Terpstra v. State

• Decision Date: 11 December 2019
• Docket Number: Court of Appeals Case No. 19A-CR-671
• Citation: 138 N.E.3d 278
• Parties: William TERPSTRA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

138 N.E.3d 278

William TERPSTRA, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 19A-CR-671

Court of Appeals of Indiana.

Filed December 11, 2019

STATEMENT OF THE CASE

[1] Appellant-Defendant, William Terpstra (Terpstra), appeals the trial court's Orders revoking his probation and sanctioning him.

[2] We affirm.

ISSUES

[3] Terpstra presents four main issues for review, which we restate and reorder as the following:

(1) Whether sufficient evidence supported the revocation of his probation for committing the new offense of child molesting;

(2) Whether Terpstra was denied due process by the trial court's probation revocation judgment statement;

(3) Whether the trial court abused its discretion in manner and substance of its evidentiary rulings; and

(4) Whether the trial court abused its discretion when it ordered Terpstra to execute the entirety of his previously-suspended sentence.

FACTS AND PROCEDURAL HISTORY

[4] Terpstra was a physician licensed in Indiana who practiced at the Wagoner Medical Centers (WMC) branch in Kokomo, Indiana, along with other physicians and physicians' assistants. Terpstra joined the WMC practice in 2010. The physicians and physicians' assistants at the WMC, including Terpstra, prescribed medications outside the scope of usual professional practice and for non-medical purposes. Twenty-seven deaths were linked to these prescribing practices, including the deaths of eight patients under Terpstra's care.

[5] On April 17, 2013, the State filed an Information, charging Terpstra with twenty-four felonies, including eight Counts of Class B felony dealing in cocaine or a narcotic drug; seven Counts of Class C felony dealing by delivery of a Schedule IV controlled substance; seven Counts of dealing by delivery of a Schedule I, II, or III controlled substance; one Count of Class B felony conspiracy to deal in cocaine or a narcotic drug; and one Count of conspiracy to deal by delivery in a Schedule IV controlled substance. On September 25, 2015, Terpstra pleaded guilty pursuant to a plea bargain with the State to two Counts of Class B felony dealing in a narcotic drug for knowingly delivering methadone outside the course of professional practice and for non-medical purposes to two separate victims. On September 16, 2015, the trial court sentenced Terpstra according to the terms of his plea agreement and imposed concurrent sentences of 5,475 days for each Class B felony conviction, 548 days of which were to be served on home detention, with the remainder suspended to probation. Two of the conditions of Terpstra's probation were that he not commit any new criminal offenses and that he contact his probation officer within forty-eight hours of being arrested for, or charged with, a new criminal offense.

[6] Terpstra had married Vicki Terpstra (Vicki) on October 15, 2011. Vicki had a granddaughter, E.Z., who was thirteen years old during the summer of 2017. E.Z., her brothers, and E.Z.'s parents would regularly spend time with Vicki and Terpstra, sometimes at their home in Sheridan, Indiana. During the early summer of 2017, E.Z. spent time at Vicki and Terpstra's home by herself, as the rest of her family was elsewhere. One day during this visit, E.Z. and Terpstra sat on the couch in the living room watching a football game on the television. Terpstra sat close to E.Z. on her right side. While they were sitting together on the couch and Vicki was out of the room, Terpstra used his left hand to touch E.Z. on her buttocks under her clothes as he used his right hand to touch her chest under her bra. Terpstra remained facing the television as he touched E.Z. in this manner for approximately fifteen minutes.

[7] In the fall of 2017, E.Z. was depressed and anxious. E.Z. underwent counseling and, on January 4, 2018, disclosed that Terpstra had fondled her. E.Z. was forensically interviewed on January 5, 2018, during which she reported that Terpstra had touched her chest, buttocks, and vagina under her clothes. On March 28, 2018, the State filed an Information, charging Terpstra with one Count of child molesting, a Level 4 felony, Ind. Code § 35-42-4-3(b), for fondling E.Z. on a date between June 1, 2017, and November 30, 2017. On April 13, 2018, the State filed a petition to revoke Terpstra's suspended sentence in his drug dealing case, alleging that Terpstra had violated his probation by committing the new criminal offense of child molesting and by failing to contact his probation officer within forty-eight hours of his arrest for that offense.

