documentary proof of his other charges
or convictions that were the cause of the alleged community control violations, there
was clear testimony from three officers, two of whom had actually stopped and
arrested Kaimachiande regarding the violations.
{¶30} Fourth, and finally, the level of proof required in these matters is
substantially lower than “beyond a reasonable doubt.” Given the evidence
presented in this case, we cannot find that even if the trial court abused its discretion
by allowing the email to be read, it had any material impact on the outcome of this
matter as there was substantial testimony indicating Kaimachiande was in
possession of a firearm, and that he was driving without a license, both in
contravention of his community control. Therefore his argument is not well-taken.
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{¶31} For all of these reasons Kaimachiande’s second assignment of error is
overruled.
First Assignment of Error
{¶32} In Kaimachiande’s first assignment of error he argues that the trial
court erred by finding that he had violated his community control. Specifically, he
argues that Officer Roman did not identify Kaimachiande, that Officer Roman did
not identify the community control sanctions that Kaimachiande allegedly violated,
and that the State offered no documentary proof of the purported violations.
Standard of Review
{¶33} The decision of a trial court finding a violation of community control
will not be disturbed absent an abuse of discretion. State v. Berry, 3d Dist. Defiance
No. 4-12-04, 2012-Ohio-4660, ¶ 33, citing State v. Ryan, 3d Dist. No. 14–06–55,
2007-Ohio-4743, at ¶ 7.
Analysis
{¶34} Kaimachiande first argues that he was not identified in the hearing on
this matter. As we discussed in the previous assignment of error, this is inaccurate,
and his argument is not well-taken.
{¶35} Kaimachiande next argues that Officer Roman did not identify the
community control sanctions that Kaimachiande allegedly violated. We disagree.
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{¶36} In the State’s motion to show cause, the State specified that
Kaimachiande had purportedly violated “Standard Condition #1” of his “Conditions
of Supervision,” which was to obey federal, state, and local laws including those
related to drug use and registration with authorities. (Doc. No. 44). It was alleged
that Kaimachiande violated this condition by his July 8, 2018, charges, and the
subsequent convictions for “Violation of License Restriction” and “Right of
[W]ay.” (Id.) Next, the State alleged that Kaimachiande violated “Standard
Condition #4” of his “Conditions of Supervision,” which prevented him from
possessing any firearms or ammunition. The State contended that Kaimachiande
violated this condition by possessing a .380 handgun during his July 8, 2018, traffic
stop.
{¶37} At the hearing on the matter, Officer Roman reiterated that he had
information that Kaimachiande had violated the stated “Conditions of
“Supervision” during the traffic stop in Columbus. The State also introduced into
evidence the written “Conditions of Supervision” that Kaimachiande signed, which
included provisions to obey federal, state, and local laws, and prevented him from
possessing a firearm or ammunition. Then, to prove those specific allegations, the
State presented the testimony of two Columbus Police Officers who testified to the
July 8, 2018 incident, indicating Kaimachiande was arrested for driving without a
license, for having a handgun, and that he was cited for failing to yield. Thus
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Kaimachiande’s contention that it was unclear what “Conditions of Supervision” he
purportedly violated is not well-taken.
{¶38} Kaimachiande next argues that it was error for the trial court to find
that he violated community control merely for being arrested, citing State v. Greene,
8th Dist. Cuyahoga No. 106028, 2018-Ohio-1965, in support. However, unlike
Greene, Kaimachiande was not found in violation of his community control merely
for being arrested. In Greene the defendant was arrested and never charged, which
is wholly different than this case where Kaimachiande has been charged with
multiple offenses, and already convicted of the traffic offenses.
{¶39} Moreover, short of being criminally charged with actual offenses,
Kaimachiande also explicitly violated one of the terms of his community control by
possessing a firearm, which the trial court found was a material violation.4 Thus
Kaimachiande is inaccurate when arguing that the trial court found he violated his
community control simply for being arrested, and his argument is not well-taken.
{¶40} Finally, Kaimachiande argues that the trial court erred by finding he
violated his community control without any certified documentary evidence
regarding his charges and convictions. However, given the nature of the hearing
4
Aside from being notified by Officer Roman in the standard conditions of community control,
Kaimachiande’s judgment entry placing him on community control ordered him to abide by all laws including
those related to firearms.
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and the standard of proof, specific documentation was not necessary, and
Kaimachiande cites no authority to the contrary.
{¶41} In sum, the State introduced substantial probative evidence through
the testimony of the three officers, and sufficiently indicated how Kaimachiande
had violated his community control such that the trial court could readily find he
was in violation. Therefore, we cannot find that the trial court abused its discretion.
For these reasons, Kaimachiande’s first assignment of error is overruled.
Conclusion
{¶42} For the foregoing reasons Kaimachiande’s assignments of error are
overruled and the judgment of the Logan County Common Pleas Court is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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