Opinion
21A-CR-2067
08-23-2022
Zachary Weaver, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff
Attorney for Appellant Grace Atwater Kammen & Moudy Indianapolis, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
Appeal from the Kosciusko Superior Court The Honorable Karin A. McGrath, Judge Trial Court Cause No. 43D01-1904-F3-296
Attorney for Appellant
Grace Atwater
Kammen & Moudy
Indianapolis, Indiana
Attorneys for Appellee
Theodore E. Rokita
Attorney General of Indiana
Sierra A. Murray
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
May, Judge.
[¶1] Zachary Weaver appeals following the revocation of his probation. Weaver raises one issue for our review, which is whether the trial court abused its discretion when it revoked his probation and ordered him to serve the remainder of his twelve-year sentence incarcerated. We affirm.
Facts and Procedural History
[¶2] Weaver was born in 2002. From the summer of 2016 until March 2019 Weaver repeatedly forced A.A., who was born in 2008, to submit to sexual intercourse and oral sex. He also threatened to kill A.A. if she reported the crime. In April 2019, A.A. reported Weaver's sexual abuse to the Department of Child Services.
[¶3] On April 11, 2019, the State charged Weaver as an adult with Level 3 felony rape and Level 3 felony child molesting. On May 7, 2020, Weaver admitted the facts of the crimes as set forth in the probable cause affidavit. Weaver entered a plea agreement and pled guilty to one count of the lesser-included offense of Level 4 felony child molesting. The trial court sentenced Weaver to ten years incarcerated, with two years of that sentence suspended to probation. The trial court further specified that Weaver's probation was to be served "front loaded," which required Weaver to serve his probation prior to his incarceration by completing a program offered by the Lifeline Youth Services Spencer Home Phase 2, a residential treatment facility for juvenile sex offenders. (Appellant's App. Vol. II at 7.)
Ind. Code § 35-42-4-1(a).
[¶4] As a condition of his probation, Weaver had to adhere to specific sex-offender conditions, including:
7. You shall consent to the search of your personal computer at any time and to the installation on your personal computer or device with Internet capability, at your expense, of one (1) or more hardware or software systems to monitor Internet usage.
8. You are prohibited from accessing or using certain web sites, chat rooms, or instant messaging programs frequented by children. You are prohibited from deleting, erasing, or tampering with information on your personal computer with intent to conceal an activity prohibited by this condition.
9. You shall not use a social networking web site or an instant messaging or chat room program to communicate, directly or through an intermediary, with a child less than sixteen (16) years of age.
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11. You shall attend, actively participate in and successfully complete a court-approved sex offender treatment program as directed by the court ..... Unsuccessful termination from treatment or non-compliance with other required behavioral management requirements will be considered a violation of your probation.
13. You shall not possess obscene matter as defined by IC 35-49-2-1 or child pornography as defined in 18 U.S.C. § 2256(8), including but not limited to: videos, magazines, books, DVDs, and material downloaded from the Internet.
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22. You shall have no contact with any person under the age of 16 unless you receive court approval or successfully complete a court-approved sex offender treatment program, pursuant to IC 35-38-2-2.4. Contact includes face-to-face, telephonic, written, electronic, or any indirect contact via third parties.
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27. You shall sign a waiver of confidentiality, release of information, or any other document required that permits your probation officer and other behavioral management or treatment providers to examine all records relating to you to collaboratively share and discuss your behavioral management conditions, treatment progress, and probation needs as a team.
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30. You are prohibited from accessing, viewing, or using internet websites and computer applications that depict obscene matter as defined by IC 35-49-2-1 or child pornography as defined by 18 U.S.C. § 2256(8). You shall not possess or use any data encryption technique or program to conceal your internet activity.
(Appellee's App. Vol. II at 9-12.) Weaver was also required to follow the rules of the Spencer Home program.
[¶5] While at the Spencer Home, Weaver was not allowed to bring his personal computer but could use computers provided by the treatment facility. Weaver frequently used guest mode when accessing the internet, which allowed him to peruse websites without leaving traces of his internet behavior. He also deleted his browsing history on multiple occasions. The Spencer Home sanctioned Weaver for each violation. Spencer House also contacted Weaver's probation officer to report these instances of misuse of technology. Based thereon, the State filed a probation violation notice on June 11, 2021, and the trial court held a fact-finding hearing on July 21, 2021. The trial court concluded on August 10, 2021, that Weaver violated his probation. On August 24, 2021, the trial court held a dispositional hearing and revoked the suspended portion of Weaver's sentence.
Discussion and Decision
[¶6] "Probation is a criminal sanction wherein a convicted defendant specifically agrees to accept conditions upon his behavior in lieu of imprisonment." Carswell v. State, 721 N.E.2d 1255, 1258 (Ind.Ct.App. 1999). "Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled." Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007). The trial court is charged with setting the conditions of probation and may revoke probation if those conditions are violated. Id. "Probation revocation is a two-step process. First, the court must make a factual determination that a violation of a condition of probation actually occurred. If a violation is proven, then the trial court must determine if the violation warrants revocation of the probation." Woods v. State, 892 N.E.2d 637, 640 (Ind. 2008).
