Cain v. State

• Decision Date: 18 March 2015
• Docket Number: No. 02A03–1407–CR–260.,02A03–1407–CR–260.
• Citation: 30 N.E.3d 728
• Parties: Joshua E. CAIN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

30 N.E.3d 728

Joshua E. CAIN, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 02A03–1407–CR–260.

Court of Appeals of Indiana.

March 18, 2015.

Ordered Published April 13, 2015.

Gregory L. Fumarolo, Fort Wayne, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Brian Reitz, Deputy Attorney General, Indianapolis, IN, Attorney for Appellee.

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 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 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 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 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 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 v. State, 605 N.E.2d 144, 148–149 (Ind.1992) ). 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...