Jacob Lutz v. State of Indiana ( 2014 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
Jun 04 2014, 9:29 am
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:
R. PATRICK MAGRATH GREGORY F. ZOELLER
Alcorn Goering & Sage, LLP Attorney General of Indiana
Madison, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JACOB LUTZ, )
)
Appellant-Defendant, )
)
vs. ) No. 15A01-1310-CR-451
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE DEARBORN CIRCUIT COURT
The Honorable James D. Humphrey, Judge
Cause No. 15C01-1208-FB-38
June 4, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARTEAU, Senior Judge
STATEMENT OF THE CASE
Jacob Lutz appeals the trial court’s determination that he is a sexually violent
predator. We affirm.
FACTS AND PROCEDURAL HISTORY
In June 2012, the State filed a petition alleging Lutz, then seventeen years old, to
be a delinquent child for committing what would be Class B felony child molesting,
Class C felony child molesting, Class B felony criminal deviate conduct, and two counts
of Class D felony sexual battery if committed by an adult. The petition alleged that Lutz
had abused his ten- and eleven-year-old cousins. In August 2012, on the State’s motion,
the juvenile court waived jurisdiction to adult criminal court.
The parties reached a plea agreement in April 2013. Pursuant to its terms, Lutz
would plead guilty to Class B felony child molesting and Class C felony child molesting.
In exchange, the State would dismiss the remaining charges and recommend an aggregate
sentence of twenty years with ten years suspended to probation (twenty years with ten
years suspended to probation for the B felony and a concurrent eight years for the C
felony). The trial court held a hearing on the negotiated plea and took the matter under
advisement.
In May 2013, the State filed a motion for a sexually violent predator
determination. The court granted the motion in an order appointing psychologist Edward
Connor and psychiatrist George Parker to examine Lutz. Dr. Connor and Dr. Parker each
examined Lutz, filed their written reports with the trial court, and testified about their
2
examinations and reports at a hearing combining the issues of the sexually violent
predator determination and sentencing.
Dr. Connor testified about his evaluation of Lutz, which included interviews and
numerous assessments. Dr. Connor had supervised an evaluation of Lutz back in 2012,
when the Department of Child Services had asked him to perform a psychological
evaluation and risk assessment, so for the most recent evaluation he was able to use the
information gathered from the 2012 evaluation as a point of comparison. He found that
Lutz exaggerated his psychiatric conditionor malingeredin the earlier evaluation
where it might constitute a mitigating factor, but that he minimized his psychiatric
condition in the later evaluation so as to avoid a sexually violent predator determination.
Dr. Connor believed Lutz was at moderate to high risk to sexually reoffend. He
found it particularly troubling that Lutz had been adjudicated a delinquent child in 2008
for molesting his stepsister, who was two years older than him, and that he then went on
to molest his two younger cousins. Lutz molested one of them for two years, and when
asked to estimate how many acts of molestation he had committed, he chuckled and said
there were too many to count. Dr. Connor noted that Lutz did not learn from experience,
tended to blame his victims for his behavior, accepted little responsibility for his
offenses, and had little remorse for his actions. Dr. Connor concluded that Lutz’s
schizoid personality with antisocial features in combination with his diagnosis of
dysthymia, which is a mild but chronic grade of depression, constituted a mental
abnormality that made it likely that he would repeatedly commit a sex offense.
3
Dr. Parker testified Lutz reported he had been emotionally abused by his
stepfather and sexually abused by his brother. Dr. Parker also observed that Lutz’s prior
abuse of his stepsister, which involved approaching her while she slept, resembled the
behavior he perpetrated upon his younger cousins. Lutz began masturbating at age five,
and that early sexual behavior was reinforced by the inappropriate sexual behavior with
his brother when he was between the ages of eight and eleven. He reported being
aroused by sexually mature girls and women, but around age sixteen he became more
indiscriminate and was sexually aroused by females whether they were prepubescent,
adolescent, or mature women. Dr. Parker noted that Lutz had poor impulse control, lack
of insight, and strong sexual urges. Dr. Parker diagnosed Lutz with pedophilia and
believed he was at risk for sexually reoffending.
The trial court concluded that Lutz suffered from a mental abnormality or
personality disorder that made him likely to repeatedly commit a sex offense. It thus
determined that Lutz was a sexually violent predator. The court accepted the plea
agreement, entered judgments of conviction for Class B and Class C felony child
molesting, sentenced Lutz to an aggregate term of twenty years with ten years suspended
to probation, and required him to register as a sex offender for life. Lutz now appeals.
DISCUSSION AND DECISION
Indiana Code section 35-38-1-7.5(a) (2007) defines a sexually violent predator as
“a person who suffers from a mental abnormality or personality disorder that makes the
individual likely to repeatedly commit a sex offense.” Here, the State sought to have
Lutz found to be a sexually violent predator pursuant to subsection (e), which provides:
4
If a person is not a sexually violent predator under subsection (b), the
prosecuting attorney may request the court to conduct a hearing to
determine whether the person (including a child adjudicated to be a
delinquent child) is a sexually violent predator under subsection (a). If the
court grants the motion, the court shall appoint two (2) psychologists or
psychiatrists who have expertise in criminal behavioral disorders to
evaluate the person and testify at the hearing. After conducting the hearing
and considering the testimony of the two (2) psychologists or psychiatrists,
the court shall determine whether the person is a sexually violent predator
under subsection (a). A hearing conducted under this subsection may be
combined with the person’s sentencing hearing.
