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

• Court: Indiana Court of Appeals
• Decided: January 17, 2018
• Docket: 20A03-1707-CR-1609
• Status: Published

Opinion

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

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 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

Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1609 | January 17, 2018 Page 2 of 11 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.

Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1609 | January 17, 2018 Page 3 of 11 [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

Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1609 | January 17, 2018 Page 7 of 11 [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

Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1609 | January 17, 2018 Page 8 of 11 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

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.

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

Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1609 | January 17, 2018 Page 10 of 11 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.

Court of Appeals of Indiana | Memorandum Decision 20A03-1707-CR-1609 | January 17, 2018 Page 11 of 11