      MEMORANDUM DECISION
                                                                        Mar 18 2015, 9:03 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any court except for the
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Gregory L. Fumarolo                                      Gregory F. Zoeller
      Fort Wayne, Indiana                                      Attorney General of Indiana
                                                               Brian Reitz
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Joshua E. Cain,                                          March 18, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               02A03-1407-CR-260
              v.                                               Appeal from the Allen Superior
                                                               Court.
                                                               The Honorable Samuel R. Keirns,
      State of Indiana,                                        Magistrate.
      Appellee-Plaintiff.                                      Cause No. 02D04-0911-FA-70




      Sharpnack, Senior Judge


                                       Statement of the Case
[1]   Joshua E. Cain appeals from the trial court’s order revoking his suspended

      sentence and ordering him to serve five years in the Department of Correction,

      contending that the trial court abused its discretion by revoking his suspended

      Court of Appeals of Indiana | Memorandum Decision 02A03-1407-CR-260 |March 18, 2015      Page 1 of 8
      sentence based solely upon his admission to the probation violations. We

      affirm.


                                                    Issue
[2]           Whether Cain’s statements to his probation officer admitting the
              probation violation can be the sole basis supporting the
              revocation of his probation.

                               Facts and Procedural History
[3]   On March 11, 2010, Cain pleaded guilty to child molesting as a Class B felony

      and child solicitation as a Class D felony. Pursuant to the terms of the plea

      agreement, Cain was sentenced to an aggregate term of fifteen years, with ten

      years executed in the Department of Correction and five years suspended to

      probation. After completing the executed portion of his sentence, Cain began

      the probationary term of his sentence on November 18, 2013. The terms of

      Cain’s probation included the following condition:

              9. You shall have no contact with any child under the age of
              eighteen (18). Contact includes face-to-face, telephone, written,
              electronic, or indirect contact via third parties.


      Appellant’s App. at 63. In addition, Cain was required to undergo polygraph

      testing in his certified sexual perpetrator treatment program. Cain signed and

      dated the conditions of his probation.


[4]   However, during the probation period of his sentence, Cain met a girl, B.S.,

      who was fifteen years old, while the two were riding on a bus. On three to five

      occasions from December 2013 to January 2014, while riding the bus, Cain
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      fondled the girl. More specifically, Cain kissed B.S., touched her breasts, kissed

      her breasts, and placed his finger in her vagina.


[5]   During every probation appointment, Cain’s probation officer, Ryan Koch,

      asked Cain whether he had any contact with minors. Cain denied having any

      contact each time he was asked. However, on May 12, 2014, during a

      polygraph examination, Cain made statements about his contact with B.S.

      That evening, Cain contacted Koch and stated that he needed to schedule an

      appointment sooner than the one previously scheduled. Koch scheduled an

      appointment with Cain for the following morning.


[6]   At the appointment, Cain entered Koch’s office and immediately started crying.

      Cain said, “Ryan, I need your help. I f*cked up,” and “I am attracted to young

      girls and I really need help.” Tr. p. 24. Cain then admitted that he had fondled

      B.S. three to five times while the two were riding on the bus. Koch explained to

      Cain that this constituted a violation of Cain’s probation. Koch contacted John

      Zaglemeier, the person who had administered the polygraph examination to

      Cain. Zaglemeier confirmed that Cain’s statements to Koch were consistent

      with the statements Cain had made during the polygraph examination.


[7]   The State filed a petition to revoke Cain’s probation. Cain contested the

      revocation, claiming that his admission to Koch was inadmissible because the

      State had failed to prove a corpus delicti. The State argued that the corpus delicti

      rule was inapplicable to probationary proceedings. The trial court agreed with

      the State, held that the corpus delicti rule was inapplicable to probation


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      revocation proceedings, revoked Cain’s probation, and ordered him to serve

      five years in the Department of Correction. Cain now appeals.


                                   Discussion and Decision
[8]   Cain contends that the trial court erred by admitting his statements to Koch

      into evidence because he claims they would only have been admissible if the

      State had first established a corpus delicti. Resolution of this issue turns on

      settling divergent interpretations of the holding in Shumaker v. State, 431 N.E.2d

      862 (Ind. Ct. App. 1982). The State contends that Shumaker holds that a

      probationer’s admissions alone are sufficient to support a revocation. Cain, on

      the other hand, contends that Shumaker requires other evidence of a violation,

      such as probable cause affidavits or a court order issuing an arrest warrant for a

      criminal offense, before a probationer’s statements are admissible. For reasons

      we explain below, we agree with the State and the trial court.


[9]   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). Courts in probation revocation hearings

      “may consider any relevant evidence bearing some substantial indicia of

      reliability.” 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


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       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.”)).


[10]   Violation determinations and sanctions are reviewed for abuse of discretion.

       Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). “An abuse of discretion

       occurs where the decision is clearly against the logic and effect of the facts and

       circumstances.” Prewitt, 878 N.E.2d at 188. We consider only the evidence

       most favorable to the judgment without reweighing that evidence or reassessing

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


[11]   “Probation revocation is a two-step process. First, the trial court must make a

       factual determination that a violation of a condition of probation actually

       occurred.” Woods, 892 N.E.2d at 640. Second, if a violation is found, then the

       trial court must determine the appropriate sanction for the violation. Id. A

       probation revocation hearing is civil in nature, and the State’s burden is to

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       prove the alleged violations only by a preponderance of the evidence. Cox, 706

       N.E.2d at 551. Violation of a single term or condition of probation is sufficient

       to revoke probation. Ind. Code § 35-38-2-3(a)(1) (2012).


[12]   Our Supreme Court has previously held that, “precisely because probation

       revocation procedures are to be flexible, strict rules of evidence do not apply.”

       Cox, 706 N.E.2d at 550 (citing Isaac, 605 N.E.2d at 148-149). The Supreme

       Court has codified this conclusion in our evidence rules which provide, in

       relevant part, that “[t]he rules, other than those with respect to privileges, do

       not apply in . . . [p]roceedings relating to . . . sentencing, probation, or parole.”

       Ind. Evidence Rule 101(d).


[13]   In Shumaker, we were presented with the question of whether statements made

       by the defendant admitting to allegations of a probation violation are admissible

       absent independent evidence of the factual basis for those allegations. The

       State’s petition to revoke Shumaker’s probation was supported by a probable

       cause affidavit requesting an arrest warrant, a voluntary statement made by

       Shumaker to his probation officer implicating himself in criminal activity, an

       information and affidavit charging Shumaker with a crime, a second affidavit of

       probable cause requesting an arrest warrant for Shumaker for other crimes, a

       second voluntary statement by Shumaker about criminal activity, a court order

       issuing an arrest warrant for criminal charges, and another information and

       probable cause affidavit charging Shumaker with a crime. Shumaker

       challenged the revocation of his probation contending that his statements were

       not admissible without the State establishing a corpus delicti for the crimes.

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[14]   We recognized that “the State need not show that a defendant was convicted of

       a crime in order for the trial court to revoke probation.” 431 N.E.2d at 863.

       “Although an arrest standing alone does not necessarily support a revocation of

       probation, where there is evidence submitted at the hearing from which the trial

       court could find that an arrest was reasonable and that there is probable cause

       for belief that a defendant violated a criminal law, revocation of probation is

       permitted.” Id. We stated that “[s]ince a trial court need only find that an

       arrest is reasonable and that there is probable cause for belief that a defendant

       violated a criminal law, [a defendant’s] statements were admissible absent a

       corpus delicti.” Id. In conclusion we stated that “[s]ince this Court has ruled

       [the defendant’s] prior statements admissible, those statements alone are sufficient

       evidence inasmuch as they demonstrate that Shumaker was involved in

       criminal activity.” Id. at 864 (emphasis added).


[15]   Here, Cain argues that Shumaker requires independent supporting evidence, and

       in his case there were no supporting documents such as an arrest warrant, a

       charging information, or a probable cause affidavit. He argues his statements

       were therefore inadmissible. We disagree. As we stated in Shumaker, “[t]he

       statements to which Shumaker objected were relied upon to establish probable

       cause for Shumaker’s arrest.” Id. at 863. The statements alone were sufficient

       to support the probation revocation. Id. at 864. Cain’s statements alone are

       sufficient to support his probation revocation.


[16]   “The purpose for requiring proof of the corpus delicti is to prevent the

       admission of a defendant’s confession to a crime that never occurred.” Cherry v.

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       State, 971 N.E.2d 726, 730 (Ind. Ct. App. 2012) (citing Hurt v. State, 570 N.E.2d

       16, 19 (Ind. 1991)), trans. denied. Since probation proceedings are civil in

       nature, and the State need not show that a defendant was convicted of a crime

       in order for the trial court to revoke the defendant’s probation, establishment of

       the corpus delicti is not required or implicated in probation revocation

       proceedings prior to admission of a defendant’s statements.


[17]   Additionally, because this is a civil proceeding, even if the Rules of Evidence

       were applicable, Cain’s statements were properly admitted. “An ‘admission’ is

       a statement against the interest of a party that is inconsistent with his defense or

       tends to establish or disprove a material fact.” Commc’ns Workers of America

       Locals 5800, 5714 v. Beckman, 540 N.E.2d 117, 128 (Ind. Ct. App. 1989). “Any

       statement made or attributed to a party which constitutes an admission against

       his or her interest and tends to establish or disprove a material fact in the case is

       competent evidence against that party.” Id. Therefore, Cain’s admissions were

       competent evidence against him in the probation revocation proceeding.


                                               Conclusion
[18]   For the foregoing reasons, we affirm the trial court’s decision.


[19]   Affirmed.


       Mathias, J., and Crone, J., concur.




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