MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Feb 28 2017, 8:06 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John T. Wilson Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Lucas Thomas, February 28, 2017 Appellant-Defendant, Court of Appeals Case No. 48A02-1608-CR-1807 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Thomas Newman, Appellee-Plaintiff. Jr., Judge Trial Court Cause No. 48D03-0906-FB-206
Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1807 | February 28, 2017 Page 1 of 14 STATEMENT OF THE CASE [1] Appellant-Defendant, Lucas C. Thomas (Thomas), appeals the trial court’s
revocation of his probation.
[2] We affirm.
ISSUES [3] Thomas raises two issues on appeal, which we restate as follows:
(1) Whether the trial court abused its discretion by admitting hearsay into
evidence; and
(2) Whether the trial court abused its discretion by ordering Thomas to execute
the remainder of his suspended sentence.
FACTS AND PROCEDURAL HISTORY [4] On June 24, 2009, the State filed an Information, charging twenty-one-year-old
Thomas with three Counts of child molesting as Class B felonies, Ind. Code §
35-42-4-3(a), and one Count of child molesting as a Class C felony, I.C. § 35-42-
4-3(b), based upon his multiple sexual encounters with a twelve-year-old girl in
Madison County, Indiana. On October 5, 2009, Thomas entered into a plea
agreement with the State, pursuant to which he agreed to plead guilty as
charged. While sentencing would be left to the trial court’s discretion, the State
agreed to recommend concurrent sentences. On November 16, 2009, the trial
court accepted the plea agreement and entered a judgment of conviction for
four Counts of child molesting as Class B felonies and imposed a sentence of
fifteen years—with ten years executed in the Indiana Department of Correction Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1807 | February 28, 2017 Page 2 of 14 (DOC) and five years suspended to probation—on each Count, all to run
concurrently. 1
[5] In addition to the “usual and ordinary conditions of probation”—such as
complying with all laws and behaving well in society—the trial court directed
Thomas to, within thirty days of being placed on probation, have a sex offender
evaluation and follow all recommendations for treatment; to, within seven days
of being released to probation, register with local authorities as a sex offender;
and to comply with any special probation conditions for sex offenders.
(Appellant’s App. Vol. II, p. 18). Such special conditions for sex offenders,
included, in relevant part, the following:
5. You shall not miss any appointments for treatment, psychotherapy, counseling, or self-help groups (any 12 Step Group, Community Support Group, etc.) without the prior approval of your probation officer and the treatment provider involved, or a doctor’s excuse. You shall comply with the attendance policy for attending appointments as outlined by the [c]ourt. You shall continue to take any medication prescribed by your physician.
**** 9. You shall notify your probation officer of your establishment of a dating, intimate, and/or sexual relationship. You shall notify any person with whom you are engaged in a dating, intimate, or sexual relationship of your sex-related conviction(s).
1 There is no indication why the trial court entered a judgment of conviction for four Class B felonies instead of three Class B felonies and one Class C felony as Thomas was charged. Although it is unclear at what point this error was corrected, the Abstract of Judgment utilized at Thomas’ probation revocation hearing on July 11, 2016, reflects his proper convictions.
Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1807 | February 28, 2017 Page 3 of 14 You shall not engage in a dating, intimate, or sexual relationship with any person who has children under the age of 18 years.
10. Your probation officer must first approve any employment and may contact your employer at any time. You will not work in certain occupations that involve being in the private residences of others, such as, but not limited to, door-to-door sales, soliciting, home service visits or delivery.
**** 12. You must never be alone with or have contact with any person under the age of 18. Contact includes face-to-face, telephonic, written, electronic, or any indirect contact via third parties. You must report any incidental contact with persons under age 18 to your probation officer within 24 hours of the contact.
13. You shall not be present at specific locations where children are known to congregate including, but not limited to, parks, schools, playgrounds and day care centers.
**** 17. You shall complete a travel log and/or journal of daily activities as directed by your probation officer.
18. You shall not use any computer with access to any on-line computer service at any location (including your place of employment) without prior approval of your probation officer. This includes any Internet service provider, bulletin board system, e-mail system or any public or private computer network. You shall not possess or use any data encryption technique or program.
(Appellant’s App. Vol. II, pp. 23-24).
Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1807 | February 28, 2017 Page 4 of 14 [6] On March 17, 2014, Thomas was released from the DOC, and his five-year
probationary period began. Five months later, on August 20, 2014, Thomas’
probation officer filed a Notice of Violation of Probation, alleging that Thomas
had violated the terms of his probation by committing a new offense in
Delaware County: failure to register as a sex or violent offender, a Class D
felony. On March 30, 2015, the trial court held a hearing, during which
Thomas admitted that he had failed to register as a sex or violent offender.
