LOUDEN v. STATE (2025)

MEMORANDUM DECISION

[1] Kevin L. Louden appeals his conviction for invasion of privacy as a class A misdemeanor and the revocation of his direct placement in community corrections under another cause number based upon his commission of that new crime. He asserts that insufficient evidence supports the conviction and that the trial court abused its discretion in revoking his placement and ordering him to serve the balance of his previously suspended sentence. We affirm.

Facts and Procedural History

[2] In August 2023, the State charged Louden with attempted burglary as a level 4 felony under cause number 03-D01-2308-F4-4564 (“Cause No. 4564”). Louden pled guilty as charged pursuant to a plea agreement which provided that he would receive an executed sentence of six years as a direct commitment to Barthlomew County Community Corrections. The agreement also required that Louden plead guilty to domestic battery as a level 5 felony under cause number 03D01-2308-F5-4458, and that he have no contact with his victim, E.H., for the duration of his sentence. The agreement provided that “[a]ny proven violations of the Defendant's direct commitment shall result in the remainder of the sentence being served in the Indiana Department of Correction[ ] [(“DOC”)].” Appellant's Appendix Volume II at 60. On February 7, 2024, the trial court sentenced Louden in accordance with the plea agreement.

[3] On April 19, 2024, police were dispatched to a home on Chestnut Street in Bartholomew County on the report of a violation of a no-contact order. Louden's sister called 911 to make the report after she “drove by” and saw Louden and E.H. “at [her] father's house” where Louden lived. Transcript Volume II at 20. Officer Christian Walker arrived at the scene and observed Louden and E.H. walking together near the house. They were “walking side by side” “[w]ithin arms reach” of each other and “seemed to be having casual conversation.” Id. at 11-13. Officer Walker asked them “what they were doing” and E.H. stated that “she was there to pick something up.” Id. at 13. Officer Walker separated Louden and E.H. and questioned each. Louden initially stated that E.H. had only been at the residence for “a couple of minutes,” but later admitted that “she had been there for five.” Id. at 14. Although Louden claimed that he “was trying to tell [E.H.] to leave,” Officer Walker “never heard ․ him state to her, wishing for her to leave” and at “no point did it appear he was trying to make her leave.” Id. at 15.

[4] On April 22, 2024, the State filed a petition to revoke Louden's direct placement in Cause No. 4564 alleging that he had committed a new offense of invasion of privacy. On April 23, 2024, the State charged Louden with invasion of privacy as a class A misdemeanor under cause number 03D01-2404-CM-2245 (“Cause No. 2245”) alleging that he violated a court order that prohibited him from having contact with E.H.

[5] The court held a bench trial in Cause No. 2245 on September 3, 2024, after which it found Louden guilty of invasion of privacy as a class A misdemeanor. On September 4, 2024, the court held a factfinding hearing on the petition to revoke in Cause No. 4564, during which the court took judicial notice of the evidence presented at the bench trial in Cause No. 2245 and concluded that Louden had violated the terms of his direct commitment by committing a new offense.

[6] The court held a sentencing and dispositional hearing on October 2, 2024. The evidence revealed that Louden has an extensive criminal history including prior convictions for two counts of domestic battery as class A misdemeanors and one count of domestic battery as a level 5 felony. E.H. was the victim in all three instances. The evidence further revealed that prior probationary terms had been unsuccessful, resulting in petitions to revoke due to Louden committing new offenses and failing to participate in substance abuse treatment. At the conclusion of the hearing, the court sentenced Louden to time served of 165 days for the invasion of privacy conviction in Cause No. 2245. Regarding Louden's direct commitment placement violation in Cause No. 4564, the court observed that the plea agreement in that case provided that Louden would serve the remainder of his sentence in the DOC upon a violation of any terms and conditions, and the court noted that it believed that such disposition was “appropriate” under the specific circumstances presented. Transcript Volume II at 51. Accordingly, the court ordered Louden to serve the balance of his sentence in the DOC.

Discussion

A. Invasion of Privacy Conviction

[7] We first address Louden's claim that the State presented insufficient evidence to support his conviction for invasion of privacy in Cause No. 2245. When reviewing the sufficiency of the evidence to support a conviction, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility or reweigh the evidence. Id. We consider conflicting evidence most favorably to the trial court's ruling. Id. We affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt. Id.

[8] To convict Louden of invasion of privacy as a class A misdemeanor, the State was required to prove beyond a reasonable doubt that he knowingly or intentionally violated an order issued under Ind. Code § 35-38-1-30.¹ See Ind. Code § 35-46-1-15.1(a)(12). Louden does not challenge the State's evidence that he was in direct contact with E.H. Rather, he appears to only challenge the evidence of his intent. He claims that “the record is devoid of any evidence that E.H. was invited or induced” to visit his property and that “there is no evidence that [he] engaged in any voluntary overt act to cause himself to be in E.H.’s physical presence” because “[a]ll [he] did was passively remain at his own residence after E.H.’s arrival.” Appellant's Brief at 11.

[9] Louden's assertions miss the mark. “A person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.” Ind Code § 35-41-2-2(a). “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b). It is well settled that a defendant's intent can be determined from circumstantial evidence. Moone v. State, 250 N.E.3d 1101, 1106 (Ind. Ct. App. 2025). The Indiana Supreme Court has explained,

“[K]nowledge and intent are both mental states and, absent an admission by the defendant, the trier of fact must resort to the reasonable inferences from both the direct and circumstantial evidence.” Stokes v. State, 922 N.E.2d 758, 764 (Ind. Ct. App. 2010), trans. denied. So given this real-world constraint, a defendant's mens rea may be proven by “circumstantial evidence,”—that is, it may be reasonably “inferred from a defendant's conduct and the natural and usual sequence to which such conduct logically and reasonably points.” Id.

A.W. v. State, 229 N.E.3d 1060, 1064-1065 (Ind. 2024) (alteration omitted).

[10] The record reveals that police received a report that Louden and E.H. were together outside of the residence where Louden was living. When police arrived approximately ten minutes later, Louden and E.H. were observed walking together side-by-side and engaged in casual conversation. There was no indication that Louden was trying to separate himself from E.H. or that he was asking her to leave. Although Louden initially lied to police in stating that E.H. had only been at the home for “a couple of minutes,” he later admitted that she had been there longer. Transcript Volume II at 14. From this evidence, and the natural and usual sequence to which Louden's conduct logically and reasonably points, the trier of fact could reasonably infer that Louden knowingly or intentionally violated the no-contact order.

[11] To the extent Louden blames E.H. for causing him to violate the no-contact order, we note that this Court has held, “[W]e do not consider whether the victim knowingly ignored the protective order but, rather, whether the defendant knowingly violated the protective order” as the “protective order is between [the defendant] and the State, not [the defendant] and [the victim].” Dixon v. State, 869 N.E.2d 516, 520 (Ind. Ct. App. 2007). We cannot say that the State failed to present sufficient evidence to support Louden's conviction for invasion of privacy.

B. Revocation of Direct Placement and Sanction

[12] Louden next asserts that the State presented insufficient evidence to support the revocation of his direct placement in community corrections. “Placement under either probation or a community corrections program is ‘a matter of grace and a conditional liberty that is a favor, not a right.’ ” State v. Vanderkolk, 32 N.E.3d 775, 777 (Ind. 2015) (quoting Cox v. State, 706 N.E.2d 547, 549 (Ind. 1999)). We review probation violation determinations and sanctions for an abuse of discretion. Heaton v. State, 984 N.E.2d 614, 616 (Ind. 2013). “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. (citations omitted). As with other sufficiency issues, we neither reweigh the evidence nor judge the credibility of witnesses. Jenkins v. State, 956 N.E.2d 146, 148 (Ind. Ct. App. 2011), trans. denied.

