MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                               FILED
Memorandum Decision shall not be
                                                                     Feb 19 2018, 10:18 am
regarded as precedent or cited before any
court except for the purpose of establishing                              CLERK
                                                                      Indiana Supreme Court
the defense of res judicata, collateral                                  Court of Appeals
                                                                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Gregory L. Fumarolo                                       Curtis T. Hill, Jr.
Fort Wayne, Indiana                                       Attorney General of Indiana

                                                          Laura R. Anderson
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Theodore Brown,                                          February 19, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1709-CR-2147
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,
                                                         The Honorable Wendy Davis,
Appellee-Plaintiff.                                      Judge

                                                         Trial Court Cause No.
                                                         02D06-1205-FC-144



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1709-CR-2147 | February 19, 2018      Page 1 of 10
[1]   Theodore Brown appeals the trial court’s order revoking his probation. Brown

      raises one issue which we restate as whether the evidence is sufficient to support

      the revocation of his probation. We affirm.


                                      Facts and Procedural History

[2]   On May 2, 2012, the State charged Brown with two counts of child molestation

      as class C felonies. On July 5, 2012, Brown pled guilty pursuant to a plea

      agreement to one count of child molestation as a class C felony. On August 20,

      2012, the court imposed a four-year suspended sentence and placed Brown on

      probation for two years. According to the plea agreement, Brown’s sentence

      was ordered to run consecutive to a six-year sentence imposed in a separate

      cause number but pursuant to the same plea agreement. The addendum order

      of probation, also filed on August 20, 2012, stated:


              3. You shall attend, actively participate in, and successfully
              complete a certified sexual perpetrator treatment program that
              utilizes polygraph testing in order to ensure compliance with the
              Addendum Order of Probation. Responsibility for payment of
              fees required for treatment, including polygraph testing, will be
              yours. Unsuccessful termination from treatment or
              noncompliance with treatment conditions will be considered a
              violation of your probation.


      Appellant’s Appendix at 51.


[3]   On October 2, 2012, probation officer Ryan Koch filed a verified petition for

      revocation of probation which alleged that Brown did not successfully complete

      the Allen County Community Control Program, did not maintain good


      Court of Appeals of Indiana | Memorandum Decision 02A03-1709-CR-2147 | February 19, 2018   Page 2 of 10
      behavior, violated Rule No. 11 of the addendum order of probation as he

      possessed a cellular phone with internet access on or about September 26, 2010,

      and had a urine screen positive for marijuana at his intake on August 23, 2010.

      On October 18, 2012, the court held a hearing on the petition where Brown

      admitted the violation of probation. The court issued an order for Brown to

      return to probation subject to the August 20, 2012 conditions, and noted on the

      order that the “probation period is 4 years.” Id. at 62.


[4]   On March 1, 2017, Brown signed a document from Headwaters Counseling in

      Fort Wayne (“Headwaters”) titled, “Zero Tolerance Agreement,” which stated

      he “agree[d] to the following conditions to continue in services at Headwaters,”

      that “[s]essions at Headwaters are a probation requirement,” that “[a]ll other

      agency and group rules will be followed consistently,” that there was “[n]o

      unexcused absences” and “[a]ll excused absences must have documentation . . .

      and prior approval,” and that Brown understood “that the first time I break this

      policy I will be terminated from services.” State’s Exhibit 3.


[5]   On April 19, 2017, a stipulation of probation modification agreement was filed,

      which stated that, because Brown had not completed sexual perpetrator

      counseling, he agreed to extend his probation period for one year, or until he

      “successfully complete[d] the program,” and that he agreed to comply with the

      condition of probation in addition to the existing rules of probation ordered on

      August 20, 2012. Id. at 106.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1709-CR-2147 | February 19, 2018   Page 3 of 10
[6]   On May 3, 2017, Ruth Bracht, a licensed clinical social worker at Headwaters

      who specialized in working with individuals who have sex offender issues,

      addressed a letter to Koch, which indicated that Brown had “been suspended,

      pending termination from the Sexual Offenders Treatment Program” and stated

      in part:


              [Brown] has taken and failed four different Sexual History
              Polygraphs during his time in the program. The exams were
              completed on the following dates: 5-5-16; 8-10-16; 12-28-16; and
              4-21-17. [Brown] passed three of his maintenance polygraphs on
              the following dates: 10-19-15; 4-14-16; and 10-10-16. However,
              he recently failed to show for two maintenance polygraphs on the
              following dates: 4-10-17 and 5-1-17.

