Opinion
24A-CR-1209
12-17-2024
William Dummich, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT R. PATRICK MAGRATH ALCORN SAGE SCHWARTZ & MAGRATH, LLP MADISON, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL INDIANAPOLIS, INDIANA ROBERT M. YOKE DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Decatur Circuit Court The Honorable Timothy B. Day, Judge Trial Court Cause No. 16C01-1512-F1-805
ATTORNEY FOR APPELLANT R. PATRICK MAGRATH ALCORN SAGE SCHWARTZ & MAGRATH, LLP MADISON, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA INDIANA ATTORNEY GENERAL INDIANAPOLIS, INDIANA ROBERT M. YOKE DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
May, Judge.
[¶1] William Dummich appeals following the revocation of his probation. He argues the trial court abused its discretion by finding that he violated his probation and by ordering that he serve 900 days of his suspended sentence in the Indiana Department of Correction ("IDOC"). Finding no reversible error, we affirm.
Facts and Procedural History
[¶2] On December 17, 2015, the State charged Dummich in cause number 16C01-1512-F1-805 ("Cause F1-805") with Level 1 felony child molesting and Level 4 felony child molesting. Dummich agreed to plead guilty to Level 4 felony child molesting in exchange for dismissal of the Level 1 felony charge and a sentence of 4,200 days, with 2,400 days executed and 1,800 days on supervised probation with "Sex Offender Management conditions." (App. Vol. 2 at 78.) The trial court accepted the plea agreement and sentenced Dummich accordingly on June 19, 2019.
[¶3] The record before us does not reveal when Dummich first was released from custody to begin probation. However, on June 17, 2022, the State filed a petition to revoke probation that alleged Dummich had committed Class B misdemeanor voyeurism in June 2022 by watching one of his roommates shower. On November 15, 2022, Dummich admitted he violated his probation in Cause F1-805 and, by agreement with the State, was ordered to serve 360 days of his previously suspended sentence and then return to supervised probation. Dummich returned to probation on May 25, 2023.
[¶4] On December 20, 2023, Probation Officer Eric Adkins visited Dummich's residence to conduct a compliance check. Officer Adkins noticed that Dummich's phone was open with a paused video on the screen. Officer Adkins picked up the phone and started the YouTube video, which depicted a naked woman receiving a massage while lying face-down on a table. Officer Adkins then looked in the YouTube application's history and saw Dummich had been watching other "material that was sexual in nature." (Tr. Vol. 2 at 7.) Officer Adkins took pictures of the playlist history to memorialize what Dummich had been watching because Officer Adkins believed the videos violated Dummich's conditions of probation. The playlist history included "a woman doing yoga in lingerie, a naked woman receiving a massage, a video of a woman with vaginismus being vaginally dilated, a partially clothed woman showing her buttocks, 'naked yoga,' 'nude videos on YouTube,' and a woman's vagina[.]" (Appellee's Br. at 7.)
[¶5] While Officer Adkins was at Dummich's residence, Decatur County Sheriff's Deputy Noah Moore arrived to speak with Dummich. Dummich admitted during that conversation that his YouTube account was not listed on his sex offender registration paperwork. On December 21, 2023, the State charged Dummich with Level 6 felony failure to register as a sex offender based on Dummich's omission of his YouTube account from his registration.
[¶6] On December 22, 2023, in Cause F1-805, the State filed a petition to revoke Dummich's probation that contained three allegations:
Failure to Comply with Indiana Special Probation Conditions for Adult Sex Offenders
William Dummich has failed to attend, actively participate in and successfully complete a court-approved sex offender treatment program. Mr. Dummich was released from the Indiana Department of Correction on May 25th, 2023 and has yet to start the program.
Failure to Comply with Indiana Special Probation Conditions for Adult Sex Offenders
On December 20th, 2023 this Probation Officer conducted a search of William Dummich's phone. It was discovered that Mr. Dummich had accessed, viewed, and used a phone application that depicted obscene matter. Numerous YouTube videos with
sexual content were found in Mr. Dummich's YouTube account history.
Receiving New Criminal Charges
On or about December 21st, 2021 in Decatur County, State of Indiana, William Dummich was charged with Failure to Register, a Level 6 felony. This case is filed under 16D01-2312-F6-001226.(App. Vol. 2 at 124) (formatting and emphasis in original).