[13] A probation or community corrections placement revocation proceeding is a two-step process. Heaton, 984 N.E.2d at 616. First, the trial court must determine whether the preponderance of the evidence showed that a violation occurred. Id. Second, the trial court must determine whether the probation violation warrants revocation of probation or some lesser sanction. Id. A single violation of a condition of probation is sufficient to support a revocation. Pierce v. State, 44 N.E.3d 752, 755 (Ind. Ct. App. 2015).

[14] Here, the State alleged that Louden violated the terms of his direct placement by committing a new offense. Louden was indeed convicted of that new offense and, as we concluded above, Louden has not established that reversal of that conviction is warranted. This Court has stated that “a criminal conviction is prima facie evidence of a violation and will alone support a revocation of probation.” Gleason v. State, 634 N.E.2d 67, 68 (Ind. Ct. App. 1994).

[15] Regarding his challenge to the sanction imposed by the trial court, we observe that Ind. Code § 35-38-2-3(h) provides:

If the court finds that the person has violated a condition at any time before termination of the period, and the petition to revoke is filed within the probationary period, the court may impose one (1) or more of the following sanctions:

(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.

[16] As long as the proper procedures have been followed in conducting a probation revocation hearing, the trial court may order execution of a suspended sentence upon a finding of a violation by a preponderance of the evidence. Goonen v. State, 705 N.E.2d 209, 212 (Ind. Ct. App. 1999).

[17] The record reveals that Louden has an extensive criminal history, including multiple counts of domestic battery involving the same victim. He has admitted to violating the terms of probation on prior occasions resulting in revocation, and he was on probation at the time he committed the underlying offense of attempted burglary in Cause No. 4564. Moreover, he was in community corrections for only two months before he committed the new offense of invasion of privacy. Under the circumstances, we cannot say the trial court abused its discretion in ordering Louden to serve the remainder of his previously suspended sentence in the DOC.²

[18] For the foregoing reasons, we affirm the judgment of the trial court.

[19] Affirmed.

[20] I respectfully dissent from the majority's opinion. Although I agree that Louden technically violated the no-contact order and the terms of his community corrections placement, the trial court's imposition of Louden's entire six-year suspended sentence was excessive.

[21] The State alleged that Louden violated the no-contact order between him and E.H. on April 19, 2024, when E.H. voluntarily showed up at Louden's residence. It should be noted that Louden and E.H. share several children together.

[22] Louden testified that he initially “told [E.H.] to leave and ․ was headed inside when [s]he showed up.” Tr Vol. II p. 25. Officer Walker testified that he never observed Louden indicate that he wanted E.H. to leave, but there is no way the officer could have known if Louden did or did not ask E.H. to leave before the officer arrived.

[23] The trial court found Louden guilty of invasion of privacy and, thus, that he violated the terms of his community corrections placement. At the dispositional hearing on the violation, the trial court noted the plea agreement's provision that:

The Defendant shall receive an executed sentence of Six (6) years. The executed sentence shall be served as a direct commitment to Community Corrections and the Defendant must start his sentence at Work Release. Any proven violations of the Defendant's direct commitment shall result in the remainder of the sentence being served in the Indiana Department of Correction[.]

Appellant's App. Vol. II p. 60.

[24] The trial court stated:

That was a very specific term in the plea. Any proven violations of the defendant[’]s, Direct Commitment shall, doesn't say may, it says shall result in the remainder of the sentence being served in the Indiana Department of Correction[ ]. So the Court's interpretation of the Laws, that is outside the Court[’s] discretion. So, and I would also would [sic] agree that it was within the Court's discretion and it is the appropriate thing to do, based on that.

Tr. Vol. II p. 50-51. The trial court revoked Louden's community corrections placement and ordered him to serve his entire suspended sentence in the Department of Correction.

