May, J.
Ryan Gluys appeals following his conviction of Class A misdemeanor invasion of privacy. Gluys raises two issues on appeal, which we restate as: 1. Whether reversible error occurred when Gluys was removed from a pretrial diversion program without a hearing at which the State proved Gluys violated their agreement; and 2. Whether the State proved Gluys committed harassment in violation of a protective order.
No reversible error occurred when Gluys was removed from the pretrial diversion program without a hearing, but Gluys’s conviction of invasion of privacy must be reversed because the trial court relied on the wrong statute when determining whether Gluys committed harassment in violation of the protective order. We accordingly reverse and remand.
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Gluys first challenges the revocation of his pretrial diversion agreement.
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Gluys cannot demonstrate fundamental error, however, because he had no due process right to a hearing before the revocation of his pretrial diversion program. See J.S. v. State, 136 N.E.3d 255, 258 (Ind. Ct. App. 2019) (holding due process does not require a hearing before removal from a pretrial diversion program). Nor has Gluys demonstrated the revocation of his pretrial diversion program constituted the type of prosecutorial behavior that “impaired the reliability and usefulness of an important prosecutorial tool and tended to undermine the integrity and credibility of the criminal justice system to an extent compelling reversal[.]” Bowers v. State, 500 N.E.2d 203, 204 (Ind. 1086). We accordingly turn to Gluys’s second argument.
Gluys next argues the State failed to prove he committed harassment as required to convict him of invasion of privacy.
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Invasion of privacy occurs if someone “knowingly or intentionally violates . . . a protective order to prevent domestic or family violence or harassment issued under IC 34-26-5[.]” Ind. Code § 35-46-1-15.1 (2023). Benedict obtained a protective order against Gluys under Indiana Code chapter 34-26-5, and that order prohibited Gluys from “threatening to commit or committing acts of domestic or family violence or harassment against” Benedict, Blackford, and the other members of their household. (Ex. Vol. at 4.)
Our legislature determined that the definition of “harassment” for purposes of the crime of invasion of privacy would be the definition provided in Indiana Code section 34-6-2-51.5. Ind. Code § 35-31.5-2-150 (2019). That definition of harassment includes conduct directed toward a victim that includes, but is not limited to, repeated or continuing impermissible contact: (1) that would cause a reasonable person to suffer emotional distress; and (2) that actually causes the victim to suffer emotional distress. Ind. Code § 34-6-2-51.5 (2019).
Gluys argues prejudicial error occurred because the trial court applied the incorrect statutory definition of harassment to determine whether he violated the protective order. Gluys asserts, and the State concedes, that the trial court relied on the definition of harassment found in Indiana Code section 35-45-2-2(a)(2) (1996), which provides: “A person who, with intent to harass, annoy, or alarm another person but with no intent of legitimate communication: . . . communicates with a person by telegraph, mail, or other form of written communication[.]” The transcript demonstrates the trial court quoted the criminal definition of harassment from Title 35, rather than the civil definition of harassment from Title 34, as the court was determining whether to find Gluys guilty. (Tr. Vol. II at 42.)
In bench trials, we generally apply a presumption that a trial court knows and applies the law correctly. Porter v. State, 272 N.E.3d 996, 1000 (Ind. Ct. App. 2025). “The presumption may be rebutted if the trial court’s oral remarks ‘disclose use of an erroneous standard with clarity and certainty[.]’” Id. (brackets in Porter) (quoting Moran v. State, 622 N.E.2d 157, 159-60 (Ind. 1993)). Herein, we cannot apply that presumption because the trial court’s own statement indicates it relied on the wrong statutory definition of an element required to declare Gluys guilty. See, e.g., Hernandez v. State, 45 N.E.3d 373, 378 (Ind. 2015) (“[r]eversal is required if the jury’s decision may have been based upon an erroneous instruction”) (bracket in Hernandez) (quoting Harrington v. State, 413 N.E.2d 622, 626 (Ind. Ct. App. 1980)).
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The State also argues that we can affirm Gluys’s conviction because the evidence was sufficient to demonstrate Gluys committed harassment under the correct statutory definition. However, we may not affirm on this basis because as a reviewing court, it is not our place “to prejudge what a [fact-finder] might have determined if it had been properly instructed.” Taylor v. State, 922 N.E.2d 710, 719 (Ind. Ct. App. 2010), trans. granted 940 N.E.2d 823 (Ind. 2010), grant of trans. vacated & opinion reinstated 936 N.E.2d 1241 (Ind. 2010), trans. vacated 940 N.E.2d 829 (Ind. 2010). We do not know what the trial court would have determined if it had considered the objective and subjective emotional distress elements for harassment as defined in Section 34-6-2-51.5 (2019), and we do not assess criminal guilt de novo. See id. (“Harmless-error analysis has no place where, as here, an essential instruction on the underlying offense is missing entirely.”). We accordingly reverse Gluys’s conviction of invasion of privacy and remand for the trial court to determine Gluys’s guilt using the definition of harassment required by the statutes in effect when he committed his crime. See, e.g., Miller v. State, 77 N.E.3d 1196, 1197 (Ind. 2017) (holding that, when trial court in bench trial applied the wrong legal standard, the appropriate remedy was for appellate court to “remand for the trial court to reconsider the case under the correct legal standard”).
Gluys has not demonstrated reversible error occurred when he was removed from his pretrial diversion program without a hearing. However, the trial court’s reliance on the improper definition of harassment when determining whether Gluys committed invasion of privacy requires us to reverse his conviction and remand for the trial court to reconsider based on the correct definition. We accordingly reverse and remand.
Reversed and remanded.
Altice, J., and Foley, J., concur.