COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71480 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION BARBARA LOESSER NKA : CHRIS LAWRENCE : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JULY 24, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-292430. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Michael P. Donnelly, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Michael J. Murray, Esq. Steven D. Shafron, Esq. Berkman, Gordon, Murray & Devan 2121 Illuminating Building 55 Public Square Cleveland, OH 44113 DAVID T. MATIA, P.J.: Barbara Loesser, defendant-appellant, appeals the decision of the Cuyahoga County Court of Common Pleas finding defendant- -2- appellant was in violation of her probation. Defendant-appellant assigns five errors for review. This court, finding no error, affirms the trial court's decision. I. STATEMENT OF FACTS On December 2, 1993, Barbara Loesser, defendant-appellant, was sentenced to one year of imprisonment after being convicted of perjury and tampering with evidence. On January 12, 1994, the trial court granted her motion for shock probation. After being contacted by the Cuyahoga County Prosecutor's Office, defendant-appellant's probation officer contacted the Court of Common Pleas regarding a possible probation violation. Apparently, using the name Chris Lawrence, defendant-appellant had been contacting an assistant prosecuting attorney identifying herself as a reporter for the news magazine known as The Tab. The substance of the communications concerned a charge of attempted murder by Jeffrey Keith upon another assistant prosecutor and police officer. Defendant-appellant was purportedly investigating whether Mr. Keith had been framed by various members of the police department and prosecutor's office. Additionally, defendant-appellant contacted the Federal Bureau of Investigation ( F.B.I. ) using the name Chris Lawrence and identified herself as a reporter with The Tab. Defendant- appellant later appeared at the special agent's office with an individual named Glen Dameron who had previously been in jail with Mr. Keith and was concerned for his own safety. The F.B.I. agent informed defendant-appellant that it was a matter for the local -3- authorities. Defendant-appellant subsequently contacted the Cleveland Police Conduct and Internal Review Unit ( P.C.I.U. ), and the office of the Ohio Attorney General. As stated, in September of 1996, defendant-appellant's probation officer contacted the Cuyahoga County Court of Common Pleas in the form of a Probation Status Report which stated in pertinent part: The Probation Department has been informed by the Cuyahoga County Prosecutor's Office that subject has involved herself in activities that may lead to new criminal prosecution and that may be in violation of the spirit of the condition of her probation regarding involvement with law enforcement officials. Please advise as to the course of action you wish to pursue in this matter. If it is your decision to hold a Probation Violation Hearing, please advise as to whether subject is to remain in the community or be incarcerated, prior to the Probation Violation Hearing. The trial judge ordered the probation officer to arrest defendant-appellant for purposes of having a hearing to determine if these activities constituted a violation of her probation. Defendant-appellant was arrested on September 4, 1996. On September 17, 1996, defendant-appellant and counsel appeared before the trial judge. Defendant-appellant argued the charge received by defendant was too vague and that she had not yet received a probable cause hearing regarding her alleged probation violation. The trial judge then ordered there would be a continuation of the revocation hearing and instructed the assistant prosecutor to prepare a general written notice of the alleged violations describing the alleged violations and a witness list. -4- The trial court then proceeded with a probable cause hearing to determine whether defendant-appellant should be held until the revocation hearing. The court heard the testimony of the assistant county prosecutor who was contacted by defendant-appellant concerning the Jeffrey Keith case. The prosecutor testified that defendant-appellant had contacted several state's witnesses and police authorities in pursuit of the alleged news story under the same alias. After defense counsel cross-examined the assistant prosecutor, the trial judge found probable cause existed to hold defendant-appellant until the revocation hearing as a probation violator and again ordered the state to provide written notice of the allegations against defendant-appellant. The trial judge then scheduled said continuation hearing on September 30, 1995. At the September 