Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018 Page 1 of 11

ATTORNEY FOR APPELLANT

Cara Schaefer Wieneke

Wieneke Law Office, LLC

Brooklyn, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Laura R. Anderson

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Dustin McCarty,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 20, 2018

Court of Appeals Case No.

84A04-1707-CR-1599

Appeal from the Vigo Superior 

Court

The Honorable John T. Roach, 

Judge

Trial Court Cause No.

84D01-1406-FD-1533

Mathias, Judge.

[1] Dustin McCarty was convicted in Vigo Superior Court of Class D felony 

battery by bodily waste and Class A misdemeanor resisting law enforcement. 

The trial court sentenced McCarty to two and one-half years with 290 days 

executed and the remainder suspended to probation. McCarty appeals and 

argues that the trial court erred by failing to provide him with written 
Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018 Page 2 of 11

conditions of probation at sentencing and by imposing conditions that are 

impermissibly vague and not reasonably related to his rehabilitation.

[2] We reverse and remand for proceedings consistent with this opinion.

Facts and Procedural History

[3] On June 3, 2014, Terre Haute Police Officer Philip Ralston (“Officer Ralston”) 

was responding to a call that a woman was urinating in public when he 

encountered McCarty. After checking his identification, the officer discovered 

that McCarty had an outstanding arrest warrant. McCarty was arrested and 

placed in handcuffs, and the officer began to transport him to the Vigo County 

Jail.

[4] During the drive to the jail, McCarty spit on Officer Ralston. The officer 

warned McCarty to stop or he would call for the mobile incarceration unit to 

transport McCarty to jail. After McCarty spit on the officer a second time, 

Officer Ralston pulled his vehicle over and two officers arrived to assist him. 

[5] McCarty began to struggle when the officers attempted to remove him from the 

vehicle. The officers eventually removed McCarty from the car and put him on 

the ground. McCarty continued to struggle and kick, but the officers were able 

to get McCarty under control before the mobile incarceration unit arrived.

[6] The State charged McCarty with Class D felony battery by bodily waste and 

Class A misdemeanor resisting law enforcement. A jury trial was held on May 

11, 2017, and McCarty was found guilty as charged. 
Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018 Page 3 of 11

[7] The trial court ordered McCarty to serve an aggregate two-and-one-half-year 

sentence. He was given credit for 290 days served, and the remainder of his 

sentence was suspended to probation. The trial court ordered the standard 

terms of probation and that McCarty “shall submit to a drug and alcohol 

evaluation and remain compliant with their recommendations.” Appellant’s 

App. pp. 103–4. 

[8] Four days after he was sentenced, McCarty met with a probation officer, and he 

signed a form acknowledging the conditions of his probation. The probationary 

terms at issue in this appeal are:

2. You will avoid persons and places of harmful character, or a 

person who is likely to influence you to commit a crime.

***

7. You will (not) consume alcohol in a lawful manner unless 

ordered to abstain by the Court or any alcohol rehabilitation 

program.

Id. at 107. The word “not” in the condition concerning alcohol use was 

handwritten on the form. McCarty now appeals.

Discussion and Decision

[9] First, McCarty argues that the trial court was required, but failed to, provide 

him with the specific terms of his probation at the sentencing hearing. Next,

McCarty claims that the probationary term restricting his alcohol use is not 

reasonably related to his rehabilitation. And, finally, he argues that the 
Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018 Page 4 of 11

probationary term concerning with whom and where he may associate with is 

unconstitutionally vague or overly broad. 

[10] “Probation is a criminal sanction wherein a convicted defendant specifically 

agrees to accept conditions upon his behavior in lieu of imprisonment.” Bratcher 

v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013), trans. denied. Trial courts 

have broad discretion in establishing conditions of probation to safeguard the 

general public and to create law-abiding citizens. Patton v. State, 990 N.E.2d 

511, 514 (Ind. Ct. App. 2013). “Conditions of probation should effectuate the 

supervision required to achieve probation goals and, therefore, must be 

functionally and rationally related to the probationer’s rehabilitative needs and 

to society’s interests.” Id. We will only set aside a trial court’s terms of 

probation when the court has abused its discretion. Id. An abuse of discretion 

occurs when the decision is clearly against the logic and effect of the facts and 

circumstances before it, or the reasonable, probable, and actual deductions to be 

drawn therefrom. Id. 

A. Written Conditions of Probation

[11] McCarty argues that the trial court erred when it failed to specify the terms of 

his probation at the sentencing hearing and did not provide him with a written 

copy of the conditions of his probation. Because McCarty did not receive the 

specific terms of his probation until he met with his probation officer four days 

after the sentencing hearing, he argues that “it appears that it was the probation 

officer, and not the court, that determined the specific terms of McCarty’s 

probation.” Appellant’s Br. at 9.
Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018 Page 5 of 11

[12] Indiana Code section 35-38-2-1 provides that “[w]henever it places a person on 

probation, the court shall . . . specify in the record the conditions of the 

probation[.]” And “[w]hen a person is placed on probation, the person shall be 

given a written statement specifying . . . the conditions of probation[.]”1I.C. § 

35-38-2-2.3(b). The intent behind Indiana Code section 35-38-2-2.3 is “to 

provide a defendant with prospective notice of the standard of conduct required 

of him or her while on probation and to prohibit the imposition of additional 

conditions after sentencing.” Kerrigan v. State, 540 N.E.2d 1251, 1252 (Ind. Ct.

App. 1989) (analyzing the predecessor to I.C. § 35-38-2-2.3). Although the trial 

court errs by failing to provide the defendant with a written statement of the 

conditions, the error is harmless if there is otherwise substantial compliance 

with the intent of providing a defendant with prospective notice of the standard 

of conduct required of him while on probation and prohibiting the imposition 

of additional conditions after sentencing. Id.; see also White v. State, 560 N.E.2d 

45, 48 (Ind. 1990) (finding no reversible error where substantial compliance 

occurred, and defendant received written probation instructions three weeks 

after his sentencing, thus “having ample time to comply with them”).

[13] At his sentencing hearing, McCarty was ordered to comply with the standard 

conditions of his probation and undergo an alcohol and drug evaluation. 

However, the trial court did not specifically state the standard terms of 

 

1 The statute requires written notice, but it does not specifically require the trial court to provide written 

notice.
Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018 Page 6 of 11

probation, and McCarty was not advised of the specific terms of his probation 

until he met with his probation officer four days after his sentencing hearing.

[14] We can reasonably assume that the trial court is well aware of the standard 

terms and conditions of probation. Indiana Code section 35-38-2-1 requires the 

trial court to have specified the terms of McCarty’s probation on the date of 

sentencing. However, McCarty has not established any general harm in the 

four-day delay between his sentencing hearing and his receipt of the specific 

terms of his probation.

[15] On the other hand, we can infer that McCarty’s probation officer altered 

condition number 7, which in the original read: “You will consume alcohol in a 

lawful manner unless ordered to abstain by the Court or any alcohol 

rehabilitation program.” Appellant’s App. p. 107. McCarty’s probation officer 

inserted the word “not” before the word consume. Id. The trial court did not 

order McCarty to abstain from consuming alcoholic beverages. The court only 

ordered an alcohol and drug evaluation and compliance with any resulting 

recommendations.

[16] The probation officer’s unilateral and unauthorized alteration of a condition of 

McCarty’s probation is precisely why it is important for the trial court to specify 

the terms of probation and give a written statement of the conditions of 

probation to the defendant at the sentencing hearing as is required by Indiana 

Code sections 35-38-2-1 and -2.3. On remand, we direct the trial court to correct
Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018 Page 7 of 11

condition number 7 so that it does not need to be altered by probation 

personnel in the future.

[17] Next, we address McCarty’s argument concerning the condition that he 

undergo a drug and alcohol evaluation. At the sentencing hearing, the trial 

court orally ordered McCarty to undergo an alcohol and drug evaluation.

However, this orally imposed condition of probation was not included in the 

written statement listing the terms of McCarty’s probation. 

[18] A trial court’s failure to provide written probation terms may be harmless if the 

defendant has been orally advised of the condition and acknowledges that he 

understand the condition. Gil v. State, 988 N.E.2d 1231, 1234 (Ind. Ct. App. 

2013). In Gil, the trial court did not provide the defendant with a written 

statement of the conditions of probation. The court stated that no contact with 

the victim was a condition of probation, but the defendant never acknowledged 

that he understood this as a term of his probation. Therefore, we concluded that 

the court’s error in failing to provide written terms of probation was not 

harmless and remanded the case to the trial court with instructions to provide 

written terms of probation to Gil. Id.

[19] In this case, the trial court ordered McCarty to undergo an alcohol and drug 

evaluation but never asked him to acknowledge that he understood that 

condition of his probation. Sentencing Tr. p. 8. As the trial court continued its 

sentencing statement and during its advisement of the right to appeal, the court 

asked, “Mr. McCarty, are you listening to me?” Id. McCarty later 
Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018 Page 8 of 11

acknowledged his right to appeal, but never indicated that he understood that 

he was to undergo a drug and alcohol evaluation as a condition of his 

probation. Therefore, on remand, we instruct the trial court to provide McCarty 

with written terms of his probation which include a requirement that McCarty 

undergo a drug and alcohol evaluation. 

B. Whether the Drug and Alcohol Evaluation is Reasonably Related to McCarty’s 

Rehabilitation

[20] McCarty also claims that the drug and alcohol evaluation is not reasonably 

related to his rehabilitation because his offenses did not involve alcohol or 

drugs. A trial court has broad discretion to impose conditions of probation, but 

the conditions imposed must be reasonably related to the defendant’s treatment 

and protection of the public. Slott v. State, 822 N.E.2d 176, 179–80 (Ind. Ct. 

App. 2005), trans. denied.

[21] The officer arrested McCarty because there was an outstanding warrant for his 

arrest. The warrant was issued because McCarty had been charged with 

misdemeanor public intoxication and he failed to attend a court hearing. Tr. p. 

42. McCarty was agitated when he was arrested and “appeared to be under the 

influence” of something.2Id. at 22. Approximately one week after he was 

 

2 However, McCarty testified that he was not under the influence of alcohol or drugs at the time of arrest. Tr. 

pp. 46–47.
Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018 Page 9 of 11

arrested in this case, McCarty pleaded guilty to Class B misdemeanor public 

intoxication endangering a person’s life. Appellant’s App. p. 94.

[22] Because there is evidence in the record that McCarty was recently convicted of 

an alcohol-related offense, ordering him to complete a drug and alcohol 

evaluation is reasonably related to his rehabilitation. Moreover, our General 

Assembly has specifically authorized trial courts to order convicted persons to 

participate in treatment programs or addiction counseling as a condition of 

probation. See I.C. § 35-38-2-2.3(a).

C. Is the condition that McCarty must avoid persons and places of harmful character 

impermissibly vague?

[23] Finally, we consider McCarty’s claim that the following probationary term is 

unconstitutionally vague or overly broad. The condition provides that McCarty 

“will avoid persons and places of harmful character, or a person who is likely to 

influence you to commit a crime.” Appellant’s App. p. 107. 

[24] “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.” McVey v. State, 863 N.E.2d 434, 447 (Ind. Ct. App. 2007) 

(citation omitted), trans. denied. To avoid being unconstitutionally vague, the 

condition must be clear enough so that individuals of ordinary intelligence 

would be adequately informed of the general conduct that is proscribed. Patton, 

990 N.E.2d at 516. The condition “need not list, with itemized exactitude, 

every item of conduct that is prohibited.” Id.
Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018 Page 10 of 11

[25] Our court reviewed a similar probation condition for vagueness in Clemons v. 

State, 83 N.E.3d 104 (Ind. Ct. App. 2017), trans. denied. In that case, the 

defendant argued that the following condition was impermissibly vague: “You 

shall not associate with any person of bad character or reputation or with any 

person who is likely to influence you to commit a crime or crimes.” Id. at 107 

(record citation omitted). Our court agreed that the condition was vague and 

stated:

The condition does not define what “associate” or “bad character 

or reputation” mean in this context, nor is it clear how to identify 

a person who could “influence” Clemons to commit a crime. 

Because each of the terms in this condition is subjective, the 

condition fails to inform Clemons what conduct would subject 

her to revocation of her probation.

Id. at 109. 

[26] “Persons and places of harmful character” are subjective terms that are not 

readily defined. And what constitutes a place of harmful character is possibly 

even more difficult to define than a person of harmful character. The only 

objective example of a place of harmful character that readily comes to mind is 

a known “crack” or drug house. 

[27] For all of these reasons, we agree with McCarty that this condition of his 

probation is impermissibly vague. On remand, we direct the trial court to clarify 

this condition of McCarty’s probation so he is adequately informed of the 

general conduct that is proscribed. See id.; Patton, 990 N.E.2d at 516.
Court of Appeals of Indiana | Opinion 84A04-1707-CR-1599 | March 20, 2018 Page 11 of 11

Conclusion

[28] Although the trial court erred when it failed to provide McCarty with written 

conditions of probation at sentencing, the record does not indicate that 

McCarty violated, or was arrested and charged with violating, any terms of that 

probation in the four-day period between sentencing and his first appointment 

with the probation department. For this reason, we can find that error to be 

harmless error. But this case demonstrates the problems that can arise when a 

defendant is not provided with clear and accurate written conditions of his or 

her probation at sentencing. On remand, the trial court is instructed to (1) 

correct the probation term that was altered by the probation officer; (2) provide 

McCarty with written terms of his probation, which includes each condition of 

probation; and (3) clarify and make more specific the probationary term that 

McCarty is to “avoid persons and places of harmful character, or a person who 

is likely to influence you to commit a crime” because this condition of 

probation is impermissibly vague.

[29] Reversed and remanded for proceedings consistent with this opinion.

Najam, J., and Barnes, J., concur.