[Cite as State v. Baldwin , 2022-Ohio-757.] 

## IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNT Y STATE OF OHIO, Plaintiff-Appellee,

- v - DE QUAN D. BALDWIN, Defendant-Appellant. CASE NO. 2021-L-092

Criminal Appeal from the Court of Common Pleas

Trial Court No. 2020 CR 000560

O P I N I O N Decided: March 14, 2022 Jud g ment: Affirmed

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 ( For Plaintiff-Appellee )

. Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 ( For Defendant-Appellant )

.

CYNTHIA WESTCOTT RICE, J. {¶1} Appellant, De Quan D. Baldwin, appeals from the judgment of the Lake County Court of Common Pleas terminating his community control due to an incident wherein, the state alleged, appellant, who was shot several tim es, shot and injured another individual. At issue is whether the state provided suf ficient evidence to meet its burden of establishing the alleged violations of his community control conditions. We

affirm.2

Case No. 2021-L-092 {¶2} Appellant had previously pleaded guilty to possession of mariju ana, in violation of R.C. 2925.11, a felony of the fifth degree. He wa s sentenced to one year of community control. On April 6, 2021, prior to the expiration o f his community control, the state filed a motion to terminate due to an alleged incident oc curring on March 18, 2021. The state claimed, during the incident, appellant violated two conditions of his community control; those conditions provided, respectively: “You shall o bey all local, state, and federal laws. You will be arrested for violating any local, st ate, or federal laws.” And, “[y]ou shall not purchase, own, possess, or have under your con trol any firearm, dangerous ordinance, or deadly weapon.” {¶3} At the hearing on revocation, the state called appellant’s prob ation officer, Kalie Warren. Ms. Warren testified she learned of the alleged violation from appellant’s previous probation officer, who had received a call from an unk nown individual indicating appellant had been shot. The previous officer obtained a polic e report of the incident and, based on the information contained therein, Ms. Warren sought t o terminate appellant’s community control. {¶4} Next, the state called Detectiv e Salvatore Santillo, an officer with the City of Cleveland Police Department. The detective testified he was as signed to investigate a shooting that occurred in Cleveland on March 18, 2021. He was able to obtain a homesurveillance video that depicted the incident. The video show ed an individual, identified as the victim, approaching a group of five to six males and int eracting with them in some fashion. Because there was no audio, it was not possible to de termine the nature of the interaction. Detective Santillo admitted he could not identify appellant in the video due to its “grainy” nature. According to the victim, who was later in terviewed, one of the males3

Case No. 2021-L-092 lunged at him and attempted to “steal his firearm.” A shoot-ou t ensued between the victim

and one of the unidentified males. The video shows that both m en were apparently shot. And, after the shoot-out, the male ultimately identified as the aggressor (and alleged to be appellant) discarded his weapon. The male then entered a v ehicle that the detective identified as a Subaru Legacy, the make and model of a vehicle registered to appellant. Given the quality of the video, however, no license-plate numbe r could be identified on

the vehicle. {¶5} Detective Santillo testified that, when officers arrived at the scene of the incident, a witness, who referred to himself as appellant’s bro ther-in-law, stated appellant was present during the incident and was shot. With this in min d, the detective was able to determine appellant had been transported to a hospital in a vehicle matching the car in the video. Eventually, the detective spoke with appellant at th e hospital. Apparently, appellant had been shot five times. When questioned regarding his whereabouts at the time of the shoot-out, appellant stated he was in the vicinity of the incident (one street south of the shooting) but had no recollection of the events. The detective ultimately

noted that the firearm that was cast aside at the scene was sen t to BCI for DNA testing, but no results had been submitted as of the date of the hearing . Similarly, at the time of the hearing, the matter was still being investigated, but appel lant had yet to be charged

or indicted. {¶6} At the close of the hearing, the trial court stated, based upon the direct and circumstantial evidence, that it w as “convinced” appellant viol ated each of the conditions of community control. The trial court then imposed a 12-month sentence for the violations. Appellant now appeals and assigns the following as error:4

