Nicholaus Knecht v. State of Indiana , 85 N.E.3d 829 ( 2017 )

FILED
Sep 27 2017, 10:26 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Heather M. Shumaker Curtis T. Hill, Jr.
Schuckit & Associates, P.C. Attorney General of Indiana
Zionsville, Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Nicholaus Knecht, September 27, 2017
Appellant-Defendant, Court of Appeals Case No.
06A05-1701-CR-131
v. Appeal from the Boone Circuit
Court.
The Honorable Matthew C. Kincaid,
State of Indiana, Special Judge.
Appellee-Plaintiff. Trial Court Cause No.
06C01-1301-FD-25
Rucker, Senior Judge
[1] Raising the following restated and reordered claims Nicholaus Knecht appeals
the trial court’s order revoking his probation: (1) he was denied the right to
confront and cross examine witnesses; (2) the revocation violated double
jeopardy; (3) the evidence was insufficient to support revocation; and (4) the
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trial court abused its discretion in ordering Knecht to serve his suspended
sentence in community corrections. We affirm.
Facts and Procedural History
[2] On February 19, 2013 under terms of a plea agreement Knecht pleaded guilty in
the Boone Circuit Court to residential entry as a class D felony; theft as a class
D felony; conversion as a class A misdemeanor; and unauthorized entry into a
motor vehicle as a class B misdemeanor. The trial court sentenced Knecht to
an aggregate term of six years in the Department of Correction all of which was
suspended to probation with credit for time served in pre-trial confinement.
Although the actual date is not clear from the record before us, sometime
shortly thereafter Knecht was charged in the Boone Superior Court with one
count of child molesting as a class B felony. In consequence, on April 12, 2013
the State filed a petition to revoke Knecht’s probation. This petition was
subsequently dismissed and the State filed a “Petition To Modify and/or
Revoke Probation” on March 7, 2014 noting a pending charge of “Child
Molest, CBF.” Tr. Vol. 3, pp. 18-19.
[3] At the close of a one-day trial in December 2015 on the charge of child
molesting the jury returned a verdict of not guilty. Three days later the State
filed an amended petition to revoke probation alleging Knecht had committed
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acts which constituted the crimes of child molesting, contributing to the
1
delinquency of a minor, and reckless driving.
[4] At the probation revocation hearing the State presented a few live witnesses in
support of its reckless driving and contributing claims. But with respect to its
child molest allegation the State relied almost exclusively on the same evidence
introduced at the criminal trial. More specifically at the hearing the alleged
child molest victim did not testify and little to no new evidence on this
allegation was admitted. Instead, the trial transcript of the alleged victim’s
testimony was introduced into evidence over Knecht’s objection. The record
shows Knecht also did not testify at the revocation hearing. Rather Knecht
introduced his own exhibit - a copy of his trial testimony - “as it related to the
trial on the charge of Child Molest . . . .” Tr. Vol. 2, p. 99.
1
The petition alleged:
1. Defendant committed an act which constitutes the crime of Child Molest under I.C.
35-42-4-3 to wit: the Defendant is over 18 years of age and engaged in sexual
intercourse with a child less than 14 years of age or sexual conduct with the intent to
sexually arouse either himself or the victim.
2. Defendant committed an act which constitutes the crime of Contributing to the
Delinquency of a Minor under I.C. 35-46-1-8 to wit: the Defendant is over 18 years of
age and aided, induced, or caused a person less than 18 years of age to commit an act
of delinquency, specifically violation of Indiana’s curfew law I.C. 31-37-3-3.
3. Defendant has been charged with Reckless Driving, CBM; this case is pending under
cause number 06D02-1503-CM-0108.
Appellant’s App. Vol. 2, p. 103.
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[5] After the hearing concluded the trial court found that the State proved by a
preponderance of the evidence that Knecht committed the crimes of child
2
molesting and contributing to the delinquency of a minor. The trial court then
revoked Knecht’s probation and ordered Knecht to serve his six-year suspended
sentence on community corrections. Knecht now appeals. Additional facts are
set forth below.
Discussion
I. Right to Cross Examine Witnesses
[6] Knecht complains the trial court violated his constitutional right to confront
and cross examine witnesses by admitting into evidence a transcript of H.W.’s
testimony from the criminal trial. He contends the testimony was inadmissible
hearsay that should have been excluded.
