Victor N. Newbern v. State of Indiana (mem. dec.) ( 2018 )

    Pursuant to Ind. Appellate Rule 65(D),                                      FILED
    this Memorandum Decision shall not be                                   Jan 17 2018, 8:24 am
    regarded as precedent or cited before any
    court except for the purpose of establishing                            Indiana Supreme Court
                                                                               Court of Appeals
    the defense of res judicata, collateral                                      and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Amy D. Griner                                            Curtis T. Hill, Jr.
    Mishawaka, Indiana                                       Attorney General of Indiana
                                                             Katherine Cooper
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana
                                               IN THE
    Victor N. Newbern,                                       January 17, 2018
    Appellant-Defendant,                                     Court of Appeals Case No.
            v.                                               Appeal from the Elkhart Superior
    State of Indiana,                                        The Honorable Terry Shewmaker,
    Appellee-Plaintiff                                       Judge
                                                             Trial Court Cause No.
    Altice Judge.
                                             Case Summary
    Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1609 | January 17, 2018         Page 1 of 11
    [1]   Victor Newbern appeals the trial court’s order revoking his probation and
          ordering him to serve the entirety of his previously-suspended sentence. He
          presents four issues for our review, which we restate as the following three:
                  1. Did the trial court abuse its discretion in admitting evidence
                  from Newbern’s cell phone?
                  2. Did the special conditions of Newbern’s probation violate his
                  constitutional rights?
                  3. Did the trial court abuse its discretion in revoking Newbern’s
                  probation and imposing his previously-suspended five-year
    [2]   We affirm.
                                           Facts & Procedural History
    [3]   On May 16, 2012, Newbern pled guilty to rape as a Class B felony and on July
          5, 2012, the trial court sentenced him to fifteen years, with five years suspended
          to probation. Newbern was released from incarceration on November 24, 2016.
          On November 28, 2016, Newbern met with Melanie Godden, an adult
          probation officer who specializes in supervising sex offenders. Godden
          reviewed the terms of probation with Newbern. In addition to the standard
          terms of probation, Newbern was ordered to comply with twenty-eight
          additional terms specific to sex offenders. As pertinent here, one special
          condition required Newbern to notify Godden of the establishment of any
          dating, intimate, and/or sexual relationship. Godden also informed Newbern
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          that he “shall not be present at any parks or public beaches where children are
          known to congregate, schools, school-sponsored activities, amusement parks,
          playgrounds, day care centers, or any other place designated by your probation
          officer unless given written permission by the court or your probation officer.”
          Exhibits Vol. III-State’s Exhibit 1 at 6. In explaining this provision, Godden
          specifically informed Newbern that that he was not allowed to go inside a
          library or a mall. Another special condition of Newbern’s probation required
          Newbern to allow his probation officer, “based on reasonable suspicion, to
          conduct periodic unannounced examinations of . . . electronic equipment with
          access to the Internet.” Id. In this same vein, a standard condition of
          Newbern’s probation was that he agreed to “waive any and all rights as to
          search and seizure under the laws and Constitution of both the United States of
          America and the State of Indiana during [his] period of probation.” Id. at 2.
          He further agreed to “submit to warrantless and suspicionless searches and
          seizures of [his] person, property, vehicle, residence, and any other property
          under [his] control, at any time.” Id.
    [4]   In accordance with the terms of his probation, Newbern met with Godden as
          required and submitted to drug screens, testing negative for controlled
          substances. During each of Newbern’s meetings with Godden, Godden
          reminded Newbern that he needed to obtain a psychosexual assessment as
          ordered by the court and as required as a term of his probation. With each
          reminder Newbern indicated that he would get it scheduled, although he never
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    [5]   During a meeting on January 5, 2017, Godden asked to see Newbern’s cell
          phone, and he gave it to her. Godden examined the cell phone and determined
          it was a smart phone. She advised Newbern that he was not permitted to have
          a smart phone because, as a condition of his probation, he was not allowed to
          have access to the internet. Godden explained “very clearly” that continued
          use of the smart phone would be “a continuous violation of his probation.”
          Transcript Vol. 2 at 54.
    [6]   Newbern was going to throw the phone away until Godden told him that was
          not necessary. Newbern then placed his phone on Godden’s desk. Godden
          picked up Newbern’s phone and explained to him that she was going to read his
          text messages. Godden began to review text messages while Newbern was still
          in her office and came across text conversations between Newbern and several
          different women, many of which were sexually explicit in nature. Godden
          questioned Newbern about the text messages, and Newbern denied being in a
          relationship with any of the women and stated that they were only friends.
          Newbern left his cell phone with Godden after they finished discussing these
          text messages.
    [7]   After Newbern left her office, Godden continued to review his text messages.
