MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                  Sep 04 2019, 6:21 am
court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Christopher J. Hamman,                                   September 4, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         17A03-1708-CR-1870
        v.                                               Appeal from the DeKalb Superior
                                                         Court
State of Indiana,                                        The Honorable Monte L. Brown,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         17D02-1610-FA-2



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1870 | Septmeber 4, 2019           Page 1 of 18
[1]   Christopher J. Hamman appeals his convictions of Class A felony child

      molesting 1 and Class B felony incest. 2 Hamman raises several arguments on

      appeal, which we restate as:


                 1.       Whether there was sufficient evidence to support
                          Hamman’s convictions;


                 2.       Whether the trial court abused its discretion in admitting
                          some testimony of K.H. and Detective Rice;


                 3.       Whether Hamman’s right to be free from double jeopardy
                          was violated;


                 4.       Whether Hamman’s sentence was appropriate in light of
                          the nature of the offense and his character; and


                 5.       Whether the trial court erred in imposing Probation
                          Condition 26.


      We affirm in part, reverse in part, and remand with instructions.



                                Facts and Procedural History
[2]   K.H. is the child of Hamman and his wife. In November 2007, when K.H. was

      eleven, Hamman’s wife left the family. In December 2007, Hamman began

      molesting K.H. One night, Hamman laid down beside K.H. in her bed and



      1
          Ind. Code § 35-42-4-3(a)(1) (2007).
      2
          Ind. Code § 35-46-1-3(a) (1994).


      Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1870 | Septmeber 4, 2019   Page 2 of 18
      cuddled her as she tried to fall asleep. Hamman then moved his hand under

      K.H.’s pajamas and inserted his fingers into her vagina. K.H. felt Hamman get

      an erection as he touched her. The encounter lasted between ten and twenty

      minutes.


[3]   This kind of encounter occurred two or three times a month for several years.

      Hamman would sometimes be naked. K.H. recalled waking up naked on

      multiple occasions but having no recollection of what had happened. Hamman

      often spoke with K.H. about keeping the molestations a secret. Hamman

      would manipulate K.H. to stay silent by buying her gifts, including a pony, and

      by giving her money. Once in middle school, K.H. told a counselor what was

      happening, but Hamman told K.H. to drop the report, and the next day K.H.

      told the counselor she had lied because she wanted attention.


[4]   The molestations continued until 2010, when Hamman’s girlfriend moved in.

      In 2016, when K.H. was nineteen years old, she moved in with her boyfriend.

      K.H. returned to Hamman’s house to retrieve some of her belongings while

      Hamman was on vacation. Hamman believed K.H.’s boyfriend had broken

      into his home and damaged his truck, so Hamman reported the incident to the

      police. The police interviewed K.H., who showed Detective Rice text messages

      between herself and Hamman regarding what had happened at Hamman’s

      house. After seeing the messages, Detective Rice became concerned and

      questioned K.H. about her relationship with Hamman. K.H. became

      withdrawn, but eventually told Detective Rice about the molestations.



      Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1870 | Septmeber 4, 2019   Page 3 of 18
[5]   In September 2017, Detective Rice interviewed Hamman. The interview began

      with discussion of Hamman’s truck, but shifted to Hamman’s relationship with

      K.H. Initially, Hamman admitted cuddling with K.H. in her bed but denied

      ever touching her inappropriately, and he also denied ever being naked while

      cuddling with K.H. Then, Hamman admitted to touching K.H.’s vagina once,

      but he claimed he did so to check if it was swollen after K.H. complained that it

      was. Hamman denied ever digitally penetrating K.H. Finally, Hamman

      confessed he rubbed K.H.’s vagina a few times because he was curious what it

      felt like. Hamman also admitted he became aroused and went to his bedroom

      to masturbate.


[6]   The State charged Hamman with Class A felony child molesting and Class B

      felony incest. A jury found Hamman guilty of both counts. The trial court

      imposed a forty-year aggregate sentence with five years suspended to probation.



                                 Discussion and Decision
                                   1. Sufficiency of Evidence
[7]   Hamman argues there was insufficient evidence to support his convictions.

