State v. Crosby , 2020 Ohio 3306 ( 2020 )

[Cite as State v. Crosby, 2020-Ohio-3306.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio/City of Toledo Court of Appeals Nos. L-19-1160
L-19-1186
Appellee
Trial Court Nos. CRB-18-01668
v. CRB-18-01687
CRB-19-01195
Keith E. Crosby
DECISION AND JUDGMENT
Appellant
Decided: June 12, 2020
*****
David Toska, Chief Prosecutor, and Jimmie Jones, Assistant
Prosecutor, for appellee.
Matthew O. Hutchinson, for appellant.
*****
ZMUDA, P.J.
{¶ 1} This consolidated appeal challenges the judgment of the Toledo
Municipal Court, finding appellant, Keith Crosby, violated his probation in case Nos.
CRB-18-01668, CRB-18-01687, and CRB-19-01195. The trial court imposed a one-day
jail sentence in case No. CRB-18-01668, extended appellant’s term of probation in
case Nos. CRB-18-01668 and CRB-18-01687, and issued a no contact order in
CRB-19-01195. For the reasons that follow, we affirm, in part, and reverse and vacate, in
part.
I. Facts and Procedural Background
{¶ 2} The underlying events in this consolidated matter relate to a divorce and
child custody case, filed days before the initial incidents. Although the record on appeal
does not include any record of the divorce and custody proceedings, the parties
acknowledge that Ms. Crosby filed for divorce and sought a domestic violence protection
order, and the domestic relations court denied her request for a protection order. Days
later, the couple had an altercation in the marital home, resulting in appellant’s arrest.
{¶ 3} The Toledo Municipal Court issued a temporary protection order as part of
subsequent criminal proceedings. After resolution of the criminal matters through a plea
to lesser offenses, the trial court withdrew the temporary protection order in each case,1
and imposed a no-contact order in two of the three cases. The criminal proceedings are
summarized as follows:
CRB-18-01668
{¶ 4} On February 11, 2018, police responded to a home at 824 Sibley, in Toledo,
Ohio, to investigate a report of an assault. Ms. Crosby reported that appellant struck her
in the face with the back of his hand during an argument. Police arrested appellant, and
1
Pursuant to R.C. 2919.26(E)(2)(a), a temporary protection order terminates upon
“disposition, by the court that issued the order[.]”
2.
he was charged with domestic violence, in violation of R.C. 2919.25(A) and assault in
violation of R.C. 2903.13(A), in case No. CRB-18-01668. Appellant entered a plea of
not guilty the next day, and was released on his own recognizance. Appellant consented
to a temporary protection order, and the trial court ordered him to have no contact with
Ms. Crosby. The matter continued until the scheduled trial date, July 24, 2018.
{¶ 5} On the date of trial, appellant withdrew his not guilty plea to the domestic
violence charge, and entered a plea of no contest to an amended charge of disorderly
conduct, in violation of R.C. 2917.11, a misdemeanor of the fourth degree, with the
remaining assault charge addressed “off docket.” The trial court accepted the plea, found
appellant guilty, and imposed a 30-day jail sentence, with 30 days suspended. The trial
court also withdrew the protection order, and placed Crosby on active probation for a
period of one year, with conditions of probation including domestic violence classes and
no contact with Ms. Crosby, subject to modification by the domestic relations court in the
divorce proceedings. Appellant did not appeal his conviction in this case.
CRB-18-01687
{¶ 6} On February 12, 2018, Ms. Crosby filed a complaint on behalf of the
couple’s minor child, alleging appellant grabbed the child by her arm and flung her
around by the arm, causing injury, in an attempt to prevent the child from calling 911 to
report the incident between appellant and Ms. Crosby, resulting in charges in case No.
CRB-18-01668. A warrant issued in case No. CRB-18-01687, with appellant charged
with domestic violence in violation of R.C. 2912.25(A) and assault in violation of R.C.
3.
2903.13(A), concerning his minor child. Appellant appeared before the trial court on
February 13, 2018, and entered a not guilty plea. The trial court released appellant on his
own recognizance. Appellant consented to a temporary protection order for his daughter,
the victim. The trial court consolidated the case with case No. CRB-18-01668.
