                                                                                          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




      Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017                        Page 1 of 22
      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




      Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017   Page 2 of 22
      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.



      Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017                         Page 3 of 22
[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.

      Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017                      Page 4 of 22
      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




      Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017   Page 5 of 22
       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.

       Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017                      Page 6 of 22
       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

       Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017   Page 7 of 22
       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.

       Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017                      Page 8 of 22
       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.



       Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017   Page 9 of 22
[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.

       Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017                    Page 10 of 22
                                    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


       Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017   Page 11 of 22
       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.



       Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017   Page 12 of 22
[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,




       Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017   Page 13 of 22
       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
       Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017   Page 14 of 22
       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.




       Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017   Page 15 of 22
[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.


       Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017   Page 16 of 22
       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
       Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017   Page 17 of 22
       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

       Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017   Page 19 of 22
       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.


       Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017   Page 20 of 22
               (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.




       Court of Appeals of Indiana | Opinion 06A05-1701-CR-131 | September 27, 2017   Page 21 of 22
[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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