                                                                           FILED
                                                                       Dec 11 2019, 9:07 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Karen Celestino-Horseman                                  Curtis T. Hill, Jr.
Austin & Jones, P.C.                                      Attorney General of Indiana
Indianapolis, Indiana                                     Courtney Staton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

William Terpstra,                                         December 11, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-671
        v.                                                Appeal from the Howard Superior
                                                          Court
State of Indiana,                                         The Honorable William C.
Appellee-Plaintiff                                        Menges, Jr., Judge
                                                          Trial Court Cause No.
                                                          34D01-1304-FB-284



Riley, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019                           Page 1 of 24
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, William Terpstra (Terpstra), appeals the trial court’s

      Orders revoking his probation and sanctioning him.


[2]   We affirm.


                                                    ISSUES
[3]   Terpstra presents four main issues for review, which we restate and reorder as

      the following:


              (1) Whether sufficient evidence supported the revocation of his
                 probation for committing the new offense of child molesting;


              (2) Whether Terpstra was denied due process by the trial court’s
                 probation revocation judgment statement;


              (3) Whether the trial court abused its discretion in manner and
                 substance of its evidentiary rulings; and


              (4) Whether the trial court abused its discretion when it ordered
                 Terpstra to execute the entirety of his previously-suspended
                 sentence.


                      FACTS AND PROCEDURAL HISTORY
[4]   Terpstra was a physician licensed in Indiana who practiced at the Wagoner

      Medical Centers (WMC) branch in Kokomo, Indiana, along with other

      physicians and physicians’ assistants. Terpstra joined the WMC practice in

      2010. The physicians and physicians’ assistants at the WMC, including


      Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019      Page 2 of 24
      Terpstra, prescribed medications outside the scope of usual professional practice

      and for non-medical purposes. Twenty-seven deaths were linked to these

      prescribing practices, including the deaths of eight patients under Terpstra’s

      care.


[5]   On April 17, 2013, the State filed an Information, charging Terpstra with

      twenty-four felonies, including eight Counts of Class B felony dealing in

      cocaine or a narcotic drug; seven Counts of Class C felony dealing by delivery

      of a Schedule IV controlled substance; seven Counts of dealing by delivery of a

      Schedule I, II, or III controlled substance; one Count of Class B felony

      conspiracy to deal in cocaine or a narcotic drug; and one Count of conspiracy

      to deal by delivery in a Schedule IV controlled substance. On September 25,

      2015, Terpstra pleaded guilty pursuant to a plea bargain with the State to two

      Counts of Class B felony dealing in a narcotic drug for knowingly delivering

      methadone outside the course of professional practice and for non-medical

      purposes to two separate victims. On September 16, 2015, the trial court

      sentenced Terpstra according to the terms of his plea agreement and imposed

      concurrent sentences of 5,475 days for each Class B felony conviction, 548 days

      of which were to be served on home detention, with the remainder suspended

      to probation. Two of the conditions of Terpstra’s probation were that he not

      commit any new criminal offenses and that he contact his probation officer

      within forty-eight hours of being arrested for, or charged with, a new criminal

      offense.




      Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019       Page 3 of 24
[6]   Terpstra had married Vicki Terpstra (Vicki) on October 15, 2011. Vicki had a

      granddaughter, E.Z., who was thirteen years old during the summer of 2017.

      E.Z., her brothers, and E.Z.’s parents would regularly spend time with Vicki

      and Terpstra, sometimes at their home in Sheridan, Indiana. During the early

      summer of 2017, E.Z. spent time at Vicki and Terpstra’s home by herself, as the

      rest of her family was elsewhere. One day during this visit, E.Z. and Terpstra

      sat on the couch in the living room watching a football game on the television.

      Terpstra sat close to E.Z. on her right side. While they were sitting together on

      the couch and Vicki was out of the room, Terpstra used his left hand to touch

      E.Z. on her buttocks under her clothes as he used his right hand to touch her

      chest under her bra. Terpstra remained facing the television as he touched E.Z.

      in this manner for approximately fifteen minutes.


