Court of Appeals of Indiana | Memorandum Decision 34A05-1506-CR-533 |December 31, 2015 Page 1 of 6

MEMORANDUM DECISION

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.

ATTORNEY FOR APPELLANT

Derick W. Steele

Deputy Public Defender

Kokomo, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Katherine Modesitt Cooper

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Richard L. Berg, Jr.,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 31, 2015

Court of Appeals Case No.

34A05-1506-CR-533

Appeal from the Howard Superior 

Court

The Honorable William C. 

Menges, Jr., Judge

Trial Court Cause No.

34D01-1302-FB-159

Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 34A05-1506-CR-533 |December 31, 2015 Page 2 of 6

[1] Richard L. Berg, Jr. appeals the revocation of his probation, contending that the 

evidence was insufficient for the trial court to find that he violated the conditions 

of his probation by committing a new crime.

[2] We affirm.

Facts and Procedural History

[3] Berg pleaded guilty under a written plea agreement to Class D felony 

maintaining a public nuisance. The trial court accepted his guilty plea and, on 

July 10, 2013, sentenced him to 1095 days in the Indiana Department of 

Correction with 262 days executed and 833 days suspended to probation.1 Berg 

had served the 262 days while awaiting trial and, therefore, was immediately 

placed on probation.

[4] The conditions of supervised probation included, in pertinent part: “Violation 

of any law (city, state, or federal) is a violation of your probation; within fortyeight (48) hours of being arrested or charged with a new criminal offense, you 

must contact your Probation Officer.” Appellant’s App. at 66. One year later, on 

July 18, 2014, Berg was charged under Cause Number 34D04-1407-FB-110

(“Cause 110”) with three counts of Class B felony sexual misconduct with a 

 

1 The trial court initially entered a Sentencing Order on July 3, 2013. Later, noting it erred by classifying 

Berg’s conviction for maintaining a common nuisance as a Class B felony instead of a Class D felony, the 

trial court entered an Amended Sentencing Order on July 10, 2013. Appellant’s App. at 38, 40.
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minor and three counts of Class B felony incest.

2 The State filed a petition to 

revoke Berg’s suspended sentence on August 5, 2014, contending that he had 

violated the terms of his probation.

[5] At Berg’s request, he was given a psychological evaluation in connection with 

Cause 110. The evaluation report (“the Report”) was filed with the trial court

in this revocation proceeding (“probation court”) on December 22, 2014.

3

 The 

Report referenced that Berg had been charged with six Class B felonies under 

Cause 110—acts alleged to have occurred between Berg and his minor daughter 

during the time period of March through May 2014. Appellant’s App. at 9, 86-

87. Berg was tried to a jury under Cause 110 and found guilty on April 22,

2015 of three counts of Class B felony sexual misconduct with a minor and 

three counts of Class B felony incest; the trial court sentenced him to an 

aggregate executed term of forty years.

[6] On May 14, 2015, about a month after he was convicted under Cause 110, the 

probation court held a fact-finding hearing to determine whether Berg had 

violated his probation. During that hearing, the probation court admitted the 

State’s certified copies of Berg’s six guilty verdicts in Cause 110 and agreed, 

“The court will take judicial notice of the proceedings in connection with this 

case.” Tr. at 4. Based on that evidence, the probation court found by a 

 

2 Berg was also charged with Class D felony battery by body waste. While the outcome of that charge is not 

in the record before us, that information is not necessary for the resolution of this appeal. 

3 The Report was also filed with the trial court in Cause 110 on November 20, 2014. Appellant’s App. at 86.
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preponderance of the evidence that Berg had violated the terms of his 

probation. 