[25] The evidence is minimally sufficient to show that Louden violated the no-contact order, and, thus, violated the conditions of his community corrections placement. But Louden is hardly so culpable as to warrant the revocation of his community corrections placement and the imposition of his entire six-year suspended sentence. E.H., the mother of Louden's children, showed up unprompted at Louden's residence, and, according to him, he asked her to leave. At most, the two engaged in casual conversation for several minutes. Louden should have simply asked E.H. to leave and returned inside the house. But an ordinary defendant would not necessarily believe that he violates a no-contact order when the protected person initiates the contact at the defendant's own residence and the two engage in a few minutes of peaceful conversation.

[26] Indeed, the no-contact order itself advised Louden that he was to have “no contact” with E.H.:

in person, by telephone or letter, through an intermediary, or in any other way, directly or indirectly, except through an attorney of record, while on probation. This includes, but is not limited to, acts of harassment, stalking, intimidation, threats, and physical force of any kind.

Order, Case No. 03D01-2308-F5-4459 (emphasis added). Louden did not initiate the contact with E.H. nor engage in any of the types of offensive contact listed as examples in the no-contact order. Thus, although Louden technically violated the terms of his community corrections placement by violating the no-contact order, the imposition of his six-year sentence is overly harsh.

[27] It is unclear whether the trial court determined that it had discretion to revoke Louden's community corrections placement or whether it felt bound by the plea agreement. In Woods v. State, 892 N.E.2d 637, 641 (Ind. 2008), our Supreme Court stated that “the very notion that violation of a probationary term will result in revocation no matter the reason is constitutionally suspect.” The Court held that, even when a defendant is on “strict compliance” regarding his probationary terms, “due process requires” that the defendant “be given the opportunity to explain” why his violation does not warrant revocation. Id. There would be no point to this due process right if the trial court's discretion regarding the appropriate sanction could be divested, let alone by a plea agreement entered before the violation even occurred.

[28] Indeed, in Sullivan v. State, 56 N.E.3d 1157, 1162-63 (Ind. Ct. App. 2016), a member of this panel agreed to reverse an order revoking the defendant's community corrections placement upon the defendant's violation notwithstanding the fact that the plea agreement “essentially provided that any non-fee violation would automatically result in the revocation of his community corrections placement[.]” Citing Woods, the Sullivan Court held that, although the defendant technically violated his community corrections placement by failing to report, this failure was due to circumstances beyond his control.

[29] Woods and Sullivan indicate that automatic revocation of a probationary or community corrections placement is constitutionally suspect. In the same vein, Article 1, Section 16 of the Indiana Constitution provides in relevant part that “[a]ll penalties shall be proportioned to the nature of the offense.”

[30] Thus, despite the language of the plea agreement, the trial court retained discretion to fashion an appropriate and proportional sanction here. But, based on Louden's violation, the sanction imposed was an abuse of that discretion. The majority notes Louden's extensive criminal history, but a criminal history cannot justify an unduly harsh sanction when the violation itself does not warrant a sanction in the first place.

[31] For the foregoing reasons, I would reverse and remand. Revocation of Louden's community corrections placement was not warranted.

FOOTNOTES

1.   That section provides that “[a] sentencing court may require that, as a condition of a person's executed sentence, the person shall refrain from any direct or indirect contact with an individual.” Ind. Code § 35-38-1-30.

2.   Louden argues that “[t]he trial court erred in its belief that it had no discretion but to impose the sanction prescribed in [his] original plea agreement for any future violation of direct commitment.” Appellant's Brief at 15. He asserts that a plea agreement removing the trial court's discretion in imposing a sanction for a probation violation is “constitutionally suspect.” See id. (citing Woods v. State, 892 N.E.2d 637, 641 (Ind. 2008) (observing that the “notion that violation of a probationary term will result in revocation no matter the reason is constitutionally suspect”)). However, our review of the record does not reveal that the trial court believed it was without discretion or that its decision was not tailored to and based upon the specific facts before the court. Rather, the court simply acknowledged the plea agreement and then noted that the sanction prescribed was “appropriate” under the circumstances. Transcript Volume II at 51. We find no error.

Brown, Judge.

Altice, C.J., concurs. Tavitas, J., dissents with separate opinion.