Based on the admitted probation violation, the trial court ordered Thomas to
serve one year of home detention.
[7] On January 20, 2016, Thomas’ probation was transferred from Madison
County to Delaware County. Six months later, Thomas’ new probation officer
contacted the Madison County Probation Department to report that Thomas
had violated his probation. Accordingly, on June 23, 2016, a probation officer
filed a Notice of Violation of Probation with the Madison Circuit Court, which
alleged that Thomas committed the following violations:
a) Failed to comply with all treatment recommendations, and provide written verification of compliance to Probation Department;
**** c) Failed to keep appointments for treatment, psychotherapy, counseling, or self-help groups without the prior approval of your probation officer and the treatment provider involved, or a doctor’s excuse;
**** e) Failed to notify your probation officer of your establishment
Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1807 | February 28, 2017 Page 5 of 14 of a dating, intimate, and/or sexual relationship. You shall notify any person with who[m] you are engaged in a dating, intimate, or sexual relationship of your sex-related conviction(s). You shall not engage in a dating, intimate, or sexual relationship with any person who has children under the age of 18 years.
[f]) You were alone with or had contact with a person under the age of 18. Contact includes face-to-face, telephonic, written, electronic, or any indirect contact via third parties. You failed to report any incidental contact with persons under age 18 to your probation officer within 24 hours of the contact.
[g]) You were present at specific locations where children are known to congregate including, but not limited to, parks, schools, playgrounds and day care centers.
[h]) You used a computer with access to any on-line computer service at any location (including your place of employment) without prior approval of your probation officer. This includes any Internet service provider, bulletin board system, e-mail system or any public or private computer network.
(Appellant’s App. Vol. II, p. 31). 2
[8] On July 11, 2016, the trial court held a hearing on Thomas’ alleged probation
violations. During the hearing, Thomas’ probation officer, Teresa Brown
(Officer Brown), testified that Thomas was unsuccessfully terminated from his
Sexual Offender Monitoring and Management (SOMM) program at Meridian
2 The petition originally included two additional alleged violations, labeled as b) and d), which claimed, respectively, that Thomas failed to register as required and possessed obscene matter. At the beginning of the evidentiary hearing, the State moved to dismiss those violations as they “were erroneously included.” (Tr. p. 10).
Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1807 | February 28, 2017 Page 6 of 14 Health Services due to non-compliance, including, in part, his failure to take all
medications as prescribed for his bipolar disorder and schizophrenia. Officer
Brown also stated that she had received a report from the Department of Child
Services indicating that Thomas was involved in a relationship with a woman
who had minor children. When questioned, Thomas admitted the relationship
to Officer Brown. Officer Brown also discovered that Thomas had
accompanied his girlfriend and her minor children when they went swimming
at Perry Creek Reservoir, which includes a park and playground. Once again,
when confronted, Thomas admitted that he had engaged in this activity with
minor children and that he did not report his contact to Officer Brown or record
the excursion in his activity log. Officer Brown further testified that Thomas
had been accessing the Internet without authorization, and he was maintaining
a profile on Facebook, using an alias, as well as a profile on the dating website
Meet Me. Thomas admitted that he met several women using the online dating
site. Thomas communicated with various people through Facebook, and those
messages revealed that he was involved with procuring drugs for people; he was
consuming alcohol; and he “got a job . . . making ten dollars an hour under the
table moving n [sic] putting air conditions [sic] in” private residences. (State’s
Exh. 4, p. 3).
[9] Thomas also testified at the hearing and primarily argued that his alleged
violations should be excused. In particular, he claimed that he was asked not to
return to his SOMM program until he remedied his outbreak of psoriasis and
scabies, and he explained that he stopped taking his prescription medications
Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1807 | February 28, 2017 Page 7 of 14 because they “made [him] feel like a zombie.” (Tr. p. 47). Thomas further
insisted that he was in a private area at Perry Creek Reservoir and did not know
that there would be children present, and he stated that he unintentionally
forgot to log the activity. Furthermore, Thomas indicated that none of his
contacts with children were sexually motivated, and he did not seek to lure
minors on the Internet. Thomas stated that his landlord paid him some cash for
helping out with installing air conditioning units on just one occasion, and
Thomas denied any drug or alcohol use.
[10] At the close of the evidence, the trial court found “by preponderance of the
evidence that [Thomas] violated the terms of his probation.” (Appellant’s App.
Vol. II, p. 35). Accordingly, the trial court revoked Thomas’ suspended
sentence and ordered him to execute five years in the DOC.
