B.W. v. State
| Decision Date | 14 July 2009 |
| Docket Number | No. 15A01-0903-JV-123.,15A01-0903-JV-123. |
| Citation | 909 N.E.2d 471 |
| Parties | B.W., Appellant-Respondent, v. STATE of Indiana, Appellee-Petitioner. |
| Court | Indiana Appellate Court |
B.W. appeals the juvenile court's order requiring him to register as a sex offender. Specifically, he argues there was not sufficient evidence to support such an order. Concluding there was clear and convincing evidence finding B.W. is likely to repeat an act that would be a sex offense if committed by an adult, we affirm.
On October 4, 2006, the State filed a petition of delinquency alleging B.W., while he was fifteen years old, committed four acts of child molesting, two of which would be Class B felonies and two of which would be a Class C felonies if committed by an adult.2 B.W. admitted he was a delinquent child for committing Count I, an act that would be Class B felony child molesting if committed by an adult,3 and the State dismissed the three remaining allegations. The juvenile court ordered B.W. to have a psychological evaluation by licensed psychologist Ed Connor. Dr. Connor evaluated B.W. in October 2006 and issued a report in which he opined B.W. had a "moderate to high" risk to reoffend. (App. at 120, 121.)
On November 16, 2006, the juvenile court awarded wardship of B.W. to the Department of Correction, suspended the commitment to probation, and placed him at Wernle Children's Home ("Wernle"), where he was to serve his probation until he successfully completed a Sexual Offender Residential Treatment Program.
As part of his treatment at Wernle, B.W. was given multiple polygraph examinations. During these examinations, B.W. admitted to prior sexual encounters, including both "hands on" and "hands off" contact,4 with forty-seven5 humans and seven animals. (Tr. at 110.)
In March 2008, the State filed a motion to revoke B.W.'s probation, alleging B.W. had committed delinquent acts and failed to follow the rules at Wernle by leaving the grounds of Wernle for approximately twenty hours without permission and by threatening and fighting with another Wernle resident. B.W. admitted to the allegations in the revocation petition. The juvenile court placed B.W. in the juvenile detention center pending the dispositional hearing and then, on April 9, 2008, ordered B.W. to return to Wernle to finish his treatment program.
On August 29, 2008, the juvenile court held a review hearing during which B.W.'s probation officer, Rick Cochran, informed the court that B.W. had "successfully completed his treatment program at Wernle." (Id. at 71.) Cochran also told the court that the permanency plan for B.W. was to place him with his grandparents in Ohio.
On September 12, 2008, the State filed a Motion for Sex Offender Registration, requesting the juvenile court find B.W. was a sex offender required to register on the sex offender registry. On September 15, 2008, the juvenile court held a hearing on the State's motion. B.W., who was eighteen at the time of the hearing, testified that he understood what his triggers to reoffending were and stated he would avoid reoffending "because of [his] age now [he'd] go straight to prison" and "wouldn't get a second chance to try to live life to the fullest." (Id. at 149.)
The State presented an expert witness, Thomas, a counselor who supervised B.W.'s treatment and worked with B.W. on a daily basis while he received treatment during his two years at Wernle. Thomas discussed the sexual encounter disclosures B.W. had made in some of his polygraph examinations at Wernle, and B.W. did not object to the testimony.
Thomas explained that B.W. "started offending" when he was nine years old and had a peak of activity between ages thirteen to fifteen, (id. at 113), and testified B.W.'s victims ranged from two years old to "seniors." (Id. at 112.) Thomas testified that some of B.W.'s contacts with his victims had been predatory in nature and involved "clear premeditation planning in the process to avoid detection by other individuals" and that "for the most part [involved] some form of grooming process ... where he ingratiated himself with the potential victim in order to get them [sic] to go along with what he wanted them to do sexually with him." (Id. at 95.) Thomas explained that B.W.'s planning involved the purchase of surveillance equipment, which was "a strong indication that someone is pretty motivated in this compulsive behavior." (Id. at 107.)
