Robert Antonio Dunbar v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 22 2019, 6:53 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sean C. Mullins Curtis T. Hill, Jr.
Appellate Public Defender Attorney General
Crown Point, Indiana
Samantha M. Sumcad
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Antonio Dunbar, April 22, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2355
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Diane Ross
Appellee-Plaintiff Boswell, Judge
The Honorable Kathleen A.
Sullivan, Magistrate
Trial Court Cause No.
45G03-1709-F4-34
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2355 | April 22, 2019 Page 1 of 6
Case Summary
[1] Robert Antonio Dunbar appeals his probation revocation, challenging the
sufficiency of the evidence to support the trial court’s finding of a probation
violation. Finding the evidence sufficient, we affirm.
Facts and Procedural History
[2] The evidence most favorable to the judgment is as follows. In September 2017,
Dunbar broke into the home of ex-girlfriend Sushi Staples, who was sixteen
weeks pregnant with his child. Staples was asleep when Dunbar entered her
bedroom. She awoke to find him striking her on the head and body. Then, in
the presence of Staples’s four-year-old son, Dunbar threw Staples across the
hallway, into the bathroom, and into the tub. Staples phoned police and
reported that she believed Dunbar to still be inside her home. Police found him
hiding inside a closet underneath some clothes, and he refused the officers’
orders to come out. He physically resisted their efforts to pull him out but was
eventually subdued.
[3] The State charged Dunbar with level 4 felony burglary, level 5 felony domestic
battery resulting in bodily injury to a pregnant woman, level 6 felony domestic
battery in the presence of a person less than fourteen years old, class A
misdemeanor invasion of privacy, and class A misdemeanor resisting law
enforcement. On March 5, 2018, Dunbar pled guilty via plea agreement to
level 6 felony domestic battery in the presence of a person less than fourteen
years old, and the State dismissed the remaining charges. The stipulated plea
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agreement reads, in part, “The parties agree that there shall be a No Contact
Order entered against the defendant in regards to the victim in this case for the
length of his sentence[.]” Appellant’s App. Vol. 2 at 29. That same day, the
trial court sentenced Dunbar to two and one-half years, with one year executed
in the Indiana Department of Correction (“DOC”) and one and one-half years
suspended to probation.
[4] Within a week of his release from the DOC, Dunbar made attempts to contact
Staples via Facebook Messenger. Lake County Probation Officer Gisela
Thielbar confronted Dunbar about contacting Staples, and although he denied
it at first, he later said, “Okay, I’ll stop.” Tr. Vol. 2 at 14-15. The State filed a
petition to revoke Dunbar’s probation, alleging that Dunbar attempted to
contact Staples in violation of a no-contact order and that he had failed to pay
probation fees totaling $180. After a hearing, the trial court found that Dunbar
had violated his probation and executed the remaining eighteen months of his
sentence. Dunbar now appeals. Additional facts will be provided as necessary.
Discussion and Decision
[5] Dunbar asserts that the evidence is insufficient to support the trial court’s
determination that he violated his probation. Probation is a matter of grace left
to the trial court’s sound discretion, not a right to which a criminal defendant is
entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The trial court
determines the conditions of probation and may revoke probation if the
probationer violates those conditions. Id. On review, we neither reweigh
evidence nor reassess witness credibility; rather, we consider the evidence and
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reasonable inferences most favorable to the judgment. Pierce v. State, 44 N.E.3d
752, 755 (Ind. Ct. App. 2015).
[6] Probation revocation is a two-step process, wherein the trial court first makes a
factual determination as to whether the probationer violated the terms of his
probation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Because a
probation revocation proceeding is civil in nature, the State need only prove the
alleged probation violation by a preponderance of the evidence. Holmes v. State,
923 N.E.2d 479, 485 (Ind. Ct. App. 2010). If a violation is found, the court
then determines whether the violation warrants revocation. Woods, 892 N.E.2d
at 640. Proof of a single violation is sufficient to permit a trial court to revoke
probation. Beeler v. State, 959 N.E.2d 828, 830 (Ind. Ct. App. 2011), trans.
denied.
[7] Dunbar maintains that the State failed to prove that Staples was the person who
contacted Thielbar about the Facebook Messenger friend requests and that
Dunbar was “Capo Rob,” the sender of the friend request messages. State’s Ex.
1. During the revocation hearing, Thielbar testified that Staples had called her
concerning the friend requests. Although the officer had never met Staples in
person, she testified that she believed that Staples was the caller because the
caller provided information to her that was not publicly available concerning
the case. Staples took screenshots of the friend request messages and emailed
them to Thielbar. These messages include photos of Dunbar. When Thielbar
confronted Dunbar about contacting Staples, he denied it at first but later said,
“Okay, I’ll stop.” Tr. Vol. 2 at 14-15. With respect to this statement, Dunbar
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2355 | April 22, 2019 Page 4 of 6
told the court, “Yes. I made a mistake when I caught the case. By me telling
her I would stop contacting her, I never said—if I did do it, I admit to what I
did. I feel like this is my first violation and I was going through paying my fees
and my interstate compact.” Id. at 19-20. Dunbar’s admission completely
undercuts his argument that the State failed to prove that he was the sender of
the messages and that Staples was the recipient.
[8] For the first time on appeal, Dunbar challenges the existence of the no-contact
order and points us to an online registry to show the absence of an entry
concerning it. However, the record includes several references to the entry of a
no-contact order. First and foremost, the no-contact order was a provision in
Dunbar’s stipulated plea agreement. See Appellant’s App. Vol. 2 at 29 (“The
parties agree that there shall be a No Contact Order entered against the
defendant in regards to the victim in this case for the length of his sentence[.]”).
The no-contact order is also referenced in the sentencing order. See id. at 35
(“Pursuant to the plea agreement, the defendant enters into a No Contact
Order, for the length of the sentence.”). Moreover, probation officer Thielbar
testified at the revocation hearing concerning the existence of the no-contact
order. See Tr. Vol. 2 at 8 (“Q. Does the sentencing order indicate a no contact
order was, in fact, entered[?] A. Yes.”). Finally, the no-contact order is
referenced in the chronological case summary. See Appellant’s App. Vol. 2 at 4
(March 5, 2018 entry: “Pursuant to PA, a NCO is entered.”). The evidence
most favorable to the judgment is sufficient to support the existence of a valid
no-contact order. Based on the foregoing, we conclude that the State
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established by a preponderance of the evidence that Dunbar violated his
probation. Accordingly, we affirm the trial court’s judgment revoking Dunbar’s
probation.
[9] Affirmed.
Bradford, J., and Tavitas, J., concur.
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