[11] Thomas now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Standard of Review
[12] It is well established that “[p]robation is a matter of grace, not a right to which a
criminal defendant is entitled.” Robinson v. State, 955 N.E.2d 228, 231 (Ind. Ct.
App. 2011) (citing Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). Thus, the
discretion to revoke probation lies solely with the trial court. Woods v. State, 892
N.E.2d 637, 639 (Ind. 2008). On appeal, our court reviews the revocation of a
defendant’s probation only for an abuse of discretion. Id. We will consider
only the evidence most favorable to the trial court’s judgment, and we do not
Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1807 | February 28, 2017 Page 8 of 14 reweigh evidence or judge the credibility of witnesses. Id. “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.
II. Hearsay
[13] Thomas claims that the trial court abused its discretion by admitting certain
hearsay into evidence. A probation revocation proceeding “is not to be equated
with an adversarial criminal proceeding.” Watters v. State, 22 N.E.3d 617, 619
(Ind. Ct. App. 2014) (quoting Cox v. State, 706 N.E.2d 547, 550 (Ind. 1999)).
Rather, “probation revocation procedures ‘are to be flexible, [so] strict rules of
evidence do not apply.’” Id. (quoting Cox, 706 N.E.2d at 550). A trial court has
broad discretion in the admission of evidence, and our court will not disturb a
ruling on admissibility unless the trial court has abused its discretion. Id.
[14] In probation revocation proceedings, trial courts do have discretion to admit
hearsay evidence; however, the admission of such evidence “must not violate
the due process standards provided by the United States Supreme Court.” Id.
Thus, hearsay evidence must “bear[] some substantial indicia of reliability.” Id.
(quoting Cox, 706 N.E.2d at 551). A trial court does not abuse its discretion in
admitting hearsay “if it ‘has a substantial guarantee of trustworthiness.’” Id.
(quoting Reyes v. State, 868 N.E.2d 438, 441 (Ind. 2007)). While no bright-line
rule has been established for this reliability, our court has previously noted that
“testimony of the parties directly involved, affidavits of parties directly
involved, and certified copies would have sufficed without putting an undue Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1807 | February 28, 2017 Page 9 of 14 burden on the State.” Id. at 619-20. Ideally, a trial court should explain “on the
record why . . . hearsay [is] reliable and why that reliability [is] substantial
enough to supply good cause for not producing . . . live witnesses.” Reyes, 868
N.E.2d at 442 (second and third alterations in original) (quoting United States v.
Kelley, 446 F.3d 688, 693 (7th Cir. 2006)).
[15] Here, Thomas challenges the admission of State’s Exhibit 2, which consists of a
progress report and letter explaining Thomas’ termination from the SOMM
Program at Meridian Health Services. During the hearing, Officer Brown
testified that she received the letter and progress report from the SOMM
Coordinator at Meridian Health Services, which stated that Thomas was
terminated from the SOMM program because he
was out of treatment compliance due to having unapproved relationships, having admitted contact with children to case manager, potentially using chemical substances such as spice and admitting to case manager he had gotten weed and a pipe for girlfriend, not taking prescribed psychiatric medication for months per self report, working an unapproved job.
(State’s Exh. 2, p.3) (internal quotation marks omitted). The SOMM
Coordinator’s letter further explained that “[t]hese issues were addressed with
[Thomas] multiple times through group, individual and case management
services.” (State’s Exh. 2, p. 1).
[16] According to Thomas, the admission of State’s Exhibit 2, along with Officer
Brown’s testimony relating thereto, “denied him his due process right to
confront and cross examine all witnesses against him.” (Appellant’s Br. p. 6). Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1807 | February 28, 2017 Page 10 of 14 Thomas contends that the trial court failed to “explain on the record why the
hearsay is reliable and why that reliability is substantial enough to support good
cause for not producing [the authors of the letter and progress report from
Meridian Health Services] to testify.” (Appellant’s Br. p. 8). Thomas also
points out that
[t]here was no showing by a qualified witness that the record was made at or near the time, or from information transmitted by someone with knowledge; or that the record was a regular practice of that business. Without the appropriate foundation by a witness having first-hand knowledge of the method by which the business prepares and maintains its records, or that without evidence the person preparing the record had personal knowledge of the facts or events reported, there is a total lack of trustworthiness.
(Appellant’s Br. p. 8). On the other hand, the State contends that its Exhibit 2
was sufficiently reliable because Officer Brown testified that “Meridian Services
sent monthly progress reports directly to her, which is standard procedure for
anyone that is on probation and receiving treatment at Meridian Services.”
