Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                                 Feb 10 2014, 9:06 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

MICHAEL FRISCHKORN                                  GREGORY F. ZOELLER
Frischkorn Law LLC                                  Attorney General of Indiana
Fortville, Indiana
                                                    JUSTIN F. ROEBEL
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JONATHON HARRIS,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 29A02-1307-CR-655
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE HAMILTON SUPERIOR COURT
                          The Honorable William J. Hughes, Judge
                              Cause No. 29D03-1204-FC-3235



                                        February 10, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
        Jonathon Harris (“Harris”) appeals from the trial court’s order revoking his

probation, contending that the trial court committed fundamental error by admitting

incriminatory statements Harris made to an investigating officer without the benefit of

Miranda warnings. Given that probation proceedings are civil in nature, and that as a result

Miranda warnings are inapplicable, and given the cumulative nature of Harris’s statements,

we affirm the trial court’s decision.

                          FACTS AND PROCEDURAL HISTORY

        After Harris pleaded guilty to pointing a firearm as a Class A misdemeanor, the trial

court accepted Harris’s plea, sentenced Harris to 365 days in jail, and suspended the

sentence to probation. A term of the sentencing order provided that “Defendant shall be

placed on probation for a period of one year under the standard conditions and any on the

written order of probation.” Appellant’s App. at 20. Condition Number 2 of the probation

order required that Harris “comply with all Local, State and Federal laws, and within 48

hours of being arrested or charged for a new criminal offense . . . shall contact [his]

Probation Officer with that information.” Id. at 18.1

        On May 16, 2013, the State alleged that Harris violated the conditions of his

probation by committing the offense, invasion of privacy as a Class A misdemeanor. At a

hearing held on June 21, 2013, Noblesville Police Officer April Lantz (“Officer Lantz”)

testified that her department received a report that Harris had violated a no contact order.



        1
          Harris has not favored us with a copy of the document containing the conditions of his probation
in the appendix submitted to the court. Thus, we must accept as true the contentions of the parties about
the content of the conditions of probation.


                                                    2
Officer Lantz met with the protected person who told the officer that Harris was violating

the no contact order by sending her text messages and visiting her place of employment.

The woman provided Officer Lantz with a copy of the protective order issued by the

Marion Superior Court, and that copy was presented at Harris’s probation revocation

hearing. The no contact order provided that Harris “is restrained from any contact” with

that individual. State’s Ex. 1.

       After speaking with the woman, Officer Lantz met with Harris at the Hamilton

County Community Corrections Facility, where Harris was serving a sentence imposed in

another cause of action. The two met “[i]n the visitor’s room inside the facility,” and Harris

was free to leave. Tr. at 7. During the conversation, Harris admitted that he had visited

the woman at her place of employment and sent text messages to her. Harris further

acknowledged the existence of the protective order. Harris was charged with invasion of

privacy as a result of Officer Lantz’s investigation.

       Officer Lantz testified at Harris’s probation revocation hearing, at the conclusion of

which the trial court found that Harris had violated the terms of his probation. The trial

court issued an order requiring Harris to serve the previously suspended sentence in jail.

Harris now appeals.

                             DISCUSSION AND DECISION

       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).        Accordingly, probationers do not receive the same

constitutional rights that defendants receive at trial. Reyes v. State, 868 N.E.2d 438, 440

                                              3
(Ind. 2007). The due process right applicable in probation revocation hearings allows for

procedures that are more flexible than in a criminal prosecution. Id. Indeed, Indiana

Evidence Rule 101(c)2 provides that the Indiana Rules of Evidence do not apply in

probation proceedings. As such, “courts may admit evidence during probation revocation

hearings that would not be permitted in a full-blown criminal trial.” Garden v. State, 873

N.E.2d 160, 163 (Ind. Ct. App. 2007). “[C]ourts in probation revocation hearings may

consider any relevant evidence bearing some substantial indicia of reliability.                        This

includes reliable hearsay.” 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 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.”).

        Probation and community corrections programs serve as alternatives to commitment

to the Department of Correction, and placements in both are made at the sole discretion of



        2
          We cite to the subsection of the rule applicable at the time of the proceedings, acknowledging that
the rule was recently modified.

