Joshua E. Cain v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Mar 18 2015, 9:03 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Gregory L. Fumarolo Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
Brian Reitz
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joshua E. Cain, March 18, 2015
Appellant-Defendant, Court of Appeals Case No.
02A03-1407-CR-260
v. Appeal from the Allen Superior
Court.
The Honorable Samuel R. Keirns,
State of Indiana, Magistrate.
Appellee-Plaintiff. Cause No. 02D04-0911-FA-70
Sharpnack, Senior Judge
Statement of the Case
[1] Joshua E. Cain appeals from the trial court’s order revoking his suspended
sentence and ordering him to serve five years in the Department of Correction,
contending that the trial court abused its discretion by revoking his suspended
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sentence based solely upon his admission to the probation violations. We
affirm.
Issue
[2] Whether Cain’s statements to his probation officer admitting the
probation violation can be the sole basis supporting the
revocation of his probation.
Facts and Procedural History
[3] On March 11, 2010, Cain pleaded guilty to child molesting as a Class B felony
and child solicitation as a Class D felony. Pursuant to the terms of the plea
agreement, Cain was sentenced to an aggregate term of fifteen years, with ten
years executed in the Department of Correction and five years suspended to
probation. After completing the executed portion of his sentence, Cain began
the probationary term of his sentence on November 18, 2013. The terms of
Cain’s probation included the following condition:
9. You shall have no contact with any child under the age of
eighteen (18). Contact includes face-to-face, telephone, written,
electronic, or indirect contact via third parties.
Appellant’s App. at 63. In addition, Cain was required to undergo polygraph
testing in his certified sexual perpetrator treatment program. Cain signed and
dated the conditions of his probation.
[4] However, during the probation period of his sentence, Cain met a girl, B.S.,
who was fifteen years old, while the two were riding on a bus. On three to five
occasions from December 2013 to January 2014, while riding the bus, Cain
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fondled the girl. More specifically, Cain kissed B.S., touched her breasts, kissed
her breasts, and placed his finger in her vagina.
[5] During every probation appointment, Cain’s probation officer, Ryan Koch,
asked Cain whether he had any contact with minors. Cain denied having any
contact each time he was asked. However, on May 12, 2014, during a
polygraph examination, Cain made statements about his contact with B.S.
That evening, Cain contacted Koch and stated that he needed to schedule an
appointment sooner than the one previously scheduled. Koch scheduled an
appointment with Cain for the following morning.
[6] At the appointment, Cain entered Koch’s office and immediately started crying.
Cain said, “Ryan, I need your help. I f*cked up,” and “I am attracted to young
girls and I really need help.” Tr. p. 24. Cain then admitted that he had fondled
B.S. three to five times while the two were riding on the bus. Koch explained to
Cain that this constituted a violation of Cain’s probation. Koch contacted John
Zaglemeier, the person who had administered the polygraph examination to
Cain. Zaglemeier confirmed that Cain’s statements to Koch were consistent
with the statements Cain had made during the polygraph examination.
[7] The State filed a petition to revoke Cain’s probation. Cain contested the
revocation, claiming that his admission to Koch was inadmissible because the
State had failed to prove a corpus delicti. The State argued that the corpus delicti
rule was inapplicable to probationary proceedings. The trial court agreed with
the State, held that the corpus delicti rule was inapplicable to probation
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revocation proceedings, revoked Cain’s probation, and ordered him to serve
five years in the Department of Correction. Cain now appeals.
Discussion and Decision
[8] Cain contends that the trial court erred by admitting his statements to Koch
into evidence because he claims they would only have been admissible if the
State had first established a corpus delicti. Resolution of this issue turns on
settling divergent interpretations of the holding in Shumaker v. State, 431 N.E.2d
862 (Ind. Ct. App. 1982). The State contends that Shumaker holds that a
probationer’s admissions alone are sufficient to support a revocation. Cain, on
the other hand, contends that Shumaker requires other evidence of a violation,
such as probable cause affidavits or a court order issuing an arrest warrant for a
criminal offense, before a probationer’s statements are admissible. For reasons
we explain below, we agree with the State and the trial court.
[9] We begin with the premise that “[p]robation is a matter of grace left to trial
court discretion, not a right to which a criminal defendant is entitled.” Prewitt v.
State, 878 N.E.2d 184, 188 (Ind. 2007). Courts in probation revocation hearings
“may consider any relevant evidence bearing some substantial indicia of
reliability.” Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999). It is within the
discretion of the trial court to determine the conditions of a defendant’s
probation and to revoke probation if the conditions are violated. Prewitt, 878
N.E.2d at 188. In a sense, all probation requires “strict compliance” because
probation is a matter of grace, and once the trial court extends this grace and
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sets its terms and conditions, the probationer is expected to comply with them
strictly. Woods v. State, 892 N.E.2d 637, 641 (Ind. 2008). “If the probationer
fails to do so, then a violation has occurred.” Id. “But even in the face of a
probation violation the trial court may nonetheless exercise its discretion in
deciding whether to revoke probation.” Id. (citing Clark Cnty. Council v.
Donahue, 873 N.E.2d 1038, 1039 (Ind. 2007) (“The probationary scheme is
deliberately designed to give trial judges the flexibility to make quick, case-by-
case determinations.”)).
