J.B. v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION Jul 28 2015, 8:43 am
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 ATTORNEYS FOR APPELLEE
Michael C. Ice Gregory F. Zoeller
Martinsville, Indiana Attorney General of Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
J.B., July 28, 2015
Appellant-Defendant, Court of Appeals Case No.
55A01-1411-JV-483
v. Appeal from the Morgan County
Superior Court;
The Honorable Christopher L.
State of Indiana, Burnham, Judge;
Appellee-Plaintiff. 55D02-1106-JD-242
May, Judge.
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[1] J.B. appeals the requirement he register as a sex offender, claiming there was
insufficient evidence to support the order. Concluding there was clear and
convincing evidence J.B. is likely to repeat an act that would be a sex offense, we
affirm.
Facts and Procedural History
[2] When J.B. was thirteen years old, he touched and fondled the genitals of his six-year-
old half-brother. Around the same time, J.B. “poked” his half-sister, who was then
fifteen years old, with his penis after lowering her pants and panties while she
allegedly slept. (State’s Ex. 3.) On June 13, 2011, the State filed a petition of
delinquency, alleging that J.B., while he was under the age of fourteen, committed
what would be Class C felony child molesting if committed by an adult. 1 The trial
court adjudicated J.B. a delinquent child based on his admission that he committed
those acts.
[3] On September 15, 2011, J.B. completed an adolescent sexual offender evaluation
that determined he was at a moderate to high risk for reoffending and recommended
a residential placement. The juvenile court ordered J.B. to be placed at Lexington
Academy. J.B. did not progress with his treatment at Lexington Academy; he had
issues dealing with others and showed an inconsistent pattern of change.
[4] On September 17, 2012, the court terminated J.B.’s placement at Lexington
Academy, ordered him to undergo a diagnostic evaluation, and then temporarily
committed J.B. to the Department of Correction (DOC). On October 29, 2012, the
1
Ind. Code § 35-42-4-3(b) (2007).
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court ordered J.B. placed in Resolute Treatment Facility. While there, J.B. was
removed from therapeutic groups due to non-compliance, threatening his therapist,
attacking his teacher, verbally abusing and bullying peers, and being in a physical
altercation with a peer.
[5] On March 6, 2013, the court ordered J.B. be committed to the DOC and placed in
the Pendleton Juvenile Correctional Facility. J.B. initially displayed behavioral
problems while in DOC, but then showed significant improvement in behavior and
successfully completed his sex offender program.
[6] On June 20, 2014, the State filed a Motion for Hearing Regarding Sex Offender
Registration Determination. Expert witness Dr. Floyd F. Robinson, who is a
licensed Indiana psychologist, has expertise in the area of psychopathology and
psychodiagnostics, and has conducted between fifteen and twenty psychosexual
evaluations. After reviewing all the reports and documents from Lexington
Academy, Resolute, and the DOC, Dr. Robinson concluded there was a significant
likelihood that J.B. would sexually reoffend within the next five years. Based on Dr.
Robinson’s conclusion and other evidence, on October 9, 2014, the trial court
ordered J.B. to register as a sex or violent offender for a period of ten years.
Discussion and Decision
[7] J.B. argues the State did not establish by clear and convincing evidence that he was
likely to be a repeat sex offender. When judging the sufficiency of the evidence
supporting a decision to place a juvenile on a sex offender registry, we neither
reweigh the evidence nor judge the credibility of the witnesses. Z.H. v. State, 850
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N.E.2d 933, 936 (Ind. Ct. App. 2006), trans. denied. Instead, we look to the evidence
and the reasonable inferences that can be drawn therefrom that support the decision,
and we will affirm if there is clear and convincing evidence from which the juvenile
court could find the elements of the Indiana Sex Offender Registration Act
(INSORA) have been met. R.G. v. State, 793 N.E.2d 238, 240 (Ind. Ct. App. 2003),
trans. denied.
[8] INSORA requires a sex offender to register with local law enforcement authorities in
the area where the offender resides. See M.L.H. v. State, 799 N.E.2d 1, 3 (Ind. Ct.