[7]   In the fall of 2017, E.Z. was depressed and anxious. E.Z. underwent

      counseling and, on January 4, 2018, disclosed that Terpstra had fondled her.

      E.Z. was forensically interviewed on January 5, 2018, during which she

      reported that Terpstra had touched her chest, buttocks, and vagina under her

      clothes. On March 28, 2018, the State filed an Information, charging Terpstra

      with one Count of child molesting, a Level 4 felony, Ind. Code § 35-42-4-3(b),

      for fondling E.Z. on a date between June 1, 2017, and November 30, 2017. On

      April 13, 2018, the State filed a petition to revoke Terpstra’s suspended sentence

      in his drug dealing case, alleging that Terpstra had violated his probation by

      committing the new criminal offense of child molesting and by failing to




      Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019     Page 4 of 24
      contact his probation officer within forty-eight hours of his arrest for that

      offense.


[8]   On February 1, 2019, while meeting with the prosecutor to prepare for trial on

      the new child molesting charge, E.Z. told the prosecutor for the first time that

      Terpstra had not actually touched her vagina as she had originally reported.

      E.Z. confirmed to the prosecutor that Terpstra had touched her buttocks and

      chest. In light of this change in E.Z.’s potential testimony, the prosecutor

      became uncertain that she could obtain a conviction after a jury trial, and the

      prosecutor was concerned about what the effect of a trial and rigorous cross-

      examination upon E.Z. would be in light of that uncertainty. On February 4,

      2019, the prosecutor moved to dismiss the child molesting charge against

      Terpstra, and that motion was subsequently granted.


[9]   On February 19, 2019, the trial court held a hearing on the State’s petition to

      revoke Terpstra’s probation in his drug dealing case. On a number of occasions

      during the hearing, in response to an objection, the trial court explained that, in

      an effort to complete the hearing in a timely manner, it would overrule the

      interposed objection and would ignore any inadmissible evidence in reaching its

      judgment. This was the trial court’s response to Terpstra’s hearsay objections to

      testimony by the investigating detective that he had contacted E.Z.’s school and

      asked if she had a history of being dishonest and to Terpstra’s relevancy

      objection to E.Z.’s testimony that Terpstra had touched her under her swimsuit

      when she was ten years old, a time period not included in the child molesting

      Information and a time when he was not on probation for the drug offenses.

      Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019       Page 5 of 24
[10]   E.Z. testified at the probation revocation hearing regarding the offenses and was

       subjected to cross-examination on her version of events, including the fact that

       she had originally inaccurately reported that Terpstra had touched her vagina.

       E.Z. explained that, when she originally reported the child molesting offense,

       she had not had adequate time to think about the events, did not know how to

       answer some of the questions posed to her, and thought she needed a response

       for everything that was asked of her. Terpstra also testified and denied that he

       had fondled E.Z. Terpstra’s probation officer testified that Terpstra never

       personally contacted him to inform him that he had been arrested on the child

       molesting charge, but the probation officer confirmed that Terpstra’s counsel

       had contacted him before the arrest to inform him that Terpstra might be

       arrested for child molesting.


[11]   At the conclusion of the probation revocation hearing, the trial court found that

       the State had proved by a preponderance of the evidence that Terpstra

       committed the new offense of child molesting. In pronouncing judgment, the

       trial court stated as follows:


               The testimony between [Terpstra] and [E.Z.] is totally
               contradictory and so I think what I have to do is consider not
               only the testimony that was given but the manner of delivering
               that testimony, the demeanor of the witnesses, the believability of
               the witnesses, what reason that any of the witnesses would have
               to lie. And taking that all into consideration I find that [E.Z] is a
               completely credible witness and that [] Terpstra is a completely
               incredible witness.




       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019       Page 6 of 24
       (Transcript p. 100). The trial court did not render judgment on the State’s

       allegation that Terpstra had violated his probation by failing to contact his

       probation officer within forty-eight hours of his arrest for child molesting. In its

       written judgment, the trial court found that Terpstra had “violated the terms

       and conditions of his Probation” and entered judgment of conviction.