[¶7] On April 22, 2024, the trial court held a probation revocation hearing. At the end of the hearing, the court determined Dummich "violated the terms of his probation by failing to comply with Indiana Special Probation Conditions for Adult Sex Offenders[,]" (App. Vol. 2 at 143), but did not find Dummich committed the new alleged criminal charge. (Tr. Vol. 2 at 24) ("I didn't hear a lot about the new criminal charge, as far the elements and whether he had -there's probable cause for that. But I do think that he has violated his probation . . . [under the other two allegations]."). The court immediately held the sanction hearing and then ordered Dummich to serve 900 days of his suspended sentence, gave him credit for time served between December 22, 2023, and April 22, 2024, and terminated Dummich's probation "as unsuccessful." (Id.)
Discussion and Decision
[¶8] Dummich appeals the revocation of his probation and the order that he serve 900 days incarcerated. "Probation is a criminal sanction wherein a convicted defendant specifically agrees to accept conditions upon his behavior in lieu of imprisonment." Wilder v. State, 91 N.E.3d 1016, 1024 (Ind.Ct.App. 2018). "A defendant is not entitled to serve a sentence in either probation or a community corrections program. Rather, placement in either is a matter of grace and a conditional liberty that is a favor, not a right." Holmes v. State, 923 N.E.2d 479, 482 (Ind.Ct.App. 2010) (internal quotation marks and citation omitted). The trial court has discretion to set the conditions of probation and "to revoke probation if the conditions are violated." Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013).
[¶9] Revocation of probation is a two-step process. "First, the trial court must make a factual determination that a violation of a condition of probation actually occurred. Second, if a violation is found, then the trial court must determine the appropriate sanctions for the violation." Benitez v. State, 199 N.E.3d 811, 813 (Ind.Ct.App. 2022) (internal citation omitted). When a court has found a defendant violated the conditions of probation, the trial court may continue the probation, extend the term of probation, or "[o]rder execution of all or part of the sentence that was suspended at the time of initial sentencing." Ind. Code § 35-38-2-3(h).
[¶10] When a probationer appeals the trial court's decision regarding violation, sanction, or both, we review the decision for an abuse of discretion. Heaton, 984 N.E.2d at 616. "An abuse of discretion occurs where the decision is clearly against the logic and effect of the facts and circumstances, or when the trial court misinterprets the law[.]" Id. (internal citations omitted). When reviewing the sufficiency of the evidence presented, we look to the evidence most favorable to the judgment, and we neither reweigh the evidence nor reassess the credibility of the witnesses. Votra v. State, 121 N.E.3d 1108, 1113 (Ind.Ct.App. 2019).
1. Finding Violation
[¶11] The trial court found Dummich violated both Condition 10 and Condition 12 of the Indiana Special Probation Conditions for Adult Sex Offenders. We address each individually.
1.1. Condition 10
[¶12] Special Condition 10 provided:
10. You shall attend, actively participate in and successfully complete a court-approved sex offender treatment program as directed by the court. Prompt payment of any fees is your responsibility and you must maintain steady progress towards all treatment goals as determined by your treatment provider. Unsuccessful termination from treatment or non-compliance with other required behavioral management requirements will be considered a violation of your probation. You will not be permitted to change treatment providers unless the court gives you prior written approval.(App. Vol. 2 at 80.)
[¶13] During the hearing, Dummich testified that in 2022, before his first probation revocation for committing voyeurism, he completed eight sessions of a sex offender treatment program and had only four sessions remaining. He testified he could not participate in the treatment program for many months after being released to probation in May 2023 because he was homeless. Dummich testified that, after he obtained housing, he called the program to re-enroll and finish, but he was informed that he could not continue the program until he paid his $180 outstanding balance.
[¶14] At the probation revocation hearing, the trial court explained its finding:
As far as paragraph ten, it says, "He shall actively participate in and complete a court approved sex offender treatment program." In 27 [weeks], if all he's done is make a phone call . . . in 27 weeks, if there was an issue, I would have expected him to contact his probation officer and say so. That the condition clearly states that you're to maintain steady progress. Unsuccessful termination from treatment or noncompliance will be considered a violation of probation. Clearly -- and it also says prompt payment of any fees is your responsibility. And clearly, what I've heard is that he was discontinued from the program due to nonpayment of fees. And again, that is the violation....I do think that he has violated his probation by not actively working toward his sex offender treatment program.(Tr. Vol. 2 at 24-25) (paragraphs combined).