30th hearing, the state provided a number of witnesses who testified, among other things, that defendant- appellant contacted the F.B.I. along with a known felon, Glenn Dameron, and presented herself as Chris Lawrence, an investigative reporter for The Tab. Moreover, testimony was adduced establishing defendant-appellant visited Jeffrey Keith in jail on several occasions following his convictions of numerous felonies. Defense counsel presented no witnesses on her behalf. On October 1, 1995, the trial court found defendant-appellant to be in violation of her probation. Specifically, defendant- appellant was found to have violated general rule six and eight which prohibited her from associating with known felons and a requirement that she fully disclose any involvement with law -5- enforcement officials to her probation officer. Defendant- appellant's probation was revoked and her original sentence was ordered back into execution with credit for time served. On October 25, 1996, defendant-appellant filed this appeal. -6- II. FIRST, SECOND, THIRD AND FOURTH ASSIGNMENTS OF ERROR As Barbara Loesser's, defendant-appellant's, first four assignments of error contain similar issues of law and fact, we will consider them concurrently: I. THE JUDGMENT BELOW SHOULD BE REVERSED BECAUSE TH E CHARGE DID NOT PROVIDE CONSTITUTIONALLY SUFFICIENT NOTICE OF THE CONDUCT ALLEGED TO CONSTITUTE A PROBATION VIOLATION. II. THE JUDGMENT BELOW MUST BE REVERSED BECAUSE APPELLANT WAS DENIED HER LIBERTY INTEREST WITHOUT DUE PROCESS OF LAW WHEN THE COURT HELD A PROBABLE CAUSE HEARING WITHOUT APPELLANT HAVI NG BEEN PROVIDED WITH NOTICE OF A CHARGE AGAINST HER. III. THE JUDGMENT BELOW MUST BE REVERSED BECAUSE APPELLANT WAS DEPRIVED OF HER RIGHT TO CONFRONT THE WITNESS AGAINST HER AT THE PROBABLE CAUSE HEARING. IV. THE JUDGMENT BELOW MUST BE REVERSED BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO PROVE THAT APPELLANT VIOLATED THE TERMS AND CONDITIONS OF PROBATION. A. ISSUE RAISED: WHETHER DEFENDANT-APPELLANT'S DUE PROCESS RIGHTS WERE VIOLATED AND WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN REVOKING DEFENDANT-APPELLANT'S PROBATION. Defendant-appellant argues the probation hearing violated her due process rights provided by the United States Constitution. Specifically, defendant-appellant argues her right to due process was violated by: 1) the trial court's failure to provide written notice of the conduct forming the basis of the alleged violation. Furthermore, once notice was provided, it was insufficiently vague; 2) the trial court's decision to hold the preliminary probation hearing prior to defendant-appellant receiving notice of the alleged violations of probation; and 3) the trial court's refusal -7- to permit defense counsel to cross-examine the assistant prosecutor concerning subjects covered on direct examination. Additionally, defendant-appellant argues in pertinent part that there was insufficient evidence substantiating that defendant- appellant violated the conditions of her probation by contacting known felons and by contacting law enforcement officials. For these reasons, defendant-appellant argues her constitutional rights were violated and that the trial court's judgment must be reversed. Defendant-appellant's first, second, third, and fourth assignments of error are not well taken. B. PRELIMINARY AND REVOCATION HEARINGS. It is well established that the granting of probation is not a right but a privilege. The privilege of probation rests upon the probationer's compliance with the conditions of probation. Any violations of those conditions may properly be used as evidence against a probationer to revoke the privilege. State v. Bell (1990), 66 Ohio App.3d 52. Ohio courts have held that the quantum of evidence required to support a revocation of probation is not reasonable doubt, however, the evidence must be of a substantial nature in order to find revocation justified. State v. Mingua (1974), 42 Ohio App.2d 35, 40. Further, the decision as to whether to revoke a defendant's probation is within the sound discretion of the trial court. State v. McKnight (1983), 10 Ohio App.3d 312. In State v. Delaney (1984), 11 Ohio St.3d 231, 233, the Ohio State Supreme Court observed the following with regard to preliminary hearings : -8- In [Gagnon v. Scarpelli (1973), 411 U.S. 778], the Supreme Court held at 782 that probationers are entitled to a preliminary and final revocation hearing, under the conditions set forth in [Morrisey v. Brewer (1972), 408 U.S. 471]. The preliminary hearing, as described in Morrisey, at 485, is to determine whether there is probable cause or reasonable ground to believe that the arrested *** [probationer] has committed acts that would constitute a violation of *** [probation] conditions. This hearing is designed to prevent a probationer from being incarcerated unjustly pending a final determination as to whether probation should be revoked. Since as the court noted in Morrisey, [t]here is typically a substantial time between the arrest and the eventual [revocation] determination, id., a preliminary probable cause hearing should be held before an independent decision maker, as promptly as convenient after arrest while information is fresh and resources are available. Id. Thus, the probable cause hearing is simply a trial court's timely inquiry into the arrested probationer's conduct, the validity of the conditions alleged violated, and the reasonable grounds for the violation. Its purpose is to prevent a probationer's unjust imprisonment pending the revocation hearing. See State v. Henderson, (1989), 62 Ohio App.3d 848. The subsequent probation revocation hearing is not a criminal trial but is an informal hearing structured to assure that the finding of a *** [probation] violation will be based on verified facts and that the exercise of discretion will be informed by accurate knowledge of the *** [probationer's] behavior. State v. Hylton (1991), 75 Ohio St.3d 778, 781, quoting Morrisey, supra. Furthermore, the rules of evidence do not apply to probation revocation proceedings. Evid.R. 101(C)(3). See State v. Rose (March 20, 1997), Cuyahoga App. No. 70984, unreported. -9- At the final revocation hearing a defendant is entitled to the following due process requirements: (a) written notice of the claimed violation of probation, (b) disclosure of evidence against the defendant, (c) opportunity to be heard in person and to present witnesses and documents in evidence, (d) the right to confront and cross-examine adverse witnesses, (e) neutral and detached hearing officer, (f) a written statement by the fact finders as to evidence relied upon in finding probable cause of revoking [probation or] parole (g) informed of the right to counsel, (h) right to provide counsel where there is a colorable claim or mitigating circumstances ***. Gagnon, supra at 786, citing Morrisey, supra at 489. With these principles in mind, we turn to defendant-appellant's first four assignments of error. -10- C. DEFENDANT-APPELLANT'S DUEPROCESS RIGHTS WERE NOT VIOLATED AND THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN REVOKING DEFENDANT-APPELLANT'S PROBATION. In the case sub judice, defendant-appellant argues she was not given written notice of the allegations alleging a probation violation. A review of the evidence establishes that defendant- appellant was not given written notice of the charges alleging a probation violation prior to her preliminary hearing. However, as noted in State v. Mingua (1974), 42 Ohio App.2d 35, there is no due process right to written notice of the alleged probation violations prior to a preliminary/probable cause hearing due to the hearing's nature. Rather, the notice requirements defendant-appellant alleges were violated apply only to the subsequent revocation hearing. See, also, Delaney, supra; Black v. Romano (1985), 471 U.S. 606, 105 S.Ct. 2254, 85 L.Ed.2d 636; State v. Heinbach (Aug. 31, 1995), Cuyahoga App. No. 67821, unreported. In this case, defendant-appellant was arrested on or about September 4, 1996. A preliminary hearing was held on September 17th by the trial court where the following colloquy took place: THE COURT: *** What the Court's general procedure is, and I try to follow it at all times with regard to these types of hearings, is that I am notified of an arrest of a probationer and at that point I immediately assign counsel, which I did in this case, assuming Ms. Loesser -- I suspected that she would not be able to obtain counsel herself. As it turned out, she has retained private counsel, and yourself, but I notified and appointed Attorney Jeffrey Kelleher to represent her, and I instructed Mr. Kelleher that he was to contact Mr. Canfil [prosecutor] immediately in order to get some of the things that you are asking for this morning. -11- To make it clear for the record, you were -- you entered your appearance here yesterday; is that correct? [DEFENSE COUNSEL]: I called and notified yesterday that I would be entering an appearance. THE COURT: You weren't here physically yesterday? [DEFENSE COUNSEL]: No, no. I just called. THE COURT: Generally what I would do at that point is if an attorney is assigned -- or is retained, rather, that attorney would be given the paperwork. Again, I am referring to a notification of the arrest and the charges that are alleged here as probation violations. At that point generally you would be given those things, as you were, I believe, this morning. And we would then proceed with a violation