       (Appellant’s App. Vol. II, p. 22).


[12]   On March 13, 2019, the trial court held a sanction hearing. At the conclusion

       of the hearing, the trial court noted the severity of the drug offenses Terpstra

       had pleaded guilty to and had been sentenced for, in that his actions had

       contributed to the excessive amounts of drugs in the community. The trial

       court found that Terpstra had had no concern for other people and that he had

       been subject only to his own wants and desires. The trial court found that


               [h]e received a sentence that was very lenient in terms of what his
               behavior was, from betraying the trust of his patients, betraying
               the trust of the community, betraying the trust of the medical
               profession. He’s on probation, and he has exhibited that his own
               interests and desires are still more important to him than what
               harm he causes other people and that he continues to prey upon
               the weak and helpless in order to advance his own desires.


       (Tr. pp. 124-25). The trial court found that any alternate placement outside the

       Indiana Department of Correction (DOC) would only give Terpstra the

       opportunity to victimize the weak and helpless members of society. The trial

       court ordered Terpstra to execute all of his previously-suspended sentence with

       the DOC.


       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019      Page 7 of 24
[13]   Terpstra now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                                 I. Sufficiency of the Evidence

[14]   Terpstra claims that the State did not produce sufficient evidence to prove that

       he committed the new offense of child molesting. Probation is a matter of grace

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

       entitled. Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). A probation

       violation hearing is a civil proceeding, and the State must prove the alleged

       probation violation by a preponderance of the evidence. Id. Our standard of

       review of the sufficiency of the evidence supporting the revocation of probation

       is similar to our standard of review for other matters: “[W]e consider only the

       evidence most favorable to the judgment—without regard to weight or

       credibility—and will affirm if ‘there is substantial evidence of probative value to

       support the trial court’s conclusion that a probationer has violated any

       condition of probation.’” Id. (quoting Braxton v. State, 651 N.E.2d 268, 270

       (Ind. 1995)).


[15]   Here, the State alleged that Terpstra committed the new offense of child

       molesting by fondling or touching E.Z., who was under the age of fourteen at

       the time, with the intent to arouse or satisfy his or E.Z.’s sexual desires. E.Z.

       testified at trial that, on a day during the early summer of 2017 while they were

       both sitting on a couch in the living room of Terpstra and Vicki’s home,

       Terpstra used his left hand to “grope” her buttocks under her clothes while


       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019        Page 8 of 24
       simultaneously using his right hand to touch her chest under her shirt. (Tr. p.

       31). E.Z. was thirteen years old at the time. This is the evidence most

       favorable to the trial court’s judgment, and it is sufficient evidence to support a

       criminal conviction for child molesting by fondling, let alone a probation

       revocation allegation to be proved by a preponderance of the evidence. See Altes

       v. State, 822 N.E.2d 1116, 1121-22 (Ind. Ct. App. 2005) (holding that evidence

       of rubbing of child’s buttocks under clothes and of rubbing a child’s upper body

       from shoulder to waist under clothes was sufficient to sustain fondling

       convictions), trans. denied.


[16]   Terpstra’s first challenge to the sufficiency of the evidence is that the State did

       not prove that the offense was committed in 2017 when E.Z. was thirteen and

       he was on probation in the drug dealing case. However, Vicki testified that,

       during the summer of 2017, E.Z. spent the night alone at the home Vicki and

       Terpstra shared in Sheridan. This is the evidence that supports the trial court’s

       judgment, and it is the only evidence that we consider in conducting our

       review. See Murdock, 10 N.E.3d at 1267. Terpstra’s efforts on appeal to direct

       our attention to other evidence in the record which he contends shows that E.Z.

       did not spend the night alone in his home during the relevant time period is

       unavailing in light of our standard of review. See id.