      When considering the sufficiency of evidence, “a reviewing court does not

      reweigh the evidence or judge the credibility of the witnesses.” McHenry v.

      State, 820 N.E.2d 124, 126 (Ind. 2005). We must affirm “if the probative

      evidence and reasonable inferences drawn from the evidence could have

      allowed a reasonable trier of fact to find the defendant guilty beyond a

      reasonable doubt.” Id. at 126 (internal citation omitted).
      Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1870 | Septmeber 4, 2019   Page 4 of 18
[8]    In particular, Hamman claims the evidence was insufficient because K.H. was

       the sole witness and K.H.’s testimony was incredibly dubious. “Under the

       incredible dubiosity rule, a court will impinge upon the jury’s responsibility to

       judge the credibility of witnesses only when confronted with inherently

       improbable testimony or coerced, equivocal, wholly uncorroborated testimony

       of incredible dubiosity.” Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994).

       “Application of this rule is limited to cases . . . where a sole witness presents

       inherently contradictory testimony [that] is equivocal or the result of coercion

       and there is a complete lack of circumstantial evidence of the appellant’s guilt.”

       Id.


[9]    Hamman draws attention to a journal wherein K.H. wrote about the things that

       occurred in her childhood. In these entries, K.H. wrote about how she lied to

       get Hamman in trouble. (Ex. A.) Although K.H.’s trial testimony is

       inconsistent with the journal entries, she did not contradict herself on the stand.

       Trial testimony is not incredibly dubious simply because it contradicts pre-trial

       statements. See Davenport v. State, 689 N.E.2d 1226, 1230 (Ind. 1997) (although

       witness contradicted his pre-trial statements, his testimony was not incredibly

       dubious because he did not contradict himself while testifying), clarified on reh’g

       on other grounds 696 N.E.2d 870 (Ind. 1998).


[10]   The jury was made aware of the inconsistencies between K.H.’s testimony and

       her journal entries. The jury is to weigh the evidence and assess the credibility

       of witnesses in light of such inconsistencies. See id at 1231 (jury allowed to

       evaluate testimony inconsistent with pretrial statements, and inconsistencies do

       Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1870 | Septmeber 4, 2019   Page 5 of 18
       not automatically render testimony incredibly dubious). K.H.’s testimony was

       sufficient to support Hamman’s convictions. 3 See, e.g., Wolf v. State, 76 N.E.3d

       911, 916 (Ind. Ct. App. 2017) (holding testimony inconsistent with prior

       statements is sufficient to support conviction). See Morris v. State, 114 N.E.3d

       531, 536 (Ind. Ct. App. 2018) (uncorroborated victim testimony sufficient to

       support conviction) trans. denied.


                                       2. Admission of Evidence
[11]   Hamman argues the trial court abused its discretion by admitting statements

       made by K.H. and Detective Rice. An abuse of discretion occurs if the trial

       court’s decision is “clearly against the logic and effect of the facts and

       circumstances before the court, or the reasonable, probable, and actual

       deductions to be drawn therefrom.” Anglemyer v. State, 868 N.E.2d 482, 490

       (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). “A trial court has

       broad discretion in ruling on the admissibility of evidence and we will disturb

       its rulings only where it is shown that the court abused that discretion.” Turner

       v. State, 953 N.E.2d 1039, 1045 (Ind. 2011).




       3
         The elements for Class A felony child molesting are: (1) a person, (2) at least twenty-one years of age, (3)
       with a child under fourteen, (4) performs or submits to sexual intercourse or deviate sexual conduct, (5)
       commits child molesting. See Ind. Code § 35-42-4-3(a)(1) (2007). The elements for Class B felony incest are:
       (1) a person, (2) eighteen years of age or older, (3) who engages in sexual intercourse or deviate conduct with
       another person, (4) who is less that sixteen years of age, (5) when the person knows that the other person is
       related to the person biologically, (6) commits incest. See Ind. Code § 35-46-1-3(a) (1994). Hamman admits
       all elements except for having the requisite intent to commit crimes.

       Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1870 | Septmeber 4, 2019           Page 6 of 18
                                               K.H.’s Testimony

[12]   At trial, K.H. testified regarding a time when she helped Hamman masturbate.

