FILED Dec 11 2019, 9:07 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Karen Celestino-Horseman Curtis T. Hill, Jr. Austin & Jones, P.C. Attorney General of Indiana Indianapolis, Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
William Terpstra, December 11, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-671 v. Appeal from the Howard Superior Court State of Indiana, The Honorable William C. Appellee-Plaintiff Menges, Jr., Judge Trial Court Cause No. 34D01-1304-FB-284
Riley, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 1 of 24 STATEMENT OF THE CASE [1] Appellant-Defendant, William Terpstra (Terpstra), appeals the trial court’s
Orders revoking his probation and sanctioning him.
[2] We affirm.
ISSUES [3] Terpstra presents four main issues for review, which we restate and reorder as
the following:
(1) Whether sufficient evidence supported the revocation of his probation for committing the new offense of child molesting;
(2) Whether Terpstra was denied due process by the trial court’s probation revocation judgment statement;
(3) Whether the trial court abused its discretion in manner and substance of its evidentiary rulings; and
(4) Whether the trial court abused its discretion when it ordered Terpstra to execute the entirety of his previously-suspended sentence.
FACTS AND PROCEDURAL HISTORY [4] Terpstra was a physician licensed in Indiana who practiced at the Wagoner
Medical Centers (WMC) branch in Kokomo, Indiana, along with other
physicians and physicians’ assistants. Terpstra joined the WMC practice in
2010. The physicians and physicians’ assistants at the WMC, including
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 2 of 24 Terpstra, prescribed medications outside the scope of usual professional practice
and for non-medical purposes. Twenty-seven deaths were linked to these
prescribing practices, including the deaths of eight patients under Terpstra’s
care.
[5] On April 17, 2013, the State filed an Information, charging Terpstra with
twenty-four felonies, including eight Counts of Class B felony dealing in
cocaine or a narcotic drug; seven Counts of Class C felony dealing by delivery
of a Schedule IV controlled substance; seven Counts of dealing by delivery of a
Schedule I, II, or III controlled substance; one Count of Class B felony
conspiracy to deal in cocaine or a narcotic drug; and one Count of conspiracy
to deal by delivery in a Schedule IV controlled substance. On September 25,
2015, Terpstra pleaded guilty pursuant to a plea bargain with the State to two
Counts of Class B felony dealing in a narcotic drug for knowingly delivering
methadone outside the course of professional practice and for non-medical
purposes to two separate victims. On September 16, 2015, the trial court
sentenced Terpstra according to the terms of his plea agreement and imposed
concurrent sentences of 5,475 days for each Class B felony conviction, 548 days
of which were to be served on home detention, with the remainder suspended
to probation. Two of the conditions of Terpstra’s probation were that he not
commit any new criminal offenses and that he contact his probation officer
within forty-eight hours of being arrested for, or charged with, a new criminal
offense.
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 3 of 24 [6] Terpstra had married Vicki Terpstra (Vicki) on October 15, 2011. Vicki had a
granddaughter, E.Z., who was thirteen years old during the summer of 2017.
E.Z., her brothers, and E.Z.’s parents would regularly spend time with Vicki
and Terpstra, sometimes at their home in Sheridan, Indiana. During the early
summer of 2017, E.Z. spent time at Vicki and Terpstra’s home by herself, as the
rest of her family was elsewhere. One day during this visit, E.Z. and Terpstra
sat on the couch in the living room watching a football game on the television.
Terpstra sat close to E.Z. on her right side. While they were sitting together on
the couch and Vicki was out of the room, Terpstra used his left hand to touch
E.Z. on her buttocks under her clothes as he used his right hand to touch her
chest under her bra. Terpstra remained facing the television as he touched E.Z.
in this manner for approximately fifteen minutes.
[7] In the fall of 2017, E.Z. was depressed and anxious. E.Z. underwent
counseling and, on January 4, 2018, disclosed that Terpstra had fondled her.
E.Z. was forensically interviewed on January 5, 2018, during which she
reported that Terpstra had touched her chest, buttocks, and vagina under her
clothes. On March 28, 2018, the State filed an Information, charging Terpstra
with one Count of child molesting, a Level 4 felony, Ind. Code § 35-42-4-3(b),
for fondling E.Z. on a date between June 1, 2017, and November 30, 2017. On
April 13, 2018, the State filed a petition to revoke Terpstra’s suspended sentence
in his drug dealing case, alleging that Terpstra had violated his probation by
committing the new criminal offense of child molesting and by failing to
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 4 of 24 contact his probation officer within forty-eight hours of his arrest for that
[8] On February 1, 2019, while meeting with the prosecutor to prepare for trial on
the new child molesting charge, E.Z. told the prosecutor for the first time that
Terpstra had not actually touched her vagina as she had originally reported.