                                                     4
the trial court. Id. Violation determinations and sanctions are reviewed for abuse of

discretion. Woods, 892 N.E.2d at 639. An abuse of discretion occurs where the decision

is clearly against the logic and effect of the facts and circumstances, or when the trial court

misinterprets the law. Gil v. State, 988 N.E.2d 1231, 1234 (Ind. Ct. App. 2013). We

consider only the evidence most favorable to the judgment without reweighing that

evidence or judging the credibility of the witnesses. Woods, 892 N.E.2d at 639-40 (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 640.

       Harris contends on appeal that the trial court committed fundamental error by

considering Harris’s admissions to Officer Lantz, which were made without the benefit of

Miranda warnings. Probation revocation is governed by Indiana Code section 35-38-2-3.

A revocation hearing is in the nature of a civil proceeding, so the alleged violation need be

proven by only a preponderance of the evidence. Id. Harris frames the issue as one

involving fundamental error because Harris failed to object on those grounds or any other

grounds to the admission of that evidence.

       Fundamental error is a narrow exception intended to place a heavy burden on the

defendant. It requires the defendant to establish that the misconduct “[made] a fair trial

impossible or constitute[d] clearly blatant violations of basic and elementary principles of

due process” or that the misconduct “present[ed] an undeniable and substantial potential

for harm.” Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002); accord Cooper v. State, 854

N.E.2d 831, 835 (Ind. 2006). This exception is available only in egregious circumstances.

                                              5
Malloch v. State, 980 N.E.2d 887, 904 (Ind. Ct. App. 2012) (citing Delarosa v. State, 938

N.E.2d 690, 694 (Ind. 2010)). For the following reasons, we find that Harris has failed to

meet his burden of establishing that application of the exception is warranted here.

       In Grubb v. State, 734 N.E.2d 589, 593 (Ind. Ct. App. 2000), trans. denied, a panel

of this court held as a matter of first impression that statements made by a defendant in

violation of Miranda were properly admitted in that defendant’s probation revocation

proceeding.      Because the protection against self-incrimination found in the Fifth

Amendment applies only to criminal cases, and probation revocation proceedings are civil

actions, statements obtained in violation of Miranda are properly admitted at probation

revocation proceedings. Id. “Because the determination that a condition of probation has

been breached is not an adjudication of guilt, a defendant is not endowed with all the rights

he possessed prior to his conviction.” Henderson v. State, 544 N.E.2d 507, 512 (Ind. 1989).

       Furthermore, the exception to the rule announced in Grubb does not apply under the

facts presented here. In Plue v. State, 721 N.E.2d 308, 310 (Ind. Ct. App. 1999), we held

that the exclusionary rule applies in a probation revocation proceeding only if it appears

that illegally seized evidence was obtained as a part of a continuing plan of police

harassment or in a particularly offensive manner. None of those factors are present here.3

       Additionally, assuming arguendo, that Harris’s statements were erroneously



       3
          Because probation revocation proceedings are civil in nature and Miranda applies to custodial
interrogation in criminal proceedings, we need not reach Harris’s contention that he was in custody when
questioned by Officer Lantz. Even statements made in contravention of Miranda are admissible in
probation revocation proceedings. Grubb, 734 N.E.2d at 59. Whether Harris was in custody would be
relevant, however, in determining whether his admissions should be excluded in the criminal trial on the
charges relating to invasion of privacy, however. See id. at 592 n.2.

                                                   6
admitted, such error was harmless. “Moreover, ‘[a]ny error in the admission of evidence

is not prejudicial, and [is] therefore harmless, if the same or similar evidence has been

admitted without objection or contradiction.’” Hoglund v. State, 962 N.E.2d 1230, 1238

(Ind. 2012) (quoting McCovens v. State, 539 N.E.2d 26, 30 (Ind. 1989)). Officer Lantz

testified about her conversation with the protected individual concerning Harris’s

violations of the no contact order, more specifically, that Harris had texted her and visited

her place of employment. Officer Lantz also obtained a copy of the no contact order from

her. “Moreover, ‘[a]ny error in the admission of evidence is not prejudicial, and [is]

therefore harmless, if the same or similar evidence has been admitted without objection or

contradiction.’” Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012) (quoting McCovens

v. State, 539 N.E.2d 26, 30 (Ind. 1989)). The error if any, was harmless error such that

reversal was not required and consequently does not rise to the level of fundamental error.

       Affirmed.

FRIEDLANDER, J., and BAILEY, J., concur.




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