[¶15] On appeal, Dummich argues he had "made efforts to resume the sex offender treatment program prior to the filing of the probation violation and had more than enough time left on his probationary period to complete the course work." (Appellant's Br. at 13.) While there may still have been time for Dummich to complete the course work before his probationary period ended, that fact does not invalidate the trial court's finding that Dummich had not been "actively participating" in the program as required by Condition 10. (See App. Vol. 2 at 80) ("You shall attend, actively participate in and successfully complete a court-approved sex offender treatment program[.]"). Nor does it invalidate the court's finding that Dummich had not promptly paid his fees for the course, as required by Condition 10. (See id.) ("Prompt payment of any fees is your responsibility[.]"). One phone call to the treatment program in the twentyseven weeks that Dummich had been back on probation since his release in May 2023 simply does not demonstrate that Dummich was actively participating, or even attempting to actively participate, in his treatment, and we thus affirm the trial court's finding that Dummich violated Condition 10 of the special terms of his probation.
1.2. Condition 12
[¶16] Condition 12 of the of the Indiana Special Probation Conditions for Adult Sex Offenders provided:
12. You shall not possess obscene matter as defined by IC 35-492-1 or child pornography as defined in 18 U.S.C. § 2256(8), including but not limited to: videos, magazines, books, DVD's, and material downloaded from the Internet. You shall not visit strip clubs, adult bookstores, motels specifically operated for sexual encounters, peep shows, bars where partially nude or exotic dancers perform, or businesses that sell sexual devices or aids.(App. Vol. 2 at 80-81.)
[¶17] The trial court determined Dummich violated Condition 12 by "possessing obscene material." (Tr. Vol. 2 at 24.) Dummich argues the State did not prove the videos that he viewed on YouTube were "obscene" as defined in Indiana Code section 35-49-2-1. In light of the limited evidence presented by the State, we agree with Dummich.
[¶18] Condition 12 required the possessed material be obscene pursuant to a statute that defines material or a performance as obscene if:
(1) the average person, applying contemporary community standards, finds that the dominant theme of the matter or performance, taken as a whole, appeals to the prurient interest in sex;
(2) the matter or performance depicts or describes, in a patently offensive way, sexual conduct; and
(3) the matter or performance, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Ind. Code § 35-49-2-1. "[N]udity by itself does not appeal to the 'prurient interest in sex' or depict sexual conduct in a patently offensive way." Smith v. State, 413 N.E.2d 652, 653 (Ind.Ct.App. 1980). Accordingly, "nudity alone is not enough to make material legally obscene." Id. (quoting Jenkins v. Georgia, 418 U.S. 153, 161 (1974)).
[¶19] When Officer Adkins arrived at Dummich's house, Dummich was watching a video of an unclothed female on her stomach receiving a massage from a man. Officer Adkins testified that neither the woman's breasts nor pubic area was exposed, that he presumed the woman was nude because he could see her bare back, and that he "didn't watch the video." (Tr. Vol. 2 at 12.) Screenshots of the videos in Dummich's history indicated they depicted "a woman doing yoga in lingerie, a naked woman receiving a massage, a video of a woman with vaginismus being vaginally dilated, a partially clothed woman showing her buttocks, 'naked yoga,' 'nude videos on YouTube,' and a woman's vagina." (Appellee's Br. at 7.) Officer Adkins described the videos generally as "sexual in nature." (Tr. Vol. 2 at 7.) However, again, Officer Adkins did not watch the videos. He only took screenshots of the list of videos that Dummich had recently watched.
[¶20] While the thumbnail images and video titles certainly suggest some of the videos could contain material that "appeals to the prurient interest in sex[,]" Ind. Code § 35-49-2-1(1), that is only one of the three elements that the State needed to demonstrate for the trial court to determine the videos were "obscene" as defined in Indiana Code 35-49-2-1. The State also needed to demonstrate at least one video "depicts or describes, in a patently offensive way, sexual conduct[,]" Ind. Code § 35-49-2-1(2), and "lacks serious literary, artistic, political, or scientific value." Ind. Code § 35-49-2-1(3). To constitute patently offensive depictions or descriptions of sexual conduct, the videos would have to contain "Sexual conduct," which is defined for purposes of Article 35-49 as:
The photographs of Dummich's YouTube history reveal fifteen video titles and thumbnail images that might contain questionable content. The first is entitled "Yoga with Fuhrgi" and the image displays a woman pulling on a sheer stocking; her breasts are covered by a bra or sleeveless top, and the positioning of her legs is such that it is unclear whether her pubic area is covered. (Ex. Vol. 1 at 4.) The second is titled in a foreign language that does not use the Latin alphabet. The image presents a clothed man touching the ankles of a woman lying on her stomach while wearing what appears to be a full bathing suit. The third is entitled "ELEVATED Vaginal Dilator Video" and purports to be about "#vaginismus[.]" (Id. at 5.) The image displays a woman on a doctor's pelvic-exam table with her legs in stirrups, her upper body clothed, and a sheet over her lower body. A second woman, fully clothed and wearing latex exam gloves, is at the foot of the table between the woman's legs and is holding a dildo. The fourth is titled "Home Yoga Art" and the image displays a woman laying on her side, facing away from the camera, on a yoga mat on the floor of a large master bathroom. (Id. at 6.) She is wearing a long, lightweight, long-sleeve shirt that she has pulled up in the back to expose her naked buttocks to the camera. The quality leaves unclear whether she is wearing a thong or is naked below the waist. The fifth is entitled "Naked Yoga" and the image presents a woman's face and shoulders with one hand in her hair, bikini straps over her shoulders, and the words "NAKED YOGA" over half of the image. (Id. at 7.) The sixth is titled “NUDE VIDEOS ON YOUTUBE” and the image displays a woman's head, shoulders, upper arms, and upper cleavage. (Id. at 9.) The woman appears to be naked, although most of her breasts are not visible in the image, and she is looking at the camera with her head tipped to the side and her index finger at the edge of her mouth. The seventh is titled in a foreign language that does not use the Latin alphabet. The image presents a person of unknown gender who appears to be naked and is lying face down on a massage table with a sheet covering their legs. A man in a short-sleeve white shirt or lab coat standing behind the table facing the camera. The eighth is entitled “HAVE A NICE EVENING 6 DAYS TO GO FOR CHR…” and is a nearly twelve-hour video by “Kevin & Mommy Vlo…” (Id. at 10.) The image is of a woman in lingerie lying on her side. The ninth is titled “Solo bushcraft survival and camping in th…” (Id.) The image presents a makeshift shelter in a wooded area, with one person standing behind what appears to be a large palm frond that covers all but the person's head, arm and leg from the camera, and with a second person sitting naked in the foreground with her back to the camera so that her hip and the side of her breast are visible to the camera. The tenth is titled “shocking big bank challenge” and presents an image of a woman who appears clothed and is standing in a kitchen. (Id.) The eleventh - entitled “big bank challenge” - presents an image of a woman with her back to the camera who appears to be on a treadmill. (Id.) The image is dark and difficult to discern, but the woman appears clothed. The twelfth is titled “Yoga and Workout - Sculpt Your B…[.]” (Id. at 11.) The image is of a woman in yoga pants and sleeveless top holding herself in a pose that is labelled “Grasshopper Pose”. (Id.) The thirteenth is entitled “Surprising Benefits of Shoulder Stre…[.]” (Id.) The image shows a woman wearing only a tight spaghetti strap tank top who is seated on the floor with her knees up and legs open to display her unclothed vagina to the camera. The fourteenth is titled “Everyday Yoga Stretching: Your Path to …[.]” (Id.) The image is the side view of a woman on her elbows and knees on a yoga mat, with her back arched. She is wearing what appears to be a long-sleeve nude-colored dance leotard. The fifteenth is entitled “ASMR handbevegelser for avslapnin…” and the image is the face, shoulders and partial hand of a woman sitting on a bed. (Id.) It is impossible to tell from the image whether the woman is naked or clothed.
(1) sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5);
(2) exhibition of the uncovered genitals in the context of masturbation or other sexual activity;
(3) exhibition of the uncovered genitals of a person under sixteen (16) years of age;
(4) sado-masochistic abuse; or
(5) sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5) with an animal.
Ind. Code § 35-49-1-9. "Sexual intercourse" is "an act that includes any penetration of the female sex organ by the male sex organ." Ind. Code § 3531.5-2-302. "Other sexual conduct" is an act involving: "(1) a sex organ of one (1) person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object." Ind. Code § 35-31.5-2-221.5.
[¶21] None of the thumbnail images, video titles, or brief descriptions demonstrate "sexual conduct" occurs in any of the videos at issue. Officer Adkins did not watch any of the videos and, thus, did not testify that any particular video contained sexual conduct that would meet one of those definitions. Accordingly, the State did not provide evidence that could prove by a preponderance of the evidence that Dummich accessed material on the internet that was "obscene" as defined by Indiana Code section 35-49-2-1. See Bedtelyon v. State, 184 N.E.3d 1216, 1220 (Ind.Ct.App. 2022) (videos that "might have erotic themes, are erotic in tone, and describe erotic feelings" are not evidence of "sexual conduct" as defined by statute and thus could not demonstrate possession of obscene material in violation of probation condition).
