      MEMORANDUM DECISION                                                      FILED
      Pursuant to Ind. Appellate Rule 65(D), this                         Aug 15 2018, 7:53 am

      Memorandum Decision shall not be regarded as                             CLERK
      precedent or cited before any court except for the                   Indiana Supreme Court
                                                                              Court of Appeals
      purpose of establishing the defense of res judicata,                      and Tax Court

      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                          Curtis T. Hill, Jr.
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana
                                                                Caroline G. Templeton
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Nathaniel Bennett,                                       August 15, 2018

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-71
              v.                                               Appeal from the Marion Superior
                                                               Court

      State of Indiana,                                        The Honorable Lisa F. Borges,
      Appellee-Plaintiff.                                      Judge

                                                               Trial Court Cause No.
                                                               49G04-1509-F4-34803



      Barteau, Senior Judge.


                                       Statement of the Case
[1]   Nathaniel Bennett appeals the trial court’s revocation of his placement in

      community corrections. We affirm.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-71 | August 15, 2018                Page 1 of 7
                                                     Issue
[2]   Bennett raises one issue, which we restate as: whether the State presented

      sufficient evidence to establish that he violated the terms of his placement.


                               Facts and Procedural History
[3]   In 2015, Bennett executed a plea agreement and pled guilty to one count of

      sexual misconduct with a minor, a Level 4 felony. He had engaged in sexual

      intercourse with a fifteen-year-old when he was twenty-two. The plea

      agreement stated that Bennett’s executed sentence would be capped at six years,

      followed by three years of sex offender probation.


[4]   The trial court accepted Bennett’s guilty plea and imposed a sentence of seven

      years. The court ordered Bennett to serve four years in community corrections,

      followed by three years on probation. The conditions of Bennett’s placement in

      community corrections included the following: “You shall not possess obscene

      matter as defined by IC 35-49-2-1 or child pornography as defined in 18 U.S.C.

      § 2256(8), including but not limited to: videos, magazines, books, DVD’s [sic],

      and material downloaded from the Internet.” Appellant’s App. Vol. II, p. 55.

      Bennett signed the conditions, indicating that he had read them and agreed to

      comply with them.


[5]   On September 19, 2017, three officers with the Marion County Community

      Corrections Agency arrived at Bennett’s home to check his compliance with the

      terms of his placement. They knocked on Bennett’s door and identified

      themselves as community corrections officers. They initially spoke in a regular

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-71 | August 15, 2018   Page 2 of 7
      tone of voice, but when no one came to the door, they raised their voices to get

      his attention. Bennett continued to fail to respond to the officers, so they

      activated an alarm on his tracking device directing him to contact them.


[6]   At that point, Bennett came to the door and allowed the officers to enter. The

      officers found an air mattress in his room. A mobile phone was on the floor

      next to the mattress. One of the officers took the phone to Bennett and asked

      him “if there was anything on the cell phone that we should know about.” Tr.

      Vol. 2, p. 27. He initially said no and further told the officers the phone was

      dead and he did not have a charging cord. One of the officers had a charger in

      his car and took the phone to plug it in.


[7]   Next, one of the officers again asked Bennett if there was anything on the

      phone that he should know about. Bennett responded that there “possibly”

      could be something on the phone. Id. at 27-28. He also claimed the phone

      belonged to his girlfriend.


[8]   The officers charged the phone sufficiently to turn it on and looked at

      photographs and videos stored therein. They found “selfies” of Bennett. They

      also found photographs of a nude woman and videos explicitly depicting two

      people engaging in sexual intercourse.


[9]   On September 21, 2017, the State filed a Notice of Community Corrections

      Violation, alleging Bennett had possessed obscene matter. The court held an

      evidentiary hearing, at which the State submitted copies of the photographs and

      photographs of the videos. The court determined Bennett violated the terms of

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-71 | August 15, 2018   Page 3 of 7
       his placement and ordered him to serve four years of his sentence in the

       Department of Correction. This appeal followed.