E.Z. confirmed to the prosecutor that Terpstra had touched her buttocks and
chest. In light of this change in E.Z.’s potential testimony, the prosecutor
became uncertain that she could obtain a conviction after a jury trial, and the
prosecutor was concerned about what the effect of a trial and rigorous cross-
examination upon E.Z. would be in light of that uncertainty. On February 4,
2019, the prosecutor moved to dismiss the child molesting charge against
Terpstra, and that motion was subsequently granted.
[9] On February 19, 2019, the trial court held a hearing on the State’s petition to
revoke Terpstra’s probation in his drug dealing case. On a number of occasions
during the hearing, in response to an objection, the trial court explained that, in
an effort to complete the hearing in a timely manner, it would overrule the
interposed objection and would ignore any inadmissible evidence in reaching its
judgment. This was the trial court’s response to Terpstra’s hearsay objections to
testimony by the investigating detective that he had contacted E.Z.’s school and
asked if she had a history of being dishonest and to Terpstra’s relevancy
objection to E.Z.’s testimony that Terpstra had touched her under her swimsuit
when she was ten years old, a time period not included in the child molesting
Information and a time when he was not on probation for the drug offenses.
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 5 of 24 [10] E.Z. testified at the probation revocation hearing regarding the offenses and was
subjected to cross-examination on her version of events, including the fact that
she had originally inaccurately reported that Terpstra had touched her vagina.
E.Z. explained that, when she originally reported the child molesting offense,
she had not had adequate time to think about the events, did not know how to
answer some of the questions posed to her, and thought she needed a response
for everything that was asked of her. Terpstra also testified and denied that he
had fondled E.Z. Terpstra’s probation officer testified that Terpstra never
personally contacted him to inform him that he had been arrested on the child
molesting charge, but the probation officer confirmed that Terpstra’s counsel
had contacted him before the arrest to inform him that Terpstra might be
arrested for child molesting.
[11] At the conclusion of the probation revocation hearing, the trial court found that
the State had proved by a preponderance of the evidence that Terpstra
committed the new offense of child molesting. In pronouncing judgment, the
trial court stated as follows:
The testimony between [Terpstra] and [E.Z.] is totally contradictory and so I think what I have to do is consider not only the testimony that was given but the manner of delivering that testimony, the demeanor of the witnesses, the believability of the witnesses, what reason that any of the witnesses would have to lie. And taking that all into consideration I find that [E.Z] is a completely credible witness and that [] Terpstra is a completely incredible witness.
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 6 of 24 (Transcript p. 100). The trial court did not render judgment on the State’s
allegation that Terpstra had violated his probation by failing to contact his
probation officer within forty-eight hours of his arrest for child molesting. In its
written judgment, the trial court found that Terpstra had “violated the terms
and conditions of his Probation” and entered judgment of conviction.
(Appellant’s App. Vol. II, p. 22).
[12] On March 13, 2019, the trial court held a sanction hearing. At the conclusion
of the hearing, the trial court noted the severity of the drug offenses Terpstra
had pleaded guilty to and had been sentenced for, in that his actions had
contributed to the excessive amounts of drugs in the community. The trial
court found that Terpstra had had no concern for other people and that he had
been subject only to his own wants and desires. The trial court found that
[h]e received a sentence that was very lenient in terms of what his behavior was, from betraying the trust of his patients, betraying the trust of the community, betraying the trust of the medical profession. He’s on probation, and he has exhibited that his own interests and desires are still more important to him than what harm he causes other people and that he continues to prey upon the weak and helpless in order to advance his own desires.
(Tr. pp. 124-25). The trial court found that any alternate placement outside the
Indiana Department of Correction (DOC) would only give Terpstra the
opportunity to victimize the weak and helpless members of society. The trial
court ordered Terpstra to execute all of his previously-suspended sentence with
the DOC.
