COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61140 : STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : MICHAEL JOHNSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT SEPTEMBER 3, 1992 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-240797 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: STEPHANIE TUBBS-JONES, ESQ. DAVID JANCO, ESQ. Cuyahoga County Prosecutor 14701 Detroit Avenue 8th Floor Justice Center Suite 555 1200 Ontario Street Lakewood, Ohio 44107 Cleveland, Ohio 44113 -2- PATRICIA A. BLACKMON, J.: Michael Johnson defendant-appellant, hereinafter Defendant timely appeals the judgment of the trial court finding him in violation of the conditions of his probation. The conditions of his probation were set forth on December 12, 1989 after Defendant pleaded guilty to violating R.C. 2911.11, Aggravated Burglary, which included the condition that Defendant periodically submit to a physical examination to determine alcohol and/or drug usage. The overall sentence was five to twenty-five years with the sentence suspended conditioned on Defendant following the terms of his probation. Before we address Defendant's first assignment of error, we are required to settle the record, which is the substance of Defendant's second assignment of error. The record has been called into question because the trial court, after the filing of the appeal and the filing of Defendant's brief, filed a journal entry supplementing the record, pursuant to App. R. 9(E), with two documents: Waiver of Preliminary Probation Revocation Hearing and Notice of Probation Violation Hearing. After the trial court's journal supplementing the record was filed, Defendant filed a leave to supplement his brief, which was granted by this court, whereby he claimed the following error: THE TRIAL COURT ERRONEOUSLY SUPPLEMENTED THE RECORD WITH DOCUMENTS THAT WERE NOT CONSIDERED BY THE COURT IN ITS DETERMINATION THAT APPELLANT VIOLATED HIS PROBATION. Although we agree with Defendant that these documents are not properly before the court we, nevertheless, find that he has -3- not been prejudiced by the trial court's attempt to supplement the record with these documents. In fact, the record of the proceedings does not reflect that trial court relied on these documents in reaching its decision to revoke Defendant's probation. Moreover, the trial court in its journal entry supplementing the record with these documents did not allege that the documents had been considered by it in reaching the decision to revoke Defendant's probation. Consequently, we are limited to what transpired in the trial court as reflected by the record made of the proceedings. State v. Ismail (1978), 54 Ohio St.2d 402. Thus, the documents are not properly before the court; nonetheless, the judgment of trial court finding Defendant in violation of his probation is affirmed. The facts of this case are as follows: On May 21, 1990, a capias was issued for Defendant at the request of the probation department. On November 15, 1990, the trial court held a final probation violation hearing. At the hearing, the trial court informed Defendant that the charges against him were testing positive for cocaine on January 17, 1990, and on February 14, 1990, and for failing to report to his probation officer since February 14, 1990. Defendant's probation officer added that he had several opportunities for drug treatment, but failed to show up for his appointments. Counsel for Defendant admitted that his client had not shown up for appointments with his probation officer. He represented that Defendant was told that if he did not tow the line exactly, he -4- was going to jail. Counsel for Defendant also represented that his client feels he was not given an opportunity to go to the drug programs. Finally, he represented that his client was drug free on his own volition and would comply with the conditions of probation if given another chance. The trial court was not persuaded and held Defendant in violation of his probation. Defendant challenged this ruling and stated the following in his first assignment of error: THE TRIAL COURT VIOLATED APPELLANT'S DUE PROCESS AND CONFRONTATION RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION BY FAILING TO CONFORM TO THE MANDATES OF OHIO RULE OF CRIMINAL PROCEDURE 32.3 AND GAGNON V. SCARPELLI, 411 U.S. 788 (1973). Defendant's first assignment of error is not well taken. Defendant argues that his constitutional rights to notice to a preliminary hearing, and to confront witnesses in the final revocation hearing were denied to him by the trial court. Defendant waived his right to notice and a preliminary hearing when he failed to challenge, raise, or protest the state's failure to give notice and provide a preliminary hearing. State v. Delaney (1984), 11 Ohio St.3d 231, 233 (held failure to challenge lack of preliminary hearing until final revocation hearing waives right). Furthermore, Defendant did not produce any evidence that he asserted his rights in the trial court. Additionally, Defendant argues that he was prejudiced when the probation officer charged that he failed drug tests, because no testimony was given and, thus, he was denied an opportunity -5- for cross-examination. The law is clear that drug tests are inadmissible where there is no indication in the record that the testifying witness had any knowledge of or responsibility for the records containing the test results. Columbus v. Lacy 1988), 46 Ohio App.3d 161. Although the probation officer charged that Defendant failed the drug test, the basis for the revocation was on grounds independent of this accusation, which was Defendant's failure to report to his probation officer. State v. Green (May 18, 1989), Cuyahoga App. No. 55395, unreported. (Failure to report to a probation officer is an independent basis for and constitutes sufficient grounds for revocation). Consequently, the admission into evidence of the accusation that Defendant tested positive for cocaine is not prejudicial error requiring reversal of the decision when there is a sufficient independent basis for the revocation. See, Delaney at 435. In the instant case, Defendant admitted that he failed to report for his appointments with his probation officer. Accordingly, the trial court did not abuse its discretion when it revoked his probation. See, Green. Judgment affirmed. -6- It is ordered that Appellee recover of Appellant its 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 Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J., and SPELLACY, J., CONCUR. PATRICIA A. BLACKMON JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .