State v. Teresa Alderson
| Decision Date | 31 August 1999 |
| Docket Number | 99-LW-3726,98 CA 12 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. TERESA ALDERSON, Defendant-Appellant Case |
| Court | Ohio Court of Appeals |
COUNSEL FOR APPELLANT: Steven L. Story, P.O. Box 72, Pomeroy, Ohio 45769.
COUNSEL FOR APPELLEE: L. Scott Powell, Meigs County Assistant
Prosecuting Attorney, 117 W. Second St., Pomeroy, Ohio 45769.
DECISION
This is an appeal from a Meigs County Common Pleas Court judgment (1) finding that Teresa Alderson, defendant below and appellant herein, violated the terms of her probation, and (2) imposing appellant's original prison sentences.
Appellant raises the following assignment of error for our review:
"THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT WAS IN VIOLATION OF HER PROBATION BY FINDING THAT A THEFT OFFENSE HAD OCCURRED WHEN NO TESTIMONY WAS OFFERED FROM THE OWNER OF THE PROPERTY SHOWING THAT AN OFFENSE WAS TAKEN." (SIC)
On September 28, 1992, the Meigs County Prosecuting Attorney filed a Bill of Information alleging that appellant had committed four counts of forgery. Appellant subsequently entered guilty
pleas to the four forgery counts. On September 29, 1992, the
trial court accepted appellant's pleas and found her guilty of
the forgery offenses.
On November 16, 1992, the trial court conducted a sentencing hearing. The trial court's December 9, 1992 sentencing entry reveals that the court imposed an eighteen month consecutive prison sentence for each of the four count.S. The court, however, suspended the prison sentences and placed appellant on probation for a five year period.
On March 19, 1996, the state filed a motion to revoke appellant's probation noting that appellant had committed another forgery offense. On March 22, 1996, the trial court revoked appellant's probation with respect to two of the original four counts and ordered that two of the suspended eighteen month sentences be served consecutively. With respect to the other two counts, the trial court continued appellant's probation.
On February 11, 1998, the Meigs County Grand Jury returned an indictment charging appellant with theft (R.C. 2913.02). On January 30, 1998, the state filed a motion to revoke appellant's probation. The factual basis surrounding appellant's indictment also served as the factual basis for the motion to revoke appellant's probation.
On June 1, 1998, the trial court conducted a probation violation hearing. Initially, appellant stipulated that as a condition of her probation, appellant could not violate any state or federal laws. The prosecution then called two fact witnesses
to testify.
Orlando Andrioni testified that he knew appellant and that appellant had cleaned his wife's apartment on a couple of occasions. Mr. Andrioni, age seventy-two, stated that although he and Monna Andrioni, his wife of thirty years, are still married, they are Illegally separated" and they maintain separate residences. Mr. Andrioni testified that on July 17, 1998 he observed appellant holding a pill bottle that his wife uses to carry money. Mr. Andrioni noted that he and his wife counted the money (eight hundred fifty dollars) the previous day because they planned to use that money to pay their income tax and other bills. Andrioni state& that three days later, appellant visited his wife's apartment and he, his wife, a niece and her friend confronted appellant about the theft. Mr. Andrioni stated that appellant admitted that she took the money and that she would repay Mr. and Mrs. Andrioni.
Herbert Rose, Mrs. Andrioni's neighbor, testified that he heard appellant admit that she took the money. Rose lived with Mrs. Andrioni's niece in an apartment adjacent to Mrs. Andrioni.
Appellant testified on her own behalf and stated that she did not take the money. Appellant stated that she admitted to taking the money because Mr. Andrioni flashed a handgun during his interrogation and threatened appellant with bodily harm if she did not confess. Appellant said that the three other individuals in the room also caused her concern for her safety. Appellant further testified that her admission and promise of repayment referred to another sum of money that she had borrowed from Mrs. Andrioni.
After hearing the evidence and considering counsels' arguments, the trial court found that appellant did in fact violate the terms of her probation. Consequently, the trial court imposed appellant's two eighteen month prison sentences, each to be served consecutively. The court, at the prosecution's request, then dismissed the theft indictment.
In her sole assignment of error, appellant contends, in essence, that the trial court's finding that she violated her probation is against the manifest weight of the evidence. We disagree with appellant.
In a probation revocation proceeding, the prosecution need not produce evidence establishing a probation violation beyond a reasonable doubt. Rather, the prosecution must present substantial proof that a defendant violated the terms of his or her probation. State v. Hylton (1991), 7.15 Ohio App.3d 778, 600 N.E.2d 821; State v. Mingua (1974) 42 Ohio App.2d 35, 327 N.E.2d 791; State v. Umphries (June 30, 1998), Pickaway App. No. 97CA45, unreported. 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. See Umphries supra; State v. Puckett (Nov. 12, 1996), Athens App. No. 96CA1712, unreported. This highly deferential standard is akin to a preponderance of evidence burden of proof. See State v. Kehoe (May 18, 1994), Medina App. No. 2284-M,...
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