{¶ 7} On July 24, 2018, the date of trial, appellant withdrew his previous plea to
the domestic violence charge, and entered a plea of no contest to the amended charge of
disorderly conduct, in violation of R.C. 2917.11, a misdemeanor of the fourth degree,
with the remaining assault charge addressed “off docket.” The trial court accepted the
plea, found appellant guilty, imposed a 30-day jail sentence, with all 30 days suspended,
and withdrew the protection order. The trial court placed appellant on one year of active
probation, with a single condition imposed, requiring appellant to complete domestic
violence classes. Appellant did not appeal his conviction in this case.
CRB-19-01195
{¶ 8} Based on events during the pendency of case Nos. CRB-18-01668 and
CRB-18-01687, a complaint was filed on January 29, 2019, in case No. CRB-19-01195,
alleging three counts of violating a protection order entered in domestic relations case
No. DV 2018-0083, effective February 16, 2018 to February 16, 2019, as well as
violation of a temporary protection order issued by the trial court in case No.
4.
CRB-18-01668.2 The victim, Ms. Crosby, alleged that appellant sent several text
messages on or about June 15 and June 16, 2018, and attended a high school reunion on
June 16, 2018, where the victim was already in attendance, coming to within 35 feet of
the victim.3 On March 13, 2019, the matter was tried to the court and the trial court
found appellant guilty.
{¶ 9} The trial court imposed a 180-day jail sentence, suspended all 180 days, and
placed appellant on inactive probation for one year. Appellant was ordered to have no
contact with Ms. Crosby, subject to modification by the domestic relations court in the
divorce proceedings. Appellant did not appeal his conviction in this case.
Probation Violation Hearing
{¶ 10} On January 4, 2019, the trial court scheduled the matter for a probation
violation hearing in case Nos. CRB-18-01668 and CRB-18-01687. On June 3, 2019,
the trial court scheduled the matter for a probation violation hearing in case No.
CRB-19-01195. On July 29, 2019, the trial court held a hearing as to all three cases.
{¶ 11} At hearing, appellee, the city of Toledo, presented the testimony of Ms.
Crosby. Ms. Crosby acknowledged that there was no protection order through the
domestic relations court, and the divorce and custody case remained pending. She
2
Ms. Crosby testified at the probation violation hearing that the domestic court actually
denied her request for a domestic violence protection order.
3
In case Nos. CRB-18-01668 and CRB-18-01687, the trial court scheduled a probation
violation hearing, which was continued repeatedly until hearing was held for all three
cases, on July 29, 2019.
5.
indicated her only protection was a no-contact order, imposed as a term of appellant’s
probation, and she believed it extended to the couple’s daughter as well. Ms. Crosby
testified that appellant came to the marital home twice while she was also present, and
based on video surveillance, he had been there on several other occasions.
{¶ 12} Ms. Crosby testified regarding the two incidents when she was present at
the home. The first time, she was having movie night with her daughter, and witnessed
appellant drive up and stop in her driveway around 11:00 p.m. The second time, she
witnessed appellant pull into her driveway around 1:00 a.m., and her adult son went
outside to confront appellant while she called police. Additionally, Ms. Crosby
referenced video her children recorded, showing appellant tamper with a surveillance
camera, move toys around in the yard, and move about the property.
{¶ 13} Ms. Crosby also testified regarding an incident at an event for DeVilbiss
graduates, where appellant approached her, spoke to her, and got into an argument with
her adult son, rather than leave once he discovered she was present. She acknowledged
that, as a result of the altercation with her son, appellant was granted a civil stalking
protection order against her son.
{¶ 14} Appellant also testified. He acknowledged the no contact order, but
believed it pertained to Ms. Crosby, and not the marital home. He believed he had
property in the garage, and on one occasion retrieved some property after requesting a
police escort. Ms. Crosby called the police, too, and additional units arrived at the house.
Appellant testified that he showed police his “paperwork” and his license, and police told
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him to “make sure if you ever come to the house and she’s here, leave or put yourself on
camera showing what you’re doing as you’re leaving” and to have no contact with Ms.
Crosby.
{¶ 15} Appellant admitted he attended the same DeVilbiss event as Ms. Crosby,
but disputed her version of events. He testified that he did not know she was present until
her adult son approached him, blew in his face, and harassed him. According to
appellant, between 600 and 700 people attended the event, but after his encounter with
the son, he noticed Ms. Crosby across the hall and did not leave the event. Instead,
appellant testified that he approached a deputy sheriff, working the event, and he reported
the divorce and no contact order, as well as the harassment from Ms. Crosby’s son.
