State v. Crayton , 2022 Ohio 3183 ( 2022 )

[Cite as State v. Crayton, 2022-Ohio-3183.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
STATE OF OHIO,
CASE NO. 3-22-10
PLAINTIFF-APPELLEE,
v.
MARVIN CRAYTON, JR., OPINION
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court
Trial Court No. 20-CR-0315
Judgment Affirmed
Date of Decision: September 12, 2022
APPEARANCES:
Howard A. Elliott for Appellant
Bailey Higgins for Appellee
Case No. 3-22-10
WILLAMOWSKI, J.
{¶1} Defendant-appellant Marvin Crayton, Jr. (“Crayton”) appeals the
judgment of the Crawford County Court of Common Pleas, alleging the trial court
erred in finding that he had violated a community control condition. For the reasons
set forth below, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} On September 15, 2020, Crayton was indicted on one count of criminal
non-support in violation of R.C. 2919.21(A)(2), a felony of the fifth degree. Doc.
1. On August 11, 2021, Crayton entered into a plea agreement under which he pled
guilty to the charge against him. Doc. 20. The trial court then sentenced him to five
years of community control. Doc. 21. On January 10, 2022, a motion was filed that
alleged that Crayton violated the fifth condition of his community control by failing
to appear for an office visit. Doc. 25. The trial court then held a hearing and
determined that there was probable cause to find that Crayton had “fail[ed] to appear
since October * * *.” Jan. 10 Tr. 4.
{¶3} At a hearing on March 14, 2022, Crayton’s probation officer, Eric
Bohach (“Bohach”) testified that supervision in this case began on August 11, 2022.
Mar. 14 Tr. 11. He then stated that Crayton appeared for a meeting on August 20,
2021 where he was informed that his next office visit was scheduled for October 19,
2021. Id. at 12. However, Bohach testified that Crayton did not appear for the
scheduled office visit on October 19, 2021. Id. at 11-12. He stated that Crayton did
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not contact his office in advance to explain that he would not be able to appear for
the visit. Id. Further, he testified that Crayton did not respond to any text messages
that were sent to him after he failed to appear for his office visit. Id. 11-12, 13, 16-
17.
{¶4} Bohach then scheduled an office visit for November 2, 2021. Mar. 14
Tr. 12. After Crayton failed to appear for this office visit, a warrant for his arrest
was issued on November 5, 2021. Id. at 15. Doc. 23. Bohach testified that, on
November 19, 2021, he “got an email from his [Crayton’s] APA officer saying that
he was arrested on a PRC violation and that they had him in custody.” Mar. 14 Tr.
15. Doc. 23. Bohach testified that he did not know the precise date on which
Crayton was arrested. Mar. 14 Tr. 15. On cross-examination, the following
exchange occurred:
[Defense Counsel]: So you would agree with me that the only one
that he truly missed was one appointment on 10-19?
[Bohach]: And then the second one on November 2nd.
[Defense Counsel]: But you don’t know if he was in jail at that
point, right?
[Bohach]: No, I do not know if he was in jail at that point.
Id. at 16. After hearing this testimony, the trial court found that Crayton failed to
appear for his office visit on October 19, 2021 and that he had committed a
community control violation. Id. at 20. The trial court issued its judgment entry of
sentencing on March 16, 2022. Doc. 34.
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Assignment of Error
{¶5} The appellant filed his notice of appeal on April 13, 2022. Doc. 40. On
appeal, Crayton raises the following assignment of error:
The finding by the trial court of a violation of community control
condition, that of failure to report as scheduled, was against the
manifest weight of the evidence, and as such the decision of the
trial court must be reversed.
Legal Standard
{¶6} “Because a community control violation hearing is not a criminal trial,
the State need not prove a violation beyond a reasonable doubt.” State v. Roberts,
2017-Ohio-481, 84 N.E.3d 339, ¶ 20 (2d Dist.). Instead, “the State must show
substantial evidence that the offender violated the terms of his community-control
sanctions at a community-control-revocation hearing.” State v. Boykins, 3d Dist.
Marion No. 9-14-28, 2015-Ohio-1341, ¶ 20.
‘Substantial evidence is akin to a preponderance-of-the-evidence
burden of proof.’ State v. Burdette, 5th Dist. Morrow No. 10-CA-
9, 2011-Ohio-4425, *4 * * *. ‘Substantial evidence is considered
to consist of more than a mere scintilla of evidence, but somewhat
less than a preponderance.’ Id. * * *.
(Citations omitted.) Id. at ¶ 21. “The decision of a trial court finding a community-
control violation will not be disturbed absent an abuse of discretion.” State v.
Espinoza, 3d Dist. Allen No. 1-21-48, 2022-Ohio-1807, ¶ 17. An abuse of
discretion is not simply an error of judgment but is a decision that was arbitrary,
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unreasonable, or capricious. State v. Wilson, 2022-Ohio-504, 185 N.E.3d 176, ¶ 37
(3d Dist.).
