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
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.
We reverse and remand for proceedings consistent with this
and Procedural History
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.
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.
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
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.
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.
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 ...