          Godden came across a series of text messages between Newbern and a woman
          in which he indicated he was going over to the woman’s house, and the woman
          responded, “Okay baby. I am here just waiting on my cuz for my weed but I
          am ready.” Id. at 59. Godden was concerned that Newbern was associating
          with individuals who were using illegal drugs. In another text message,
          Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1609 | January 17, 2018   Page 4 of 11
           Newbern stated he was going to South Bend with his mother (i.e., leaving
           Elkhart County). There were also multiple text messages between Newbern
           and different women in which they discussed their sexual encounters.
    [8]    Additionally, Godden discovered a text exchange between Newbern and yet
           another woman. This exchange was initiated by Newbern and the recipient
           responded by asking for Newbern’s identity. Newbern replied, “Vic from the
           mall.” Id. at 61. Godden called the cell phone number associated with these
           text messages and a young woman answered. Godden asked her if she was
           familiar with Newbern. The young woman recognized Newbern’s name and
           told Godden that Newbern had approached her in the mall in Mishawaka, St.
           Joseph County, and asked her how old she was. She told Newbern she was
           seventeen and he asked her for her phone number, which she gave him. The
           two began exchanging text messages and talking frequently over the phone.
    [9]    Godden was concerned about Newbern’s conduct in this regard because she
           had explained to Newbern that he was not permitted to be inside a mall and
           also because he had left Elkhart County and travelled to St. Joseph County
           without obtaining her permission. Even more concerning to Godden was that
           the young woman was the same age as the victim of the rape to which Newbern
           pled guilty. The young woman did not know that Newbern was a convicted
           sex offender until Godden informed her of such.
    [10]   The following day, January 6, 2017, Godden filed a notice of probation
           violation alleging numerous violations, including Newbern’s failure to obtain a
           Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1609 | January 17, 2018   Page 5 of 11
           psychosexual assessment, failure to make payments to the court to cover
           probation user fees and drug screens, association with individuals who use
           illegal drugs, leaving the county without permission, failure to notify probation
           with regard to his relationships, contact with persons under the age of eighteen,
           and presence in places he was prohibited from being. The trial court held an
           evidentiary hearing on May 2, 2017, and took the matter under advisement.
           Shortly thereafter, the trial court entered its order finding that Newbern had
           violated the terms of his probation and setting a dispositional hearing for June
           29, 2017. At that hearing, the trial court revoked Newbern’s probation and
           ordered that he serve his previously-suspended five-year sentence. Newbern
           now appeals. Additional facts will be provided as necessary.
                                               Discussion & Decision
                                               Admission of Evidence
    [11]   Newbern argues that the trial court erred in admitting into evidence the
           contents of his cell phone because such was obtained in violation of his Fourth
           Amendment rights as Godden’s search was not based on reasonable suspicion.
           During the evidentiary hearing, however, Newbern challenged the admission of
           this evidence on other grounds, asserting a lack of foundation and that such
           constituted hearsay. Newbern’s Fourth Amendment argument is presented for
           the first time on appeal and he makes no claim of fundamental error. He has
           therefore waived the issue for review. See Hilligoss v. State, 
    45 N.E.3d 1228
           Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1609 | January 17, 2018   Page 6 of 11
           1231 (Ind. Ct. App. 2015) (noting that a party waives an issue if it is raised for
           the first time on appeal unless the error is fundamental).
    [12]   Waiver notwithstanding, Newbern’s argument is without merit. A probation
           revocation hearing is in the nature of a civil hearing and therefore does not
           equate with an adversarial criminal proceeding. Grubb v. State, 
    734 N.E.2d 589
           591 (Ind. Ct. App. 2000), trans. denied.
                   As such, a probationer who is faced with a petition to revoke his
                   probation, although he must be given “written notice of the
                   claimed violations, disclosure of the evidence against him, an
                   opportunity to be heard and present evidence, the right to
                   confront and cross-examine adverse witnesses, and a neutral and
                   detached hearing body,” is not entitled to the full panoply of
                   rights that he enjoyed prior to his conviction.
           Id. (quoting Isaac v. State, 
    605 N.E.2d 144
    , 147 (Ind.1992)).
    [13]   Given the distinction between formal criminal proceedings and probation
           revocation hearings, “courts have found it unnecessary to fully apply the
           exclusionary rule when dealing with probation revocation.” Dulin v. State, 
    169 Ind. App. 211
    , 219, 
    346 N.E.2d 746
    , 751 (1976). Even if evidence is seized
           illegally, such will be excluded “only it if was seized as part of a continuing plan
           of police harassment or in a particularly offensive manner.” Id. Newbern has
           made no such showing here.
                                  Constitutionality of Probation Conditions
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    [14]   Newbern argues that certain conditions of his probation violated his right to
           privacy, were not reasonably related to the goals of rehabilitation, or were
           overly broad. Specifically, Newbern challenges the condition that he was
           required to notify his probation officer before engaging in an intimate
           relationship. He also argues that the term of probation prohibiting him from
           being in a place designated by his probation officer did not adequately inform
           him of the prohibited conduct.