Legal Analysis
{¶7} In his brief, Crayton points to the fact that he was in the custody of the
Adult Parole Authority “as of mid-November, 2021, although the exact timing of
when he went into custody is unclear from the record.” Appellant’s Brief, 5. He
then asserts that the State did not establish that he was not incarcerated on October
19, 2021 and that he was, therefore, free to appear for his office visit. For this
reason, Crayton argues that the trial court erred in finding that he had committed a
community control violation by failing to appear for this office visit.
{¶8} At the March 14, 2022 hearing, Crayton was alleged to have missed an
office visit on October 19, 2021 and an office visit on November 2, 2021. Mar. 14
Tr. 11-12. On cross-examination, Bohach testified that those under supervision
receive automated text-message reminders of upcoming office visits. Id. at 14. The
Defense questioned Bohach about whether he could establish that Crayton had
received the automated text-message in advance of the October 19, 2021. Id. at 14-
15.1 The Defense did not inquire into whether Bohach knew if Crayton was
incarcerated at the time of the office visit scheduled for October 19, 2021. Id.
1
On this point, Bohach testified that “our text messages, when they go out, it tells us if it was * * * sent, if it
was denied or if it was received and all these say delivered.” Mar. 14 Tr. 15.
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{¶9} However, when questioning Bohach about the office visit that had been
scheduled for November 2, 2021, the Defense raised the issue of whether Bohach
was aware of whether Crayton was incarcerated on or before November 2, 2021 in
the following exchange:
[Defense Counsel]: So you would agree with me that the only one
that he truly missed was one appointment on 10-19?
[Bohach]: And then the second one on November 2nd.
[Defense Counsel]: But you don’t know if he was in jail at that
point, right?
[Bohach]: No, I do not know if he was in jail at that point.
Mar. 14 Tr. 16. Subsequently, the trial court then stated the following:
Now, the State does have the burden of proof * * *, and the State
has proved that he [Crayton] did not show up for one of his, for
the 19th, I think that’s pretty clear here that the Defendant did
fail to show up on the 19th and then there was no contact
afterwards. There’s some debate, and I think it’s a valid debate,
about what happened after he missed that was the reason he
couldn’t follow-up that he, um, he was in custody or was there
something else. However, there was testimony that there were
text messages that were given to him preceding, afterwards, all
that, so I believe the State’s proved * * * that the Defendant failed
to appear at [a] Community Control meeting with his probation
officer in this particular case. So I mean they’ve proved * * *
that he violated his Community Control. Now, the level of that
violation is a little bit at odds here. The Court knows that he, that
he, I think it’s clear he missed the October 19th meeting, no one
seems to be arguing that.
(Emphasis added.) Id. at 20. Thus, while the record indicates that there was
uncertainty as to whether Crayton was incarcerated on November 2, 2021, the
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record contains no indication that there was uncertainty as to whether Crayton was
incarcerated on October 19, 2021. The March 14 hearing transcript indicates that
the trial court and the parties to this proceeding operated on the shared assumption
that Crayton was incarcerated after October 19, 2021.2 Id.
{¶10} On appeal, Crayton raises arguments about whether the State proved
that he was not incarcerated at the time of the scheduled office visit on October 19,
2021. However, the record contains no indication that there was ever a dispute
before the trial court about whether Crayton was incarcerated on October 19, 2021.
Arguments raised for the first time on appeal are generally
barred. Such arguments are barred by the doctrine of waiver for
failure to raise these arguments before the trial court. It is well-
established that a party cannot raise any new issues or legal
theories for the first time on appeal * * *. Litigants must not be
permitted to hold their arguments in reserve for appeal, thus
evading the trial court process.
State v. Talley, 6th Dist. Lucas Nos. L-20-1131, L-20-1132, 2021-Ohio-2558, ¶ 22,
quoting Cawley JV, L.L.C. v. Wall St. Recycling, L.L.C., 2015-Ohio-1846, 35
N.E.3d 30, ¶ 17 (8th Dist.). Since Crayton did not dispute this issue before the trial
court, he cannot now raise this argument for the first time on appeal.
{¶11} Having examined the information in the record, we conclude that there
is substantial evidence that supports a finding that Crayton failed to appear for his
office visit on October 19, 2021. Other than arguing that the State failed to establish
2
Further, we also note that the prosecutor stated at the March 14 hearing that she “look[ed] up his record”
during the hearing and that “it look[ed] like it [Crayton’s incarceration] was about November 13th * * *.”
Mar. 14 Tr. 20-21.
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that he was not incarcerated on October 19, 2021, Crayton has not raised any other
arguments to challenge the judgment of the trial court in this appeal. Thus, he has
failed to demonstrate that the trial court erred and abused its discretion in finding
that he violated a condition of his community control. Accordingly, Crayton’s sole
assignment of error is overruled.
Conclusion
{¶12} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Crawford County Court of Common Pleas
is affirmed.
Judgment Affirmed
MILLER and SHAW, J.J., concur.
/hls
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