According to appellant, the deputy told him to “just walk away,” and report “any more
problems.” After the harassment continued, appellant left and “went straight to the police
station and reported it.” Appellant received a civil stalking protection order against Ms.
Crosby’s son, based, in part, on threats made at the event.
{¶ 16} Appellant also admitted to going to the marital home, believing the no
contact order only applied to Ms. Crosby. He testified that he never attempted to enter
the house or interact with Ms. Crosby, but did intend to enter the garage. As to Ms.
Crosby’s claim that he moved things around the yard, appellant testified that he cleaned
up around the property, and took toys belonging to his grandchildren. Appellant opined
that Ms. Crosby’s claims of violation of his no-contact order were more about the fact she
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was permitting her adult son to reside in the home, contrary to an agreement reached in
the parties’ divorce proceedings.
Sanction
{¶ 17} After considering the testimony and argument of counsel,4 the trial court
found as follows:
I find the [appellant] in violation of his probation. I ordered a no contact
order. You repeatedly go over to the house. You don’t know whether or
not she’s there or not there. That doesn’t seem to bother you. You were
seen on videotape kind of walking around the house. Again, you don’t
know if she’s there or not there. You go to DeVilbiss, you know she’s
there, you stay there. I don’t know what I have to do.
The trial court asked appellant and his counsel to address any mitigating circumstances,
prior to imposing its sanction. Appellant’s counsel explained the circumstances of the
divorce, and the lack of any order preventing appellant’s access to the marital home or his
property stored there. Appellant also addressed the trial court, arguing his conduct was
not an attempt to contact Ms. Crosby.
{¶ 18} The trial court also heard from Ms. Crosby, who indicated appellant
continues to appear on her street, and is the reason their minor child is on medication for
4
The trial court indicated the city and appellant proffered exhibits in its written docket
entry after hearing. However, the hearing transcript does not include admission of any
exhibits, and the record on appeal does not include exhibits from the hearing.
8.
anxiety attacks. Ms. Crosby indicated their child is afraid to ride her bike in the
neighborhood because she fears appellant might kidnap her.
{¶ 19} After considering the statements in mitigation, and the statements of the
victim, the trial court imposed a one-day sentence in CCNO, and extended appellant’s
probation for one year from the date of hearing. Additionally, the trial court ordered
Crosby to remain more than 1,000 feet from Ms. Crosby’s person, residence, or work. In
reciting its finding and sanction, the trial court did not identify the individual cases.
{¶ 20} In journalizing the finding and sanction, the trial court imposed the one-day
jail term in case No. CRB-18-01668, extended appellant’s probation in case Nos.
CRB-18-016688 and CRB-18-01687, and ordered appellant to have no contact with Ms.
Crosby in case Nos. CRB-18-01668, CRB-18-01687, and CRB-19-01195. The no
contact order pertaining to Ms. Crosby was a new term of appellant’s probation in case
No. CRB-18-01687, as Ms. Crosby was not the complaining victim in that case.
II. Assignments of Error
{¶ 21} Appellant now challenges the Toledo Municipal Court’s judgment on
appeal, asserting the following assignments of error.
Assignment of Error No. 1: The trial court erred when it found
[appellant] had violated his probation in case number 01687 for having
contact with Donnita Crosby when “no contact” was not a condition of his
probation as to that case number.
9.
Assignment of Error No. 2: The trial court erred when it found
[appellant] had violated his probation in case number 01195, which had
made an exception for contact “as allowed” when there was no court order
prohibiting [appellant] from being at the property.
Assignment of Error No. 3: The trial court erred by finding
[appellant] violated the “no contact” condition of his probation when he
had not communicated with Ms. Crosby.
III. Analysis
{¶ 22} Appellant appeals the findings of the trial court regarding the probation
violation in each case, arguing a lack of evidence of contact between appellant and Ms.
Crosby, and a lack of “no-contact” terms as part of his probation in case No.
CRB-18-01687. We address his assignments of error out of order, addressing his second
and third assignments of error first, as each challenge the trial court’s findings regarding
a “no-contact” order.
{¶ 23} We review a trial court’s findings regarding a probation violation for an
abuse of discretion. State v. Ohly, 166 Ohio App.3d 808, 2006-Ohio-2353, 853 N.E.2d
675, ¶ 19 (6th Dist.); see also State v. Pavlich, 6th Dist. Erie No. E-10-011, 2011-Ohio-
802, ¶ 24 (citation omitted.). An abuse of discretion “connotes more than an error of law
or judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 6 Ohio St.2d 217, 219, 450 N.E.2d 1140(1983).
