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Knecht v. State

Court of Appeals of Indiana

September 27, 2017

Nicholaus Knecht, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Boone Circuit Court. The Honorable Matthew C. Kincaid, Special Judge. Trial Court Cause No. 06C01-1301-FD-25

          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 Indianapolis, Indiana.

          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 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 acts which constituted the crimes of child molesting, contributing to the delinquency of a minor, and reckless driving.[1]

         [¶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.

         [¶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 molesting and contributing to the delinquency of a minor.[2] 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. 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 U.S. 36, 124 S.Ct. 1354 (2004), also does not apply in probation revocation proceedings.[3] 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." 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 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 the probation revocation hearing.[4] 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 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. ...


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