Lutz contends the evidence is insufficient to sustain the trial court’s sexually
violent predator determination. When a defendant challenges the sufficiency of the
evidence supporting a sexually violent predator finding, our inquiry is whether there is
substantial evidence of probative value to sustain the trial court’s finding that the
defendant suffers from a mental abnormality or personality disorder that makes him or
her likely to repeatedly commit a sex offense. Mays v. State, 982 N.E.2d 387, 391 (Ind.
Ct. App. 2013). We neither reweigh the evidence nor judge the credibility of the
witnesses. Id. We consider only the evidence supporting the judgment and any
reasonable inferences that can be drawn therefrom. Id.
Dr. Connor and Dr. Parker each conducted evaluations of Lutz, submitted written
reports to the court, and testified at a hearing. Dr. Connor concluded that Lutz’s schizoid
personality with antisocial features in combination with his dysthymia constituted a
mental abnormality that made it likely that he would repeatedly commit a sex offense.
Dr. Parker concluded Lutz’s mental abnormality of pedophilia made it likely that he
would repeatedly commit a sex offense. Both testified regarding the processes they used
to examine Lutz and how they reached their conclusions.
5
Despite this clear evidence, Lutz argues the court improperly relied on his
malingering to support the sexually violent predator determination, see Tr. p. 67, because
the evidence shows he engaged in malingering in the 2012 examination and not in the
more recent examination. The trial court, however, was merely drawing attention to the
fact that Dr. Connor believed Lutz was crafting his responses to suit his needs of the
moment: he exaggerated his psychiatric condition in 2012 when it might be considered a
mitigating factor, and he minimized it in the later examination so as to avoid a sexually
violent predator determination.
Lutz also argues that the conclusions of Dr. Connor and Dr. Parker were
improperly based primarily on the offenses to which he had pleaded guilty. We disagree.
Dr. Connor and Dr. Parker relied on more than the fact that Lutz had sexually abused his
young cousins. They also found it notable that he had just years before been adjudicated
a delinquent child for sexual battery against his stepsister in similar circumstances; that
is, he approached his victims while they slept. The evidence provided by Dr. Connor and
Dr. Parker showed they reviewed several aspects of his history and made their
conclusions accordingly.
Finally, Lutz argues that the conclusions of Dr. Connor and Dr. Parker were too
conclusory and cites Marlett v. State, 878 N.E.2d 860 (Ind. Ct. App. 2007), trans. denied.
Marlett, however, involved a previous version of the sexually violent predator statute that
did not require a hearing and consideration of testimony from the court-appointed
experts. Id. at 871. In that case, the defendant pleaded guilty to criminal confinement,
and the trial court appointed experts to determine whether he should be classified as a
6
sexually violent predator. Based on the doctors’ reports, the court determined he was a
sexually violent predator.
On appeal, the defendant argued the doctors’ opinions were too conclusory to
support the trial court’s sexually violent predator determination and noted the State did
not call them to testify regarding their findings.
The panel in Marlett observed that the sexually violent predator statute had
recently been amended to require a hearing at which the court-appointed experts would
testify, but the statute was amended after the defendant had been sentenced.
The Marlett Court nonetheless found his concerns valid, particularly noting the
lack of specificity in the reports alongside the fact that the defendant had not committed
an overtly sexual crime. Specifically, one report concluded he was at risk for repeating
the offensecriminal confinement, which was not an overtly sexual crimeand the
other report concluded he should be classified as a sexually violent predator without
identifying what type of crime he would be at risk of repeatedly committing. We
therefore remanded for the trial court to reconsider the defendant’s sexually violent
predator status after conducting a hearing pursuant to the amended version of the statute.
Id. at 872.
The case before us is easily distinguishable from Marlett. Unlike the defendant in
Marlett, who was not convicted of an overtly sexual crime, Lutz was convicted of two
counts of child molesting. Also unlike Marlett, the trial court’s sexually violent predator
determination was not based solely on the doctors’ reports. Instead, in accordance with
statute, the trial court held a hearing where it received testimony from Dr. Connor and Dr.
7
Parker regarding their examinations of Lutz. Lutz was able to cross-examine Dr. Connor
and Dr. Parker regarding their evaluations and their opinions as to whether he should be
classified as a sexually violent predator. See Edwards v. State, 952 N.E.2d 862, 871 (Ind.
Ct. App. 2011) (similarly distinguishing Marlett).
The trial court, after consideration of the record, including the reports and
testimony of the doctors, determined that Lutz was a sexually violent predator. We
conclude the evidence is sufficient to sustain that determination. See Scott v. State, 895
N.E.2d 369, 376-77 (Ind. Ct. App. 2008) (evidence sufficient to sustain sexually violent
predator determination where defendant was convicted of overtly sexual crimes, had a
prior attempted child molesting conviction, lacked remorse, and one doctor’s written
report concluded he suffered from antisocial personality disorder and was “significantly
more likely than the average individual to engage in the offenses listed”).
CONCLUSION
We therefore affirm.
BAILEY, J., and PYLE, J., concur.
8