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
