from the Boone Circuit Court. The Honorable Matthew C.
Kincaid, Special Judge. Trial Court Cause No.
ATTORNEY FOR APPELLANT Heather M. Shumaker Schuckit &
Associates, P.C. Zionsville, Indiana.
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Matthew B. MacKenzie Deputy Attorney General
RUCKER, SENIOR JUDGE.
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 trial court abused its discretion in
ordering Knecht to serve his suspended sentence in community
corrections. We affirm.
and Procedural History
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.
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 acts which
constituted the crimes of child molesting, contributing to
the delinquency of a minor, and reckless
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.
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 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.
Right to Cross Examine Witnesses
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.
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. 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").
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 U.S. 36, 124 S.Ct. 1354 (2004), also
does not apply in probation revocation
proceedings. See Smith v. State, 971 N.E.2d
86, 89 (2012).
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.
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." Id. (alterations in original)
(quoting United States v. Kelly, 446 F.3d 688, 693
(7th Cir. 2006)).
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.
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 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").
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 the probation
revocation hearing. Thus the record shows the testimony bore
substantial guarantees of trustworthiness.
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 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.
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)).
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