M.L.H. v. State

OPINION BROOK, Chief Judge. Case Summary Appellant-respondent M.L.H. appeals the juvenile court's order directing him to register on the Indiana Sex Offender Registry. We affirm. Issue MLH. raises one issue for review, which we restate as whether the State established by clear and convincing evidence that he is likely to repeat a sex offense. Facts and Procedural History On October 10, 2000, the State filed a petition of delinquency alleging that M.L.H. committed four acts of child molesting, [2] 1 three of which would be Class B felonies and one of which would be a Class C felony if committed by an adult. On December 13, 2000, M.L.H. pleaded guilty to one count of child molesting, a Class B felony if committed by an adult. The State dismissed the remaining charges. On January 11, 2001, the juvenile court placed M.L.H. on probation with the condition that he successfully complete a program at Resolute, a treatment center for sex offenders. M.L.H. completed the fifteen-month program at Resolute, but the staff deemed him at high risk to reoffend during the majority of his residency. Resolute social worker April Wilson regularly noted in her monthly progress reports to the court M.L.H.'s inability to empathize with his victims and his failure to accept responsibility for his sexual transgressions. Appellant's App. at 67, 72, 79, 97, 105, 115. In February 2002, thirteen months into MLH.'s treatment, Resolute clinician Lindsey Lund recommended that M.L.H. be discharged to a group home rather than be allowed to return home because of his failure to demonstrate remorse and empathy; she referred to his progress in individual therapy as "plagued by superficiality." Id. at 90, 92. Lund characterized MLH. as at "high risk to reoffend due to his lack of internalization of knowledge gained." Id. at 89. On April 5, 2002, the juvenile court ordered M.L.H. released from Resolute and placed in the Success Group Home. A June 2002 progress report by Success Group Home therapist Debra Gray described MLH. as struggling "with internalizing what he has learned and applying it consistently to his thought processes and behaviors" and as having "a tendency toward minimizing and shifting the blame for things to forces outside of himself. ..." Id. at 121. MLH. remained at Success Group Home until November 2002, when the juvenile court ordered him transferred to transitional living as part of his probation. Id. at 137. On August 30, 2001, the State filed a motion for hearing pursuant to Indiana Code Section 5-2-12-5 for the juvenile court to determine whether seventeen-year-old M.L.H. was an "offender" for purposes of mandatory registration on the Indiana Sex Offender Registry. At a hearing on January 13, 2008, Dr. Dovid Ofstein, a Resolute therapist and director of treatment services and community relations, testified regarding his assessment of M.L.H. Specifically, Dr. Ofstein identified four risk factors associated with repeat offenders: lack of empathy and remorse, failure to fully accept responsibility and accountability, failure to demonstrate safe behaviors, and lack of a support group or network. Tr. at 8. Dr. Ofstein stated that M.L.H. displayed minimal empathy and had not demonstrated the he was intellectually and emotionally aware of the impact of his behaviors on others. Id. at 9. Dr. Ofstein also testified that MLH. possessed characteristics of pedophilia. Id. Dr. Ofstein opined that because MLH. possessed inclinations to lapse into previous patterns of behavior, he was at high risk to re-offend. Id. at 14. On February 20, 2003, the juvenile court determined that there was clear and convincing evidence that M.L.H. was likely to repeat an act that would be a sex offense if committed by an adult. Appellant's App. at 145. The court concluded that M.L.H. met the statutory definition of "offender" under Indiana Code Section 5-2-12-4, granted the State's petition, and directed him to register on the Indiana Sex Offender Registry. Id. M.L.H. now appeals. [3] Discussion and Decision The Sex Offender Registration Act requires an offender to register with local law enforcement authorities in the area where the offender resides. Ind.Code § 5-2-12-5. Indiana Code Section 5-2-12-4(b) defines "offender" as: a child who has committed a delinquent act and who: (1) is at least fourteen (14) years of age; (2) is on probation, is on parole, or 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) [2] if committed by and adult; and (8) 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. Indiana Code Section 5-2-12-4(b) "[rlequires the juvenile court to hold an evidentiary hearing to determine, by clear and convincing evidence, whether the juvenile is likely to be a repeat sex offender." K.J.P. v. State, 724 N.E.2d 612, 614 (Ind.Ct.App.2000), trans. denied. "The clear and convincing evidence standard requires a stricter degree of proof than a mere preponderance of the evidence." Id. at 615. In R.G. v. State, 793 N.E.2d 238 (Ind.Ct.App.2003), we recently defined the standard of review for sufficiency of the evidence supporting a decision to place a juvenile on a sex offender registry. The standard of review is the same standard regularly applied to sufficiency cases. Id. at 240 n. 2. "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 witnesses." Id. at 240. "Rather, this court looks to the evidence and the reasonable inferences that can be drawn therefrom that support the juvenile court's decision, and we will affirm a juvenile court's decision to place a juvenile on a sex offender registry if evidence of probative value exists from which the juvenile court could find by clear and convincing evidence that the elements of Indiana Code section 5-2-12-4 have been met." Id. Here, Hill, Lund, and Gray described M.L.H. as plagued both with an inability to empathize with his victims and with failure to take responsibility for his actions. Moreover, all three clinicians concluded that MLH. remained at high risk to reoffend. Also, Dr. Ofstein opined that because M.L.H. possessed a high risk for recidivism, he remained at high risk of re-offending. Tr. at 14. In sum, the State established by clear and convincing evi-denee that M.L.H. is likely to repeat an act that would be a sex offense under Indiana Code Section 5-2-12-4(a). Consequently, we affirm the juvenile court's order directing MLH. to register on the Indiana Sex Offender Registry. Affirmed. SHARPNACK, J., concurs. BAKER, J., dissents with opinion. Footnotes [1] Ind.Code § 35-42-4-3. [2] These offenses include rape, criminal deviate conduct, child molesting, child exploitation, vicarious sexual gratification, child solicitation, child seduction, sexual misconduct with a minor, incest, sexual battery, and kidnapping and criminal confinement if the victim is less than eighteen years of age. Ind. Code § 5-2-12-4(a).