App. 2003); see also Ind. Code § 11-8-8-7 (referring to the registry requirements for a
sex offender). A juvenile may be found to be a sex offender under INSORA if he is:
A child who has committed a delinquent act and who:
(A) is at least fourteen (14) years of age;
(B) is on probation, is on parole, is discharged from a facility by the
department of correction, is discharged from a secure private facility
(as defined in IC 31-9-2-115), or is discharged from a juvenile
detention facility as a result of an adjudication as a delinquent child
for an act that would be an offense described in subsection (a) if
committed by an adult; and
(C) is found by a court by clear and convincing evidence to be likely
to repeat an act that would be an offense described in subsection (a) if
committed by an adult.
Ind. Code § 11-8-8-5(b)(2) (2007) (footnote added). J.B. concedes he was at least
fourteen and the act he committed, child molesting, is listed in subsection (a); thus,
he challenges only that there was clear and convincing evidence he is likely to
commit another offense.
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[9] In deciding whether to place a juvenile on a sex offender registry, a juvenile court
“shall consider expert testimony” concerning whether a juvenile is a likely to
reoffend. Ind. Code § 11-8-8-5(c) (2007). Thus, before a juvenile may be ordered to
register as a sex offender, the juvenile court must hold an evidentiary hearing and
find by clear and convincing evidence that the juvenile is likely to commit another
sex offense. See J.C.C. v. State, 897 N.E.2d 931, 934 (Ind. 2008); see also Ind. Code §
11-8-8-5(b)(2) (2007). “[T]he Legislature has dictated this heightened burden of
proof . . . in recognition of the serious social consequences of sex offender
registration . . . .” J.C.C., 897 N.E.2d at 934.
[10] When a juvenile is placed in a secure private facility, a sex offender registry hearing
can be conducted only after the juvenile has been released from the facility. Id. The
legislative intent behind holding a hearing upon the juvenile’s release “is to hold the
sex offender registration determination in abeyance so that the juvenile has the
opportunity to be rehabilitated during detention.” Id. See also In re G.B., 709 N.E.2d
352, 354 (Ind. Ct. App. 1999) (“This statutory scheme helps insure that juveniles
who have been rehabilitated by virtue of their detention are not required to register as
a sex offender.”).
[11] At the evidentiary hearing, the juvenile court took judicial notice of the underlying
court documents and heard from J.B.’s probation officer and the expert witness, Dr.
Robinson. J.B.’s probation officer was concerned with the number of reports from
the DOC that J.B. did not cooperate with treatment and did not complete
assignments given to him in his treatment. Dr. Robinson reviewed all of J.B.’s
records and evaluated him based on eight attributes: age, history, previous offenses,
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anger, resistance to authority, socialization, presence of gross psychiatric
disturbance, and successful treatment. J.B. exhibited all but one of the attributes,
which indicates a high likelihood J.B. would sexually reoffend within the next five
years.
[12] J.B. was young when he committed his first sexual offense. He displayed anger
throughout his treatment, which is associated with an increased likelihood he would
reoffend. He assaulted a teacher, threatened his therapist, physically assaulted a
peer, and verbally attacked and bullied other peers. J.B. committed hundreds of
infractions while he was committed to the DOC, ranging from assault and sexual
misconduct to bullying and insulting. Dr. Robinson acknowledged that J.B.
completed his treatment program at the DOC, but he believed that J.B. did not
benefit from the program. Dr. Robinson concluded J.B. was not adequately
rehabilitated and was at a significantly increased risk to sexually reoffend within five
years.
[13] Dr. Robinson testified that the most important factor he considered was the effect
treatment had in J.B.’s rehabilitation. Although J.B. completed the DOC treatment
program, his participation was marked with major and minor infractions, and the
exit assessment completed by the DOC put J.B. at a high risk to reoffend. According
to Dr. Robinson, completing the DOC’s treatment program did not rehabilitate J.B.
[14] There was clear and convincing evidence that J.B. was likely to commit another
sexual offense. The DOC’s reentry tool evaluated J.B. to be at a high risk to
reoffend. Dr. Robinson reviewed all records and determined there was an eighty
percent chance J.B. would reoffend within five years. This was sufficient evidence to
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support the decision to place J.B. on the sex offender registry. See B.W. v. State, 909
N.E.2d 471, 480 (Ind. Ct. App. 2009) (concluding under similar circumstances there
was clear and convincing evidence that defendant was likely to repeat a sex offense).
Conclusion
[15] The juvenile court did not err in concluding there is clear and convincing evidence
J.B. is likely to commit another sex offense. We accordingly affirm.
[16] Affirmed.
Robb, J., and Mathias, J., concur.
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