[17]   Terpstra also contends that E.Z.’s testimony was unbelievable because she

       recanted her original report that he had also touched her vagina, the mode of

       his fondling, as reported by E.Z., was “physically impossible,” and Vicki

       testified that she observed the two sitting on the couch together but did not

       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019        Page 9 of 24
       observe the fondling. (Appellant’s Br. p. 35). We observe that the trial court

       heard all of the evidence and concluded that E.Z. was a credible witness, that

       the offense occurred as E.Z. reported it, and that the offense occurred even

       though Vicki did not directly observe it. We will not second-guess these

       determinations on the part of the trial court; to do so would require us to

       reweigh the evidence and reassess the credibility of witnesses in contravention

       to our standard of review. See id. Because the State produced sufficient

       evidence to prove by a preponderance of the evidence that Terpstra committed

       the new offense of child molesting, we affirm the revocation of his probation. 1


                                                     II. Due Process

[18]   Terpstra claims that the trial court violated his right to due process by admitting

       certain evidence, failing to make certain evidentiary rulings, and failing to

       specify the evidence upon which it relied in rendering its judgment. However,

       “[d]ue process rights are subject to waiver, and claims are generally waived if

       raised for the first time on appeal.” Pigg v. State, 929 N.E.2d 799, 803 (Ind. Ct.

       App. 2010), trans. denied. Our review of the record revealed that Terpstra never

       raised a due process objection at trial, and Terpstra does not argue that the

       alleged violations of his due process rights constituted fundamental error. As a




       1
         Given our disposition of this issue, we do not address Terpstra’s argument that the evidence was
       insufficient to show that he also violated his probation by failing to contact his probation officer following his
       arrest on the child molesting charge. See Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015) (holding that
       one violation of a condition of probation is enough to support a probation revocation). However, we note
       that it appears that the trial court did not enter judgment on that alleged violation, so there is nothing for us
       to review regarding that allegation.

       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019                                Page 10 of 24
       result, we conclude that, apart from his claim pertaining to the trial court’s

       judgment statement, Terpstra waived his due process claims.


[19]   The United States Supreme Court has held that, because the revocation of

       probation results in a loss of liberty, a probationer must be afforded certain due

       process rights before his probation is revoked. Dalton v. State, 560 N.E.2d 558,

       559-60 (Ind. Ct. App. 1990) (relying on Gagnon v. Scarpelli, 411 U.S. 778, 782,

       93 S.Ct. 1756, 1759, 36 L.E.2d 656 (1973)). As part of that due process, the

       probationer is entitled to a written statement by the fact-finder as to the

       evidence relied upon and the reasons for the revocation. Id. at 560. The

       requirement of a written statement providing the reasons for the revocation is

       “a procedural device aimed at promoting accurate fact finding and ensuring the

       accurate review of revocation decisions.” Puckett v. State, 956 N.E.2d 1182,

       1186 (Ind. Ct. App. 2011). While it is not the preferred manner of fulfilling the

       written statement requirement, the right to a written statement is satisfied if the

       transcript of the evidentiary hearing present in the record contains a clear

       statement of the trial court’s reasons for the revocation. Id.


[20]   Here, the trial court’s written statement upon revocation merely provided that it

       found that Terpstra had “violated the terms and conditions of his

       [p]robation[.]” (Appellant’s App. Vol. II, p. 22). We agree with Terpstra that

       this written statement alone did not comport with his due process right to be

       informed of the reasons for the revocation. See Medicus v. State, 664 N.E.2d

       1163, 1165 (Ind. 1996) (holding that trial court’s simple statement upon

       revocation that Medicus had violated the terms of probation did not comply

       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019      Page 11 of 24
       with his due process right). However, the transcript of Terpstra’s revocation

       hearing has been made part of the record on appeal, and we disagree with

       Terpstra’s argument that “the transcript does not contain a clear statement of

       the evidence relied upon[.]” (Appellant’s Br. p. 29). In its oral judgment

       statement at the revocation hearing, the trial court specified that it concluded

       that Terpstra had committed the new offense of child molesting based upon its

       belief in E.Z.’s testimony and its disbelief of Terpstra after observing “the

       manner of delivery [of] that testimony, the demeanor of the witnesses, the

       believability of the witnesses, what reason that any of the witnesses would have

       to lie.” (Tr. p. 100). Contrary to Terpstra’s assertions on appeal, the trial court

       clearly identified what evidence it relied upon—the testimony of E.Z. and

       Terpstra. Because the trial court outlined its reasons for revoking Terpstra’s

       probation and the evidence it relied upon, Terpstra’s due process rights were

       not violated. See Washington v. State, 758 N.E.2d 1014, 1018 (Ind. Ct. App.

