MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                 Apr 22 2019, 6:53 am
court except for the purpose of establishing                                     CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Sean C. Mullins                                           Curtis T. Hill, Jr.
Appellate Public Defender                                 Attorney General
Crown Point, Indiana
                                                          Samantha M. Sumcad
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Antonio Dunbar,                                    April 22, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2355
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Diane Ross
Appellee-Plaintiff                                        Boswell, Judge
                                                          The Honorable Kathleen A.
                                                          Sullivan, Magistrate
                                                          Trial Court Cause No.
                                                          45G03-1709-F4-34



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2355 | April 22, 2019                     Page 1 of 6
                                             Case Summary
[1]   Robert Antonio Dunbar appeals his probation revocation, challenging the

      sufficiency of the evidence to support the trial court’s finding of a probation

      violation. Finding the evidence sufficient, we affirm.


                                  Facts and Procedural History
[2]   The evidence most favorable to the judgment is as follows. In September 2017,

      Dunbar broke into the home of ex-girlfriend Sushi Staples, who was sixteen

      weeks pregnant with his child. Staples was asleep when Dunbar entered her

      bedroom. She awoke to find him striking her on the head and body. Then, in

      the presence of Staples’s four-year-old son, Dunbar threw Staples across the

      hallway, into the bathroom, and into the tub. Staples phoned police and

      reported that she believed Dunbar to still be inside her home. Police found him

      hiding inside a closet underneath some clothes, and he refused the officers’

      orders to come out. He physically resisted their efforts to pull him out but was

      eventually subdued.


[3]   The State charged Dunbar with level 4 felony burglary, level 5 felony domestic

      battery resulting in bodily injury to a pregnant woman, level 6 felony domestic

      battery in the presence of a person less than fourteen years old, class A

      misdemeanor invasion of privacy, and class A misdemeanor resisting law

      enforcement. On March 5, 2018, Dunbar pled guilty via plea agreement to

      level 6 felony domestic battery in the presence of a person less than fourteen

      years old, and the State dismissed the remaining charges. The stipulated plea


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2355 | April 22, 2019   Page 2 of 6
      agreement reads, in part, “The parties agree that there shall be a No Contact

      Order entered against the defendant in regards to the victim in this case for the

      length of his sentence[.]” Appellant’s App. Vol. 2 at 29. That same day, the

      trial court sentenced Dunbar to two and one-half years, with one year executed

      in the Indiana Department of Correction (“DOC”) and one and one-half years

      suspended to probation.


[4]   Within a week of his release from the DOC, Dunbar made attempts to contact

      Staples via Facebook Messenger. Lake County Probation Officer Gisela

      Thielbar confronted Dunbar about contacting Staples, and although he denied

      it at first, he later said, “Okay, I’ll stop.” Tr. Vol. 2 at 14-15. The State filed a

      petition to revoke Dunbar’s probation, alleging that Dunbar attempted to

      contact Staples in violation of a no-contact order and that he had failed to pay

      probation fees totaling $180. After a hearing, the trial court found that Dunbar

      had violated his probation and executed the remaining eighteen months of his

      sentence. Dunbar now appeals. Additional facts will be provided as necessary.


                                     Discussion and Decision
[5]   Dunbar asserts that the evidence is insufficient to support the trial court’s

      determination that he violated his probation. Probation is a matter of grace left

      to the trial court’s sound discretion, not a right to which a criminal defendant is

      entitled. Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The trial court

      determines the conditions of probation and may revoke probation if the

      probationer violates those conditions. Id. On review, we neither reweigh

      evidence nor reassess witness credibility; rather, we consider the evidence and
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2355 | April 22, 2019   Page 3 of 6
      reasonable inferences most favorable to the judgment. Pierce v. State, 44 N.E.3d

      752, 755 (Ind. Ct. App. 2015).


[6]   Probation revocation is a two-step process, wherein the trial court first makes a

      factual determination as to whether the probationer violated the terms of his

      probation. Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). Because a

      probation revocation proceeding is civil in nature, the State need only prove the

      alleged probation violation by a preponderance of the evidence. Holmes v. State,

      923 N.E.2d 479, 485 (Ind. Ct. App. 2010). If a violation is found, the court

      then determines whether the violation warrants revocation. Woods, 892 N.E.2d

      at 640. Proof of a single violation is sufficient to permit a trial court to revoke

      probation. Beeler v. State, 959 N.E.2d 828, 830 (Ind. Ct. App. 2011), trans.

      denied.


[7]   Dunbar maintains that the State failed to prove that Staples was the person who

      contacted Thielbar about the Facebook Messenger friend requests and that

      Dunbar was “Capo Rob,” the sender of the friend request messages. State’s Ex.

      1. During the revocation hearing, Thielbar testified that Staples had called her

      concerning the friend requests. Although the officer had never met Staples in

      person, she testified that she believed that Staples was the caller because the

      caller provided information to her that was not publicly available concerning

      the case. Staples took screenshots of the friend request messages and emailed

      them to Thielbar. These messages include photos of Dunbar. When Thielbar

      confronted Dunbar about contacting Staples, he denied it at first but later said,

      “Okay, I’ll stop.” Tr. Vol. 2 at 14-15. With respect to this statement, Dunbar

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2355 | April 22, 2019   Page 4 of 6
      told the court, “Yes. I made a mistake when I caught the case. By me telling

      her I would stop contacting her, I never said—if I did do it, I admit to what I

      did. I feel like this is my first violation and I was going through paying my fees

      and my interstate compact.” Id. at 19-20. Dunbar’s admission completely

      undercuts his argument that the State failed to prove that he was the sender of

      the messages and that Staples was the recipient.


[8]   For the first time on appeal, Dunbar challenges the existence of the no-contact

      order and points us to an online registry to show the absence of an entry

      concerning it. However, the record includes several references to the entry of a

      no-contact order. First and foremost, the no-contact order was a provision in

      Dunbar’s stipulated plea agreement. See Appellant’s App. Vol. 2 at 29 (“The

      parties agree that there shall be a No Contact Order entered against the

      defendant in regards to the victim in this case for the length of his sentence[.]”).

      The no-contact order is also referenced in the sentencing order. See id. at 35

      (“Pursuant to the plea agreement, the defendant enters into a No Contact

      Order, for the length of the sentence.”). Moreover, probation officer Thielbar

      testified at the revocation hearing concerning the existence of the no-contact

      order. See Tr. Vol. 2 at 8 (“Q. Does the sentencing order indicate a no contact

      order was, in fact, entered[?] A. Yes.”). Finally, the no-contact order is

      referenced in the chronological case summary. See Appellant’s App. Vol. 2 at 4

      (March 5, 2018 entry: “Pursuant to PA, a NCO is entered.”). The evidence

      most favorable to the judgment is sufficient to support the existence of a valid

      no-contact order. Based on the foregoing, we conclude that the State


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2355 | April 22, 2019   Page 5 of 6
      established by a preponderance of the evidence that Dunbar violated his

      probation. Accordingly, we affirm the trial court’s judgment revoking Dunbar’s

      probation.


[9]   Affirmed.


      Bradford, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2355 | April 22, 2019   Page 6 of 6