[7] Although probationers are not entitled to the full array of constitutional rights
afforded defendants at trial, still “the Due Process Clause of the Fourteenth
Amendment [does] impose[ ] procedural and substantive limits on the
revocation of the conditional liberty created by probation.” Debro v. State, 821
N.E.2d 367, 374 (Ind. 2005) (quoting Cox v. State, 706 N.E.2d 547, 549 (Ind.
2
The trial court found insufficient evidence to support the reckless driving allegation. See Appellant’s App.
Vol. 2, p. 41.
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1999)); see also Black v. Romano, 471 U.S. 606, 610, 105 S. Ct. 2254, 2257 (1985).
“The minimum requirements of due process that inure to a probationer at a
revocation hearing include: (a) written notice of the claimed violations of
probation; (b) disclosure of the evidence against him; (c) an opportunity to be
heard and present evidence; (d) the right to confront and cross-examine adverse
witnesses . . . .” Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008). See also Ind.
Code § 35-38-2-3 (2015) (providing in pertinent part that a probationer “is
entitled to confrontation, cross-examination, and representation by counsel”).
[8] Nonetheless, confrontation rights in the context of probation revocation are not
as extensive as they are in criminal trials. Robinson v. State, 955 N.E.2d 228, 232
(Ind. Ct. App. 2011). As one example, the Indiana Rules of Evidence,
including those governing hearsay, do not apply in such proceedings. See Ind.
Evidence Rule 101(c)(2) (declaring in pertinent part, “the rules, other than those
with respect to privilege, do not apply in . . . proceedings relating to . . .
sentencing, probation, or parole”). Further, the scope of the right to
confrontation as explored in the seminal case of Crawford v. Washington, 541
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U.S. 36, 124 S. Ct. 1354 (2004), also does not apply in probation revocation
3
proceedings. See Smith v. State, 971 N.E.2d 86, 89 (2012).
[9] To be sure, due process does not prohibit the use of hearsay evidence “‘where
appropriate [for] the conventional substitutes for live testimony, including
affidavits, depositions, and documentary evidence.’” Reyes v. State, 868 N.E.2d
438, 440 (Ind. 2007) (quoting Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5, 93 S.
Ct. 1756, 1760 n.5 (1973)). However, this “does not mean that hearsay
evidence may be admitted willy-nilly in a probation revocation hearing.” Id.
[10] In order to admit hearsay evidence at a probation revocation hearing in lieu of
live testimony, the State must demonstrate “good cause” for its use. Id. at 440.
This requirement is met so long as the hearsay bears substantial guarantees of
trustworthiness. Id. at 441. Substantial guarantees of trustworthiness satisfy the
need for flexibility in routine probation revocation hearings. Further, the
“substantial trustworthiness test” requires the trial court to evaluate the
reliability of the hearsay evidence. Id. at 442. “[I]deally [the trial court should
explain] on the record why the hearsay [is] reliable and why that reliability [is]
substantial enough to supply good cause for not producing . . . live witnesses.”
3
In Crawford, the United States Supreme Court held that the Confrontation Clause of the Sixth Amendment
to the Federal Constitution prohibits admission in a criminal trial of testimonial statements by a person who
is absent from trial, unless the person is unavailable and the defendant had a prior opportunity to cross
examine the person. This constitutional rule prohibits evidence even if it qualifies for a state law hearsay
exception. Crawford overruled a portion of Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531 (1980), that had
authorized the admission of hearsay statements based on findings of particularized guarantees of
trustworthiness.
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Id. (alterations in original) (quoting United States v. Kelly, 446 F.3d 688, 693 (7th
Cir. 2006)).
[11] Here, the trial court did not explain why the transcript of H.W.’s testimony in
the criminal trial was reliable or why that reliability was substantial enough to
justify the State’s decision not to produce H.W. as a live witness. However,
concluding “the State shall not be required to call the complaining witness at
the probation revocation hearing” the trial court found the facts here
“indistinguishable” from those in Lightcap v. State, 863 N.E.2d 907 (Ind. Ct.
App. 2007). Appellant’s App. Vol. 2, p. 5.