       2001) (finding no due process violation even where the trial court failed to enter

       a written sentencing statement at all but where the transcript of his revocation

       hearing in the record revealed the basis for the revocation).


[21]   Terpstra also claims that the trial court’s revocation statement violated his due

       process rights because the trial court “found the date of the alleged molestation

       to be completely irrelevant.” (Appellant’s Br. p. 30). Terpstra contends this

       finding violated his due process rights because he could only be found to have

       violated his probation by committing a new offense while he was on probation.

       We find that the factual underpinning of Terpstra’s argument is inaccurate


       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019     Page 12 of 24
       because, while the trial court noted in its revocation statement that “the date

       that this occurred is really totally irrelevant,” it immediately also stated,

       “[o]ther than it has to be after September 16, 2015[,] when he was sentenced

       and prior to April 12, 2018, when the Petition to Revoke was filed.” (Tr. p.

       100). Therefore, the trial court was aware that the new offense was required to

       have been committed during the probation period, and its revocation statement

       adequately outlined that awareness. Finding no violation to Terpstra’s right to

       due process, we affirm the revocation of his probation.


                                                   III. Evidence

[22]   Terpstra argues that the trial court erred in the manner and substance of its

       evidentiary rulings. As a general matter, the Indiana Rules of Evidence do not

       apply to probation revocation proceedings. Ind. Evidence Rule 101(d)(2); see

       also Cox v. State, 706 N.E.2d 547, 550-51 (Ind. 1999). This flexibility is

       “necessary to permit the court to exercise its inherent power to enforce

       obedience to its lawful orders.” Cox, 706 N.E.2d at 550. A trial court has broad

       discretion in ruling on the admissibility of the evidence at a probation

       revocation hearing, and we will not disturb its decision absent an abuse of

       discretion. Watters v. State, 22 N.E.3d 617, 619 (Ind. Ct. App. 2014).


                                            A. Reception of the Evidence

[23]   At the revocation hearing, in response to numerous evidentiary objections by

       both Terpstra and the State, the trial court ruled that, in the interest of finishing

       the hearing in a timely manner, it would hear the challenged evidence and

       disregard any inadmissible evidence in reaching its judgment. Terpstra claims

       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019       Page 13 of 24
       that, “[r]elying upon the judicial temperance presumption, the trial court

       repeatedly admitted hearsay and/or irrelevant evidence that it acknowledged

       might be inadmissible hearsay and/or irrelevant.” (Appellant’s Br. pp. 23-24).

       Terpstra contends that the trial court impermissibly relied upon the judicial

       temperance presumption because the presumption is an appellate concept that

       may not be applied at the trial court level.


[24]   The judicial temperance presumption, succinctly stated, is the presumption

       “that in a proceeding tried to the bench a court renders its decisions solely on

       the basis of relevant and probative evidence.” Konopasek v. State, 946 N.E.2d

       23, 28 (Ind. 2011). The presumption exists because “[t]he risk of prejudice is

       quelled when the evidence is solely before the trial court.” Conley v. State, 972

       N.E.2d 864, 873 (Ind. 2012). The presumption comes into play when a

       defendant challenges the admissibility of evidence at a bench trial and the

       evidence was, in fact, inadmissible. Konopasek, 946 N.E.2d at 29. A defendant

       may overcome the presumption by showing that the trial court admitted the

       evidence over a specific objection. Id. If a defendant overcomes the

       presumption, the reviewing court engages in a harmless-error analysis and may

       affirm the trial court if it is satisfied the judgment it supported by substantial

       independent evidence such that there is no substantial likelihood that the

       challenged evidence contributed to the judgment. Id. If the presumption is not

       overcome, we presume that the trial court disregarded the challenged evidence

       and find any error to be harmless. Id.