              Therapist was meeting with [Brown] (individually) more
              frequently to help prepare him to pass and work through any
              denial that was creating a barrier to having a truthful polygraph.
              It was explained to [Brown] that if he did not pass the fourth
              Sexual History Polygraph, he would be brought back before the
              judge to decide what sanctions would be appropriate.

              On 3-1-17, [Brown] signed a Zero Tolerance Agreement. The
              agreement specifically targeted his attendance. He agreed to
              communicate in more detail with both the group therapist and
              the individual therapist when his [sic] is absent. The bottom line
              of the agreement states: All other agency and group rules will be
              followed consistently.

              [Brown] is suspended, (pending termination) from the program
              based on not complying with the following rules in the group
              agreement:

                       I. You will complete all assignments and homework
                       assigned by your therapist.



      Court of Appeals of Indiana | Memorandum Decision 02A03-1709-CR-2147 | February 19, 2018   Page 4 of 10
                       [Brown] was instructed to have a truthful Sexual History
                       polygraph. He was given four opportunities and did not
                       complete this assignment.

                       N. A polygraph test(s) may be administered by a third
                       party if it is determined appropriate by the treatment team.
                       Results of this test will affect the course of your treatment.

                       After reviewing this case, there is still question about
                       whether [Brown] has been completely forthcoming about
                       who his victims are and how many there have been. It is
                       difficult, if not impossible, to do the tasks adequately
                       without full disclosure. Without total honesty, the group
                       members do not get the full picture of [Brown’s] choices
                       and actions. There is a missing piece in the accountability
                       needed for maximum treatment benefit.


      State’s Exhibit 4.


[7]   On May 10, 2017, Koch filed a verified petition for revocation of probation,

      which alleged that Brown did not “successfully complete sexual perpetrator’s

      counseling in violation of Rule #3 of the Addendum Order of Probation,” and

      on August 18, 2017, the court held a hearing on the petition. Id. at 107. At the

      hearing, Koch was shown the order of probation by the prosecutor and asked if

      he knew about the initials and date of “4/30/15” appearing in bolder ink next

      to the signatures, to which he responded:


              Those are [Brown’s] initials. I did this because these original
              rules were signed in 2012 at his original sentencing, and when he
              was released from the Department of Corrections on the previous
              case, I had him after we went over them a second time – third
              time, I had him initial those to acknowledge those.


      Court of Appeals of Indiana | Memorandum Decision 02A03-1709-CR-2147 | February 19, 2018   Page 5 of 10
      Transcript Volume 2 at 8. Koch testified that the initials were placed on the

      document in his presence. When he was shown the addendum order of

      probation, Koch testified that the addendum contained separate rules for sex

      offenders who are sentenced for a sex offense and that the addendum shown to

      him also had Brown’s “initials on the bottom right on the same date that he

      signed them in [Koch’s] presence.” Id. at 9. He also testified that Brown

      enrolled in and began a certified sexual perpetrator treatment program at

      Headwaters, that he had come to know Bracht who was Brown’s assigned

      treatment provider, that at some point he became aware that Brown was falling

      out of compliance and the compliance issue started with Brown’s attendance,

      that the sexual history polygraphs required by the addendum order of probation

      were required “to determine the offending behavior of any current victims you

      may have, any past victims that you may have that’s important for the

      treatment, the course of the treatment,” that Brown “began to fail the sexual

      history polygraphs,” and that he and the treatment provider attempted to

      address the noncompliance informally without filing a violation. Id. at 15.


[8]   Koch testified that he believed that the reason for the March 1, 2017 agreement

      was that “after another failed polygraph [Brown] began having some

      attendance issues with treatment.” Transcript Volume 2 at 22. He also testified

      that he and Bracht verbally discussed with Brown his obligations with respect to

      the polygraphs, that he became aware that Brown had again failed a polygraph

      and believed the failure to have occurred on April 21, 2017, and that he

      received communication from Headwaters indicating they did not feel that they


      Court of Appeals of Indiana | Memorandum Decision 02A03-1709-CR-2147 | February 19, 2018   Page 6 of 10
could work with Brown further. The court and Koch had the following

exchange regarding the March 1, 2017 agreement and the May 3, 2017 letter:


        THE COURT: [J]ust so I’m clear, [the March 1, 2017 agreement]
        is signed by [Brown] who says that all excused absences must
        have documentation, nurse note, funeral and have prior approval
        correct?

        KOCH: That is correct.

        THE COURT: Okay. So that was at – to [counsel for Brown’s]
        point, that was for attendance, the no tolerance.

        KOCH: Okay.

        THE COURT: Am I right?

        KOCH: I – yes.