[12] In that case, defendant Donald Lightcap, Jr., was on probation for one count of
class C felony sexual misconduct with a minor. The State filed a petition to
revoke Lightcap’s probation alleging he had violated its terms by committing
two counts of sexual misconduct with a minor as class B felonies. A jury
subsequently found Lightcap not guilty of the charges; but the State proceeded
with the revocation case. On the State’s motion, the trial court incorporated the
testimony and evidence from the criminal trial into the revocation proceeding.
The same judge presided over both the jury trial and the probation revocation
hearing, and the judge concluded that Lightcap violated the terms of his
probation. On appeal Lightcap argued the admission of the criminal trial
testimony into evidence at the revocation hearing violated his due process right
to confront witnesses. This Court rejected Lightcap’s argument noting he was
“afforded the opportunity to cross-examine witnesses and present evidence in
his own defense at his criminal trial . . . . ” Id. at 911. Further, the prior
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testimony exhibited “substantial indicia of its reliability” because it had been
given under oath. Id. at 910. See, e.g., State v. Owings, 622 N.E.2d 948, 953 (Ind.
1993) (discussing the right of confrontation in the context of a pre-trial
deposition and declaring “[t]estimony given under oath, subject to penalties for
perjury and recorded by a court reporter has sufficient indicia of reliability”).
[13] In this case as in Lightcap, the trial testimony of the absent witness had been
given under oath and the same judge presided over both the criminal trial and
4
the probation revocation hearing. Thus the record shows the testimony bore
substantial guarantees of trustworthiness.
[14] And here also as in Lightcap Knecht was afforded the opportunity to cross
examine witnesses and present evidence in his own defense at his criminal trial.
On this point Knecht seems to concede he had such an opportunity with respect
to the child molest allegation. Knecht complains however that he “was not
aware of the allegation of contributing to the delinquency of a minor when he
questioned H.W. in her deposition and again at the jury trial.” Appellant’s
4
Seizing on the wording in the Lightcap opinion which declares “the same court presided over the criminal
trial and the revocation of probation hearing,” id at 910 (emphasis added), Knecht complains “the same trial
court did not preside over Mr. Knecht’s criminal and probation hearings.” Appellant’s Br. p. 19. This claim
lacks merit. The record shows Judge Matthew C. Kincaid as regular Judge of Boone Superior Court I
presided over Knecht’s criminal trial. Acting as special judge of the Boone Circuit Court, Judge Matthew C.
Kincaid also presided over Knecht’s probation revocation proceeding. It is true that the Lightcap opinion
refers to the “same court.” But it also specifically named the sole trial judge that presided over both
proceedings. More importantly it is not at all uncommon for this Court as well as our Supreme Court to use
the terms “court” and “judge” interchangeably and often within the same opinion. See, e.g., Voss v. State, 856
N.E.2d 1211, 1214 (Ind. 2006); Hanks v. State, 71 N.E.3d 1178, 1181 (Ind. Ct. App. 2017), trans. denied. The
same is true in this case. At stake is whether the same entity - whether designated “court” “trial court”
“judge” or “trial judge” - presided over both proceedings. Clearly it did so here.
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Reply Br. p. 10. He continues, “Mr. Knecht’s entire focus was presenting a
defense and cross-examining witnesses related to [child molest] elements of
proof.” Id.
[15] We repeat for emphasis that in the context of a probation revocation
proceeding, the right of confrontation is not absolute. Rather “[the right] is
secured where the testimony of a witness at a former hearing or trial on the
same case is reproduced and admitted, where the defendant either cross-
examined such witness or was afforded the opportunity to do so . . . .” Owings,
622 N.E.2d at 951 (quoting Brady v. State, 575 N.E.2d 981, 987 (Ind. 1991)).
[16] The record makes clear Knecht thoroughly cross examined H.W. at trial. Not
only did Knecht have the opportunity to cross examine H.W. he availed
himself of that opportunity as well. Knecht’s implication that he would have
pursued a different line of inquiry had he been forewarned of potential future
consequences is unavailing. “Whether, how, and to what extent the
opportunity for cross-examination is used is within the control of the
defendant.” Howard v. State, 853 N.E.2d 461, 469 (Ind. 2006). In sum, Knecht
has failed to show he was deprived of his right to due process.