       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019       Page 14 of 24
[25]   Here, there is no indication in the record that the trial court explicitly or

       implicitly relied on the judicial temperance presumption. Rather, the trial court

       chose to receive the proposed evidence of the case and essentially take the

       interposed objections under advisement, explaining that it would not consider

       any inadmissible evidence in reaching its judgment. In his Reply Brief, Terpstra

       contends that the trial court’s statement that it was overruling his objections for

       the time being meant that the trial court admitted all of the challenged evidence.

       However, the trial court’s explanation after each objection that it would not

       consider inadmissible evidence was a clear indication that it was reserving its

       evidentiary rulings, not admitting the challenged evidence.


[26]   Terpstra seemingly argues on appeal that the trial court had a duty to rule

       immediately on the admissibility of the challenged evidence, citing Stephenson v.

       State, 205 Ind. 141, 163, 179 N.E. 633, 661 (Ind. 1932), a case which we find to

       be unpersuasive because it involved a jury trial, not the more flexible probation

       revocation and bench trial at issue here, and it did not hold that a trial court

       may not take evidentiary rulings under advisement. Terpstra presents us with

       no authority for his apparent proposition that a trial court conducting a

       probation revocation hearing may not take evidentiary rulings under

       advisement. While it is true that Indiana Evidence Rule 104(a) provides that a

       trial court “must decide any preliminary question about whether . . . evidence is

       admissible,” the Rules of Evidence do not apply to probation revocation

       proceedings. Although we do not encourage trial courts to conduct probation

       revocation proceedings in this manner, we conclude that to hold that a trial


       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019       Page 15 of 24
       court under these circumstances must always immediately rule on evidentiary

       objections would be to unnecessarily limit the discretion of the trial court and to

       ignore the increased flexibility of probation revocation proceedings.

                                                 B. Specific Evidence

[27]   Terpstra more specifically contends that the trial court erred when it admitted

       the investigating detective’s testimony that he contacted E.Z.’s school to inquire

       about any history of dishonesty and the detective’s testimony that E.Z. reported

       during her forensic interview that Terpstra had touched her breast area and

       inside her pants below the waistband on “numerous occasions.” (Tr. pp. 14-

       15). Terpstra also contends that the trial court committed reversible error when

       it admitted E.Z.’s testimony that Terpstra touched her under her swimsuit on

       an occasion prior to his probation period, E.Z.’s mother’s testimony that E.Z.’s

       aunt once said a hug by Terpstra made the aunt uncomfortable, and E.Z.’s

       mother’s testimony that, after she observed E.Z. sitting on Terpstra’s lap, she

       decided to watch them closely. Terpstra contends that this evidence was largely

       hearsay and was irrelevant to proving that Terpstra committed the new offense

       of child molesting as alleged in the petition to revoke his probation.


[28]   In addressing these specific evidentiary issues, we reiterate that, contrary to

       Terpstra’s assertions, the trial court did not admit the challenged evidence at the

       hearing. Rather, the trial court took its evidentiary rulings under advisement

       and stated that it would not rely on any inadmissible evidence in reaching its

       revocation decision. Assuming, without deciding, that all of this challenged

       evidence was inadmissible, we must conclude that any error committed by the

       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019     Page 16 of 24
       trial court was harmless in light of the aforementioned judicial temperance

       presumption, under which we presume that the trial court only relied upon

       admissible and relevant evidence. Konopasek, 946 N.E.2d at 28. Terpstra has

       not overcome this presumption because he has not shown that the evidence was

       admitted by the trial court over his objection. Id. at 29.