1. Probation Violation
[¶7] Weaver argues the State did not present sufficient evidence to prove Weaver violated his probation. "Probation hearings are civil in nature, and the State must prove an alleged probation violation by a preponderance of the evidence." Votra v. State, 121 N.E.3d 1108, 1113 (Ind.Ct.App. 2019). When reviewing sufficiency of evidence to support the finding of a probation violation, we look to the evidence most favorable to the judgment, and we neither reweigh the evidence nor reassess the credibility of the witnesses. Votra, 121 N.E.3d at 1113.
[¶8] In its order revoking Weaver's probation, the trial court found, in relevant part:
15. On September 8, 2020, when Spencer House staff checked the browser on the laptop computer after [Weaver's] use, no browsing history was found. [Weaver] told staff he did not delete history, but he was using "guest mode" on the computer so that he would not have to log out of his accounts. [Weaver] was sanctioned by Spencer House.
16. On September 10, 2020, Spencer House staff checked the browsing history on the laptop computer after [Weaver's] use and found no browsing history. [Weaver] said he did not delete history but that he was using "guest mode". [Weaver] was again sanctioned by Spencer House.
17. On June 4, 2021, [Weaver] used a Spencer House computer from 9:52 p.m. until 3:00 a.m. When Spencer House staff
checked the computer history, no history was found for the entire period of time it was being used by [Weaver].
18. On June 7, 2021, [Weaver] used a Spencer House computer from 10:32 p.m. to 1:59 a.m. Spencer House staff checked the computer's browsing history and no history was present from 11:23 p.m. to 1:59 a.m. [Weaver] was sanctioned by Spencer house.
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21. [Weaver] did not comply with Spencer House behavioral management requirements.
(Appellant's App. Vol. II at 19.) Based thereon, the trial court concluded, in relevant part:
6. Under Special Probation Conditions for Adult Sex Offenders Rule 30, it is not necessary to know the nature and content of the browsing history that was concealed to find [Weaver] in violation of the proscription against concealing browsing history.
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8. The State proved by a preponderance of the evidence that [Weaver] violated Special Probation Conditions for Adult Sex Offenders Rule 30 on several documented occasions.
9. Monitoring [Weaver's] internet browsing history was an important tool in his rehabilitation as a sex offender, and [Weaver's] repeated concealment of internet activity gives rise to the reasonable inference that [Weaver] was hiding prohibited activity that is contrary to his rehabilitation and that [Weaver]
was neither "invested in" nor had "bought into" his program of rehabilitation.
10. [Weaver] did not successfully complete the Spencer House program due to his willful and repeated concealment of his internet activity in violation of Indiana Special Probation Conditions for Adult Sex Offenders Rule 30.(Id. at 20.)
[¶9] Weaver argues the State did not prove that he was accessing inappropriate material by using data encryption technology, such as logging in as a guest, and deleting his computer history and thus the State did not prove he violated the terms of his probation. However, the State was not required to prove he was accessing inappropriate websites or material because concealing his internet activity was itself a violation of his terms of probation. (See Appellee's App. Vol. II at 8-12) (Indiana special probation conditions for adult sex offenders). Based thereon, we conclude the trial court did not abuse its discretion when it found Weaver violated the terms of his probation. See Peterson v. State, 909 N.E.2d 494, 499 (Ind.Ct.App. 2009) (evidence was sufficient defendant watched pornographic movies in violation of his sex offender treatment contract and, thus, violated a condition of his probation).
2. Sanction
[¶10] In addition, Weaver argues the trial abused its discretion when it ordered him to serve the remainder of his sentence incarcerated because "the punishment for said violation is exceedingly disproportionate." (Br. of Appellant at 7.) Once the trial court has found a violation of probation, it may do any of the following:
(1) Continue the person on probation, with or without modifying or enlarging the conditions.
(2) Extend the person's probationary period for not more than one (1) year beyond the original probationary period.
(3) Order execution of all or part of the sentence that was suspended at the time of initial sentencing.
Ind. Code § 35-38-2-3(h) (2015). We review the court's choice of sanction for an abuse of discretion, which occurs when "the decision is clearly against the logic and effect of the facts and circumstances." Prewitt, 878 N.E.2d at 188.
[¶11] Weaver, despite being informed of the requirements of his probation, repeatedly violated the provision against accessing the internet using an encryption device such as the "guest" function on an internet browser. These violations occurred over a period of several months, and they continued despite repeated sanctions from Spencer House staff for Weaver's misuse of technology. As the trial court noted, "[m]onitoring [Weaver's] internet browsing history was an important tool in rehabilitation as a sex offender" and Weaver's "repeated concealment of internet activity gives rise to the reasonable inference that [Weaver] was hiding prohibited activity[.]" (Appellant's App. Vol. II at 20.) Given that Weaver was not "invested in" his program of rehabilitation, (id.), we cannot say the trial court abused its discretion when it ordered Weaver to serve the remainder of his sentence incarcerated. See Sanders v. State, 825 N.E.2d 952, 957 (Ind.Ct.App. 2005) (given "ample basis for its decision," a trial court's order to serve a suspended sentence is not an abuse of discretion).
Conclusion
[¶12] The State presented sufficient evidence to prove Weaver violated his probation. Additionally, the trial court did not abuse its discretion when it ordered Weaver to serve the remainder of his sentence incarcerated because Weaver violated his probation multiple times. Accordingly, we affirm.
[¶13] Affirmed.
Riley, J., and Tavitas, J., concur.