Thomas testified that when B.W. entered Wernle his risk for reoffending was assessed at "a high risk ... I would say he was very high risk...." (Id. 85.) Richard Cochran, B.W.'s probation officer, testified that B.W. had been assessed by Dr. Connor prior to B.W.'s placement at Wernle and that Dr. Connor's assessment placed B.W. at a "moderate to high" risk to reoffending. (Id. at 118-119.) Cochran indicated that Dr. Connor's report was part of B.W.'s predispositional report, and the juvenile court took judicial notice of the case file.
Thomas further testified that B.W. had "come a long way" (id. at 96) with treatment and had been able to develop internal controls that would help him make good choices. Thomas indicated he was "pleased" with the support that B.W. had received from his family, who had been educated on B.W.'s risk factors and his safety prevention plan. (Id. at 93.) Thomas stated that B.W. had been attending the local public high school during Summer and Fall of 2008 and had displayed appropriate behavior while in the community. Thomas and Cochran testified they had no indication B.W. had engaged in any reoffending or inappropriate behavior while off-campus at school or while at Wernle.
Thomas testified that on completion of the Wernle program, B.W. was assessed by using testing instruments6 and input from the treatment team. He testified "there was clear indication that there was change as [B.W.] went through treatment," (id. at 91), and B.W. had benefitted from treatment. (See id. at 103.) Thomas testified that, based on the results of the testing and B.W.'s permanency plan, B.W. was assessed to be at a "moderate" risk for reoffending. (Id. at 93.) Thomas explained that the range of risk levels included low, low moderate, moderate, moderate high, and high. Thomas testified B.W.'s sex drive and preoccupation with sex were "excessively high" (id. at 107) and were "abnormal" (id. at 109) for a typical seventeen-year-old male. Still, Thomas opined that B.W. did not belong on the sex offender registry. (Id. at 109-110.)
The juvenile court found B.W. was required to register as a sex offender. Its order provided, in relevant part:
1. That juvenile, [B.W.], date of birth August 28, 1990, was originally adjudicated for the delinquent act of child molesting in this cause of action which constitutes a possible qualifying offense for [the] sex offender registry; That the Court's disposition of this cause was to place [B.W.] at Wernle Children's Home, and that the child's date of admission was November 20, 2006. The Court finds through State's Exhibit "1" the report of Stanley Thomas of Wernle Children's Home that [B.W.'s] sexual history has included sexual contact with
* * * * * *
4. The Court further finds that Stanley Thomas of Wernle found [B.W.'s] risk for recidivism is in the moderate range at this time. The Court finds that prior to the placement the child was examined by Dr. Ed Connor. Dr. Connor's report which is contained in the Pre-Dispositional Report, found that [B.W.] should be considered a "moderate to high chance to recidivate."
5. The Court finds through testimony of [B.W.] that he indicates that he would not perform these illicit sexual acts in the future because of fear of possible consequences. The Court finds that [B.W.'s] testimony indicates the fear of punishment and not empathy for victims is the motivation to avoid future incidents.
6. The Court further finds improvements in [B.W.'s] circumstances and his condition; however, the Court also finds the he remains a substantial risk to commit future acts. The Court considers it significant that [B.W.] recently committed acts of violence and runaway at the Wernle placement. The Court finds that these acts show instability and a continued inability to control his behavior in the future. The Court finds that [B.W.] is at least fourteen (14) years of age, that he has been discharged from a juvenile detention facility as a result of an adjudication as a delinquent child from an act which would be a qualifying offense for sex offender registry, to-wit: did knowingly perform or submit to deviate sexual conduct with a male child under fourteen (14) years of age, to wit: R.H. .... age five (5) years, in violation of I.C. 35-42-4-3(a), Child Molesting, a Class B felony. The Court further finds by clear and convincing evidence that [B.W.] is likely to repeat sex offences [sic] outlined in I.C. 11-8-8-5 § (a) [sic]. The Court hereby finds that [B.W.] must be and hereby is directed to appropriately register as a sex offender pursuant to Indiana Code [1]1-8-8-5.
(App. at 234-36). B.W. filed a motion to correct error, which the juvenile court denied.
B.W. argues the trial court erred by...
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