[29]   We also note that the trial court stated in its oral statement at the revocation

       hearing that its judgment rested on its belief in E.Z. and its disbelief in Terpstra

       after observing them in court and considering what motive they might have to

       lie. The uncorroborated testimony of the victim of child molesting is sufficient

       to prove the offense beyond a reasonable doubt. Carter v. State, 31 N.E.3d 17,

       30 (Ind. Ct. App. 2015), trans. denied. Thus, E.Z.’s testimony alone was

       sufficient to prove by a preponderance of the evidence that Terpstra committed

       the new offense of child molesting. There is nothing in the trial court’s

       revocation judgment statement indicating that it relied upon any of the

       challenged evidence in revoking Terpstra’s probation. Therefore, we conclude

       that, even if Terpstra had succeeded in overcoming the judicial temperance

       presumption, there is substantial independent evidence sufficient to sustain

       Terpstra’s probation revocation. Konopasek, 946 N.E.2d at 29.


                                                   IV. Sanction

[30]   Terpstra also challenges the trial court’s order that as a sanction for violating his

       probation, he must serve the entirety of his 4,927-day, previously-suspended

       sentence. Following the revocation of probation, the trial court may continue

       the probation with or without modification, extend the probation for a period of

       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019      Page 17 of 24
       not more than one year, or order all or part of the previously-suspended

       sentence to be executed. I.C. § 35-38-2-3(h). This court reviews a trial court’s

       sentencing decision following a probation revocation for an abuse of discretion.

       Butler v. State, 951 N.E.2d 255, 262 (Ind. Ct. App. 2011). “An abuse of

       discretion occurs where the decision is clearly against the logic and effect of the

       facts and circumstances.” Id.


[31]   Before pronouncing its probation revocation sanction, the trial court observed

       that Terpstra’s drug convictions stemmed from his activities at the WMC which

       contributed to an excessive amount of drugs flooding the community, Terpstra

       had no concern for the people affected by those actions, and that Terpstra’s

       drug offenses were motivated solely by his own wants and desires. The trial

       court, which had also sentenced Terpstra in the drug dealing case, further noted

       that Terpstra had received a lenient sentence given the nature of his drug

       dealing offenses, and that in spite of that leniency, he committed the new

       offense of child molesting, thus demonstrating that the leniency he had been

       shown had failed to change his behavior. The trial court found that any

       alternative placement outside the DOC would only provide Terpstra with

       additional opportunity to victimize the weak and helpless members of society.

       Given these circumstances, we find that the trial court acted within its wide

       discretion in ordering Terpstra to serve all of his previously-suspended sentence.


[32]   Terpstra first argues that the trial court’s sanction was an abuse of its discretion

       because the 4,927-day sentence imposed by the trial court is “far beyond what a

       first[-]time offender accused of child molest would typically receive.”

       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019      Page 18 of 24
       (Appellant’s Br. p. 41). However, the trial court did not sentence Terpstra for

       child molesting; rather, it sanctioned him for violating his probation in his drug

       dealing case. We also reject Terpstra’s argument that the fact that the instant

       case was the first probation violation to be filed against him or his age rendered

       the trial court’s sanction an abuse of discretion. Terpstra was on probation for

       only approximately one year before committing the new offense of Level 4

       felony child molesting, which was not a mere technical violation of the terms of

       his probation. See Knecht v. State, 85 N.E.3d 829, 840 (Ind. Ct. App. 2017)

       (upholding trial court’s imposition of entire previously-suspended sentence

       following Knecht’s commission of new offense of child molesting in light of the

       short period of time before the violation and the nature of violation). Lastly,

       contrary to Terpstra’s argument on appeal, the trial court’s statements upon

       sanctioning him for the probation violation reveal that it did not order him to

       serve the entirety of his previously-suspended sentence because it thought the

       drug dealing case sentence was too lenient; instead, it sanctioned him because

       he did not change his behavior despite being accorded that leniency. We

       cannot say that the trial court abused its discretion in sanctioning Terpstra for

       committing the new offense of child molesting, and we affirm the trial court’s

       sanction Order.


                                              CONCLUSION
[33]   Based on the foregoing, we conclude that the State proved the new offense of

       child molesting by fondling by a preponderance of the evidence. We also

       conclude that the trial court’s judgment statement complied with Terpstra’s

       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019     Page 19 of 24
       right to due process, the trial court did not abuse its discretion in the manner in

       which it received the evidence at the revocation hearing, and any error in the

       admission of the evidence was presumed to be harmless. Lastly, we conclude

       that the trial court did not abuse its discretion when it ordered Terpstra to

       execute all of his previously-suspended sentence.


