STATE OF OHIO, Plaintiff-Appellee, - vs - SHONA MESSER, Defendant-Appellant.
CASE NO. CA2014-02-056
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
12/30/2014
2014-Ohio-5741
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2013-07-1137
Christopher P. Frederick, 304 North Second Street, Hamilton, Ohio 45011, for defendant-appellant
O P I N I O N
RINGLAND, P.J.
{¶ 1} Defendant-appellant, Shona Messer, appeals a decision of the Butler County Court of Common Pleas revoking her community control and imposing a prison term.
{¶ 2} On September 11, 2013, appellant was indicted on three counts of trafficking in heroin in violation of
{¶ 4} On January 2, 2014, appellant‘s probation officer, Sarah Lister, filed a notice of alleged violations after appellant admitted to the continued use of marijuana. Following a hearing on January 8, 2014, appellant was continued on community control and ordered to serve 30 days in jail.
{¶ 5} On January 31, 2014, Lister filed another notice of alleged violations. Lister testified that appellant continued to test positive for marijuana while in jail, with the most recent positive test occurring on January 29, 2014. As a result, the trial court scheduled a revocation of community control hearing for February 12, 2014.
{¶ 6} At the February 12, 2014 hearing, the trial court acknowledged that appellant could continue to test positive for marijuana 30 days after she last smoked. Accordingly, the trial court ordered that appellant be tested again during a recess as the last positive test fell within 30 days of appellant‘s incarceration. The trial court took a recess during which appellant was tested. Following the recess, it was revealed that appellant‘s urine test returned a presumptive positive. At appellant‘s request, the results were sent to the lab for evaluation. The trial court continued the hearing in progress until February 26, 2014 while awaiting the lab results.
{¶ 7} At the February 26, 2014 hearing, the trial court heard evidence and reviewed the results of the lab report. The lab results showed appellant had a THC level of 68 nanograms in her system at the time of the February 12, 2014 test. In her defense, appellant called corrections officer Sierra Lambert to testify that she spoke to appellant daily during her incarceration and did not witness appellant in possession of marijuana, nor did she smell anything to cause her to believe appellant was smoking. Appellant then testified that she
{¶ 8} After considering the evidence, the trial court found appellant in violation of her community control and sentenced her to 18 months in prison.
{¶ 9} Appellant appeals that decision, raising a single assignment of error for review.
{¶ 10} Assignment of Error No. 1:
{¶ 11} THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN FINDING THAT APPELLANT VIOLATED A TERM OF HER COMMUNITY CONTROL BECAUSE THE APPELLEE STATE OF OHIO FAILED TO PRESENT SUBSTANTIAL EVIDENCE TO SUPPORT ITS CLAIM OF A COMMUNITY CONTROL VIOLATION AND BECAUSE SUCH A FINDING WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 12} A community control revocation hearing is not a criminal trial; consequently, the state is not required to establish a violation of the terms of community control “beyond a reasonable doubt.” State v. Payne, 12th Dist. Warren No. CA2001-09-081, 2002-Ohio-1916, ¶ 18, citing State v. Hylton, 75 Ohio App.3d 778 (4th Dist.1991); State v. Tranter, 12th Dist. Clermont No. CA2000-05-035, 2001 WL 290192 (Mar. 26, 2001). Rather, “the quantum of evidence required to establish a violation and revoke a community control sanction must be substantial.” Id., citing Hylton at 782; Tranter at 7. A trial court‘s decision finding a violation of community control will not be disturbed on appeal absent an abuse of discretion. Id.; Payne at ¶ 18. An abuse of discretion implies that the court‘s decision was unreasonable, arbitrary, or unconscionable, and not merely an error of law or judgment. State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130.
{¶ 13} Ohio courts have likened this substantial evidence standard to that of “some competent, credible evidence” as set out in C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978), syllabus. See State v. Alexander, 3d Dist. Union No. 14-07-45, 2008-Ohio-1485, at ¶ 8;
{¶ 14} In the present case, appellant tested positive for marijuana 41 days after she was incarcerated. Appellant‘s counsel acknowledged that a person would generally only test positive for 30 days after having last smoked. Here, appellant not only tested positive 41 days later, she tested positive at a level of 68 nanograms. Appellant‘s counsel stated that the minimum level for marijuana-based OVI is 25 nanograms. Thus, appellant tested positive for nearly three times the minimum level for an OVI after 41 days of incarceration. Accordingly, we find that there was substantial evidence that appellant continued to ingest marijuana while incarcerated and that the trial court did not abuse its discretion in finding a violation of community control.
{¶ 15} In light of the foregoing, having found that there was substantial evidence that appellant violated the conditions of her community control, appellant‘s sole assignment of error is overruled.
{¶ 16} Judgment affirmed.
HENDRICKSON and PIPER, JJ., concur.