[Cite as State v. Baker, 2010-Ohio-5564.]

IN THE COURT OF APPEALS OF OHIO 

 FOURTH APPELLATE DISTRICT 

 SCIOTO COUNTY 

STATE OF OHIO, : 

Plaintiff-Appellee, : Case No. 09CA3331 

vs. : 

CARL BAKER, JR., : DECISION AND JUDGMENT ENTRY 

 

 

Defendant-Appellant. : 

_________________________________________________________________ 

 APPEARANCES: 

COUNSEL FOR APPELLANT: Richard M. Nash, Jr., 602 Chillicothe Street, Ste. 700, 

Portsmouth, Ohio 45662 

COUNSEL FOR APPELLEE: Michael L. Jones, Portsmouth City Solicitor, and Jerry 

L. Buckler, Portsmouth City Assistant Solicitor, 728 

Second Street, Portsmouth, Ohio 45662 

 

CRIMINAL APPEAL FROM MUNICIPAL COURT 

DATE JOURNALIZED: 11-8-10 

ABELE, J. 

{¶ 1} This is an appeal from a Portsmouth Municipal Court judgment that 

revoked the “probation”/community control sanction previously imposed upon Carl 

Baker, Jr., defendant below and appellant herein. Appellant assigns the following 

errors for review: 

FIRST ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ERRED WHEN IT APPLIED THE 

INCORRECT LEGAL STANDARD WHEN IT DETERMINED 

APPELLANT VIOLATED HIS COMMUNITY CONTROL 

SANCTIONS.” 
SCIOTO 09CA3331 2

SECOND ASSIGNMENT OF ERROR: 

“THE TRIAL COURT ERRED IN FINDING APPELLANT’S 

COMMUNITY CONTROL SANCTIONS WERE VIOLATED 

WHEN THE STATE FAILED TO PRODUCE EVIDENCE OF 

A VIOLATION BY A PREPONDERANCE OF THE 

EVIDENCE.” 

{¶ 2} Short on cash, appellant went on a theft spree in 2006. Consequently, in 

September and October 2006 four separate criminal cases were initiated against him in 

the Portsmouth Municipal Court. 

{¶ 3} Eventually, appellant pled no contest and was found guilty on each 

charge. In each case, the trial court imposed a partially suspended one hundred eighty 

day (180) jail sentence and three years probation.1

 In 2009, the prosecution 

apparently filed a motion to revoke appellant's probation. 

{¶ 4} At the October 8, 2009 hearing, Chief Probation Officer Mark Malone 

testified that appellant failed to pay his fines, failed to report for probation meetings and 

now faced a new “aggravated burglary” charge. The trial court ruled from the bench 

and found “probable cause” to revoke appellant’s probation. This appeal followed.2

 I 

{¶ 5} In his first assignment of error, appellant asserts that the trial court used 

 1 The trial court ordered the non-suspended portion of the jail sentences to be 

served consecutively to one another. 

2 The November 13, 2009 judgment also states that appellant “admitted the 

allegations in the motion to revoke probation.” We, however, find no such admission in 

the record. Nevertheless, as this discrepancy was not raised on appeal, we ignore it 

for purposes of our review. 
SCIOTO 09CA3331 3

an incorrect burden of proof to find a probation violation. Specifically, he points to the 

hearing transcript wherein the court rejected defense counsel’s argument that a 

“preponderance of the evidence” standard should be used and, instead, announced 

that the court need only find “probable cause” of a probation violation. 

{¶ 6} As an abstract proposition, we agree that the trial court’s remark was in 

error. We have noted before that because community control revocation hearings are 

not criminal trials, the state is not required to establish a violation of the community 

control terms "beyond a reasonable doubt." However, the state must present 

"substantial" proof that a defendant violated the community control terms. This 

standard is akin to the civil preponderance of evidence burden of proof. See e.g., In re 

C.M.C., Washington App. No. 09CA15, 2009-Ohio-4223, at ¶17; State v. Belcher, 

Lawrence App. No. 06CA32, 2007-Ohio-4256, at ¶12; State v. Wolfson, Lawrence App. 

No. 03CA25, 2004-Ohio-2750, at ¶7. 

{¶ 7} For the following reasons, however, we find no reversible error in this 

case. First, a trial court speaks through its journal, not through oral pronouncements. 

State v. Seals, Clark App. No. 2009CA4, 2010-Ohio-2843, at ¶65, fn. 3; State v. Smith, 

Butler App. No. No. CA2009-02-038, 2010-Ohio-1721, at ¶59; State v. Hillman, Franklin 

App. Nos. 09AP-478, 09AP-479 & 09AP-480, 2010-Ohio-256, at ¶15. Here, the trial 

court did not repeat its “probable cause” statement in the final judgment. 

{¶ 8} Second, as we discuss in greater detail order appellant's second 

assignment of error, the probation officer’s testimony is sufficient to find that appellant 

violated the terms of his probation under either burden of proof. Thus, the trial court’s 

misstatement is, at most, harmless error and should be disregarded. See Crim.R. 
SCIOTO 09CA3331 4

52(A). 

{¶ 9} For these reasons, we find no merit in the first assignment of error and it 

is accordingly overruled. 

