Bratcher v. State, 90A02–1301–CR–3.

• Citation: 999 N.E.2d 864
• Decision Date: 19 November 2013
• Docket Number: No. 90A02–1301–CR–3.,90A02–1301–CR–3.
• Parties: Anthony Scott BRATCHER, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Court of Appeals of Indiana

999 N.E.2d 864

Anthony Scott BRATCHER, Appellant–Defendant
v.
STATE of Indiana, Appellee–Plaintiff.

No. 90A02–1301–CR–3.

Court of Appeals of Indiana.

Nov. 19, 2013.

999 N.E.2d 866

Stacy R. Uliana, Bargersville, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Anthony Scott Bratcher (“Bratcher”) appeals his sentence, following his guilty plea, for Class B felony child molesting.¹ Bratcher also challenges the sex offender probation conditions that restrict his access to the internet and that limit his contact with children, arguing that they are vague, overbroad, and unconstitutional as applied to him.

We affirm.

999 N.E.2d 867

ISSUES

1. Whether Bratcher's sentence is inappropriate pursuant to Indiana Appellate Rule 7(B).

2. Whether the trial court abused its discretion by imposing sex offender probation conditions that restrict Bratcher's access to the internet and his contact with children.

FACTS

On June 4, 2012, eighteen-year-old Bratcher pulled down the pants of a five-year-old neighbor girl, A.E.D., and then touched and kissed her “pee pee” or vaginal area. (Tr. 27 ). A.E.D. immediately reported the molestation to her parents, who called the police. When the police interviewed Bratcher, he admitted that he had touched and kissed A.E.D.'s vagina and stated that it “excite[d] him” when he did so. (Tr. 28 ). Additionally, Bratcher told police that he had also kissed A.E.D. on the lips.

The State charged Bratcher with Class B felony child molesting. On October 19, 2012, Bratcher pled guilty as charged without a plea agreement. The trial court held a sentencing hearing on December 10, 2012. The presentence investigation report (“PSI”) revealed that Bratcher, who was nineteen years old at sentencing, has a history of juvenile adjudications, including an adjudication for Class B felony child molesting if committed by an adult. Bratcher's juvenile adjudications began at age twelve and required placement in a juvenile facility from age thirteen to eighteen.

Specifically, in August 2005, when Bratcher was twelve years old, he was adjudicated as delinquent for running away from home and committing criminal mischief. He spent one month in the Allen County Juvenile Center (“the juvenile center”) and was then released to juvenile probation. Two months later, while still on probation, Bratcher received his second adjudication, this time for Class D felony theft if committed by an adult. Bratcher spent another month at the juvenile center, was placed on probation for this theft adjudication in December 2005, and then released from probation in August 2006. One month after being released from probation, Bratcher received his second adjudication for Class D felony theft if committed by an adult.

In January 2007, while on probation for theft, thirteen-year-old Bratcher admitted to molesting an eight-year-old neighbor boy and was adjudicated a delinquent for Class B felony child molesting if committed by an adult. Bratcher spent the next four plus years on probation in various juvenile placement facilities for this child molesting adjudication. After two and one-half years in a more restrictive placement, Bratcher was transitioned to a less restrictive group home placement. However, due to interacting and socializing problems in this setting, he had to be moved back to a more structured placement to “ensure he was not a danger to the community.” (App. 157). During the four plus years of juvenile placement, he violated probation seven times and also received a reprimand for Class A misdemeanor battery. An addendum to the PSI reveals that Bratcher violated probation by writing a sexually explicit letter to a teacher, pushing a duress button at school, breaking the leg of a chair and threatening staff with it, destroying property, engaging in inappropriate behavior, and failing to comply with staff requests.

While Bratcher was in these juvenile placement facilities, he participated in groups to address “sex offending issues, anger management, addiction issues, thinking errors, and daily living skills.”

999 N.E.2d 868

(Tr. 132). As part of his placement, he was placed in the Aftercare Phase of the Adolescent Sex Offender Program. In late October 2011, eighteen-year-old Bratcher was released from placement from his child molestation adjudication and was returned to the custody of his mother. Approximately seven months later, Bratcher committed the molestation at issue in this appeal.

During the sentencing hearing, the State presented testimony from the probation officer regarding Bratcher's scores on various risk assessment instruments. The probation officer explained that the Indiana Risk Assessment System (“IRAS”) was an instrument for assessing all offenders by using broad categories while the STATIC 99 was a specific tool for assessing a sex offender's risk of reoffending. The probation officer explained that Bratcher's score on the IRAS indicated a moderate risk to reoffend while his score on the STATIC 99 revealed a high risk of reoffending on sex offenses.

During the hearing, Bratcher stated that the majority of the time he spent in the juvenile placement facilities was focused mainly on anger and social interaction issues and not as much on sex offender therapy. He claimed that he did not participate in sex offender therapy until the last few months of his placement.

The trial court found the following mitigating factors: (1) Bratcher immediately confessed to the crime; and (2) Bratcher's guilty plea, which spared the victim from testifying at trial. The trial court found the following aggravating circumstances: (1) Bratcher's juvenile delinquent history; (2) the victim's young age of five years old; (3) Bratcher's history of violating juvenile probation. When sentencing Bratcher, the trial court stated:

Concerning the Court is that this is now the second victim [Bratcher] has created. First victim being eight years old when the offense was committed, the second one now five, it concerns the Court the he commits this offense within six months or more, very short period of time of being released from in placement, that's concerning. Also concerned that based on what I read in the presentence investigation report[,] Mr. Bratcher does not have the family and social support when he is release and my concern, I have two concerns, one for Mr. Bratcher in that he is going to exit the prison gates with literally no support, second concern is he is going to exit the prison gates with very little education or training or counseling for his offenses here that apparently now have shown a little bit of pattern and my concern is he will reoffend if he does not receive some type of treatment. I realize [Bratcher's] counsel's concern that this sets him up for, sets him up for failure if he is given any time on probation, but I also think that without some type of counseling it also sets him up for failure and also places the community at risk because now we have someone who has now twice violated small children and he's going to be a very young man when he is released and will be placed in the community with little or no support system in place.

The concern to the Court is and I'm not surprised by the moderate risk on the IRAS assessment based upon this Court's experience with individuals charged with sex crimes to be a situation where they do have little or no criminal history and so the Court's not entirely surprised with the IRAS assessment. I think the STATIC 99 indicator is a little more appropriate as well as it shows he would be a high risk to reoffend. I think the State's position reflects the concerns the Court has that 1) the Defendant

999 N.E.2d 869

be held accountable for his actions; and 2) that gives him potentially the resources he'll need to be part of society because ultimately he's going to be back in society in this community once he's finished serving his sentence and so hopefully he can put an end to his behavior and stop victimizing individuals and potentially become a productive adult and do what he needs to do to manage the urges and things that he apparently has here.

(Tr. 40 ). The trial court then imposed a twenty (20) year sentence, with fifteen (15) years executed in the Department of Correction and five (5) years suspended to probation.

The trial court also issued an Order of Probation, which contained general conditions of probation, and an Addendum Order of Probation, which contained “special conditions” of probation “as a result of [Bratcher's] sex offense conviction[.]” (App. 39). These special conditions included the following, which Bratcher challenges in this appeal:

15. You shall have no contact with any person under the age of 16 unless you receive court approval or successfully complete a court-approved sex offender

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