Scott v. State
| Decision Date | 28 October 2008 |
| Docket Number | No. 82A04-0802-CR-85.,82A04-0802-CR-85. |
| Parties | Ronald Lynn SCOTT, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Matthew Jon McGovern, Evansville, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Zachary J. Stock, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-Defendant, Ronald Lynn Scott, Jr. (Scott), appeals the trial court's finding that he is a sexually violent predator pursuant to Indiana Code section 35-38-1-7.5.
We affirm.
Scott presents one issue for our review, which we restate as the following two:
(1) Whether the trial court erred by failing to hold a hearing at which the court-appointed doctors could have been subjected to cross-examination and required to explain their conclusions with regard to Scott's alleged status as a sexually violent predator; and
(2) Whether the evidence is sufficient to support the trial court's finding that Scott is a sexually violent predator.
Between November 1, 2006, and January 31, 2007, Scott, who was thirty-four or thirty-five years old at the time, had sexual intercourse multiple times with N.M., who was fourteen years old at the time. On March 26, 2007, the State filed an Information charging Scott with three counts of sexual misconduct with a minor, as a Class B felony, I.C. § 35-42-4-9(a)(1). On August 9, 2007, the State filed an enhancement alleging that Scott is a repeat sexual offender under Indiana Code section 35-50-2-14 based on a 1993 conviction for attempted child molesting.
On August 10, 2007, Scott and the State entered into a plea agreement by which Scott would plead guilty as charged to the three Class B felony counts of sexual misconduct with a minor, would register as a sex offender, and would receive the minimum sentence of six years for each count, with the terms to be served concurrently, and the State would dismiss the repeat sexual offender enhancement. In addition, the State would ask the trial court to have Scott evaluated for purposes of determining whether he is a sexually violent predator (or SVP) under Indiana Code section 35-38-1-7.5. On September 4, 2007, the trial court accepted the plea agreement and sentenced Scott accordingly, i.e., to an executed prison sentence of six years. The trial court also appointed Dr. Thomas Liffick (Dr. Liffick), a psychiatrist, and Dr. David Cerling (Dr. Cerling), a psychologist, to evaluate Scott for purposes of the SVP determination.
On November 29, 2007, Dr. Liffick submitted a report to the trial court stating, among other things, that Scott suffers from antisocial personality disorder and "is significantly more likely than the average individual" to commit the sex and violent crimes listed in the SVP statutes. (Appellant's App. pp. 80-81). On December 12, 2007, Dr. Cerling submitted his report to the trial court, in which he concluded, among other things, that Scott suffers from impulse control disorder and presents "a moderate risk for future sexual offenses." (Appellant's App. p. 87). After Dr. Liffick and Dr. Cerling submitted their reports, Scott requested an evidentiary hearing at which the doctors could testify and be cross-examined. The trial court denied the request. On January 10, 2008, the trial court issued an order finding Scott to be a sexually violent predator. In its order, the trial court emphasized the doctors' reports, Scott's prior conviction for attempted child molesting, and Scott's lack of remorse for the three sexual misconduct offenses underlying the SVP proceeding.
Scott now appeals. Additional facts will be provided as necessary.
On appeal, Scott challenges the trial court's finding that he is a sexually violent predator. In Indiana, whether or not a person is a sexually violent predator is a matter governed by statute, and our legislature significantly revised the relevant statutes in 2006 and 2007, with the last amendment going into effect on May 10, 2007. See P.L. 6-2006, § 5; P.L. 140-2006, §§ 13, 21, 41; P.L. 173-2006, §§ 13, 21, 55; P.L. 216-2007 §§ 12, 14, 37. In this case, Scott committed the sexual misconduct offenses underlying the trial court's SVP finding between November 1, 2006, and January 31, 2007, and he was sentenced on September 4, 2007, so there was some question at the trial court level as to which versions of the statutes were applicable to Scott. In the end, the trial court determined Scott's status "under the terms of the statutes in effect prior to the 2006, 2007 amendments." (Appellant's App. p. 36). Neither party challenges the trial court's decision as to the applicable statutes, so we will review the trial court's SVP finding in accordance with the same versions of the statutes.
