BUCYRUS — A probation violation hearing involving a faked drug test and threats to a pregnant woman took up the entire afternoon Wednesday in Crawford County Common Pleas Court.
Dana Kincade Jr., 43, of Upper Sandusky was charged with violating the terms and conditions of his community control. Kincade was placed on five years of probation in 2019 after he pleaded guilty to an amended charge fifth-degree felony charge for attempted burglary, punishable with as long as one year in prison.
According to allegations, Kincade tampered with a urine drug screen test and made domestic violence threats to his girlfriend who is set to deliver his child in the coming week.
Probation officer Eric Bohach was called to testify by Crawford County Assistant Prosecutor Ryan Hoovler. Bohach presented the court with a copy of the terms and conditions of Kincade’s community control signed by both he and Kincade on December 17.
Bohach testified he received a call from the adult parole authority saying Kincade had been involved in a domestic issue in Bucyrus on May 24. The Bucyrus Police Department made two visits to the home regarding the issue but did not make a report. Bohach began trying to contact Kincade but none of the numbers he had on file were working numbers.
Bohach said he received approximately two dozen calls May 26 advising him to look at a video post on Facebook that was approximately two minutes in length. According to Bohach, Kincade was heard yelling at and threatening his pregnant girlfriend. Her 15-year-old child took the cellphone video.
Bohach played the audio portion of the video in the courtroom. Kincade could be heard calling his girlfriend expletive names and at one point threatening to cut her face off with a knife.
Bohach said he did contact Kincade’s girlfriend, Cari Wolfe. She acknowledged her 15-year-old child recorded the video and called her sister out of fear. Her sister then called police. Bohach told Wolfe he needed to speak with Kincade. Kincade contacted Bohach and acknowledged the argument but said he left before police arrived. He described it as a verbal altercation and a heated argument.
In the second count of the probation violation, Bohach said Kincade waited three days to report in person for a drug screen. Bohach said he had to take four different drug tests because Kincade could not produce enough urine to test. He had Kincade drink water in order to provide testable urine. On the final attempt the strip on the test indicated the sample was diluted. Bohach said there was presence of benzodiazepine and faint traces of methamphetamine. Bohach sent the test to a lab to be examined further. Bohach had a copy of the lab report.
Bohach reviewed the lab report which officially labeled the test as negative. A footnote at the bottom of the report said that the creatine levels in the testing were far below normal indicating the test had been diluted.
Kincade’s attorney, Tom Nicholson, was visibly angry and pressed Bohach on the science of the report.
“Are you a trained chemist?” Nicholson asked. “What do you know about this science?”
Bohach indicated that he was not a trained chemist but had worked with the lab in testing hundreds to thousands of tests during his time with the department. He explained the footnote explained the specifics of the result, and said that in his experience, he felt it was likely that during the three days before Kincade reported in person he had flushed his system of the drugs.
“Well you’re telling me he flushed his system when you’re the one who was telling him to chug water to be able to take a test?” Nicholson asked.
Bohach said a person cannot flush drugs that quickly drinking water for a urine test. He said it takes days and any water he drank immediately before the test would not have that effect.
The prosecution motioned to introduce the audio portion of the video. Nicholson objected to the playing of the audio saying that there was not date on the audio.
Crawford County Common Pleas Judge Sean Leuthold ruled against Nicholson.
“I’m going to allow this to be played,” Leuthold said. “There were numerous calls to the probation department about this video. The police were called to the home where this video was taken. The police run report supports the video.”
Bohach then played the two-minute audio where Kincade may be heard demeaning and threatening Wolfe.
“You’re an ugly bitch. Why don’t you kill yourself? I’m going to cut your ugly f—g face off,” Kincade yelled.
With the playing of the tape the state rested its case.
Nicholson called Wolfe to testify. Wolfe told the court that she was Kindcade’s girlfriend and expected to deliver his baby within the coming week.
“Dana and I had an argument around May 28,” Wolfe said. “My son does not like Dana. My family does not like Dana. My 15-year-old son recorded the argument. He called my sister who called the police.”
Wolfe testified she had not been in fear of her life. She said she told Bohach that she had no fear and that Kincade left when she told him to leave. She said there was name calling and she could be heard chuckling on the tape. Wolfe said she knew of Kincade’s past relationships.
Hoovler asked Wolfe who was present during the argument. She said she, Kincade and her son were present.
“Things were said that were threatening weren’t there?” Things like threatening to cut your face off and telling you to kill yourself, right?” Hoovler asked.
Wolfe said she did not remember everything that was said. She remembered the fight was because he wanted her phone and she wouldn’t let him have it. She said it escalated and she remembered him calling her an “ugly bitch.”
“You don’t recall things said? You may have forgotten? Your son called your sister because he was afraid for his mother,” Hoovler said.
Wolfe insisted Kincade knew it was best to leave. Hoovler asserted he left because he knew the police were on the way. Wolfe said Kincade had been there all day and there were no drugs or alcohol involved.
