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McCarty v. State

Court of Appeals of Indiana

March 20, 2018

Dustin McCarty, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Vigo Superior Court The Honorable John T. Roach, Judge Trial Court Cause No. 84D01-1406-FD-1533

          ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana

          Mathias, Judge.

         [¶1] Dustin McCarty was convicted in Vigo Superior Court of Class D felony battery by bodily waste and Class A misdemeanor resisting law enforcement. The trial court sentenced McCarty to two and one-half years with 290 days executed and the remainder suspended to probation. McCarty appeals and argues that the trial court erred by failing to provide him with written conditions of probation at sentencing and by imposing conditions that are impermissibly vague and not reasonably related to his rehabilitation.

         [¶2] We reverse and remand for proceedings consistent with this opinion.

         Facts and Procedural History

         [¶3] On June 3, 2014, Terre Haute Police Officer Philip Ralston ("Officer Ralston") was responding to a call that a woman was urinating in public when he encountered McCarty. After checking his identification, the officer discovered that McCarty had an outstanding arrest warrant. McCarty was arrested and placed in handcuffs, and the officer began to transport him to the Vigo County Jail.

         [¶4] During the drive to the jail, McCarty spit on Officer Ralston. The officer warned McCarty to stop or he would call for the mobile incarceration unit to transport McCarty to jail. After McCarty spit on the officer a second time, Officer Ralston pulled his vehicle over and two officers arrived to assist him.

         [¶5] McCarty began to struggle when the officers attempted to remove him from the vehicle. The officers eventually removed McCarty from the car and put him on the ground. McCarty continued to struggle and kick, but the officers were able to get McCarty under control before the mobile incarceration unit arrived.

         [¶6] The State charged McCarty with Class D felony battery by bodily waste and Class A misdemeanor resisting law enforcement. A jury trial was held on May 11, 2017, and McCarty was found guilty as charged.

         [¶7] The trial court ordered McCarty to serve an aggregate two-and-one-half-year sentence. He was given credit for 290 days served, and the remainder of his sentence was suspended to probation. The trial court ordered the standard terms of probation and that McCarty "shall submit to a drug and alcohol evaluation and remain compliant with their recommendations." Appellant's App. pp. 103-4.

         [¶8] Four days after he was sentenced, McCarty met with a probation officer, and he signed a form acknowledging the conditions of his probation. The probationary terms at issue in this appeal are:

2. You will avoid persons and places of harmful character, or a person who is likely to influence ...

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