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 7 of 24 [13] Terpstra now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Sufficiency of the Evidence
[14] Terpstra claims that the State did not produce sufficient evidence to prove that
he committed the new offense of child molesting. Probation is a matter of grace
left to a trial court’s discretion, not a right to which a criminal defendant is
entitled. Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014). A probation
violation hearing is a civil proceeding, and the State must prove the alleged
probation violation by a preponderance of the evidence. Id. Our standard of
review of the sufficiency of the evidence supporting the revocation of probation
is similar to our standard of review for other matters: “[W]e consider only the
evidence most favorable to the judgment—without regard to weight or
credibility—and will affirm if ‘there is substantial evidence of probative value to
support the trial court’s conclusion that a probationer has violated any
condition of probation.’” Id. (quoting Braxton v. State, 651 N.E.2d 268, 270
(Ind. 1995)).
[15] Here, the State alleged that Terpstra committed the new offense of child
molesting by fondling or touching E.Z., who was under the age of fourteen at
the time, with the intent to arouse or satisfy his or E.Z.’s sexual desires. E.Z.
testified at trial that, on a day during the early summer of 2017 while they were
both sitting on a couch in the living room of Terpstra and Vicki’s home,
Terpstra used his left hand to “grope” her buttocks under her clothes while
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 8 of 24 simultaneously using his right hand to touch her chest under her shirt. (Tr. p.
31). E.Z. was thirteen years old at the time. This is the evidence most
favorable to the trial court’s judgment, and it is sufficient evidence to support a
criminal conviction for child molesting by fondling, let alone a probation
revocation allegation to be proved by a preponderance of the evidence. See Altes
v. State, 822 N.E.2d 1116, 1121-22 (Ind. Ct. App. 2005) (holding that evidence
of rubbing of child’s buttocks under clothes and of rubbing a child’s upper body
from shoulder to waist under clothes was sufficient to sustain fondling
convictions), trans. denied.
[16] Terpstra’s first challenge to the sufficiency of the evidence is that the State did
not prove that the offense was committed in 2017 when E.Z. was thirteen and
he was on probation in the drug dealing case. However, Vicki testified that,
during the summer of 2017, E.Z. spent the night alone at the home Vicki and
Terpstra shared in Sheridan. This is the evidence that supports the trial court’s
judgment, and it is the only evidence that we consider in conducting our
review. See Murdock, 10 N.E.3d at 1267. Terpstra’s efforts on appeal to direct
our attention to other evidence in the record which he contends shows that E.Z.
did not spend the night alone in his home during the relevant time period is
unavailing in light of our standard of review. See id.
[17] Terpstra also contends that E.Z.’s testimony was unbelievable because she
recanted her original report that he had also touched her vagina, the mode of
his fondling, as reported by E.Z., was “physically impossible,” and Vicki
testified that she observed the two sitting on the couch together but did not
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 9 of 24 observe the fondling. (Appellant’s Br. p. 35). We observe that the trial court
heard all of the evidence and concluded that E.Z. was a credible witness, that
the offense occurred as E.Z. reported it, and that the offense occurred even
though Vicki did not directly observe it. We will not second-guess these
determinations on the part of the trial court; to do so would require us to
reweigh the evidence and reassess the credibility of witnesses in contravention
to our standard of review. See id. Because the State produced sufficient
evidence to prove by a preponderance of the evidence that Terpstra committed
the new offense of child molesting, we affirm the revocation of his probation. 1
II. Due Process
[18] Terpstra claims that the trial court violated his right to due process by admitting
certain evidence, failing to make certain evidentiary rulings, and failing to
specify the evidence upon which it relied in rendering its judgment. However,
“[d]ue process rights are subject to waiver, and claims are generally waived if
raised for the first time on appeal.” Pigg v. State, 929 N.E.2d 799, 803 (Ind. Ct.
App. 2010), trans. denied. Our review of the record revealed that Terpstra never
raised a due process objection at trial, and Terpstra does not argue that the
alleged violations of his due process rights constituted fundamental error. As a
1 Given our disposition of this issue, we do not address Terpstra’s argument that the evidence was insufficient to show that he also violated his probation by failing to contact his probation officer following his arrest on the child molesting charge. See Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015) (holding that one violation of a condition of probation is enough to support a probation revocation). However, we note that it appears that the trial court did not enter judgment on that alleged violation, so there is nothing for us to review regarding that allegation.
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 10 of 24 result, we conclude that, apart from his claim pertaining to the trial court’s
judgment statement, Terpstra waived his due process claims.