       Hamman objected, claiming the testimony violated Indiana Evidence Rules 403

       and 404(b), because the testimony described an uncharged act and was unfairly

       prejudicial to Hamman. On appeal, Hamman argues the trial court improperly

       admitted this testimony in violation of Indiana Rule of Evidence 404(b), which

       controls the admissibility of “Crimes, Wrongs, or Other Acts” evidence and

       provides:


               (1) Prohibited uses. Evidence of a crime, wrong, or other act is not
               admissible to prove a person’s character in order to show that on
               a particular occasion the person acted in accordance with the
               character.


               (2) Permitted Uses; Notice in a Criminal Case. This evidence may be
               admissible for another purpose, such as proving motive,
               opportunity, intent, preparation, plan, knowledge, identity,
               absence of mistake, or lack of accident. On request by a
               defendant in a criminal case, the prosecutor must:


                        (A) provide reasonable notice of the general nature of any
                        such evidence that the prosecutor intends to offer at trial;
                        and


                        (B) do so before trial—or during trial if the court, for good
                        cause, excuses lack of pretrial notice.


       This rule is meant to prevent the jury from drawing the forbidden inference that

       the defendant is guilty of the crime he stands accused of committing because the


       Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1870 | Septmeber 4, 2019   Page 7 of 18
       defendant committed other crimes in the past. Udarbe v. State, 749 N.E.2d 562,

       564 (Ind. Ct. App. 2001).


[13]   In examining the admissibility of Rule 404(b) evidence, courts apply a two-

       prong analysis. Wages v. State, 863 N.E.2d 408, 410 (Ind. Ct. App. 2007), reh’g

       denied, trans. denied. “First, the court must assess whether the evidence has

       some relevancy to a matter at issue other than the defendant’s propensity to

       commit the charged act. Second, the court must weigh the probative value of

       the evidence against its prejudicial effect, pursuant to Evidence Rule 403.” Id.

       (internal citation omitted). By necessity, the court’s analysis of the admissibility

       of evidence under Rule 404(b) includes the relevancy test of Rule 401 and the

       balancing test of Rule 403. Maffett v. State, 113 N.E.3d 278, 283 (Ind. Ct. App.

       2018).


[14]   There are, however, exceptions that render admissible evidence that generally

       would be inadmissible under Evidence Rule 404(b). For example, the intent

       exception in Evidence Rule 404(b)(2) is available only “when a defendant goes

       beyond merely denying the charged culpability and affirmatively presents a

       claim of particular contrary intent.” Goldsberry v. State, 821 N.E.2d 447, 455

       (Ind. Ct. App. 2005). “The State may then respond by offering evidence of

       prior crimes, wrongs, or acts to the extent genuinely relevant to prove the

       defendant’s intent at the time of the charged offense.” Iqbal v. State, 805 N.E.2d

       401, 407 (Ind. Ct. App. 2004), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1870 | Septmeber 4, 2019   Page 8 of 18
[15]   At trial, Hamman testified he never inappropriately touched K.H. Hamman

       said he only touched K.H.’s vagina to check to see if it was swollen “because

       she was complaining.” (Tr. Vol. III at 186.) Hamman went on to deny being

       aroused by touching K.H. K.H. testified to a separate encounter with Hamman

       in which she helped him masturbate. K.H.’s testimony was relevant to

       demonstrate Hamman’s intent when he touched her vagina.


[16]   As for the second prong, relevant evidence may be excluded “if its probative

       value is substantially outweighed by the danger of unfair prejudice.” Ind. Evid.

       R. 403. The trial court specifically instructed the jury to consider the prior bad

       acts “solely on the issue of the Defendant’s motive, intent, plan or absence of

       mistake or accident.” (App. Vol. II. at 118.) This instruction limiting jury’s use

       of evidence reduces probability of improper use of the evidence. Accordingly,

       we hold the probative value outweighed the prejudicial impact. See Iqbal, 805

       N.E.2d at 409 (court did not abuse discretion in admitting 404 Evidence when

       limiting instruction constrained jury’s use of prejudicial evidence).