 II 

{¶ 10} In his second assignment of error, appellant asserts that the evidence 

adduced at the hearing is insufficient to show that he violated the terms of his probation 

under a “preponderance” burden of proof. We disagree. 

{¶ 11} As this Court has noted, a “manifest weight” standard of review is used to 

assess the evidence adduced at a probation revocation hearing. See Belcher, supra at 

¶12; Wolfson, supra at ¶7. In other words, a judgment will not be reversed if some 

competent, credible evidence supports the trial court’s findings. See Bryan-Wollman v. 

Domonko, 115 Ohio St.3d 291, 874 N.E.2d 1198, 2007-Ohio-4918, at ¶3; State v. 

Wilson, 113 Ohio St.3d 382, 865 N.E.2d 1264, 2007-Ohio-2202, at ¶21; C.E. Morris Co. 

v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, at the syllabus. We 

further point out that this standard of review is highly deferential and even “some” 

evidence is sufficient to support a trial court's judgment and prevent a reversal. See 

Barkley v. Barkley (1997), 119 Ohio App.3d 155, 159, 694 N.E.2d 989; Dyrdek v. 

Dyrdek, Washington App. No. 09CA29, 2010-Ohio-2329, at ¶16. 

{¶ 12} In the case sub judice, Chief Probation Officer Mark Malone testified that 

appellant (1) failed to remain current in paying his fines, (2) failed to appear for 

probation meetings in August and September 2009, and (3) faced new criminal 

charges. This evidence is sufficient to support the trial court’s finding that appellant 
SCIOTO 09CA3331 5

violated the terms of his probation. 

{¶ 13} Appellant counters that Malone could not say for sure whether appellant 

had paid his fines. Appellant pointed out that he was now being pursued by a 

collection agency and the matter was out of Malone's hands. In addition, appellant 

points out that the State offered no records or other evidence to substantiate Malone’s 

testimony regarding appellant’s failure to appear for probation meetings or his 

subsequent arrest for aggravated burglary. 

{¶ 14} Generally, arguments concerning the quality or quantity of evidence relate 

to the weight and the credibility of the evidence rather than its sufficiency. The same is 

true with Malone’s lack of knowledge as to whether appellant paid any portion of his fine 

to collection agents.3 Questions concerning the weight of evidence or witness 

credibility lay in the purview of the trier of fact. The underlying rationale for deferring to 

the trier of fact on those issues is that it is best positioned to view witnesses, observe 

demeanor, gestures and voice inflections and to use those observations to weigh 

witness credibility. See Myers v. Garson (1993), 66 Ohio St.3d 610, 615, 614 N.E.2d 

742; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273. 

Consequently, a trier of fact is free to believe all, part or none of the testimony of any 

witness who appears before it. Rogers v. Hill (1998), 124 Ohio App.3d 468, 470, 706 

N.E.2d 438; Stewart v. B.F. Goodrich Co. (1993), 89 Ohio App.3d 35, 42, 623 N.E.2d 

591. 

 3 As the State aptly notes, however, a collection agency would not be necessary 

if appellant remained current on his payments. Furthermore, even if he paid 

arrearages to the collection agency, the fact remains that appellant was not current on 
SCIOTO 09CA3331 6

{¶ 15} In the case at bar, the trial court obviously found Malone’s testimony 

persuasive, notwithstanding the absence of supporting evidence or knowledge of 

precisely what amount the collection agency may have recovered. This evidence 

amply supports the trial court's conclusion. Accordingly, we hereby overrule 

appellant's second assignment of error.4

{¶ 16} Having reviewed all errors appellant assigned, and having found no merit, 

we hereby affirm the trial court's judgment. 

JUDGMENT AFFIRMED. 

 

UDGMENT ENTRY 

It is ordered the judgment be affirmed and that appellee recover of appellant the 

costs herein taxed. 

The Court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this Court directing the 

Portsmouth Municipal Court to carry this judgment into execution. 

If a stay of execution of sentence and release upon bail has been previously 

granted, it is continued for a period of sixty days upon the bail previously posted. The 

purpose of said stay is to allow appellant to file with the Ohio Supreme Court an 

application for a stay during the pendency of the proceedings in that court. The stay 

as herein continued will terminate at the expiration of the sixty day period. 

 

those payments at one time and that is why a collection agency was retained. 

4 Appellant argues that if we find the trial court’s erroneous recitation of burden 

of proof harmless under his first assignment of error, we are, in essence, usurping the 

province of the trier of fact by determining the weight and credibility of the testimony 

under a preponderance burden. This is not so. The only way the trial court could find 

a probation violation under a “probable cause” standard was if it found Malone credible. 

 That finding of credibility would not change simply because the burden of proof was 

different. 
SCIOTO 09CA3331 7

The stay will also terminate if appellant fails to file a notice of appeal with the 

Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules 

of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court 

dismisses the appeal prior to the expiration of said sixty days, the stay will terminate as 

of the date of such dismissal. 

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

McFarland, P.J.: Concurs in Judgment & Opinion 

Harsha, J.: Concurs in Judgment Only 

For the Court 

BY: 

 Peter B. Abele, Judge 

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry 

and the time period for further appeal commences from the date of filing with the clerk.