[19] The United States Supreme Court has held that, because the revocation of
probation results in a loss of liberty, a probationer must be afforded certain due
process rights before his probation is revoked. Dalton v. State, 560 N.E.2d 558,
559-60 (Ind. Ct. App. 1990) (relying on Gagnon v. Scarpelli, 411 U.S. 778, 782,
93 S.Ct. 1756, 1759, 36 L.E.2d 656 (1973)). As part of that due process, the
probationer is entitled to a written statement by the fact-finder as to the
evidence relied upon and the reasons for the revocation. Id. at 560. The
requirement of a written statement providing the reasons for the revocation is
“a procedural device aimed at promoting accurate fact finding and ensuring the
accurate review of revocation decisions.” Puckett v. State, 956 N.E.2d 1182,
1186 (Ind. Ct. App. 2011). While it is not the preferred manner of fulfilling the
written statement requirement, the right to a written statement is satisfied if the
transcript of the evidentiary hearing present in the record contains a clear
statement of the trial court’s reasons for the revocation. Id.
[20] Here, the trial court’s written statement upon revocation merely provided that it
found that Terpstra had “violated the terms and conditions of his
[p]robation[.]” (Appellant’s App. Vol. II, p. 22). We agree with Terpstra that
this written statement alone did not comport with his due process right to be
informed of the reasons for the revocation. See Medicus v. State, 664 N.E.2d
1163, 1165 (Ind. 1996) (holding that trial court’s simple statement upon
revocation that Medicus had violated the terms of probation did not comply
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 11 of 24 with his due process right). However, the transcript of Terpstra’s revocation
hearing has been made part of the record on appeal, and we disagree with
Terpstra’s argument that “the transcript does not contain a clear statement of
the evidence relied upon[.]” (Appellant’s Br. p. 29). In its oral judgment
statement at the revocation hearing, the trial court specified that it concluded
that Terpstra had committed the new offense of child molesting based upon its
belief in E.Z.’s testimony and its disbelief of Terpstra after observing “the
manner of delivery [of] that testimony, the demeanor of the witnesses, the
believability of the witnesses, what reason that any of the witnesses would have
to lie.” (Tr. p. 100). Contrary to Terpstra’s assertions on appeal, the trial court
clearly identified what evidence it relied upon—the testimony of E.Z. and
Terpstra. Because the trial court outlined its reasons for revoking Terpstra’s
probation and the evidence it relied upon, Terpstra’s due process rights were
not violated. See Washington v. State, 758 N.E.2d 1014, 1018 (Ind. Ct. App.
2001) (finding no due process violation even where the trial court failed to enter
a written sentencing statement at all but where the transcript of his revocation
hearing in the record revealed the basis for the revocation).
[21] Terpstra also claims that the trial court’s revocation statement violated his due
process rights because the trial court “found the date of the alleged molestation
to be completely irrelevant.” (Appellant’s Br. p. 30). Terpstra contends this
finding violated his due process rights because he could only be found to have
violated his probation by committing a new offense while he was on probation.
We find that the factual underpinning of Terpstra’s argument is inaccurate
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 12 of 24 because, while the trial court noted in its revocation statement that “the date
that this occurred is really totally irrelevant,” it immediately also stated,
“[o]ther than it has to be after September 16, 2015[,] when he was sentenced
and prior to April 12, 2018, when the Petition to Revoke was filed.” (Tr. p.
100). Therefore, the trial court was aware that the new offense was required to
have been committed during the probation period, and its revocation statement
adequately outlined that awareness. Finding no violation to Terpstra’s right to
due process, we affirm the revocation of his probation.
III. Evidence
[22] Terpstra argues that the trial court erred in the manner and substance of its
evidentiary rulings. As a general matter, the Indiana Rules of Evidence do not
apply to probation revocation proceedings. Ind. Evidence Rule 101(d)(2); see
also Cox v. State, 706 N.E.2d 547, 550-51 (Ind. 1999). This flexibility is
“necessary to permit the court to exercise its inherent power to enforce
obedience to its lawful orders.” Cox, 706 N.E.2d at 550. A trial court has broad
discretion in ruling on the admissibility of the evidence at a probation
revocation hearing, and we will not disturb its decision absent an abuse of
discretion. Watters v. State, 22 N.E.3d 617, 619 (Ind. Ct. App. 2014).