10.
{¶ 24} R.C. 2929.25 governs community control sanctions for misdemeanor
offenses, and provides for probation as an available community control sanction at
sentencing. State v. Recker, 3d Dist. Putnam Nos. 12-14-03, 12-14-04, 2014-Ohio-4993;
¶ 9, citing State v. Mack, 6th Dist. Lucas No. L-11-1065, 2012-Ohio-2960, ¶ 1, fn. 1.
Pursuant to R.C. 2929.25(B), “the sentencing court retains jurisdiction over the offender
and the period of community control for the duration of the period of community
control[,]” and may “on the court’s own motion” modify the terms previously imposed,
substitute terms, or impose an additional term.
{¶ 25} Here, the court proceeded to hearing on allegations of numerous probation
violations. A probation violation hearing is not the equivalent of a criminal trial. Ohly at
¶ 18, citing State v. Bland, 6th Dist. No. H-96-031, 1997 WL 77679 (Feb. 21, 1997). To
support a finding that appellant violated the terms of his probation, “the allegations need
not be proven beyond a reasonable doubt but, rather, must be based only upon ‘evidence
of a substantial nature showing that revocation is justified.’” Ohly at ¶ 18, quoting State
v. Cowles, 6th Dist. F-94-029, 1995 WL 358536 (June 16, 1995).
{¶ 26} Appellant did not dispute three of the alleged incidents. He admitted he
was present at the marital home when Ms. Crosby was also present on two occasions, and
he admitted he was present at the DeVilbiss event with Ms. Crosby, and did not leave
once he became aware of her presence. Rather than dispute these incidents, appellant
argues that his presence near Ms. Crosby did not meet the definition of “contact,”
11.
necessary for a finding he violated the no contact condition of the trial court’s community
control sentence.
{¶ 27} Appellant defines “contact” as requiring communication, citing to the
definition of the term as it pertains to de minimis contact in adoption proceedings. See In
re Adoption of A.L.E., 4th Dist. Meigs No. 16CA10, 2017-Ohio-256, ¶ 17, quoting
Merriam-Webster’s Collegiate Dictionary 268 (11th Ed.2005) (additional citation
omitted) (defining “contact” for purposes of determining contact with the child as “an
establishing of communication with someone or an observing or receiving of a significant
signal from a person or object.”). Courts construe the meaning of “contact” differently in
addressing the no-contact orders issued in criminal proceedings.
{¶ 28} In considering whether a probationer has violated a no-contact order,
“contact” has been defined as “a state or condition of touching; touch; proximity or
association; connection.” State v. Wells, 4th Dist. Athens No. 06CA30, 2007-Ohio-906,
¶ 11, citing Defiance v. Mohr, 3d Dist. Defiance App. Nos. 4-90-5 and 4-90-6,
1991 WL 104348 (June 12, 1991). Based on this definition, courts have found a violation
based on mere proximity. See, e.g., Wells at ¶ 11 (driving by a victim’s campsite, within
close proximity, sufficient to support probation violation of the no-contact order). Courts
have also found a violation based on encounters at crowded venues. See, e.g., State v.
Dunaway, 1st Dist. Hamilton No. C-010518, 2002-Ohio-3290, ¶ 21 (violation supported
by evidence of proximity to a victim at a crowded amusement park).
12.
{¶ 29} Clearly, “contact” could include more than physical contact or overt
communication. In this case, appellant admitted to close proximity to Ms. Crosby on
three occasions. The trial court considered the evidence, and determined that appellant’s
conduct while Ms. Crosby was present inside the home, and his conduct in remaining at
the DeVilbiss event despite knowledge that Ms. Crosby was also present, constituted
contact, in violation of the terms of appellant’s probation.
{¶ 30} In the alternative, appellant argues that he was permitted to enter upon the
marital property, and therefore could not violate the no-contact order by doing so. In
support, he argues that the trial court’s no-contact order permitted modification by the
domestic relations court, and compares the trial court’s prior temporary protection order,
containing a prohibition from entering upon the premises, with the no-contact term of his
probation. Appellant contends that the domestic relations court denied Ms. Crosby’s
requested protection order because a temporary protection order had already issued in the
criminal proceedings, and because the domestic relations court did not modify the no-
contact order to include the premises, the prohibition against entering the premises or
being in the same place as Ms. Crosby expired.