                                         Detective Rice’s Testimony

[17]   Hamman also argues the court abused its discretion by allowing testimony from

       Detective Rice into evidence because it was inadmissible hearsay. Hearsay is

       “[a] statement that is not made by the declarant while testifying at the trial or

       hearing; and is offered in evidence to prove the truth of the matter asserted.”

       Ind. Evidence Rule 801(c)(1)(2). Hearsay is inadmissible except as provided by

       law or other court rules. Evid. R. 802.


       Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1870 | Septmeber 4, 2019   Page 9 of 18
[18]   Detective Rice testified about the conversation he had with K.H:


               Q. All right. And, uh, did she progress to the point where she, uh
                  told you about the allegations that he had been touching her
                  sexually?


               A. Yes.


       (Tr. Vol. III at 15.) Hamman objected, arguing the testimony was inadmissible

       hearsay, but the trial court overruled his objection.


[19]   The State argues this admission was harmless error. An error in admitting

       evidence does not require reversal unless it affects the substantial rights of a

       party. Stewart v. State, 754 N.E.2d 492, 496 (Ind. 2001). “The improper

       admission of evidence is harmless error when the conviction is supported by

       such substantial independent evidence of guilt as to satisfy the reviewing court

       that there is no substantial likelihood that the questioned evidence contributed

       to the conviction.” Barker v. State, 695 N.E.2d 925, 931 (Ind. 1998), reh’g denied.

       The erroneous admission of evidence may also be harmless if that evidence is

       cumulative of other evidence admitted. Donaldson v. Indianapolis Pub. Transp.

       Corp., 632 N.E.2d 1167, 1172 (Ind. Ct. App. 1994).


[20]   Detective Rice testified after K.H. had testified, and she testified about the

       allegations she made against Hamman. Therefore, Detective Rice’s statement

       was cumulative of K.H.’s testimony. (Compare Tr. Vol. II at 199-202 with Tr.

       Vol. III at 15.) Thus, any possible error of the admission of Detective Rice’s

       statement was harmless. See, e.g., Davis v. Garrett, 887 N.E.2d 942, 947 (Ind. Ct.


       Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1870 | Septmeber 4, 2019   Page 10 of 18
       App. 2008) (holding admission of evidence harmless because evidence was

       cumulative of other evidence admitted), trans. denied.


                                          3. Double Jeopardy
[21]   Hamman next argues his simultaneous convictions of child molesting and

       incest violate his constitutional right to be free from double jeopardy. See Ind.

       Const. Art. 1, § 14 (“No person shall be put in jeopardy twice for the same

       offense.”). Two offenses are the “same offense” in violation of Indiana’s

       Double Jeopardy Clause if, with respect to either the statutory elements of the

       challenged crimes or the actual evidence used to convict, the essential elements

       of one challenged offense also establish the essential elements of another

       challenged offense. Spivey v. State, 761 N.E.2d 831, 832 (Ind. 2002). To

       determine whether the statutory elements test is violated, we apply the federal

       test: “whether each provision requires proof of an additional fact which the

       other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180,

       182 (1932).


[22]   We review de novo whether a defendant’s convictions violate this provision.

       Spears v. State, 735 N.E.2d 1161, 1166 (Ind. 2000), reh’g denied. “When two

       convictions are found to contravene double jeopardy principles, a reviewing

       court may remedy the violation by reducing either conviction to a less serious

       form of the same offense if doing so will eliminate the violation. If it will not,

       one of the convictions must be vacated.” Richardson v. State, 717 N.E.2d 32, 54




       Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1870 | Septmeber 4, 2019   Page 11 of 18
       (Ind. 1999), holding modified by Garrett v. State, 992 N.E.2d 710 (Ind. 2013)

       (modification as to cases involving hung jury or acquittal).


[23]   Hamman argues his convictions of both child molesting and incest violate the

       “actual evidence” test. The actual evidence test requires us to “determine

       whether each challenged offense was established by separate and distinct facts.”