A. Reception of the Evidence
[23] At the revocation hearing, in response to numerous evidentiary objections by
both Terpstra and the State, the trial court ruled that, in the interest of finishing
the hearing in a timely manner, it would hear the challenged evidence and
disregard any inadmissible evidence in reaching its judgment. Terpstra claims
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 13 of 24 that, “[r]elying upon the judicial temperance presumption, the trial court
repeatedly admitted hearsay and/or irrelevant evidence that it acknowledged
might be inadmissible hearsay and/or irrelevant.” (Appellant’s Br. pp. 23-24).
Terpstra contends that the trial court impermissibly relied upon the judicial
temperance presumption because the presumption is an appellate concept that
may not be applied at the trial court level.
[24] The judicial temperance presumption, succinctly stated, is the presumption
“that in a proceeding tried to the bench a court renders its decisions solely on
the basis of relevant and probative evidence.” Konopasek v. State, 946 N.E.2d
23, 28 (Ind. 2011). The presumption exists because “[t]he risk of prejudice is
quelled when the evidence is solely before the trial court.” Conley v. State, 972
N.E.2d 864, 873 (Ind. 2012). The presumption comes into play when a
defendant challenges the admissibility of evidence at a bench trial and the
evidence was, in fact, inadmissible. Konopasek, 946 N.E.2d at 29. A defendant
may overcome the presumption by showing that the trial court admitted the
evidence over a specific objection. Id. If a defendant overcomes the
presumption, the reviewing court engages in a harmless-error analysis and may
affirm the trial court if it is satisfied the judgment it supported by substantial
independent evidence such that there is no substantial likelihood that the
challenged evidence contributed to the judgment. Id. If the presumption is not
overcome, we presume that the trial court disregarded the challenged evidence
and find any error to be harmless. Id.
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 14 of 24 [25] Here, there is no indication in the record that the trial court explicitly or
implicitly relied on the judicial temperance presumption. Rather, the trial court
chose to receive the proposed evidence of the case and essentially take the
interposed objections under advisement, explaining that it would not consider
any inadmissible evidence in reaching its judgment. In his Reply Brief, Terpstra
contends that the trial court’s statement that it was overruling his objections for
the time being meant that the trial court admitted all of the challenged evidence.
However, the trial court’s explanation after each objection that it would not
consider inadmissible evidence was a clear indication that it was reserving its
evidentiary rulings, not admitting the challenged evidence.
[26] Terpstra seemingly argues on appeal that the trial court had a duty to rule
immediately on the admissibility of the challenged evidence, citing Stephenson v.
State, 205 Ind. 141, 163, 179 N.E. 633, 661 (Ind. 1932), a case which we find to
be unpersuasive because it involved a jury trial, not the more flexible probation
revocation and bench trial at issue here, and it did not hold that a trial court
may not take evidentiary rulings under advisement. Terpstra presents us with
no authority for his apparent proposition that a trial court conducting a
probation revocation hearing may not take evidentiary rulings under
advisement. While it is true that Indiana Evidence Rule 104(a) provides that a
trial court “must decide any preliminary question about whether . . . evidence is
admissible,” the Rules of Evidence do not apply to probation revocation
proceedings. Although we do not encourage trial courts to conduct probation
revocation proceedings in this manner, we conclude that to hold that a trial
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 15 of 24 court under these circumstances must always immediately rule on evidentiary
objections would be to unnecessarily limit the discretion of the trial court and to
ignore the increased flexibility of probation revocation proceedings.
B. Specific Evidence
[27] Terpstra more specifically contends that the trial court erred when it admitted
the investigating detective’s testimony that he contacted E.Z.’s school to inquire
about any history of dishonesty and the detective’s testimony that E.Z. reported
during her forensic interview that Terpstra had touched her breast area and
inside her pants below the waistband on “numerous occasions.” (Tr. pp. 14-
15). Terpstra also contends that the trial court committed reversible error when
it admitted E.Z.’s testimony that Terpstra touched her under her swimsuit on
an occasion prior to his probation period, E.Z.’s mother’s testimony that E.Z.’s
aunt once said a hug by Terpstra made the aunt uncomfortable, and E.Z.’s
mother’s testimony that, after she observed E.Z. sitting on Terpstra’s lap, she
decided to watch them closely. Terpstra contends that this evidence was largely
hearsay and was irrelevant to proving that Terpstra committed the new offense
of child molesting as alleged in the petition to revoke his probation.