[10] Violation determinations and sanctions are reviewed for abuse of discretion.
Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). “An abuse of discretion
occurs where the decision is clearly against the logic and effect of the facts and
circumstances.” Prewitt, 878 N.E.2d at 188. We consider only the evidence
most favorable to the judgment without reweighing that evidence or reassessing
the credibility of the witnesses. Woods, 892 N.E.2d at 639 (citing Braxton v.
State, 651 N.E.2d 268, 270 (Ind. 1995)). “If there is substantial evidence of
probative value to support the trial court’s decision that a defendant has
violated any terms of probation, the reviewing court will affirm its decision to
revoke probation.” Id. at 639-40.
[11] “Probation revocation is a two-step process. First, the trial court must make a
factual determination that a violation of a condition of probation actually
occurred.” Woods, 892 N.E.2d at 640. Second, if a violation is found, then the
trial court must determine the appropriate sanction for the violation. Id. A
probation revocation hearing is civil in nature, and the State’s burden is to
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prove the alleged violations only by a preponderance of the evidence. Cox, 706
N.E.2d at 551. Violation of a single term or condition of probation is sufficient
to revoke probation. Ind. Code § 35-38-2-3(a)(1) (2012).
[12] Our Supreme Court has previously held that, “precisely because probation
revocation procedures are to be flexible, strict rules of evidence do not apply.”
Cox, 706 N.E.2d at 550 (citing Isaac, 605 N.E.2d at 148-149). The Supreme
Court has codified this conclusion in our evidence rules which provide, in
relevant part, that “[t]he rules, other than those with respect to privileges, do
not apply in . . . [p]roceedings relating to . . . sentencing, probation, or parole.”
Ind. Evidence Rule 101(d).
[13] In Shumaker, we were presented with the question of whether statements made
by the defendant admitting to allegations of a probation violation are admissible
absent independent evidence of the factual basis for those allegations. The
State’s petition to revoke Shumaker’s probation was supported by a probable
cause affidavit requesting an arrest warrant, a voluntary statement made by
Shumaker to his probation officer implicating himself in criminal activity, an
information and affidavit charging Shumaker with a crime, a second affidavit of
probable cause requesting an arrest warrant for Shumaker for other crimes, a
second voluntary statement by Shumaker about criminal activity, a court order
issuing an arrest warrant for criminal charges, and another information and
probable cause affidavit charging Shumaker with a crime. Shumaker
challenged the revocation of his probation contending that his statements were
not admissible without the State establishing a corpus delicti for the crimes.
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[14] We recognized that “the State need not show that a defendant was convicted of
a crime in order for the trial court to revoke probation.” 431 N.E.2d at 863.
“Although an arrest standing alone does not necessarily support a revocation of
probation, where there is evidence submitted at the hearing from which the trial
court could find that an arrest was reasonable and that there is probable cause
for belief that a defendant violated a criminal law, revocation of probation is
permitted.” Id. We stated that “[s]ince a trial court need only find that an
arrest is reasonable and that there is probable cause for belief that a defendant
violated a criminal law, [a defendant’s] statements were admissible absent a
corpus delicti.” Id. In conclusion we stated that “[s]ince this Court has ruled
[the defendant’s] prior statements admissible, those statements alone are sufficient
evidence inasmuch as they demonstrate that Shumaker was involved in
criminal activity.” Id. at 864 (emphasis added).
[15] Here, Cain argues that Shumaker requires independent supporting evidence, and
in his case there were no supporting documents such as an arrest warrant, a
charging information, or a probable cause affidavit. He argues his statements
were therefore inadmissible. We disagree. As we stated in Shumaker, “[t]he
statements to which Shumaker objected were relied upon to establish probable
cause for Shumaker’s arrest.” Id. at 863. The statements alone were sufficient
to support the probation revocation. Id. at 864. Cain’s statements alone are
sufficient to support his probation revocation.
[16] “The purpose for requiring proof of the corpus delicti is to prevent the
admission of a defendant’s confession to a crime that never occurred.” Cherry v.
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State, 971 N.E.2d 726, 730 (Ind. Ct. App. 2012) (citing Hurt v. State, 570 N.E.2d
16, 19 (Ind. 1991)), trans. denied. Since probation proceedings are civil in
nature, and the State need not show that a defendant was convicted of a crime
in order for the trial court to revoke the defendant’s probation, establishment of
the corpus delicti is not required or implicated in probation revocation
proceedings prior to admission of a defendant’s statements.
[17] Additionally, because this is a civil proceeding, even if the Rules of Evidence
were applicable, Cain’s statements were properly admitted. “An ‘admission’ is
a statement against the interest of a party that is inconsistent with his defense or
tends to establish or disprove a material fact.” Commc’ns Workers of America
Locals 5800, 5714 v. Beckman, 540 N.E.2d 117, 128 (Ind. Ct. App. 1989). “Any
statement made or attributed to a party which constitutes an admission against
his or her interest and tends to establish or disprove a material fact in the case is
competent evidence against that party.” Id. Therefore, Cain’s admissions were
competent evidence against him in the probation revocation proceeding.
Conclusion
[18] For the foregoing reasons, we affirm the trial court’s decision.
[19] Affirmed.
Mathias, J., and Crone, J., concur.
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