[7] At the May 27, 2015 sentencing hearing for the probation revocation, defense 

counsel informed the probation court that Berg had received a forty-year 

sentence in Cause 110 and the probation court took judicial notice of the 

presentence investigation report in connection with that case. Id. at 7, 8. At the 

close of the hearing, the probation court revoked Berg’s suspended sentence and 

ordered him to serve the remainder of his 833-day suspended sentence, minus 

credit for days served. The probation court ordered that the sentence imposed 

for the probation revocation be served consecutive to the sentence imposed in 

Cause 110. Berg now appeals 

Discussion and Decision

[8] Probation conditions and whether to revoke probation when those conditions 

are violated are matters left to the discretion of the trial court. Heaton v. State, 

984 N.E.2d 614, 616 (Ind. 2013). A probation revocation hearing is in the 

nature of a civil proceeding. Cain v. State, 30 N.E.3d 728, 732 (Ind. Ct. App. 

2015), trans. denied. Accordingly, an alleged violation of probation only has to 

be proven by a preponderance of the evidence. Id. When we review the 

determination that a probation violation has occurred, we neither reweigh the 

evidence nor reassess witness credibility. Whatley v. State, 847 N.E.2d 1007, 

1010 (Ind. Ct. App. 2006). Instead, we look at the evidence most favorable to 

the probation court’s judgment and determine whether there is substantial 
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evidence of probative value supporting revocation. Id. (quotation marks 

omitted). If so, we will affirm. Id. When, as here, the alleged probation 

violation is the commission of a new crime, the State does not need to show 

that the probationer was convicted of a new crime. Id. “The trial court only 

needs to find that there was probable cause to believe that the defendant 

violated a criminal law.” Id.

[9] Berg contends that there was insufficient evidence that he committed a new 

crime while on probation because the guilty verdicts from Cause 110—the only 

evidence introduced during the fact-finding hearing—contained no information 

as to when the new crimes were committed. Berg offers that the failure of the 

State to present any evidence about the date the alleged new crimes were 

committed is fatal to his claim that Berg violated his probation. We disagree. 

[10] Berg concedes that he was placed on probation in July 2013. Appellant’s Br. at

1. Pursuant to his plea agreement, Berg’s probation was to run 833 days, a time 

period of well over two years. The conditions of his probation included, 

“Violation of any law (city, state, or federal) is a violation of your probation; 

within forty-eight (48) hours of being arrested or charged with a new criminal 

offense, you must contact your Probation Officer.” Appellant’s App. at 66. One 

year later, on July 17, 2014, Berg was charged with six Class B felonies. These 

felonies were alleged to have been committed between March and May 2014, 

dates well within Berg’s probationary period. On April 22, 2015, a jury found 

Berg guilty, under Cause 110, of three counts of Class B felony sexual 
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misconduct with a minor.

4 One month later, during its fact-finding hearing to 

determine whether Berg committed a new crime in violation of his probation, 

the probation court took judicial notice of the proceedings in Cause 110. Such 

judicial notice would have included knowledge of the dates on which the new 

crimes were committed—dates that were well within Berg’s probationary 

period.

[11] The State clearly proved by a preponderance of the evidence that Berg 

committed a new criminal offense during his probationary period, and the 

probation court did not abuse its discretion when it revoked Berg’s probation.

[12] Affirmed.

Mathias, J., and Brown, J., concur.

 

4 Berg appealed the trial court’s decision in Cause 110, maintaining: (1) his convictions violated the 

prohibition against double jeopardy; (2) there was insufficient evidence to support one of the counts of sexual 

misconduct with a minor; and (3) his forty-year sentence was inappropriate. Berg v. State, No. 34A02-1505-

CR-486 (Ind. Ct. App. Dec. 7, 2015). On December 7, 2015, a panel of this court handed down its 

memorandum decision finding sufficient evidence to support the convictions. Our court, however, agreed 

with Berg that his three convictions for Class B felony incest, having been committed against the same victim 

as the three Class B felonies for sexual misconduct with a minor, violated the prohibitions against double 

jeopardy. The appellate court also found that Berg’s aggregate sentence of forty years for Cause 110 was not 

inappropriate in light of the nature of the offense and the character of the offender.