hearing. * * * THE COURT: Let me suggest this, Mr. Canfil. The only way we are going to be able to remedy this situation is by me ordering you to prepare general written notice for the defendant through her counsel of the alleged violations here with some particularity and then also submit a witness list, as you would ordinarily do in a prosecution matter to defense counsel. And I am going to order that you do that by the end of the week, by September 20th, 1996, that you serve Mr. Murray with those documents. And hopefully that will clear up the problems that we have had with respect to notice to her. What I want to do at this point is I want to proceed with a probable cause hearing in order to determine whether there is probable cause to hold the defendant as an alleged probation violator for whatever reason, and then I will finally address the issue of bail after I've heard the evidence on the probable cause. Thereafter, the prosecution called the assistant county prosecutor to the stand who testified that witnesses in a case involving Jeffrey Keith were recanting their testimony after being -12- contacted by a woman calling herself Chris Lawrence who purportedly worked for The Tab. This same woman had contacted him alleging a witness in the case was no longer willing to cooperate. Moreover, the assistant prosecutor testified that the same individual contacted other officers in the PCIU and Organized Crime Units of the Cleveland Police Department and the F.B.I. alleging prosecutorial and police misconduct. A review of the preliminary hearing demonstrates defense counsel cross-examined the assistant prosecutor extensively. When defense counsel attempted to question the assistant prosecutor about his knowledge of The Tab, the judge limited the cross- examination and eventually concluded the hearing. The trial judge subsequently held that there was probable cause to hold defendant- appellant until the revocation hearing scheduled for September 30th. We find no violation of defendant-appellant's due process right to confront witnesses under these circumstances. Written notice of the charges against defendant-appellant and a witness list was provided to defendant-appellant on September 24, 1996. The alleged probation violations included: 1) Failure to accurately and completely fill out the written monthly report forms ordered in General Rule Number One of the defendant's Rules of Probation imposed upon her; 2) Failure to immediately notify the probation officer of changes of employment; 3) Associating with individuals with known criminal records; and finally 4) Failing to fully disclose any involvement with any police department to her probation officer within a twenty-four period. -13- We find said notice is sufficiently detailed to put defendant- appellant on notice of the allegations being brought against her. On September 30, 1996, the trial court held the revocation hearing. The state called several witnesses to the stand who testified in part to the following: 1) A woman identifying herself as Chris Lawrence indicated to a defense attorney that she had contacted his client and was willing to talk with a trial judge on his behalf; 2) That defendant-appellant called the F.B.I. and identified herself as Chris Lawrence who worked for The Tab. Defendant-appellant subsequently went to the agent's office with a felon named Glen Dameron who had been in prison with Jeffrey Keith; -14- 3) that two conditions of defendant-appellant's proba tion was that she was not to have any association with persons having known criminal records and that she was required to provide full di sclosure as to any involvement with any police department; 4) Defendant-appellant's probation officer testified that defendant-appellant informed her that she was contacted by the F.B.I. and the P.C.I.U. Unit of the Cleveland Police Department. Defense counsel then cross-examined the state's witnesses. The scope of cross-examination concerned, in part, whether the witnesses were aware that defendant-appellant was in the middle of legally changing her name to Chris Lawrence. Moreover, defense counsel questioned the probation officer concerning the recent revisions of the general probation rules regarding informants. At the conclusion of defense counsel's cross-examination, defense counsel indicated the possibility of producing witnesses on behalf of his client, but due to the late hour, he could not do so at that time. The trial court continued the hearing to the following morning. At that time, defense counsel produced no witnesses on defendant-appellant's behalf and the trial court found that sufficient credible evidence existed establishing defendant- appellant had violated certain terms of her probation. From a review