[8] On February 1, 2019, while meeting with the prosecutor to prepare for trial on the new child molesting charge, E.Z. told the prosecutor for the first time that Terpstra had not actually touched her vagina as she had originally reported. E.Z. confirmed to the prosecutor that Terpstra had touched her buttocks and chest. In light of this change in E.Z.'s potential testimony, the prosecutor became uncertain that she could obtain a conviction after a jury trial, and the prosecutor was concerned about what the effect of a trial and rigorous cross-examination upon E.Z. would be in light of that uncertainty. On February 4, 2019, the prosecutor moved to dismiss the child molesting charge against Terpstra, and that motion was subsequently granted.

[9] On February 19, 2019, the trial court held a hearing on the State's petition to revoke Terpstra's probation in his drug dealing case. On a number of occasions during the hearing, in response to an objection, the trial court explained that, in an effort to complete the hearing in a timely manner, it would overrule the interposed objection and would ignore any inadmissible evidence in reaching its judgment. This was the trial court's response to Terpstra's hearsay objections to testimony by the investigating detective that he had contacted E.Z.'s school and asked if she had a history of being dishonest and to Terpstra's relevancy objection to E.Z.'s testimony that Terpstra had touched her under her swimsuit when she was ten years old, a time period not included in the child molesting Information and a time when he was not on probation for the drug offenses.

[10] E.Z. testified at the probation revocation hearing regarding the offenses and was subjected to cross-examination on her version of events, including the fact that she had originally inaccurately reported that Terpstra had touched her vagina. E.Z. explained that, when she originally reported the child molesting offense, she had not had adequate time to think about the events, did not know how to answer some of the questions posed to her, and thought she needed a response for everything that was asked of her. Terpstra also testified and denied that he had fondled E.Z. Terpstra's probation officer testified that Terpstra never personally contacted him to inform him that he had been arrested on the child molesting charge, but the probation officer confirmed that Terpstra's counsel had contacted him before the arrest to inform him that Terpstra might be arrested for child molesting.

[11] At the conclusion of the probation revocation hearing, the trial court found that the State had proved by a preponderance of the evidence that Terpstra committed the new offense of child molesting. In pronouncing judgment, the trial court stated as follows:

The testimony between [Terpstra] and [E.Z.] is totally contradictory and so I think what I have to do is consider not only the testimony that was given but the manner of delivering that testimony, the demeanor of the witnesses, the believability of the witnesses, what reason that any of the witnesses would have to lie. And taking that all into consideration I find that [E.Z] is a completely credible witness and that [ ] Terpstra is a completely incredible witness.

(Transcript p. 100). The trial court did not render judgment on the State's allegation that Terpstra had violated his probation by failing to contact his probation officer within forty-eight hours of his arrest for child molesting. In its written judgment, the trial court found that Terpstra had "violated the terms and conditions of his Probation" and entered judgment of conviction. (Appellant's App. Vol. II, p. 22).

[12] On March 13, 2019, the trial court held a sanction hearing. At the conclusion of the hearing, the trial court noted the severity of the drug offenses Terpstra had pleaded guilty to and had been sentenced for, in that his actions had contributed to the excessive amounts of drugs in the community. The trial court found that Terpstra had had no concern for other people and that he had been subject only to his own wants and desires. The trial court found that

[h]e received a sentence that was very lenient in terms of what his behavior was, from betraying the trust of his patients, betraying the trust of the community, betraying the trust of the medical profession. He's on probation, and he has exhibited that his own interests and desires are still more important to him than what harm he causes other people and that he continues to prey upon the weak and helpless in order to advance his own desires.

(Tr. pp. 124-25). The trial court found that any alternate placement outside the Indiana Department of Correction (DOC) would only give Terpstra the opportunity to victimize the weak and helpless members of society. The trial court ordered Terpstra to execute all of his previously-suspended sentence with the DOC.

[13] Terpstra now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Sufficiency of the Evidence

[14] Terpstra claims that the State did not produce sufficient evidence to prove that he committed the new offense of child molesting. Probation is a matter of grace left to a trial court's discretion, not a right to which a criminal defendant is entitled. Murdock v. State , 10 N.E.3d 1265, 1267 (Ind. 2014). A probation violation hearing is a civil proceeding, and the State must prove the alleged probation violation by...