                                                                  FILED
                                                             Apr 02 2019, 11:13 am

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




                           IN THE

    Indiana Supreme Court
              Supreme Court Case No. 18S-CR-538

                    Nathaniel Bennett,
                   Appellant (Defendant below),

                                –v–

                      State of Indiana,
                     Appellee (Plaintiff below).


        Argued: November 20, 2018 | Decided: April 2, 2019

              Appeal from the Marion Superior Court
                     No. 49G04-1509-F4-34803
                 The Honorable Lisa Borges, Judge
     On Petition to Transfer from the Indiana Court of Appeals,
                           No. 18A-CR-71




                     Opinion by Justice David
             Chief Justice Rush and Justice Goff concur.
Justice Massa and Justice Slaughter dissent without separate opinion,
            believing transfer should have been denied.
David, Justice.
   At issue in this case is whether there is sufficient evidence that Bennett
violated a Community Corrections placement condition by possessing
obsence matter. Because the trial court made factual findings that negate
one part of the statutory definition required to prove the violation, we
reverse and remand.


Facts and Procedural History
   In 2016, Defendant, Nathaniel Bennett, pled guilty to Level 4 felony
sexual misconduct with a minor and was sentenced to seven years on
community corrections, with three years suspended to sex offender
probation. As a condition of Bennett’s placement in community
corrections, he was prohibited from possessing obscene matter as defined
by Indiana Code § 35-49-2-1.

   In 2017, community corrections officers performed a compliance check
at Bennett’s home. There they found a cell phone containing pictures of
Bennett as well as pictures of a naked woman and videos with a man and
a woman engaging in sexual intercourse. Thereafter, the State filed a
notice of a community corrections violation alleging that Bennett had
possessed obscene matter.

  At an evidentiary hearing, the State submitted copies of the allegedly
obscene photos and video from Bennett’s phone. After the arguments of
counsel, the trial court stated in relevant part:


      I’m convinced by a preponderance of the evidence that the
      Defendant was possessing the phone and that he knew what
      was on it. So having done -- having made that finding, I do
      believe the State’s met their burden and would find the
      Defendant in violation.


(Tr. 76.) Then approximately two weeks later, at the sentencing
hearing, the court reviewed the definition of obscene matter and
stated:


Indiana Supreme Court | Case No. 18S-CR-538 | April 2, 2019          Page 2 of 6
      I don’t find that paragraph two is necessarily met because
      apparently it was between consenting people. But the
      Defendant knew well what he was doing. And the only reason
      to take those kind of pictures is to review them later. There’s no
      other reason. So you know, clearly he was a party to it and
      knew it was happening. And he’s been found in violation.


(Tr. 95.)


The community corrections portion of Bennett’s sentence was then
revoked, and he was ordered to serve four years in the Department of
Correction.

   Bennett appealed arguing that because the trial court expressly stated
that not all parts of the obscene matter definition were met, the evidence
was insufficient to support revocation of his probation, citing Kribs v.
State, 917 N.E.2d 1249 (Ind. Ct. App. 2009). The Court of Appeals affirmed
the trial court finding that Kribs was inapplicable and there was sufficient
evidence to support the revocation of Bennett’s probation. Bennett
petitioned for transfer, which we granted. Ind. Appellate Rule 58(A).


Standard of Review
   The standard of review for revocation of a community corrections
placement is the same standard as for a probation revocation. Cox v. State,
706 N.E.2d 547, 549 (Ind. 1999). A trial court’s decision that a violation
occurred is reviewed for abuse of discretion. Prewitt v. State, 878 N.E.2d
184, 185 (Ind. 2007). An abuse of discretion is when the decision is clearly
against the logic and effect of the facts and circumstances. Id.


Discussion and Decision
   As part of the community corrections placement, Bennett was
prohibited from possessing obscene material as defined by Indiana Code §
35-49-2-1, which provides:




Indiana Supreme Court | Case No. 18S-CR-538 | April 2, 2019          Page 3 of 6
      A matter or performance is obscene for purposes of this article
      if:
      (1) the average person, applying contemporary community
      standards, finds that the dominant theme of the matter or
      performance, taken as a whole, appeals to the prurient interest
      in sex;
      (2) the matter or performance depicts or describes, in a patently
      offensive way, sexual conduct; and
      (3) the matter or performance, taken as a whole, lacks serious
      literary, artistic, political, or scientific value.

Thus, in order to revoke Bennett’s probation, the court would need to find
that the images and video on Bennett’s phone met this statutory
definition.

   Here, the trial court made conflicting statements about whether this
definition was met. On the one hand, the court stated: “I do believe the
State’s met their burden and would find the Defendant in violation.” (Tr.
76.) But then during sentencing the trial court stated: “I don’t find that
paragraph two is necessarily met . . . .” (Tr. 95.) Even though the court
ultimately found Bennett in violation and the statement about the
definition not necessarily being met might have been an imprecise one, in
light of our case law, this requires reversal.

   Kribs v. State, 917 N.E.2d 1249 (Ind. Ct. App. 2009) is instructive. In that
case, Kribs was charged with entering a controlled area of the airport with
a firearm. Id. at 1250. After a bench trial, Kribs was found guilty as
charged. Id. However, at sentencing the court made a statement that
negated the mens rea element necessary to prove the crime:


      I think that it may very well be in this case where [Kribs] did
      not understand, or he didn’t remember because [the handgun
      is] such a part of his equipment, his life, his being every day,
      that he puts on just like he puts on his tie or his socks or
      something. I don’t think there was malicious intent.


Id. (emphasis omitted).



Indiana Supreme Court | Case No. 18S-CR-538 | April 2, 2019           Page 4 of 6
   Our Court of Appeals determined that the State failed to prove
the required mens rea and reversed Kribs’s conviction. Id. at 1251.
The panel noted that “[h]ad the trial court remained silent, we would
likely have affirmed Kribs’s conviction.” Id.


   Although Kribs was not a probation matter and involved mens rea
while this case does not, the same logic applies here. That is, in both
cases, the trial court made a finding at sentencing which contradicted its
judgment because it negated one of the elements, or here, the definition
required to prove the crime or violation. In Kribs, this required reversal of
defendant’s conviction. The same result is required here. Had the trial
court not made the statement at sentencing that it did not believe part of
the obscene matter definition was necessarily met, we would be in a
different position. But under the circumstances, we cannot say the
evidence is sufficient to revoke Bennett’s probation for possession of
obscene matter. Unfortunately, here we have a well-respected trial court
judge who inadvertently negated part of the definition necessary to find a
violation.


Conclusion
  We reverse the trial court’s finding that Bennett violated a term of his
community corrections placement and remand for the trial court to
change the record accordingly. 1



Rush, C.J., and Goff, J. concur.
Massa and Goff, JJ. dissent without separate opinion believing
transfer should have been denied.




1We acknowledge that the State filed a Notice indicating Bennett has been released from the
Department of Correction and argues this matter is moot. But to the extent that violating
probation is now part of Bennett’s record and has future impact on him, we remand to correct
that.



Indiana Supreme Court | Case No. 18S-CR-538 | April 2, 2019                       Page 5 of 6
ATTORNEYS FOR APPELLANT
Valerie K. Boots
Marion County Public Defender Agency
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana




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