II. Double Jeopardy
[17] Knecht next contends the probation revocation proceeding represented an
improper second attempt to punish him for the crime of child molesting and
violated his federal constitutional protection against double jeopardy.
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[18] The Fifth Amendment to the United States Constitution provides that no
person shall “be subject for the same offence to be twice put in jeopardy of life
or limb.” U.S. Const. amend. V. The Fifth Amendment to the federal
constitution was made applicable to the States through the Fourteenth
Amendment. See Brock v. State, 955 N.E.2d 195, 199 (Ind. 2001) (citing Benton
v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 2058 (1969)).
[19] The law in this jurisdiction is well settled that a violation of a condition of
probation does not constitute an offense for purposes of double jeopardy.
Johnson v. State, 512 N.E.2d 1090, 1092 (Ind. 1987); Justice v. State, 550 N.E.2d
809, 811-12 (Ind. Ct. App. 1990); Jackson v. State, 420 N.E.2d 1239, 1242 (Ind.
Ct. App. 1981). The Fifth Amendment prohibition against putting any person
twice in jeopardy of life or limb applies only to criminal proceedings. A
probation revocation which only requires the State to prove a violation by the
civil preponderance standard, rather than beyond a reasonable doubt, is not a
criminal proceeding. See Jackson, 420 N.E.2d at 1242. Knecht’s argument on
5
this point fails.
5
In his Reply Brief Knecht seems to concede this point declaring: “Although the State does not proceed to
cite cases in this section of the argument, the case law appears to support its argument relating to double
jeopardy.” Appellant’s Reply Br. p. 7 n.2.
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III. Sufficiency of the Evidence
A. Child Molesting
[20] Knecht complains, “[t]here was insufficient evidence to revoke Mr. Knecht’s
probation when he was acquitted of the underlying crime of Child Molest and
the State presented no new evidence at the probation revocation hearing.”
Appellant’s Br. p. 14.
[21] We review insufficiency of evidence claims in a probation proceeding as we do
any other sufficiency of the evidence question. Smith v. State 727 N.E.2d 763,
765 (Ind. Ct. App. 2000). We will not reweigh evidence or judge credibility of
witnesses. Id. We look only at the evidence favorable to the State and all
reasonable inferences therefrom. Marsh v. State, 818 N.E.2d 143, 148 (Ind. Ct.
App. 2004).
[22] In Thornton v. State, this court rejected an argument nearly identical to the
argument Knecht advances here. 792 N.E.2d 94 (Ind. Ct. App. 2001). In that
case the State charged Bruce Thornton with one count of resisting law
enforcement as a Class D felony. After a two-day jury trial, Thornton was
found not guilty. Immediately thereafter the trial court held a probation
revocation hearing at which neither the State nor the defendant presented
additional evidence. Instead the parties relied on the evidence presented at the
criminal trial. Based on that evidence the trial court found “it’s more likely true
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than not true that [Thornton] committed the offense of Resisting Law
Enforcement, a Class D felony.” 792 N.E.2d 94, 96 (internal quotation
omitted). The trial court then revoked Thornton’s probation and ordered him
to serve the remainder of his suspended sentence on home detention.
[23] Thornton appealed arguing the evidence was not sufficient to support the
revocation of his probation. According to Thornton, “his acquittal should
prohibit the trial court from revoking his probation for the commission of the
crime.” Id. at 97. We disagreed. In so doing we acknowledged the “widely
differing views toward probation revocation proceedings based upon the
commission of an offense after the probationer has been acquitted of the
offense.” Id. at 98. Endorsing what we referred to as the “majority position
allowing revocation” this Court concluded among other things, “the
appropriateness of revocation in each case must be decided on the basis of the
evidence presented at the revocation hearing, because in many instances of
acquittal the State may not be able to meet its preponderance burden.” Id. at
98-99 (internal quotation omitted). We reach the same conclusion here. In
essence, provided the evidence presented at the revocation hearing supports the
finding of a probation violation, a prior acquittal of a criminal offense does not
preclude a later finding of a probation violation based on the same offense. See
id.