of the record, defendant-appellant was provided with sufficient written notice of her alleged probation violations approximately one week prior to the revocation hearing. Moreover, defense counsel was permitted to conduct extensive cross- examination of the state's witnesses. Finally, when given the -15- opportunity, defense counsel presented no witnesses on defendant- appellant's behalf. We do not find under these facts and circumstances that defendant-appellant was deprived of her due process rights to adequate notice of the alleged probation violation prior to the revocation hearing. Moreover, assuming arguendo there had been error, we find any error to be harmless as defendant-appellant did not adequately demonstrate prejudice. See State v. Bleasdale (1990), 69 Ohio App.3d 68; State v. Brown (1982), 7 Ohio App.3d 113; City of Westlake v. Galla (Feb. 1, 1996), Cuyahoga App. No. 69174, 69195, 69196, unreported. Finally, after a review of the record, we find there exists sufficient credible evidence supporting the trial court's determination that she had violated terms of her probation. Specifically, the evidence established defendant-appellant's association with persons having known criminal records and that defendant-appellant failed to provide full disclosure to her probation officer regarding her involvement with the law enforcement officials. Therefore the trial court did not abuse its discretion in revoking defendant-appellant's probation. Defendant-appellant's first, second, third and fourth assignments of error are not well taken. III. FIFTH ASSIGNMENT OF ERROR Barbara Loesser, defendant-appellant, states as her fifth assignment of error: -16- V. THE JUDGMENT BELOW MUST BE REVERSED BECAUSE THE COURT ERRED IN OVERRULING APPELLANT'S MOTION TO COMPEL THE PRODUCTION OF EVIDENCE AGAINST HER. A. ISSUE RAISED: WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN OVERRULING DEFENDANT-APPELLANT'S MOTION TO COMPEL. Defendant-appellant argues the trial court abused its discretion in denying her motion to compel the production of evidence against her that was filed with the trial court on September 25, 1996. Specifically, the state was required to disclose evidence upon which the alleged violations were based. A mere witness list, defendant-appellant argues, is insufficient under the Due Process Clause. As such, the trial court committed prejudicial error in denying said motion to compel. Defendant-appellant's fifth assignment of error is not well taken. B. STANDARD OF REVIEW: ABUSE OF DISCRETION. The management of the discovery process is solely within the sound discretion of the trial court and, absent an abuse of that discretion, the granting or denying of a discovery request will not be disturbed by a reviewing court. State ex rel. Daggett v. Gessaman (1973), 34 Ohio 2d 55; Glick v, Mayer (1992), 82 Ohio App.3d 752; Camardo v. Brechbuhler Scales, Inc. (Feb. 13, 1997), Cuyahoga App. No. 70699, unreported. When applying the abuse of discretion standard, a reviewing court may not substitute its judgment for that of the trial court. Berk v. Matthews (1990), 53 Ohio St.3d 161. C. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN DENYING DEFENDANT-APPELLANT'S MOTION TO COMPEL. -17- In the case sub judice, the only evidence presented at the trial hearing were several witnesses presented by the state. All witnesses who appeared were included on a witness list timely filed with defense counsel. Under these circumstances, it appears the trial court was not convinced the materials sought were necessary and/or material to defendant-appellant's guilt. Crim.R. 16(B)(1)(f). As stated in Pennsylvania v. Ritche (1987), 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40, defendant-appellant's right to discovery does not entitle her to the pretrial disclosure of all information that might be useful in contradicting unfavorable testimony and does not enable her to search through all the state's files. See State v. Henson (1996), 110 Ohio App.3d 845. The state only has to provide defendant-appellant with what is material. Moreover, [t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish `materiality' in the constitutional sense. State v. Jackson (1991), 57 Ohio St.3d 29, 33. After a review of the entire record, we do not believe that the result of the proceeding would have been different if the evidence defendant-appellant requested had been disclosed. Accordingly, the trial court did not abuse its discretion in denying defendant-appellant's motion to compel. Defendant- appellant's fifth assignment of error is not well taken. Judgment affirmed. -18- 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. DYKE, J. and ROCCO, J., CONCUR. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's .