Case No. 2021-L-092 {¶7} “The trial court abused its discretion when it found that the d efendantappellant violated the terms of his community control because t he state did not produce any substantial evidence of such violations.” {¶8} Appellant asserts Ms. Warren’s testimony failed to establish ev idence of a community-control violation. In particular, appellant asserts Ms. Warren’s testimony merely indicated that his former probation officer learned he w as shot; and, even though a police report was obtained, it was not submitted into evidenc e and Ms. Warren did not testify to the specific facts that caused her to move to termin ate. Moreover, appellant asserts that Detective Santillo’s testimony was equally inadequ ate to support the trial

court’s decision. He underscores that the detective could not identify appellant in the video and, because there is no audio, the video’s only value is that of a “grainy,” visual record of the incident; moreover, even though an alleged witnes s (appellant’s purported brother-in-law) purportedly stated appellant was at the scene, the detective did not testify he spoke with this individual. Further, the detective did not testify that the alleged witness identified appellant as the shooter or one in possession of a f irearm. Appellant also emphasizes no DNA results were available to connect appellant w ith the firearm at issue. Finally, although the detective asserted the vehicle the injure d shooter entered after the incident was a Subaru Legacy registered to appellant, the video fails to demonstrate the vehicle at the scene was the vehicle registered to appellant. {¶9} “Because a community control revocation hearing is not a crimi nal trial, the [s]tate does not have to establish a violation with proof beyon d a reasonable doubt.” State v. Wolfson, 4th Dist. Lawrence No. 03CA25, 2004-Ohio-2750, ¶7. Instead, w hen reviewing challenges to the state’s evidence alleging a communi ty control violation, an5

Case No. 2021-L-092 appellate court reviews the evidence and evaluates whether the state presented substantial proof that a violation occurred. State v. Brown , 11th Dist. Lake Nos. 2020-L002 and 2020-L-003, 2020-Ohio-5140, ¶69, citing State v. Fears , 5th Dist. Richland No. 17-CA-67, 2018-Ohio-1468, ¶17. This standard is highly deferent ial to the judgment of the trial court and is analogous to a preponderance of the evid ence burden of proof. Brown , supra. Accordingly, “the state only has to introduce evidence tendin g to show that it was more probable than not that the probationer vi olated the terms of his or her probation.” State v. Stockdale , 11th Dist. Lake No. 96-L-172, 1997 WL 663688, *3 (Sept. 26, 1997); see, also, State v. Russell, 11th Dist. Lake No. 2008-L-142, 2009-Ohio3147, ¶7. Moreover, appellate courts should not second guess th e court’s credibility determinations, which are iss ues for the trier of fact. Fears, supra. {¶10} Although appellant identifies evident problems in the state’s c ase supporting revocation, the video of the incident, coupled with the detective’s testimony and appellant’s injuries, provides sufficient, credible evidenc e of the violations. The video depicts two men being shot, the victim and another individual. This individual ultimately tosses his firearm aside and limps into a vehicle, which resemb les a Subaru Legacy. Appellant has a Subaru Legacy registered in his name and, accor ding to the detective, appellant “responded to the hospital in the vehicle that’s seen leaving the scene * * *.” Even though the detective’s statement assumes the vehicle appel lant “responded to the hospital in” was the vehicle at the scene, the circumstantial e vidence that appellant arrived at the hospital in a Subaru Legacy and was shot is prob ative of the ultimate issue, i.e., that appellant was one of two individuals shot at the sce ne and he possessed a firearm that he used to shoot the alleged victim.6

Case No. 2021-L-092 {¶11} Moreover, although the detective did not testify to speaking wi th the individual identifying himself as appellant’s brother-in-law, t he court was free to believe that responding officers spoke with this person and his identif ication of appellant being at the scene was credible. Given the totality of the evidence, we therefore conclude that the state adduced substantial evidence to establish, by a preponder ance of the evidence, that appellant (1) violated a law of the state of Ohio and (2) possessed a firearm, in violation of the conditions of his community control. Accordin gly, the trial court did not err in terminating the same. {¶12} Appellant’s assignment o f error lacks merit. {¶13} For the reasons discussed in this opinion, the judgment of the Lake County

Court of Common Pleas is affirmed.

MATT LYNCH, J., JOHN J. EKLUND, J.,

concur.