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[24] Knecht was charged with a probation violation premised in part on the
allegation that he committed an act which constituted the crime of child
molesting under Indiana Code § 35-42-4-3 (2014). At the time of the allegation
the statute provided in relevant part:
(a) A person who, with a child under fourteen (14) years of age,
performs or submits to sexual intercourse or deviate sexual
conduct, commits child molesting, a class B felony . . .
(b) A person who, with a child under fourteen (14) years of age
performs or submits to any fondling or touching, of either the
child or the older person, with intent to arouse or to satisfy the
sexual desires of either the child or the older person commits
child molesting, a class C felony.
Id.
[25] The evidence presented at the revocation hearing showed that in the Spring of
2013 twenty-one-year old Knecht and then twelve-year-old H.W., who lived in
Arizona, began exchanging text messages. H.W. contacted Knecht at the
request of her nineteen-year-old cousin who lived in Lebanon Indiana and had
established a prior relationship with Knecht that apparently had gone sour. The
cousin sought H.W.’s intervention to reestablish the relationship. Discussing
their lives and interests, Knecht and H.W. communicated by way of text nearly
every day. At some point Knecht and H.W. began having “graphic sex
conversations” and “conversations over the phone via text as to what [they]
would like to do with each other if [they] were ever to meet.” Tr. Vol. 4,
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Defendant’s Ex. A, p. 57. The parties also exchanged numerous nude
photographs of each other.
[26] H.W.’s grandfather, who also lived in Arizona, is a truck driver and on
occasion H.W. accompanied him on road trips. In December 2013, he traveled
to Indiana and H.W. came along to visit her Lebanon cousin. H.W. texted
Knecht to let him know she would be coming to Lebanon and they talked about
“meeting up.” Tr. Vol. 4, State’s Exhibit. 27, p 16. Before arriving, H.W. told
Knecht she was 13 years old. H.W. got to Indiana on December 6, and the
following day she met with Knecht at a McDonald’s parking lot. Knecht
arrived in his car - a Mitsubishi Eclipse convertible. H.W. entered, and Knecht
drove to a storage unit to retrieve an item that he put in the trunk of the car.
They left the area and then drove around for “about an hour.” Id. at 22. They
talked, and “kissed” “mouth to mouth.” Id. Ultimately Knecht dropped H.W.
off at a location near her cousin’s home at a trailer park. This turned out to be
the first of three meetings between Knecht and H.W.
[27] Later that same day Knecht again picked up H.W., near her cousin’s home, and
they drove “out to the country” “kind of a country road . . . .” Id. at 24. H.W.
recounted that the two talked a little and then began “making out” in “the
backseats of the car.” Id. at 25. By that she meant “kissing.” Id. According to
H.W. when she got into the backseat “[Knecht] took off his jacket and we
started to make out some more and then I took off my shirt and pants.” Id. at
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26. After H.W. removed her shirt and pants Knecht then “st[uck] his hands
down her pants . . . and began rubbing [her vaginal area].” Id. Thereafter
Knecht drove H.W. back to the area of her cousin’s house where she exited the
car. Before doing so, the parties discussed meeting again later that night. The
plan was for H.W. to “sneak out and go see [Knecht] again.” Id. at 30.
According to H.W. Knecht told her that “his parents have a camper in the
garage and that we can go there.” Id.
[28] H.W. did sneak out “sometime early in the morning.” Id. And Knecht picked
her up “somewhere in the trailer park,” id. at 31, and drove to the home of
Knecht’s parents. They exited the car and went into the garage where there was
a camper inside. The couple went into the bedroom of the camper where,
according to H.W., “[Knecht] takes off my shirt and pants and underwear.” Id.
at 35. And “puts his mouth, um, on the lips of my vagina,” id. at 36, “then
after that he asks if I could do the same to him. So he goes over, rolls over and
he takes off his pants and I [performed oral sex]” meaning “his penis in my
mouth.” Id. After that H.W. “climbed on top of [Knecht] and, um, we had
sex” meaning “his penis [went] into [my] vagina.” Id. at 37. Thereafter Knecht
and H.W. left the house and camper and went back into town. Ultimately
Knecht drove H.W. back to her cousin’s home.