“So, let me get this straight,” Hoovler said. “You remember all those details, but you don’t remember him saying he would cut your face off? You’re saying you were not in fear?”
Nicholson then called Kincade to testify about the events of the day.
Kincade said he did not alter the drug test and insisted he was told to chug water. Regarding the incident with Wolfe, Kincade called it a little argument and insisted they were joking around and he left when she asked him to leave.
Hoovler challenged that assertion.
“We all heard it. So, it was a joke? It doesn’t sound like a joke to us,” Hoovler said. “Your testimony is you were joking, but you said you were mad. When you get mad do you joke? Either you joke so much you were mad, or you were so mad that you left. Which is it?”
Kincade said he thought leaving was the best thing to do because he said things that shouldn’t have been said.
In closing arguments Hoovler reiterated that Kincade threatened serious physical harm to his pregnant girlfriend and that by his own admission he had said and done things he should not have done. Hoovler noted the victim’s son was so frightened that he videotaped the argument and police were called.
Regarding the drug test, Hoovler noted Kincade waited three days to come in for the office visit and he used those days to wash his system of the drugs and thereby altering the results of the test.
Tom Nicholson’s closing arguments were animated.
“There are two ways to look at things. Mr. Hoovler wants to believe the worst because this is Dana Kincade,” Nicholson said. “There are many people in the courtroom today. We and we’re all in or have been in relationships. If we’re honest we’d have to admit that everyone has taken a phone book and thrown, or had it thrown within an inch of their face or the face of their significant other. These things happen. You laugh about it later. You have a 14-year-old kid that doesn’t like Dana and takes a video and calls the police. Ms. Wolfe came in here today pregnant to tell you that she had no fear. Things aren’t always the worst. Look Dana has had a lot of trouble with the ladies. You could call him a ladies’ man. If anything, he loves the ladies too much.”
Nicholson went on to tell the court Wolfe was chuckling on the tape but that no one seems to acknowledge hearing that.
“All in all, none of this is proven and it doesn’t deserve a prison sentence,” Nicholson said. “Your honor don’t believe the worst. The worst is not always true.”
Leuthold addressed the burden of proof in a community control violation hearing. Leuthold said he was troubled by the fact that Kincade waited three days to report for the office visit after being summoned into probation.
“I am 49-50 percent sure Mr. Kincade altered his drug test,” Leuthold said. “But I have to be more than 50 percent sure. I understand the state’s allegations, but they have not met their burden of proof on this charge. Therefore, I find that this charge be dismissed.”
As far as the tape relates to the allegations, Leuthold said he had no doubt it was Kincade on the tape.
“They have both admitted to being on the tape. The tape is authentic. What I heard on the tape rises to a violation,” Leuthold said.
Leuthold also evaluated the witnesses in the case. He noted that Bohach had many years of experience and he deals strictly with facts. He found no exaggeration is Bohach’s testimony and he felt the test was accurate.
“Ms. Wolfe’s credibility is difficult. I’m not sure what she felt. I’m not entirely convinced she was not afraid of Mr. Kincade. She’s in a bad spot,” Leuthold said. “Victims often recount and minimize abusive behavior. She is in a position that sadly too many women are in.”
Leuthold was not impressed with Kincade’s attitude.
“Mr. Kincade refused to answer questions. He kept saying he was joking. He did nothing but deflect from the questions. On this tape there is enough of a threat to terrify a young boy in fear of his mother’s safety,” Leuthold said. “Mr. Kincade is intimidating, threatening and swearing at his girlfriend who is in the last stages of pregnancy. He calls her an ugly bitch more times than I can count. There is nothing funny here. This was disgusting, disgraceful and disrespectful to women. She insists she was not in fear but all evidence including the tone of his voice, the arguing, the feelings of a third party and her vulnerable state of pregnancy point in a different direction. The state has met its burden of proof on this charge.”
Before continuing, Leuthold addressed Wolfe.
“I want to tell you to take care of yourself. None of the things he said about you are true. Remember that and take care,” Leuthold said.
Before sentencing Kincade, Leuthold asked the prosecution for a review of his previous record. Convictions included domestic violence in 1994. Hoovler told the court Kincade is unable to abide by the terms and conditions of community control and asked for 11 months in prison for the violation.
Nicholson told the court that his client would be better served with some jail time and counseling.
“Dana has troubles with the ladies. He’s too much of a lover of women,” Nicholson said. “Is it necessary to send him into a COVID rampant environment?”
Leuthold disagreed with the notion and gave the sentence.
“These are atrocious words; the behavior is atrocious while on community control. You called him a ‘lover of women.’ No one who loves a woman would speak to her this way,” Leuthold said. “I will sentence you to 10 months in prison on this matter. I will not recommend transitional control and will deal with the prison on this matter. That will conclude this matter. Take him out of here.”