[28] In addressing these specific evidentiary issues, we reiterate that, contrary to
Terpstra’s assertions, the trial court did not admit the challenged evidence at the
hearing. Rather, the trial court took its evidentiary rulings under advisement
and stated that it would not rely on any inadmissible evidence in reaching its
revocation decision. Assuming, without deciding, that all of this challenged
evidence was inadmissible, we must conclude that any error committed by the
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 16 of 24 trial court was harmless in light of the aforementioned judicial temperance
presumption, under which we presume that the trial court only relied upon
admissible and relevant evidence. Konopasek, 946 N.E.2d at 28. Terpstra has
not overcome this presumption because he has not shown that the evidence was
admitted by the trial court over his objection. Id. at 29.
[29] We also note that the trial court stated in its oral statement at the revocation
hearing that its judgment rested on its belief in E.Z. and its disbelief in Terpstra
after observing them in court and considering what motive they might have to
lie. The uncorroborated testimony of the victim of child molesting is sufficient
to prove the offense beyond a reasonable doubt. Carter v. State, 31 N.E.3d 17,
30 (Ind. Ct. App. 2015), trans. denied. Thus, E.Z.’s testimony alone was
sufficient to prove by a preponderance of the evidence that Terpstra committed
the new offense of child molesting. There is nothing in the trial court’s
revocation judgment statement indicating that it relied upon any of the
challenged evidence in revoking Terpstra’s probation. Therefore, we conclude
that, even if Terpstra had succeeded in overcoming the judicial temperance
presumption, there is substantial independent evidence sufficient to sustain
Terpstra’s probation revocation. Konopasek, 946 N.E.2d at 29.
IV. Sanction
[30] Terpstra also challenges the trial court’s order that as a sanction for violating his
probation, he must serve the entirety of his 4,927-day, previously-suspended
sentence. Following the revocation of probation, the trial court may continue
the probation with or without modification, extend the probation for a period of
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 17 of 24 not more than one year, or order all or part of the previously-suspended
sentence to be executed. I.C. § 35-38-2-3(h). This court reviews a trial court’s
sentencing decision following a probation revocation for an abuse of discretion.
Butler v. State, 951 N.E.2d 255, 262 (Ind. Ct. App. 2011). “An abuse of
discretion occurs where the decision is clearly against the logic and effect of the
facts and circumstances.” Id.
[31] Before pronouncing its probation revocation sanction, the trial court observed
that Terpstra’s drug convictions stemmed from his activities at the WMC which
contributed to an excessive amount of drugs flooding the community, Terpstra
had no concern for the people affected by those actions, and that Terpstra’s
drug offenses were motivated solely by his own wants and desires. The trial
court, which had also sentenced Terpstra in the drug dealing case, further noted
that Terpstra had received a lenient sentence given the nature of his drug
dealing offenses, and that in spite of that leniency, he committed the new
offense of child molesting, thus demonstrating that the leniency he had been
shown had failed to change his behavior. The trial court found that any
alternative placement outside the DOC would only provide Terpstra with
additional opportunity to victimize the weak and helpless members of society.
Given these circumstances, we find that the trial court acted within its wide
discretion in ordering Terpstra to serve all of his previously-suspended sentence.
[32] Terpstra first argues that the trial court’s sanction was an abuse of its discretion
because the 4,927-day sentence imposed by the trial court is “far beyond what a
first[-]time offender accused of child molest would typically receive.”
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 18 of 24 (Appellant’s Br. p. 41). However, the trial court did not sentence Terpstra for
child molesting; rather, it sanctioned him for violating his probation in his drug
dealing case. We also reject Terpstra’s argument that the fact that the instant
case was the first probation violation to be filed against him or his age rendered
the trial court’s sanction an abuse of discretion. Terpstra was on probation for
only approximately one year before committing the new offense of Level 4
felony child molesting, which was not a mere technical violation of the terms of
his probation. See Knecht v. State, 85 N.E.3d 829, 840 (Ind. Ct. App. 2017)
(upholding trial court’s imposition of entire previously-suspended sentence
following Knecht’s commission of new offense of child molesting in light of the
short period of time before the violation and the nature of violation). Lastly,
contrary to Terpstra’s argument on appeal, the trial court’s statements upon
sanctioning him for the probation violation reveal that it did not order him to
serve the entirety of his previously-suspended sentence because it thought the
drug dealing case sentence was too lenient; instead, it sanctioned him because
he did not change his behavior despite being accorded that leniency. We
cannot say that the trial court abused its discretion in sanctioning Terpstra for
committing the new offense of child molesting, and we affirm the trial court’s
sanction Order.