[34]   Affirmed.


[35]   Bradford, J. concurs


[36]   Vaidik, C. J. dissents with separate opinion




       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019     Page 20 of 24
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       William Terpstra,                                         Court of Appeals Case No.
                                                                 19A-CR-671
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Vaidik, Chief Judge, dissents.


[37]   I respectfully dissent. A judge is required to rule on objections—full stop.

       Parties are entitled to know the basis of a judge’s decision. What a judge relied

       on in making his ruling is fundamental to the due-process rights of the parties

       and essential for meaningful appellate review. As the majority acknowledges,

       and as the United States Supreme Court, the Indiana Supreme Court, and this

       Court have said numerous times, a probationer is entitled to a written statement




       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019                  Page 21 of 24
       by the fact finder as to the evidence relied upon and the reasons for the

       revocation. See, e.g., Dalton, 560 N.E.2d at 560. 2


[38]   We have in the past excused the requirement of a written statement by allowing

       an oral statement by the court to serve in lieu thereof. But to my knowledge

       this Court has never relieved trial courts of ruling on objections or, if they fail to

       do so, at least delineating the evidence they relied on in making their decisions.

       Here, the trial court didn’t rule on most of the objections or identify all the

       evidence it credited, so it is impossible to determine everything it relied on in

       deciding the case. The trial court did say in its oral ruling that it considered the

       manner of the delivery of the testimony, the demeanor of the witnesses, and

       “the believability of the witnesses.” Tr. p. 100. However, this explanation does

       not indicate whether the trial court considered inadmissible evidence. As such,

       Terpstra’s fundamental due-process rights were violated, and we cannot

       meaningfully review the trial court’s decision.


[39]   The judicial-temperance presumption does not save the trial court’s actions.

       First, Terpstra made specific objections to a variety of evidence. The

       presumption applies when evidence is presented and there is no specific

       objection. In those situations, an appellate court gives a trial court the benefit

       of the doubt and presumes that it disregarded any inadmissible matter. If there




       2
         I disagree with the majority that Terpstra waived his due-process argument by failing to raise it during the
       revocation hearing. Until the trial court issued its written order, Terpstra didn’t know definitively that his
       due-process rights had been violated. See In re S.B., 5 N.E.3d 1152, 1154 (Ind. 2014)

       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019                              Page 22 of 24
       is an objection, then no presumption is necessary because the appellate court

       knows by the ruling whether the trial court considered or did not consider the

       objected-to evidence. Second, the presumption is one we apply as an appellate

       court, not one that the trial court invokes to avoid making evidentiary rulings.


[40]   The majority states: “Although we do not encourage trial courts to conduct

       probation revocation proceedings in this manner, we conclude that to hold that

       a trial court under these circumstances must always immediately rule on

       evidentiary objections would be to unnecessarily limit the discretion of the trial

       court and to ignore the increased flexibility of probation revocation

       proceedings.” Slip op. ¶ 26. I fear this will be read to excuse trial-court judges

       in bench trials from making explicit evidentiary rulings. And I do not mean to

       suggest that a trial court cannot take an evidentiary issue under advisement and

       must “immediately” rule on it, only that it must, at some point, announce its

       ruling on the issue or, in the alternative, specifically identify the evidence it

       relied upon in reaching its decision.


[41]   I suppose this Court could go through each of the objections in this case,

       resolve whether the evidence was admissible or not, and then determine

       whether there was harmless error. To do so would be to ignore the duty of the

       trial court to rule on objections and to tell the parties and the reviewing court

       the evidence it relied upon.




       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019        Page 23 of 24
[42]   I would reverse and remand this case back to the trial court for specific rulings

       on Terpstra’s evidentiary objections or a more detailed explanation of which

       evidence the court did (or did not) rely on in making its decision.




       Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019    Page 24 of 24
