Baugh v. State

933 N.E.2d 1277, 2010 Ind. LEXIS 554, 2010 WL 3791257
Indiana Supreme Court·Decided September 29, 2010·No. 18S04-1007-CR-398·Published·Cited by 15 cases

Opinions

DICKSON, Justice.

In this direct appeal, the defendant challenges his two convictions for class B felony Sexual Misconduct with a Minor and the determination that he is a sexually violent predator. Addressing the three issues he presented, the Court of Appeals affirmed. Baugh v. State, 926 N.E.2d 497 (Ind.Ct.App.2010). Seeking transfer on one issue, the defendant urges that the trial court erred by failing to hold a hearing and to receive testimony of two psychologists or psychiatrists before determining that he is a sexually violent predator requiring lifetime registration with the Indiana Sex and Violent Offender Registry. The Court of Appeals determined that this claim was procedurally defaulted due to the defendant's failure to present this argument to the trial court. Id. at 500-01. We granted transfer and now affirm on grounds of invited error.1

The defendant contends that his convictions did not automatically establish his status as a sexually violent predator and that the trial court failed to follow the statutory requirements for determining such status. Although the commission of Sexual Misconduct with a Minor does not by operation of law designate the offender as a sexually violent predator, Indiana Code § 35-38-1-7.5(e) provides:

If a person is not a sexually violent predator under subsection (b), the prosecuting attorney may request the court to conduct a hearing to determine whether the person (including a child adjudicated to be a delinquent child) is a sexually violent predator under subsection (a). If the court grants the motion, the court shall appoint two (2) psychologists or psychiatrists who have expertise [1279] in criminal behavioral disorders to evaluate the person and testify at the hearing. After conducting the hearing and considering the testimony of the two (2) psychologists or psychiatrists, the court shall determine whether the person is a sexually violent predator under subsection (a) A hearing conducted under this subsection may be combined with the person's sentencing hearing."

The defendant argues that the trial court made its determination without conducting a hearing, without receiving testimony, and without any showing that the mental health providers performing the evaluations had expertise in criminal behavioral disorders.2

After the jury found the defendant guilty of two counts of Sexual Misconduct with a Minor, the trial court scheduled a sentencing hearing, and the State petitioned the trial court to appoint two psychologists or psychiatrists to evaluate the defendant and to conduct a hearing to determine whether the defendant is a sexually violent predator. The trial court thereupon appointed psychiatrist Rebecca Mueller, M.D., and psychologist Frank Krause, Ed.D., to evaluate the defendant "as to whether or not he is a Sexually Violent Predator" and scheduled a hearing thereon at the same time as the sentencing hearing. Appellant's App'x at 174. The doctors evaluated the defendant and filed separate reports with the court, a brief three-page report from Dr. Mueller and a brief four-page report from Dr. Krause. Dr. Mueller's report identified herself as a "Board Certified Adult Psychiatrist" and "Child, Adolescent, and Geriatric Psychiatrist," id. at 249, and Dr. Krause identified himself as an "Indiana Licensed Clinical Psychologist," "Health Services Provider in Psychology," "Marriage and Family Therapist," "Fellow, Professional Academy of Custody Evaluators," and "School Psychologist (Life)." Id. at 258. Both reports opined that the defendant suffered from a condition known as Antisocial Personality Disorder and that he likely would commit future sex offenses. Only Dr. Krause's report explicitly provided an opinion on whether the defendant was a sexually violent predator, stating that he should be so classified. Id.

As the sentencing hearing began, the trial court inquired whether, and the defense acknowledged that, the defendant had received copies of the reports from Dr. Mueller and Dr. Krause. The court also noted receipt of several letters from the defendant's family and supporters. The defendant called three witnesses to testify and offered into evidence medical records from his recent visit to a physician. The State called one witness, the mother of the victim. Neither Dr. Mueller nor Dr. Krause presented any live testimony at the hearing. At the conclusion of the hearing, the defendant, exercising his right to allo-cution, expressed his hope that his letters helped the judge appreciate that he was a family-oriented person and that "there are people out there that need me" and "I need them." Tr. at 424. In closing, he stated, "I'm not this monster that they're making me out to be. So, I just hope that they make a difference to you, sir." Id. After the defendant's statement, the attorneys presented their final arguments. The State asked the court to impose the maximum sentence on each conviction, to have the sentences run consecutively, and to [1280] designate the defendant as a sexually violent predator. Defense counsel urged that a twelve-year sentence, instead of the maximum fifteen-year sentence, was appropriate and that consecutive sentences would be improper in this case. Significantly, defense counsel then stated, "As far as the determination of the sexual [sic] violent predator, I think the Court has to make that determination based upon the charge that he's been convicted and the doctors' reports, and I would leave that up to the Court." Tr. at 429-30. The trial court's resulting sentencing order included the following, "The Court, having reviewed the reports of Dr. Mueller and Dr. Krause, now determines that the defendant is a sexually violent predator within the meaning of the statute." Appellant's App'x at 277.

The defendant's contention that the determination was made without a hearing is clearly incorrect. The trial court ordered the hearing on sexually violent predator status to be conducted as part of the sentencing hearing, as expressly permitted by statute. See Ind.Code § 85-38-1-7.5(e). The hearing commenced with the court's confirmation that the defense had received the doctors' reports, and it closed with defense counsel expressly commenting on the sexually violent predator determination.

The defendant also asserts that the trial court's sexually violent predator determination was made without receiving testimony, and without any showing that the persons performing the evaluation had expertise in criminal behavioral disorders, contrary to the statutory requirements. We note that the statute specifies that the court appointed psychologists or psychiatrists "have expertise in criminal behavioral disorders" and that they "testify at the hearing." Ind.Code § 35-38-1-7.5(e). It also requires that the court's determination occur after "considering the testimony" of the psychologists or psychiatrists. Id. In this case, there was no such testimony, and there is slight evidence in the record to show that Doctors Mueller and Krause have specific expertise in criminal behavioral disorders.

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Baugh v. State, 933 N.E.2d 1277, 2010 Ind. LEXIS 554, 2010 WL 3791257 (Ind. 2010).

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Baugh v. State
933 N.E.2d 1277 (Indiana Supreme Court, 2010)