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[29] During the encounter in the camper, Knecht “used a condom” id., which he
“put . . . in the trash . . . in the garage.” Id at 74. At the revocation hearing
Ashley McClure - a Case Manager with the Boone County Probation
Department - testified that on the last day of Knecht’s criminal trial she was
present at the probation department and encountered Knecht. Portions of her
testimony follow:
Q. Did you hear Mr. Knecht make any statements regarding the
outcome of his jury trial?
A. I did.
Q. What did you hear him say?
A. He said that he had been found not guilty, um, due to the
evidence and then he made reference to them not looking into
the trash can.
Tr. Vol. 3, pp. 97-98.
[30] The record reflects that H.W.’s testimony and Knecht’s testimony were
basically consistent with one another. As the trial court noted, “[t]he major
area of material inconsistency concerns what actually happened on the three
occasions that H.W. and Defendant were together.” Appellant’s App. Vol 2, p
41 fn. 4. Rejecting Knecht’s denial of engaging in sexual activity with H.W. the
trial court credited H.W.’s version of events. And the trial court acted well
within its discretion in doing so. In the face of conflicting evidence, the trial
court sits “in the best position to weigh any conflicting evidence and assess the
credibility of the witnesses.” Hensler v. Brooks, 684 N.E.2d 1180, 1184 (Ind. Ct.
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Ohio App. 1997). Further, a revocation proceeding is civil in nature and the State
need only prove its allegations by a preponderance of the evidence. Ind. Code §
35-38-2-3.
[31] Here, in evaluating the evidence and crediting H.W.’s testimony over that of
Knecht the trial court found “[i]t is more likely than not that Defendant
committed child molesting when he kissed [H.W.] on the mouth in his first
meeting, made out with her and rubbed her vagina in the second meeting and
had oral sex and sexual intercourse with her in the third meeting.” Appellant’s
App. Vol 2, p. 44. The trial court concluded “[t]he State has carried the burden
of proof and shown that Defendant violated probation by committing an act
that would be child molesting.” Id. The record amply supports the trial court’s
conclusion that the State carried its burden of proof by a preponderance of the
evidence. We discern no error on this issue.
B. Contributing to the Delinquency of a Minor
[32] The State alleged Knecht also violated probation by committing an act that
constituted the crime of contributing to the delinquency of a minor. The statute
provides in relevant part: “A person at least eighteen (18) years of age who
knowingly or intentionally encourages, aids, induces, or causes a person less
than eighteen (18) years of age to commit an act of delinquency (as defined by
IC 31-37-1 or IC 31-37-2) commits contributing to delinquency, a Class A
misdemeanor.” Ind. Code § 35-46-1-8 (2014). An act of delinquency includes a
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curfew violation. And Indiana Code § 31-37-3-3 (2004) provides “it is a curfew
violation for a child less than fifteen (15) years of age to be in a public place
after 11 p.m. and before 5 a.m. on any day.”
[33] In challenging the sufficiency of the evidence Knecht does not contest that
H.W., whom he knew to be under age 15, was in a public place during the
prohibited time. Instead Knecht argues that he did not “entice” H.W. to leave
her home. Appellant’s Br. p. 17. According to Knecht, “she left her trailer on
her own accord and Mr. Knecht picked her up at the rec center.” Id. Knecht
insists “[t]his is insufficient to support a finding that Mr. Knecht committed the
act which constituted the crime of Contributing to the Delinquency of a
Minor.” Id. at 17-18.
[34] We first observe that one violation of a condition of probation is enough to
support a probation revocation. Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct.
App. 2015). We have already determined that the record supports the trial
court’s conclusion that the State carried its burden of demonstrating Knecht
violated probation by committing an act that would constitute the crime of
child molesting. Thus, even if the evidence were not sufficient to support the
contributing charge, the evidence nonetheless would support revocation of
Knecht’s probation based on the child molest charge. In any event we examine
Knecht’s claim.
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[35] By arguing that he did not “entice” H.W. to leave her home, Knecht essentially
contends that he did not - in the language of the statute - either “encourage”
“aid” or “induce” H.W. to violate curfew. According to Knecht, “To be found
guilty of Contributing to the Delinquency of a Minor, the State is required to
prove more than just a mere presence.” Appellant’s Br. p. 17 (citing Gray v.