The State also argues we should affirm the trial court's determination that the videos violated Condition 12 based on YouTube's content-restriction policies for its videos. (Appellee's Br. at 8.) We reject this suggestion because: (1) Condition 12 does not reference YouTube's content-restriction policies; and (2) the State did not demonstrate that every content-restricted video on YouTube would fit Indiana's statutory definition of obscene material. Similarly, the State argues we can affirm the finding of a violation of Condition 12 because the trial court "determined that the State proved that Dummich . . . viewed sexually explicit material on his phone." (Appellee's Br. at 13.) The first clause of Condition 12 required the possessed material be "obscene" under the statutory definition, (App. Vol. 2 at 80-81), not that material be "sexually explicit." We note that in McVey v. State, 863 N.E.2d 434, 448 (Ind.Ct.App. 2007), reh'g denied, trans. denied, a panel of this Court found the terms "pornography" and "sexually explicit material" - as used in prior special probation conditions - to be too vague; the term "obscene matter" was suggested as a better term to use. Id. (citing Smith v. State, 779 N.E.2d 111, 117 (Ind.Ct.App. 2002), trans. denied). While the trial court thought a person on sex-offender probation "would know better" than to watch videos on YouTube that contain nudity, (Tr. Vol. 2 at 23), Condition 12's prohibition of obscene material did not tell Dummich that he could not watch videos that contained nudity. Accordingly, we cannot affirm the trial court's finding on this basis. See Smith v. State, 779 N.E.2d 111, 118 (Ind.Ct.App. 2002) ("A probationer has a due process right to conditions of supervised release that are sufficiently clear to inform him of what conduct will result in his being returned to prison."), trans. denied.
[¶22] To be clear - our opinion should not be read to hold that the videos at issue are not, in fact, obscene, as they may well be. Our decision is only that neither we nor the trial court could determine whether any individual video meets the statutory definition of obscene performance from the thumbnail images and video's titles submitted into evidence. See, e.g., Bennett v. State, 119 N.E.3d 1057, 1059 (Ind. 2019) (trial court's determination that Bennett possessed obscene materials in violation of community corrections condition could not be affirmed when, at sanction hearing, trial court noted second prong of obscenity statute - that performance depicted sexual conduct in a patently offensive way -was not met by images of naked women or videos of a man and woman engaging in sexual intercourse). Had a video containing patently offensive sexual conduct been admitted into evidence or had Officer Adkins watched a video in Dummich's history to testify that about the material it contained such that the trial court could have determined the video contained a patently offensive depiction or description of sexual conduct, we would be in a very different place.
Those of us who have used YouTube know that 'clickbait' is a real phenomenon - the thumbnail image and video title do not always accurately represent the content of the linked video.
1.3 Summary
[¶23] While the State presented insufficient evidence to demonstrate Dummich violated Condition 12 of his sex offender probation, the evidence did demonstrate that he violated Condition 10 by failing to actively participate in and pay for his sex offender treatment program. Dummich had been released to probation for twenty-seven weeks, but he had only made one phone call to re-engage with treatment. The trial court did not abuse its discretion when it determined Dummich violated his probation. See, e.g., Brown v. State, 162 N.E.3d 1179, 1183 (Ind.Ct.App. 2021) (holding trial court did not abuse its decision when it revoked probation, even though evidence did not support three of four alleged violations).
2. Ordering Sanction
[¶24] The trial court terminated Dummich's probation as unsuccessful and ordered him to serve executed 900 days of his previously suspended sentence. Dummich claims this was an abuse of discretion. "While it is correct that probation may be revoked on evidence of violation of a single condition, the selection of an appropriate sanction will depend on the severity of the defendant's probation violation[.]" Heaton, 984 N.E.2d at 618.
[¶25] This was Dummich's second violation of his probation in F1-805. His first violation occurred when he committed voyeurism by watching his roommate in the shower, and he agreed to spend 365 days incarcerated for that violation. When he was released in May 2023, Dummich violated his probation by failing for twenty-seven weeks to re-enroll in the required sex offender treatment program that was intended to rehabilitate him. We cannot say the trial court's termination of Dummich's probation as unsuccessful and its order that Dummich spend 900 days incarcerated are an abuse of discretion.
Conclusion
[¶26] The trial court erred when it found evidence of obscene material on Dummich's phone based solely on screenshots from Dummich's phone showing video titles and thumbnail images, as such evidence is incapable of demonstrating whether or not a video meets the required statutory definition of obscene material. The court nevertheless did not abuse its discretion when it found Dummich violated his probation or when it ordered Dummich to spend 900 days incarcerated, because Dummich's behavior demonstrated he had no intention of rehabilitating himself by participating in the required sex offender treatment program. Accordingly, we affirm.
[¶27] Affirmed.
Tavitas, J., and DeBoer, J., concur.