CONCLUSION [33] Based on the foregoing, we conclude that the State proved the new offense of
child molesting by fondling by a preponderance of the evidence. We also
conclude that the trial court’s judgment statement complied with Terpstra’s
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 19 of 24 right to due process, the trial court did not abuse its discretion in the manner in
which it received the evidence at the revocation hearing, and any error in the
admission of the evidence was presumed to be harmless. Lastly, we conclude
that the trial court did not abuse its discretion when it ordered Terpstra to
execute all of his previously-suspended sentence.
[34] Affirmed.
[35] Bradford, J. concurs
[36] Vaidik, C. J. dissents with separate opinion
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 20 of 24 IN THE COURT OF APPEALS OF INDIANA
William Terpstra, Court of Appeals Case No. 19A-CR-671 Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff
Vaidik, Chief Judge, dissents.
[37] I respectfully dissent. A judge is required to rule on objections—full stop.
Parties are entitled to know the basis of a judge’s decision. What a judge relied
on in making his ruling is fundamental to the due-process rights of the parties
and essential for meaningful appellate review. As the majority acknowledges,
and as the United States Supreme Court, the Indiana Supreme Court, and this
Court have said numerous times, a probationer is entitled to a written statement
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 21 of 24 by the fact finder as to the evidence relied upon and the reasons for the
revocation. See, e.g., Dalton, 560 N.E.2d at 560. 2
[38] We have in the past excused the requirement of a written statement by allowing
an oral statement by the court to serve in lieu thereof. But to my knowledge
this Court has never relieved trial courts of ruling on objections or, if they fail to
do so, at least delineating the evidence they relied on in making their decisions.
Here, the trial court didn’t rule on most of the objections or identify all the
evidence it credited, so it is impossible to determine everything it relied on in
deciding the case. The trial court did say in its oral ruling that it considered the
manner of the delivery of the testimony, the demeanor of the witnesses, and
“the believability of the witnesses.” Tr. p. 100. However, this explanation does
not indicate whether the trial court considered inadmissible evidence. As such,
Terpstra’s fundamental due-process rights were violated, and we cannot
meaningfully review the trial court’s decision.
[39] The judicial-temperance presumption does not save the trial court’s actions.
First, Terpstra made specific objections to a variety of evidence. The
presumption applies when evidence is presented and there is no specific
objection. In those situations, an appellate court gives a trial court the benefit
of the doubt and presumes that it disregarded any inadmissible matter. If there
2 I disagree with the majority that Terpstra waived his due-process argument by failing to raise it during the revocation hearing. Until the trial court issued its written order, Terpstra didn’t know definitively that his due-process rights had been violated. See In re S.B., 5 N.E.3d 1152, 1154 (Ind. 2014)
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 22 of 24 is an objection, then no presumption is necessary because the appellate court
knows by the ruling whether the trial court considered or did not consider the
objected-to evidence. Second, the presumption is one we apply as an appellate
court, not one that the trial court invokes to avoid making evidentiary rulings.
[40] The majority states: “Although we do not encourage trial courts to conduct
probation revocation proceedings in this manner, we conclude that to hold that
a trial court under these circumstances must always immediately rule on
evidentiary objections would be to unnecessarily limit the discretion of the trial
court and to ignore the increased flexibility of probation revocation
proceedings.” Slip op. ¶ 26. I fear this will be read to excuse trial-court judges
in bench trials from making explicit evidentiary rulings. And I do not mean to
suggest that a trial court cannot take an evidentiary issue under advisement and
must “immediately” rule on it, only that it must, at some point, announce its
ruling on the issue or, in the alternative, specifically identify the evidence it
relied upon in reaching its decision.
[41] I suppose this Court could go through each of the objections in this case,
resolve whether the evidence was admissible or not, and then determine
whether there was harmless error. To do so would be to ignore the duty of the
trial court to rule on objections and to tell the parties and the reviewing court
the evidence it relied upon.
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 23 of 24 [42] I would reverse and remand this case back to the trial court for specific rulings
on Terpstra’s evidentiary objections or a more detailed explanation of which
evidence the court did (or did not) rely on in making its decision.
Court of Appeals of Indiana | Opinion 19A-CR-671 | December 11, 2019 Page 24 of 24