MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              Dec 31 2015, 8:28 am
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                                  ATTORNEYS FOR APPELLEE
Derick W. Steele                                        Gregory F. Zoeller
Deputy Public Defender                                  Attorney General of Indiana
Kokomo, Indiana
                                                        Katherine Modesitt Cooper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Richard L. Berg, Jr.,                                   December 31, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        34A05-1506-CR-533
        v.                                              Appeal from the Howard Superior
                                                        Court
State of Indiana,                                       The Honorable William C.
Appellee-Plaintiff.                                     Menges, Jr., Judge
                                                        Trial Court Cause No.
                                                        34D01-1302-FB-159



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 34A05-1506-CR-533 |December 31, 2015     Page 1 of 6
[1]   Richard L. Berg, Jr. appeals the revocation of his probation, contending that the

      evidence was insufficient for the trial court to find that he violated the conditions

      of his probation by committing a new crime.


[2]   We affirm.


                                    Facts and Procedural History
[3]   Berg pleaded guilty under a written plea agreement to Class D felony

      maintaining a public nuisance. The trial court accepted his guilty plea and, on

      July 10, 2013, sentenced him to 1095 days in the Indiana Department of

      Correction with 262 days executed and 833 days suspended to probation. 1 Berg

      had served the 262 days while awaiting trial and, therefore, was immediately

      placed on probation.


[4]   The conditions of supervised probation included, in pertinent part: “Violation

      of any law (city, state, or federal) is a violation of your probation; within forty-

      eight (48) hours of being arrested or charged with a new criminal offense, you

      must contact your Probation Officer.” Appellant’s App. at 66. One year later, on

      July 18, 2014, Berg was charged under Cause Number 34D04-1407-FB-110

      (“Cause 110”) with three counts of Class B felony sexual misconduct with a




      1
        The trial court initially entered a Sentencing Order on July 3, 2013. Later, noting it erred by classifying
      Berg’s conviction for maintaining a common nuisance as a Class B felony instead of a Class D felony, the
      trial court entered an Amended Sentencing Order on July 10, 2013. Appellant’s App. at 38, 40.

      Court of Appeals of Indiana | Memorandum Decision 34A05-1506-CR-533 |December 31, 2015               Page 2 of 6
      minor and three counts of Class B felony incest.2 The State filed a petition to

      revoke Berg’s suspended sentence on August 5, 2014, contending that he had

      violated the terms of his probation.


[5]   At Berg’s request, he was given a psychological evaluation in connection with

      Cause 110. The evaluation report (“the Report”) was filed with the trial court

      in this revocation proceeding (“probation court”) on December 22, 2014.3 The

      Report referenced that Berg had been charged with six Class B felonies under

      Cause 110—acts alleged to have occurred between Berg and his minor daughter

      during the time period of March through May 2014. Appellant’s App. at 9, 86-

      87. Berg was tried to a jury under Cause 110 and found guilty on April 22,

      2015 of three counts of Class B felony sexual misconduct with a minor and

      three counts of Class B felony incest; the trial court sentenced him to an

      aggregate executed term of forty years.


[6]   On May 14, 2015, about a month after he was convicted under Cause 110, the

      probation court held a fact-finding hearing to determine whether Berg had

      violated his probation. During that hearing, the probation court admitted the

      State’s certified copies of Berg’s six guilty verdicts in Cause 110 and agreed,

      “The court will take judicial notice of the proceedings in connection with this

      case.” Tr. at 4. Based on that evidence, the probation court found by a




      2
        Berg was also charged with Class D felony battery by body waste. While the outcome of that charge is not
      in the record before us, that information is not necessary for the resolution of this appeal.
      3
          The Report was also filed with the trial court in Cause 110 on November 20, 2014. Appellant’s App. at 86.


      Court of Appeals of Indiana | Memorandum Decision 34A05-1506-CR-533 |December 31, 2015              Page 3 of 6
      preponderance of the evidence that Berg had violated the terms of his

      probation.


