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