       Id. at 53. To determine what facts were used to convict, we consider the

       charging information, the final jury instructions, the evidence, and the

       arguments of counsel. Davis v. State, 770 N.E.2d 319, 324 (Ind. 2002), reh’g

       denied. The elements of Class A felony child molesting as charged against

       Hamman were: (1) Hamman; (2) who was at least 21 years of age; (3) with

       K.H.; (4) who was under the age of fourteen; (5) performed or submitted to

       intercourse or deviate sexual conduct. See Ind. Code § 35-42-4-3(a)(1) (2007).

       The elements of Class B felony incest as charged against Hamman are: (1)

       Hamman; (2) who was at least 18 years of age; (3) engaged in sexual

       intercourse or deviate sexual conduct; (4) with K.H.; (5) who was less than 16

       years of age. See Ind. Code § 35-46-1-3(a) (1994).


[24]   In its closing argument, the State argued the evidence satisfied the fifth element

       of Class A felony child molesting because Hamman “put his finger inside of her

       vagina and moved it around.” (Tr. Vol. III at 207.) Later in closing, when

       explaining the evidence to support a conviction of Class B felony incest, the

       prosecutor said:


               [T]he next element, engaged in sexual intercourse or deviate
               sexual conduct, we went through this two (2) seconds ago, two
       Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1870 | Septmeber 4, 2019   Page 12 of 18
               (2) minutes ago, the definition is the same. All right? The finger
               penetrated her vagina. That’s all that’s required.


       (Id. at 210.) Further into the argument, the prosecutor said:


               He only did it once. I mean enough, that’s enough for this
               charge, for both charges.


       (Id. at 213.) During his rebuttal argument to the defense’s closing, the

       prosecutor said:


               [W]e know there was at least one time this happened. [K.H.]
               testified about more, this is what this references, you don’t need
               to worry about all the other times, okay? What you need to
               worry about are the elements for this particular charge for one
               time.


       (Id. at 241.)


[25]   When the State asked the jury to find Hamman guilty of child molesting and

       incest, the prosecutor explicitly told the jury it could rely on one act of deviate

       sexual conduct to support both charges. Thus, there is a reasonable probability

       the jury relied on the same evidence to find Hamman guilty of child molesting

       and incest. Accordingly, we vacate Hamman’s conviction of Class B felony

       incest. See Clark v. State, 732 N.E.2d 1225, 1229 (Ind. Ct. App. 2000) (vacating

       two attempted arson convictions when all three convictions were based on one

       act).




       Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1870 | Septmeber 4, 2019   Page 13 of 18
                                   4. Sentence Appropriateness
[26]   Hamman also argues his sentence is inappropriate in light of his character and

       the nature of his offense.


               We “may revise a sentence authorized by statute if, after due
               consideration of the trial court’s decision, the Court finds that the
               sentence is inappropriate in light of the nature of the offense and
               the character of the offender.” Ind. Appellate Rule 7(B).
               “Although appellate review of sentences must give due
               consideration to the trial court’s sentence because of the special
               expertise of the trial bench in making sentencing decisions,
               Appellate Rule 7(B) is an authorization to revise sentences when
               certain broad conditions are satisfied.” Shouse v. State, 849
               N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and
               quotation marks omitted). “[W]hether we regard a sentence as
               appropriate at the end of the day turns on our sense of the
               culpability of the defendant, the severity of the crime, the damage
               done to others, and myriad other factors that come to light in a
               given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
               In addition to the “due consideration” we are required to give to
               the trial court’s sentencing decision, “we understand and
               recognize the unique perspective a trial court brings to its
               sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873
               (Ind. Ct. App. 2007).


       Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.

       denied. The appellant bears the burden of demonstrating his sentence is

       inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),

       trans. denied.


[27]   When considering the nature of the offense, the advisory sentence is the starting

       point for determining the appropriateness of a sentence. Anglemyer v. State, 868

       Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1870 | Septmeber 4, 2019   Page 14 of 18
       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007). The

       sentence for a Class A felony is a fixed term of between twenty and fifty years,

       with the advisory sentence being thirty years. Ind. Code § 35-50-2-4 (2005).

