Majority justices reverse probation violation for judge’s inconsistent statements

A probation violation will be removed from a convicted sex offender’s record after a divided Indiana Supreme Court determined a trial judge’s inconsistent statements meant there was insufficient evidence to support a finding of a probation violation.

In Nathaniel Bennett v. State of Indiana, 18S-CR-538, Nathaniel Bennett was sentenced to seven years on community corrections in 2016 after pleading guilty to Level 4 felony sexual misconduct with a minor. Three years of Bennett’s sentence was suspended to sex offender probation, and as part of his community corrections placement he was prohibited from possessing “obscene matter,” as defined in Indiana Code section 35-49-2-1.

During a compliance check on Bennett’s home in 2017, community corrections officers found photos of a naked woman and sexual videos on his cellphone. The Marion Superior Court determined Bennett had violated his community corrections placement, so he was ordered to serve four years in the Department of Correction. Prior to revoking his community corrections placement, Judge Lisa Borges noted the individuals in the video appeared to be consenting adults, so the entirety of the definition of “obscene material” was not necessarily met.

Bennett seized on that statement on appeal, arguing it meant there was insufficient evidence to support revocation of his probation. The Indiana Court of Appeals affirmed last August, but after hearing oral arguments in November, a majority of the Indiana Supreme Court reversed Tuesday.

Writing for a majority that included Chief Justice Loretta Rush and Justice Christopher Goff, Justice Steven David noted that Paragraph 2 of I.C. 35-49-2-1 — which the trial judge said was not met in this case — defined “obscene material” as including a “matter or performance (that) depicts or describes, in a patently offense way, sexual conduct… .”

“Here, the trial court made conflicting statements about whether this definition was met,” David wrote. “… Even though the court ultimately found Bennett in violation and the statement about the definition not necessarily being met might have been an imprecise one, in light of our case law, this requires reversal.”

The majority relied on Kribs v. State, 917 N.E.2d 1249 (Ind. Ct. App. 2009), in which a firearms-related conviction was overturned because the trial court “made a statement that negated the mens rea element necessary to prove the crime.” In that case, the Court of Appeals said it would not have reversed had the trial court remained silent.

“Had the trial court not made the statement at sentencing that it did not believe part of the obscene matter definition was necessarily met, we would be in a different position,” David wrote Tuesday, likening Bennett’s case to Kribs. “But under the circumstances, we cannot say the evidence is sufficient to revoke Bennett’s probation for possession of obscene matter.

“Unfortunately,” he continued, “here we have a well-respected trial court judge who inadvertently negated part of the definition necessary to find a violation.”

The trial court’s ruling was thus reversed and remanded to change the record. In a footnote, David said Bennett has been released from the DOC, but the record should still be corrected so that a probation violation does not have a future impact on him.

Justices Mark Massa and Geoffrey Slaughter dissented without a separate opinion, believing transfer should not have been granted.

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