Argued: November 20, 2018
from the Marion Superior Court No. 49G04-1509-F4-34803 The
Honorable Lisa Borges, Judge.
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEYS FOR APPELLANT Valerie K. Boots Marion County Public
Defender Agency Indianapolis, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Caroline G. Templeton Deputy Attorney General
issue in this case is whether there is sufficient evidence
that Bennett violated a Community Corrections placement
condition by possessing obsence matter. Because the trial
court made factual findings that negate one part of the
statutory definition required to prove the violation, we
reverse and remand.
and Procedural History
2016, Defendant, Nathaniel Bennett, pled guilty to Level 4
felony sexual misconduct with a minor and was sentenced to
seven years on community corrections, with three years
suspended to sex offender probation. As a condition of
Bennett's placement in community corrections, he was
prohibited from possessing obscene matter as defined by
Indiana Code § 35-49-2-1.
2017, community corrections officers performed a compliance
check at Bennett's home. There they found a cell phone
containing pictures of Bennett as well as pictures of a naked
woman and videos with a man and a woman engaging in sexual
intercourse. Thereafter, the State filed a notice of a
community corrections violation alleging that Bennett had
possessed obscene matter.
evidentiary hearing, the State submitted copies of the
allegedly obscene photos and video from Bennett's phone.
After the arguments of counsel, the trial court stated in
I'm convinced by a preponderance of the evidence that the
Defendant was possessing the phone and that he knew what was
on it. So having done -- having made that finding, I do
believe the State's met their burden and would find the
Defendant in violation.
(Tr. 76.) Then approximately two weeks later, at the
sentencing hearing, the court reviewed the definition of
obscene matter and stated:
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