State, 249 Ind. 523, 233 N.E.2d 468 (Ind. 1968)).
[36] The statute does not define either “encourage,” “aid,” or “induce.” Undefined
words in a statute are given their plain, ordinary and usual meaning. See Ind.
Code § 1-1-4-1(1) (1991). In determining the plain and ordinary meaning of a
statutory term, we sometimes consult English language dictionaries. State v.
Hancock, 65 N.E.3d 585, 587 (Ind. 2016). And we do so here. However, it is
unnecessary to parse the definition of each undefined statutory term. Instead,
because each term is listed as an alternative means of committing an act of
delinquency, for our purposes one statutory term will suffice. Specifically,
“aid” is defined as “to provide support or relief to; help . . . to promote the
progress or accomplishment of; facilitate.” The Random House Dictionary of
the English Language, Unabridged Edition, p. 30 (1966). In this case Knecht
concedes that he picked up H.W. in his car in the early morning hours of
December 7, 2013. Far from simple “mere presence” as Knecht contends, he at
the very least “help[ed]” and “facilitate[ed]” H.W.’s conduct in violating
curfew. Knecht’s argument to the contrary is merely an invitation for this court
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to reweigh the evidence, which we decline. The evidence was sufficient to
support the trial court’s conclusion that “[t]he State has carried the burden of
proof and shown that defendant violated probation by committing an act that
would be contributing to the delinquency of a minor.” Appellant’s App. p. 44.
IV. Sentencing
[37] Knecht last contends the trial court abused its discretion in ordering him to
serve his entire suspended sentence on community corrections, namely: Boone
County Community Corrections home detention. Citing his employment,
payment of child support, and active involvement in his daughter’s life, Knecht
argues the trial court should have “allowe[d] [him] the opportunity to continue
on probation. . . . ” Tr. Vol. 2, p. 173.
[38] “Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.” Heaton v. State, 984 N.E.2d 614, 616 (Ind.
2013). The conditions for probation and whether to revoke probation when
those conditions are violated are left to the discretion of the trial court. Id. If
the trial court determines a probationer has violated a term of probation, then
the court may impose one or more of the following sanctions:
(1) Continue the person on probation, with or without modifying
or enlarging the conditions.
(2) Extend the person’s probationary period for not more than
one (1) year beyond the original probationary period.
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(3) Order execution of all or part of the sentence that was
suspended at the time of initial sentencing.
Ind. Code § 35-38-2-3(h) (2015). Here, minus credit for time served in pretrial
detention, the trial court ordered execution of all of Knecht’s suspended
sentence under subsection (h)(3).
[39] We review a court’s sentencing decisions for probation violations for an abuse
of discretion. Alford v. State, 965 N.E.2d 133, 135 (Ind. Ct. App. 2012), trans.
denied. An abuse of discretion occurs where the decision is clearly against the
logic and effect of the facts and circumstances. Id.
[40] Knecht does not advance a cogent argument explaining why he believes the
trial court abused its discretion in ordering Knecht to serve the remainder of his
six-year term in community corrections rather than extending his probation.
Knecht’s transgression was not a violation of a technical provision of his
probationary term. For example, the State did not allege that Knecht failed to
pay a probation user’s fee, or failed to keep an appointment with a probation
officer. Rather, Knecht violated probation by committing acts that would
constitute the crimes of child molesting as either class B or class C felonies.
And the offenses were committed within months of Knecht being placed on
probation after pleading guilty to other non-related felony and misdemeanor
offenses.
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[41] There is simply nothing about the trial court’s order that is “against the logic
and effect of the facts and circumstances” before the court. See, e.g., Morgan v.
State, 691 N.E.2d 466, 469 (Ind. Ct. App. 1998) (probationer ordered to serve
his original six-year sentence upon a finding of sufficient evidence to support
revocation of probation where testimony of probationer’s girlfriend at
revocation hearing revealed that as couple was driving with their son,
probationer hit her at least ten times). In sum, the trial court did not abuse its
discretion in sentencing Knecht to serve the balance of his term in Community
Corrections.
Conclusion
[42] We affirm the judgment of the trial court.
[43] Affirmed.
Bradford, J., and Pyle, J., concur.
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