Prior to the 2006 and 2007 amendments, Indiana Code section 35-38-1-7.5 (2004), the statute that generally governed sexually violent predator findings, provided, in pertinent part:
(b) This section applies whenever a court sentences a person for a sex offense listed in IC 5-2-12-4(a)(1) through IC 5-2-12-4(a)(10) for which the person is required to register with the sheriff (or the police chief of a consolidated city) under IC 5-2-12-5.
Here, the trial court was sentencing Scott for three counts of sexual misconduct with a minor, as a Class B felony, which was one of the offenses that made a person eligible for a sexually violent predator finding. See I.C. §§ 5-2-12-4(a)(8) (2004), 5-12-12-5 (2004) (both repealed by P.L. 140-2006, § 41, and P.L. 173-2006, § 55).
As for the process of making a sexually violent predator finding, Indiana Code section 35-38-1-7.5(c) (2004) provided: "At the sentencing hearing, the court shall determine whether the person is a sexually violent predator," which at the time was defined as "an individual who suffers from a mental abnormality or personality disorder that makes the individual likely to repeatedly" commit certain enumerated sex or violent offenses. I.C. § 5-2-12-4.5 (2004) (repealed by P.L. 140-2006, § 41, and P.L. 173-2006, § 55). Indiana Code section 35-38-1-7.5(c) (2004) continued: "Before making a determination under this section, the court shall consult with a board of experts consisting of two (2) board certified psychologists or psychiatrists who have expertise in criminal behavioral disorders." If the court found that the person was a sexually violent predator, the person was required to register as a sex offender for life. I.C. §§ 35-38-1-7.5(d)(1) (2004), 5-2-12-13(b) (2004) (repealed by P.L. 140-2006, § 41, and P.L. 173-2006, § 55). Having outlined the applicable statutory framework, we now turn to Scott's contentions on appeal.
As one of his arguments on appeal, Scott asks that, pursuant to our recent opinion in Marlett v. State, 878 N.E.2d 860 (Ind.Ct.App.2007), trans. denied, we remand this cause to the trial court for the purpose of holding a hearing on his status as an SVP, at which Dr. Liffick and Dr. Cerling could be cross-examined and be required to explain their conclusions. We decline to do so.
In Marlett, when the defendant was seventeen years old, he put a knife to the neck of a sixteen-year-old girl who was a fellow student at his school. Id. at 863. He pled guilty to criminal confinement of a person under eighteen by someone other than a parent or guardian, a crime that qualified him as a sex offender and made him eligible for an SVP finding. Id. at 870. The trial court appointed two doctors—one psychiatrist and one psychologist—to examine Marlett and to give their opinion as to whether he should be classified as an SVP. Id. at 871. Both doctors opined that Marlett qualified as an SVP, and the trial court found accordingly. Id. at 871-72. Marlett appealed, arguing that the doctors' opinions were too conclusory to support the trial court's finding. Id. at 871-72. He also complained about the fact that the State did not call the doctors to testify in person regarding their findings or to explain their reports. Id. at 872.
On appeal, we found Marlett's concerns regarding the conclusory nature of the reports and the failure of the experts to testify to be valid. Id. One of the doctors' reports concluded, "I, therefore, believe Mr. Marlett is at risk for repeating the offense and should be registered as a sexually violent predator." Id. We interpreted the doctor's use of the phrase "the offense" to mean that the doctor believed that Marlett was at risk for repeatedly confining minors. Id. "However," we noted, "the fact that Marlett confined a fellow high school classmate who was approximately the same age as him would not seem, by itself, to indicate such a propensity." Id. The second doctor concluded, "[I]t is my professional opinion that, after reviewing Court documents, interviews, and the results of psychological testing, [Marlett] should be classified as a Sexually Violent Predator[.]" Id. But, as we observed, "The report fails to identify any specific crime or crimes that Marlett allegedly is at risk of repeatedly committing." Id. In the end, we concluded that "[m]ore specificity would be especially helpful in a case like this, where Marlett did not commit an overtly sexual crime." Id. As such, we remanded the cause to the trial court for a hearing, stating, "We would feel more comfortable reviewing a ruling that was made following ... a hearing at which the experts who opined generally that Marlett is an SVP must testify and defend and explain their conclusions." Id.
Here, on the other hand, the doctors' reports were specific, not conclusory. Dr. Liffick provided a four-and-a-half-page report detailing Scott's sexual background, his 1993 conviction for attempted child molesting, his version of the events leading to the SVP proceeding, and his mental health history. He concluded:
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