        THE COURT: Okay. So in the — I just want to confirm in [the
        May 3, 2017 letter] then you as the probation officer got
        information from [Bracht] that [Brown] was not in compliance
        with the zero tolerance agreement correct? Because she says he
        failed to show up for two maintenance polygraphs.

        KOCH: That’s correct.

        THE COURT: Okay. So he failed to show up those two times,
        and did he have any written documentation as outlined in [the
        March 1, 2017 agreement]?

        KOCH: Not from the information that was provided to me.

        THE COURT: Okay. All right.

        THE COURT: Any follow-up from counsel?


Transcript Volume 2 at 33-34.


Court of Appeals of Indiana | Memorandum Decision 02A03-1709-CR-2147 | February 19, 2018   Page 7 of 10
[9]    Brown testified that his probation was extended on March 1, 2017, for six

       months because he failed to attend meetings or was not complete with classes.

       He also testified that he notified Bracht that he was unable to attend the two

       polygraph meetings by calling from his work line, he provided Bracht with his

       manager’s number and extension, and he did not bring a note from his

       employer on letterhead to Bracht for the absences on April 10 and May 1. After

       the hearing, the court ordered Brown’s probation revoked.


                                                   Discussion

[10]   The issue is whether the evidence is sufficient to support the revocation of

       Brown’s probation. Brown argues that insufficient evidence supported the

       court’s finding. Specifically, he contends that the language in the May 3, 2017

       letter indicating “suspended, pending termination” falls short of a final

       conclusion that Brown did not successfully complete sexual perpetrator

       counseling and additional language in the letter left open the possibility that

       Brown’s shortcomings in the program could be corrected, and that Rule 3 of the

       addendum order of probation does not mention that a probationer is required to

       pass the polygraph examinations. Appellant’s Brief at 11.


[11]   The State argues that Brown violated his probation by having two unexcused

       absences for maintenance polygraph tests after having entered into a zero

       tolerance agreement for unexcused absences and that Brown failed to provide a

       truthful sexual history polygraph test after being told by Koch and his treatment

       provider that it was a condition for successful completion of his treatment

       program and having been granted four opportunities to do so by his therapist.
       Court of Appeals of Indiana | Memorandum Decision 02A03-1709-CR-2147 | February 19, 2018   Page 8 of 10
[12]   Probation is an alternative to commitment in the department of correction, and

       is at the sole discretion of the trial court. Cox v. State, 706 N.E.2d 547, 549 (Ind.

       1999), reh’g denied. A defendant is not entitled to serve a sentence on probation.

       Id. Rather, probation is a “matter of grace” and a “conditional liberty that is a

       favor, not a right.” Id. Probation revocation is governed by Ind. Code § 35-38-

       2-3, and a revocation hearing is civil in nature, the State needing only to prove

       the alleged violations by a preponderance of the evidence. Id. at 551. We

       consider all the evidence most favorable to supporting the judgment of the trial

       court without reweighing that evidence or judging the credibility of witnesses.

       Id. If there is substantial evidence of probative value to support the trial court’s

       conclusion that a defendant has violated any terms of probation, we will affirm

       its decision to revoke. Id. The violation of a single condition of probation is

       sufficient to revoke probation. Wilson v. State, 708 N.E.2d 32, 34 (Ind. Ct. App.

       1999).


[13]   The record reveals that, despite having signed the addendum order in 2012 and

       initialed it again in 2015, Brown began to fall out of compliance at Headwaters.

       The State presented evidence that Brown failed to show as required for

       maintenance polygraphs on April 10, 2017, and May 1, 2017, and lacked

       documentation from his employer. For Brown, compliance with Headwaters’s

       treatment conditions regarding excused absences was expressly conditioned on

       obtaining approval beforehand and providing documentation afterwards. In

       light of this and other evidence presented at the hearing, we conclude that the

       court as a finder of fact could reasonably conclude by a preponderance of the

       Court of Appeals of Indiana | Memorandum Decision 02A03-1709-CR-2147 | February 19, 2018   Page 9 of 10
       evidence that Brown violated his probation when he did not comply with the

       explicit treatment conditions outlined in the March 1, 2017 agreement. See Lind

       v. State, 550 N.E.2d 823, 824 (Ind. Ct. App. 1990) (“The defendant’s failure to

       adhere to the program’s attendance policy shows a blatant disregard by the

       defendant for the trial court’s order to undergo counselling and treatment.”),

       trans. denied.


                                                   Conclusion

[14]   For the foregoing reasons, we affirm the court’s order revoking Brown’s

       probation.


[15]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1709-CR-2147 | February 19, 2018   Page 10 of 10