       Hamman was sentenced to forty years, thus receiving below the maximum but

       above the advisory sentence for his child molesting conviction. 4


[28]   Regarding the nature of Hamman’s offense, the trial court noted Hamman was

       in a position of trust. K.H. was Hamman’s daughter and lived with him alone

       after her mother left. See Edrington v. State, 909 N.E.2d 1093, 1101 (Ind. Ct.

       App. 2009) (defendant violating position of trust with victim allowed for an

       enhanced sentence), trans. denied.


[29]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct.

       App. 2013). Hamman has no criminal history. However, due to the heinous

       nature of the crime and K.H. being his daughter, we do not find Hamman’s

       elevated sentence to be inappropriate. See Harlan v. State, 971 N.E.2d 163, 172

       (Ind. Ct. App. 2012) (enhanced sentence appropriate for defendant who

       repeatedly sexually abused child he cared for).




       4
         Hamman was ordered to serve his sentences concurrently, therefore our vacation of his Class B felony
       incest conviction does not alter the time he was ordered to served.

       Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1870 | Septmeber 4, 2019      Page 15 of 18
                                       5. Probation Condition
[30]   Finally, Hamman argues the trial court erred when it imposed Probation

       Condition 26, which has been held unreasonable. “The trial court’s broad

       discretion in determining the conditions of probation is limited only by the

       principle that the conditions must be reasonably related to the treatment of the

       defendant and protection of public safety.” Stott v. State, 822 N.E.2d 176, 179-

       80 (Ind. Ct. App. 2005), trans. denied. Probation Condition 26 states:


               You shall not access the Internet or any other on-line service
               through use of a computer, cell phone, iPod, Xbox, Blackberry,
               personal digital assistant (PDA), pagers, Palm Pilots, televisions,
               or any other electronic device at any location (including your
               place of employment) without prior approval of your Probation
               Officer. This includes any Internet service provider, bulletin
               board system, e-mail system or any other public or private
               computer network . . .


       (App. Vol. II at 187.) In Weida v. State, our Indiana Supreme Court held this

       language in Probation Condition 26 is unreasonable because it does not

       reasonably relate to a defendant’s “rehabilitation and protecting the public.” 94

       N.E.3d 682, 694 (Ind. 2018).


[31]    As the Court noted in Weida, Probation Rule 26 underwent significant revision

       and now states:


               You are prohibited from accessing, viewing, or using internet
               websites and computer applications that depict obscene matter as
               defined by IC 35-49-2-1 or child pornography as defined by 18
               U.S.C. § 2256(8). You shall not possess or use any data

       Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1870 | Septmeber 4, 2019   Page 16 of 18
               encryption technique or program to conceal your internet
               activity.


       Id. at 692 (quoting Sex Offender Special Conditions). See also Ind. Code § 35-38-

       2-2.2(4) (2012) (requiring trial court to include same language). Here, the trial

       court imposed the former version of Probation Condition 26 restricting

       Hamman’s lawful conduct on the internet. As such, we remand for the trial

       court to impose the revised version of Probation Condition 26. See Weida, 94

       N.E.3d at 694 (probation conditions restricting internet access must be

       reasonably related to rehabilitation and public safety).



                                               Conclusion
[32]   K.H.’s testimony was not incredibly dubious and, therefore, was sufficient to

       convict Hamman of Class A felony child molesting and Class B felony incest;

       however, because the prosecutor argued the jury could rely on the same act of

       penetration to convict Hamman of both crimes, we must vacate his conviction

       of incest on double jeopardy grounds. Additionally, K.H.’s testimony

       regarding an uncharged crime Hamman allegedly committed was not a

       violation of the Indiana Rules of Evidence, and the admission of Detective

       Rice’s hearsay testimony was harmless error. Finally, Hamman’s forty-year

       sentence is not inappropriate, but we must remand for the trial court to amend

       Hamman’s probation conditions to include the most recent version of Probation

       Condition 26. Accordingly, we affirm in part, reverse in part, and remand with

       instructions.


       Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1870 | Septmeber 4, 2019   Page 17 of 18
[33]   Affirmed in part, reversed in part, and remanded.


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




       Court of Appeals of Indiana | Memorandum Decision 17A03-1708-CR-1870 | Septmeber 4, 2019   Page 18 of 18