[7]   At the May 27, 2015 sentencing hearing for the probation revocation, defense

      counsel informed the probation court that Berg had received a forty-year

      sentence in Cause 110 and the probation court took judicial notice of the

      presentence investigation report in connection with that case. Id. at 7, 8. At the

      close of the hearing, the probation court revoked Berg’s suspended sentence and

      ordered him to serve the remainder of his 833-day suspended sentence, minus

      credit for days served. The probation court ordered that the sentence imposed

      for the probation revocation be served consecutive to the sentence imposed in

      Cause 110. Berg now appeals


                                     Discussion and Decision
[8]   Probation conditions and whether to revoke probation when those conditions

      are violated are matters left to the discretion of the trial court. Heaton v. State,

      984 N.E.2d 614, 616 (Ind. 2013). A probation revocation hearing is in the

      nature of a civil proceeding. Cain v. State, 30 N.E.3d 728, 732 (Ind. Ct. App.

      2015), trans. denied. Accordingly, an alleged violation of probation only has to

      be proven by a preponderance of the evidence. Id. When we review the

      determination that a probation violation has occurred, we neither reweigh the

      evidence nor reassess witness credibility. Whatley v. State, 847 N.E.2d 1007,

      1010 (Ind. Ct. App. 2006). Instead, we look at the evidence most favorable to

      the probation court’s judgment and determine whether there is substantial


      Court of Appeals of Indiana | Memorandum Decision 34A05-1506-CR-533 |December 31, 2015   Page 4 of 6
       evidence of probative value supporting revocation. Id. (quotation marks

       omitted). If so, we will affirm. Id. When, as here, the alleged probation

       violation is the commission of a new crime, the State does not need to show

       that the probationer was convicted of a new crime. Id. “The trial court only

       needs to find that there was probable cause to believe that the defendant

       violated a criminal law.” Id.


[9]    Berg contends that there was insufficient evidence that he committed a new

       crime while on probation because the guilty verdicts from Cause 110—the only

       evidence introduced during the fact-finding hearing—contained no information

       as to when the new crimes were committed. Berg offers that the failure of the

       State to present any evidence about the date the alleged new crimes were

       committed is fatal to his claim that Berg violated his probation. We disagree.


[10]   Berg concedes that he was placed on probation in July 2013. Appellant’s Br. at

       1. Pursuant to his plea agreement, Berg’s probation was to run 833 days, a time

       period of well over two years. The conditions of his probation included,

       “Violation of any law (city, state, or federal) is a violation of your probation;

       within forty-eight (48) hours of being arrested or charged with a new criminal

       offense, you must contact your Probation Officer.” Appellant’s App. at 66. One

       year later, on July 17, 2014, Berg was charged with six Class B felonies. These

       felonies were alleged to have been committed between March and May 2014,

       dates well within Berg’s probationary period. On April 22, 2015, a jury found

       Berg guilty, under Cause 110, of three counts of Class B felony sexual



       Court of Appeals of Indiana | Memorandum Decision 34A05-1506-CR-533 |December 31, 2015   Page 5 of 6
       misconduct with a minor.4 One month later, during its fact-finding hearing to

       determine whether Berg committed a new crime in violation of his probation,

       the probation court took judicial notice of the proceedings in Cause 110. Such

       judicial notice would have included knowledge of the dates on which the new

       crimes were committed—dates that were well within Berg’s probationary

       period.


[11]   The State clearly proved by a preponderance of the evidence that Berg

       committed a new criminal offense during his probationary period, and the

       probation court did not abuse its discretion when it revoked Berg’s probation.


[12]   Affirmed.


       Mathias, J., and Brown, J., concur.




       4
         Berg appealed the trial court’s decision in Cause 110, maintaining: (1) his convictions violated the
       prohibition against double jeopardy; (2) there was insufficient evidence to support one of the counts of sexual
       misconduct with a minor; and (3) his forty-year sentence was inappropriate. Berg v. State, No. 34A02-1505-
       CR-486 (Ind. Ct. App. Dec. 7, 2015). On December 7, 2015, a panel of this court handed down its
       memorandum decision finding sufficient evidence to support the convictions. Our court, however, agreed
       with Berg that his three convictions for Class B felony incest, having been committed against the same victim
       as the three Class B felonies for sexual misconduct with a minor, violated the prohibitions against double
       jeopardy. The appellate court also found that Berg’s aggregate sentence of forty years for Cause 110 was not
       inappropriate in light of the nature of the offense and the character of the offender.

       Court of Appeals of Indiana | Memorandum Decision 34A05-1506-CR-533 |December 31, 2015              Page 6 of 6
