[Cite as State v. Williams, 2012-Ohio-508.]

COURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsKIRK R. WILLIAMS 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Sheila G. Farmer, J. 

Hon. John W. Wise, J. 

Case No. 2011AP050020 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court 

of Common Pleas, Case No. 2008 CR 12 

0301 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: February 9, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

RYAN STYER JOSE IBORRA 

Tuscarawas County Prosecutor 2859 Aaronwood Avenue NE 

PATRICK J. WILLIAMS Massillon, Ohio 44646 

Assistant County Prosecutor 

for Tuscarawas County 

125 East High Avenue 

New Philadelphia, Ohio 44663 
Tuscarawas County, Case No. 2011AP050020 2

Hoffman, P.J. 

(¶1) Defendant-appellant Kirk Williams appeals his sentence entered by the 

Tuscarawas County Court of Common Pleas. Plaintiff-appellee is the state of Ohio. 

STATEMENT OF THE CASE 

(¶2) On March 4, 2011, the state of Ohio filed a motion to revoke or modify 

Appellant’s community control. The state alleged: on or about February 12, 2011, 

Appellant caused or attempted to cause physical harm to Hallie Blanchard; on or about 

February 3, 2011, Appellant failed to report to his supervising officer as instructed; and, 

on or about February 12, 2011, he admitted to his supervising officer he had in his 

possession or under his control marijuana and had been under the influence of alcohol. 

(¶3) The trial court scheduled a hearing on the motion to revoke or modify on 

April 4, 2011. At the hearing, the State dismissed count two. Following the close of 

evidence, the trial court found Appellant violated the terms of his community control in 

admitting to the use of alcohol. 

(¶4) Via Judgment Entry of April 5, 2011, the trial court sentenced Appellant to 

three years imprisonment, with credit for time served. 

(¶5) Appellant now appeals, assigning as error: 

(¶6) “I. DID SUBSTANTIAL PROOF EXIST THAT APPELLANT VIOLATED 

HIS COMMUNITY CONTROL SANCTIONS?” 

I. 

(¶7) A community control revocation hearing is not a criminal trial. State v. 

White, Stark App. No.2009–CA–00111, 2009–Ohio–6447. The state therefore need not 

establish a community control violation by proof beyond a reasonable doubt. White,
Tuscarawas County, Case No. 2011AP050020 3

supra at ¶ 13; State v. Ritenour, Tuscarawas App. No.2006AP010002, 2006–Ohio–

4744 at ¶ 36; State v. Spencer, Perry App. No.2005–CA–15, 2006–Ohio–5543 at ¶ 12; 

State v. Henry, Richland App. No.2007–CA–0047, 2008–Ohio–2474. As this Court 

noted in Ritenour, “Rather, the prosecution must present substantial proof that a 

defendant violated the terms of his or her probation ... Accordingly, in order to determine 

whether a defendant's probation revocation is supported by the evidence, a reviewing 

court should apply the ‘some competent, credible evidence’ standard set forth in C.E. 

Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St .2d 279, 376 N.E.2d 578 ... This 

highly deferential standard is akin to a preponderance of evidence burden of proof ...” 

State v. Ritenour, supra at ¶ 36. (Citations omitted). See also, State v. Gullet,

Muskingum App. No. CT2006–0010, 2006–Ohio–6564, ¶ 22–23. 

(¶8) Once a court finds a defendant violated the terms of probation, the 

decision whether to revoke probation lies within the court's sound discretion. State v. 

White, supra at ¶ 14. (Citing State v. Ritenour, supra at ¶ 37). (Internal Citations 

omitted). Thus, a reviewing court will not reverse a trial court's decision absent an abuse 

of discretion. State v. Sheets (1996), 112 Ohio App.3d 1, 677 N.E.2d 818; State v. 

Ritenour, supra at ¶ 37. 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 (1984), 15 Ohio St.3d 239, 253, 473 N.E.2d 768. 

(¶9) The trial court’s November 13, 2009 original sentence imposing 

community control specifically states: 

(¶10) “It is hereby ORDERED that the Defendant is sentenced to five (5) years

of Community Control subject to the general supervision and control of the Adult 
Tuscarawas County, Case No. 2011AP050020 4

Probation Department under any terms and conditions that they deem appropriate, 

including that the Defendant shall be prohibited from leaving the State without 

permission of the Court or the Adult Probation Department. The Defendant shall abide 

by all laws including, but not limited to, the laws related to firearms and dangerous 

ordinance. 

(¶11) “The Court further imposes specific conditions as follows 

(¶12) “1. That the Defendant follow all rules of community control as previously 

established by this Court; 

(¶13) “2. *** 

(¶14) “3. That the Defendant not consume alcohol or drugs, or enter into 

establishments whose primary source of business is the sale of alcoholic beverages 

and that the Defendant submit to random screening and a breathalyzer upon 

demand;***” 

(¶15) At the April 4, 2011 hearing on the State’s motion to modify or revoke 

Appellant’s community control, Appellant testified: 

(¶16) “Q. You, you, you indicated that she went out, you went to a buddy’s, and 

you were drinking at your buddy’s, weren’t you? 

(¶17) “A. Yes, I did. 

(¶18) “Q. And you were irritated that you couldn’t fin-- locate her, weren’t you? 

(¶19) “A. I was a little bit upset - - 

(¶20) “Q. Okay. 

(¶21) “* * * 

(¶22) “Q. Okay, but you were drinking that night? 
Tuscarawas County, Case No. 2011AP050020 5

(¶23) “A. Yes, I was. 

(¶24) “Q. In violation of your probation? 

(¶25) “A. Yes, I was. I -- 

(¶26) “Q. And let’s go back to the beginning of this case. You were drinking and 

you got in a, in an altercation that night too, didn’t you? That’s how this whole thing 

happened, this felonious assault. You were in a bar drinking and you sucker punched 

somebody in the face and shattered - - 

(¶27) “A. I didn’t sucker punch anybody. 

(¶28) “Q. - - their eye socket.” 

(¶29) Tr. at 34. 

(¶30) By Appellant’s own admission, he violated the terms of his community 

control by drinking alcohol and entering a drinking establishment. Therefore, we find 

substantial evidence was introduced establishing Appellant violated the terms of his 

community control, and the trial court did not abuse its discretion in revoking the same. 

(¶31) The April 5, 2011 Judgment Entry of the Tuscarawas County Court of 

Common Pleas is affirmed. 

By: Hoffman, P.J. 

Farmer, J. and 

Wise, J. concur s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ Sheila G. Farmer __________________

 HON. SHEILA G. FARMER 

 s/ John W. Wise______________________

 HON. JOHN W. WISE 
Tuscarawas County, Case No. 2011AP050020 6

IN THE COURT OF APPEALS FOR TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

KIRK R. WILLIAMS : 

 : 

 Defendant-Appellant : Case No. 2011AP050020 

 For the reason stated in our accompanying Opinion, the April 5, 2011 Judgment 

Entry of the Tuscarawas County Court of Common Pleas is affirmed. Costs to 

Appellant. 

 

 s/ William B. Hoffman _________________

 HON. WILLIAM B. HOFFMAN 

 s/ Sheila G. Farmer __________________

 HON. SHEILA G. FARMER 

 s/ John W. Wise______________________

 HON. JOHN W. WISE