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

MEMORANDUM DECISION
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
CLERK
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
COURT OF APPEALS OF INDIANA
Victor N. Newbern, January 17, 2018
Appellant-Defendant, Court of Appeals Case No.
20A03-1707-CR-1609
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Terry Shewmaker,
Appellee-Plaintiff Judge
Trial Court Cause No.
20D01-1108-FB-12
Altice Judge.
Case Summary
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[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
sentence?
[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
did.
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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,
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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
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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,
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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.
State, 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,
minors.
[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
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regard to the prohibited conduct. The conditions are reasonably related to the
goals of rehabilitation and are designed to protect the public.
Sufficiency
[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
probation).
[22] Judgment affirmed.
[23] May, J. and Vaidik, C.J., concur.
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