                                    Discussion and Decision
[10]   A defendant is not entitled to serve a sentence in a community corrections

       program because, as with probation, placement in the program is a matter of

       grace and a conditional liberty that is a favor, not a right. Pavey v. State, 710

       N.E.2d 219, 221 (Ind. Ct. App. 1999). When reviewing the revocation of a

       placement in community corrections, the standard of review is the same as for

       revocation of probation. Morgan v. State, 87 N.E.3d 506, 510 (Ind. Ct. App.

       2017), trans. denied. We consider all the evidence most favorable to the

       judgment of the trial court without reweighing that evidence or judging the

       credibility of witnesses. Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999).


[11]   Bennett does not dispute that he possessed the mobile phone and its contents.

       Instead, he argues the trial court erred in ruling that he violated the terms of his

       placement because the court also determined that the photographs and videos

       were not obscene. We disagree. The terms of Bennett’s placement stated that

       the standard for obscene matter was “as defined by IC 35-49-2-1.” Appellant’s

       App. Vol. II, p. 55. That statute provides:


               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;


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-71 | August 15, 2018   Page 4 of 7
               (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.
       Ind. Code § 35-49-2-1 (1983).


[12]   At the evidentiary hearing, after the parties presented evidence and argument

       the court stated, “I do believe the State’s met their burden and would find the

       Defendant in violation.” Tr. Vol. 2, p. 76. Next, during the sentencing

       hearing, the court further explained:


               The order that the Defendant signed at sentencing on March the
               2nd of 2016 in paragraph 16 says: You shall not possess obscene
               matter as defined by Indiana Code 35-49-2-1. Which in
               reviewing that says in paragraph three: The matter of
               performance taken as a whole lacks serious literary, artistic,
               political, or scientific value. And in paragraph one: 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. And of course the,
               you know, both of those are met. Paragraph two says: ??? [sic]
               or performance [sic] depicts or describes in a patently offensive
               way of sexual conduct. And 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.
       Id. at 94-95.


[13]   The court’s explanation during the sentencing hearing, while not completely

       clear, ultimately reaffirmed the court’s determination at the end of the
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-71 | August 15, 2018   Page 5 of 7
       evidentiary hearing that Bennett had violated the terms of probation. The trial

       court stated the videos were obscene. Further, the trial court’s determination

       that the videos were obscene is amply supported by the record, which includes

       still photographs of the explicit sexual conduct depicted in the videos.


[14]   Bennett cites Kribs v. State, 917 N.E.2d 1249 (Ind. Ct. App. 2009), in support of

       his claim. Kribs was convicted of entering a controlled area of an airport with a

       weapon or device, a Class A misdemeanor. He claimed the evidence was

       insufficient because the statute required him to knowingly or intentionally take

       a weapon into a controlled area, and he had simply forgotten he had a

       handgun. The trial court had found Kribs guilty, but at sentencing the court

       noted Kribs did not have “malicious intent.” Id. at 1250. On appeal, a panel of

       this Court concluded the trial court’s statement that Kribs lacked the intent to

       commit the crime proved that the evidence of mental culpability was

       insufficient and reversed the conviction.


[15]   Bennett’s case is significantly different from Kribs’ case because mental

       culpability is not at issue here. Further, the trial court determined at the

       evidentiary hearing that Bennett had violated the terms of probation by

       possessing obscene materials, and the court’s statement at sentencing, while less

       than clear, ultimately did not invalidate that determination as to any of the

       elements of obscenity. We conclude there is ample evidence Bennett violated

       the terms of his placement, and the trial court entered judgment accordingly.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-71 | August 15, 2018   Page 6 of 7
                                                Conclusion
[16]   For the reasons stated above, we affirm the judgment of the trial court.


[17]   Affirmed.


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-71 | August 15, 2018   Page 7 of 7