    [15]   The trial court is granted broad discretion in establishing conditions of
           probation to safeguard the general public and to create law abiding citizens.
           Gordy v. State, 
    674 N.E.2d 190
    , 191-92 (Ind. Ct. App. 1996) (citing Johnson v.
    659 N.E.2d 194
    , 198 (Ind. Ct. App. 1995)). The discretion afforded trial
           courts to set probation terms has been described as follows:
                   The sentencing judge has a broad power to impose conditions
                   designed to serve the accused and the community. The only
                   limitation is that the conditions have a reasonable relationship to
                   the treatment of the accused and the protection of the public. The
                   object, of course, is to produce a law abiding citizen and at the
                   same time to protect the public against continued criminal or
                   antisocial behavior.
           McCloud v. State, 
    452 N.E.2d 1053
    , 1056 (Ind. Ct. App. 1983). Because of the
           broad discretion granted the trial court, our review is essentially limited to
           determining whether the challenged conditions of probation are reasonably
           related to attaining these goals. However, where a defendant contends that a
           probation condition is unduly intrusive on a constitutional right, the following
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           three factors must be balanced: (1) the purpose sought to be served by
           probation; (2) the extent to which constitutional rights enjoyed by law abiding
           citizens should be afforded to probationers; and (3) the legitimate needs of law
           enforcement. Carswell v. State, 
    721 N.E.2d 1255
    , 1258 (Ind. Ct. App. 1999).
    [16]   With regard to the condition of probation that requires Newbern to notify his
           probation officer of his establishment of a dating, intimate, and/or sexual
           relationship, we consider such in light of the fact that Newbern is a convicted
           sex offender who raped a seventeen-year-old girl. As asserted by the State, we
           find that this condition does not prevent Newbern from having an adult
           relationship, but rather, this notification requirement was put in place to allow
           Newbern’s probation officer to determine whether he is involved with a minor
           or whether he is involved with someone who has minor children. In this same
           vein, the probation condition also served to protect the public—namely,
    [17]   As for the probation condition that Newbern is prohibited from being present in
           places were children are known to congregate, including places designated by a
           probation officer, Godden testified that she specifically informed Newbern that
           he was not to go inside a mall. Newbern had clear notice of the prohibited
           conduct. Further, prohibiting Newbern from entering a mall where teenagers
           are known to congregate is in line with protecting this class of persons.
    [18]   The special conditions of probation challenged by Newbern do not violate his
           constitutional right to privacy and they are not overly broad or vague with
           Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1609 | January 17, 2018   Page 9 of 11
           regard to the prohibited conduct. The conditions are reasonably related to the
           goals of rehabilitation and are designed to protect the public.
    [19]   Newbern argues that the State presented insufficient evidence to support the
           revocation of his probation. A probation revocation hearing is civil in nature,
           and the alleged violation must be proven by the State by a preponderance of the
           evidence. Mateyko v. State, 
    901 N.E.2d 554
    , 558 (Ind. Ct. App. 2009), trans.
           denied. When reviewing a claim of insufficient evidence to support a trial
           court’s decision to revoke probation, we consider only the evidence most
           favorable to the judgment, and we neither reweigh the evidence nor judge the
           credibility of witnesses. Id. Revocation is appropriate if there is substantial
           evidence of probative value to support the trial court’s conclusion that the
           probationer has violated the terms of probation. Lightcap v. State, 
    863 N.E.2d 907
    , 911 (Ind. Ct. App. 2007). It is well settled that the violation of a single
           condition of probation is sufficient to support revocation. Gosha v. State, 
    873 N.E.2d 660
    , 663 (Ind. Ct. App. 2007). The sanction imposed by the trial court
           upon a finding of a probation violation is reviewed on appeal for an abuse of
           discretion. Brandenburg v. State, 
    992 N.E.2d 951
    , 953 (Ind. Ct. App. 2013),
           trans. denied.
    [20]   Newbern argues that the trial court’s finding that he violated the terms of his
           probation was based in part on inadmissible evidence, i.e., the information
           gathered from his phone. As noted herein, Newbern did not establish that the
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           challenged evidence was inadmissible. Godden testified that Newbern had
           communicated with an individual who could be associated with illegal drugs,
           that he had communicated with a teenage girl, that he had visited a mall in a
           different county without first obtaining permission, and that he had sexually
           explicit text conversations with several women. All of these behaviors violated
           the terms of Newbern’s probation. This evidence was more than sufficient to
           support the trial court’s finding that Newbern violated numerous conditions of
           his probation.
    [21]   Having found that Newbern violated his probation, the trial court was within its
           discretion to revoke probation and impose the balance of Newbern’s previously
           suspended sentence. See Ind. Code § 35-38-2-3(h)(3) (providing that a trial court
           may order execution of all or part of the sentence that was suspended at the
           time of initial sentencing upon finding that a defendant has violated his
    [22]   Judgment affirmed.
    [23]   May, J. and Vaidik, C.J., concur.
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