(State’s Br. p. 12). The State further argues that the hearsay was reliable
because it was “corroborated by [Thomas’] admissions.” (State’s Br. p. 12).
We agree with the State.
[17] We acknowledge Thomas’ assertion that the trial court failed to provide an
adequate explanation as to its decision to admit the hearsay. See Reyes, 868
N.E.2d at 442. Nevertheless, notwithstanding the fact that State’s Exhibit 2 did
not contain affidavits of the authors or a certification as a business record, we
Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1807 | February 28, 2017 Page 11 of 14 find substantial indicia of reliability because the information contained in
State’s Exhibit 2 was entirely corroborated by other evidence at the revocation
hearing. Specifically, Officer Brown testified that Thomas admitted to her that
he was involved in a relationship with a woman with minor children and that
he had accompanied his girlfriend and her young children when they went
swimming at Perry Creek Reservoir. Furthermore, excerpts from Thomas’
Facebook account—which he identified as his during the hearing—establish
that Thomas was involved in procuring illegal drugs for other people, as well as
having obtained “under the table” employment installing air conditioners in
private residences. (State’s Exh. 4, p. 3). Finally, Thomas testified during the
revocation hearing that he had stopped taking the medications prescribed for his
schizophrenia, bipolar disorder, and depression. Accordingly, we find no abuse
of discretion in the admission of State’s Exhibit 2 because the hearsay therein is
substantially trustworthy.
III. Sanction
[18] Next, Thomas challenges the trial court’s decision to revoke his probation and
impose the entirety of his five-year suspended sentence. “We review a trial
court’s sentencing decision in probation revocation proceedings for an abuse of
discretion.” Cox v. State, 850 N.E.2d 485, 489 (Ind. Ct. App. 2006). It is an
abuse of discretion if the trial court’s decision “is clearly against the logic and
effect of the facts and circumstances.” Figures v. State, 920 N.E.2d 267, 273
(Ind. Ct. App. 2010). Upon a finding that a defendant has violated a condition
of probation,
Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1807 | February 28, 2017 Page 12 of 14 the court may impose one (1) or more of the following sanctions: (1) Continue the person on probation, with or without modifying or enlarging the conditions. (2) Extend the person’s probationary period for not more than one (1) year beyond the original probationary period. (3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.
I.C. § 35-38-2-3(h). Accordingly, it was well within the trial court’s authority to
order Thomas to execute his suspended sentence.
[19] Nevertheless, Thomas insists that he “demonstrated that Community
Corrections was a strong alternative to incarceration.” (Appellant’s Br. pp. 9-
10). We find no merit in this argument. Rather, the evidence reveals that
Thomas was convicted of three Counts of Class B felony child molesting and
one Count of Class C felony child molesting. Within five months of being
released from the DOC and beginning probation, Thomas violated his
probation by failing to register as a sex offender. After Thomas admitted to this
violation, the trial court sanctioned him with one year of home detention.
Despite the trial court’s show of leniency for his first probation violation, in
June of 2016, Thomas was again accused of violating his probation. This time,
the evidence established that Thomas violated no less than eight of his probation
conditions: (1) he failed to complete sex offender treatment; (2) he failed to
take his medication as prescribed; (3) he failed to notify his probation officer of
his new relationship, and he commenced a relationship with a women having
minor children; (4) he did not receive authorization for his employment, and he
accepted employment that placed him in the private residences of others; (5) he
Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1807 | February 28, 2017 Page 13 of 14 had contact with minors; (6) he visited a park/swimming area where children
would be expected to gather, and he did not include this on his daily log; (7) he
accessed the Internet; and (8) he failed to maintain good behavior/adherence to
the laws by drinking alcohol and involving himself in drug transactions.
[20] We find that Thomas’ blatant and repeated disregard of the conditions of his
probation demonstrates an utter disrespect for the court’s authority. He has
established that he is not deserving of the grace and liberty of a probationary
sentence because he refuses to conform his conduct to the rules that allow him
to serve his sentence in society. Therefore, we find no abuse of discretion in the
trial court’s order requiring Thomas to execute his five-year suspended sentence
in the DOC.
CONCLUSION [21] Based on the foregoing, we conclude that the trial court neither abused its
discretion by admitting hearsay into evidence nor by imposing the entirety of
Thomas’ suspended sentence following a determination that he had violated his
probation.
[22] Affirmed.
[23] Crone, J. and Altice, J. concur
Court of Appeals of Indiana | Memorandum Decision 48A02-1608-CR-1807 | February 28, 2017 Page 14 of 14