{¶ 31} Appellant argues that he could enter the property even if Ms. Crosby were
present in the home, but his own testimony at hearing contradicts this belief. At hearing,
appellant acknowledged he initially called for a police escort to retrieve belongings from
the property. Appellant testified that once the officers learned of the no-contact order, the
officers instructed him “to make sure if you ever come to the house and she’s here, leave
13.
or put yourself on camera showing what you’re doing as you’re leaving. Have no contact
and just leave.” The evidence at the hearing indicated appellant parked in Ms. Crosby’s
driveway on two separate occasions, late at night, with no explanation for the late-night
visits, and no evidence he “just left” when he encountered Ms. Crosby at home.
{¶ 32} Considering the record, we find no abuse of discretion by the trial court in
determining appellant had contact with Ms. Crosby, in violation of the no-contact order
in case Nos. CRB-18-01668 and CRB-19-01195. Accordingly, we find appellant’s
second and third assignments of error not well-taken.
{¶ 33} In appellant’s first assignment of error, he argues that the “no-contact”
provision was not included as a condition of his probation in case No. CRB-18-01687,
the case in which the couple’s daughter was the victim. In response, the city argues that
the term was “implied” as part of his probation, based on its inclusion in the other two
cases.
{¶ 34} “The privilege of probation [or community control] rests upon the
probationer’s compliance with the probation conditions and any violation of those
conditions may properly be used to revoke the privilege.” State v. Miller, 6th Dist.
Fulton No. F-05-016, 2006-Ohio-4810, ¶ 15, quoting State v. Bell, 66 Ohio App.3d 52,
57, 583 N.E.2d 414 (5th Dist.1990) (emphasis added). In this case, the “no-contact”
condition was not included in the sentencing entry. The city does not explain how this
term could be understood as an implied condition, either, considering Ms. Crosby was not
the victim in that case.
14.
{¶ 35} Here, the trial court found appellant violated a non-existent condition of his
probation as it related to case No. CRB-18-01687. Courts do not generally enforce
unwritten, unspecified conditions in proceedings to determine a probation violation. See,
e.g., Village of Swanton v. Barker, 6th Dist. Fulton No. F-00-003, 2000 WL 1545041(Oct. 20, 2000), *2 (“because appellant’s relationship with her probation officer and the
court was not a term or condition of her probation, the court could not revoke her
probation on that ground.”). Accordingly, we agree with appellant that finding him in
violation of a “no-contact” provision, never imposed, constitutes error.
{¶ 36} We note, however, that appellant has not challenged the trial court’s
imposition of additional community control terms in case No. CRB-18-01687. As
previously noted, R.C. 2929.25(B) grants the trial court continuing jurisdiction to modify
or impose additional conditions as part of community control. Continuing jurisdiction
may be exercised “in the court’s sole discretion and as the circumstances warrant[.]”
R.C. 2929.25(B). Thus, “[p]ursuant to R.C. 2929.25(B), the court has the authority to
modify the conditions of community control as long as the duration of community control
has not expired.” State v. Rogers, 8th Dist. Cuyahoga No. 98779, 2013-Ohio-588, ¶ 13.
{¶ 37} Accordingly, while we find the trial court erred in entering a finding that
appellant violated the terms of his probation in case No. CRB-18-01687, to the extent that
the trial court modified and extended the terms of probation in that case, we find no
challenge raised to these terms. Therefore, as to the specific error raised, we find
appellant’s first assignment of error well-taken. The trial court’s finding of a probation
15.
violation as to case No. CRB-18-01687, therefore, must be vacated. The addition of a
no-contact order and extension of the term of probation, however, has not been
challenged, and falls within the trial court’s continuing jurisdiction over community
control.
IV. Conclusion
{¶ 38} Based on the forgoing, we vacate the finding of a violation as to
CRB-18-01687 as entered in error, but as the modification to the terms of community
control in that case fell within the trial court’s continuing jurisdiction, we otherwise
affirm the judgment of the Toledo Municipal Court as to the judgment, imposing
sanctions for violation of conditions of appellant’s community control. The OR bond
granted by the court on August 2, 2019, is accordingly vacated. Pursuant to App.R. 24,
the costs of this appeal are to be divided equally between the parties.
Judgment affirmed, in part, and
reversed and vacated, in part.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
16.
State v. Crosby
C.A. Nos. L-19-1160
L-19-1186
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
17.