Baugh v. State , 926 N.E.2d 497 ( 2010 )

OPINION

CRONE, Judge.

Case Summary

Matthew A. Baugh appeals his two convictions and consecutive sentences for class B felony sexual misconduct with a minor, as well as the determination that he is a sexually violent predator. We affirm.

Issues

I. Has Baugh procedurally defaulted his argument that the trial court failed to comply with statutory requirements in determining that he is a sexually violent predator?

II. Did the trial court abuse its discretion in ordering consecutive sentences?

III. Do Baugh's convictions violate the Indiana Constitution's prohibition of double jeopardy under the continuing crime doctrine?

Facts and Procedural History

In the fall of 2007, fourteen-year-old Z. (born August 1, 1998) and E. were eighth-grade classmates and best friends. Z.'s parents had recently divorced, and E.'s father had recently died. Z. frequently spent the night at E.'s residence.

Baugh, E.'s half-brother, was twenty-six years old in November 2007. According to 7., in November 2007, Baugh demonstrated an interest in Z.-holding her hand, making eye contact, talking to her on her cell phone-and then "started dating" her. Tr. at 124. In December 2007, in E.'s room, they "had sex," id., by which Z. meant that "[Baugh's] penis went in [her] vagina." Id. at 100, 110. Baugh had sex with Z. "[olver ten" times between December 2007 and mid-March 2008. Id. at 101. In addition, they engaged in oral sex, with "[Z.'s] mouth on his penis and his mouth on [her] vagina," and he asked her "to call him Daddy Matt." Id. at 103. Baugh told Z. that no one could "know" about their relationship "[blecause he would go back to prison." Id. at 105. At the end of March 2008, Z. admitted to her mother "[tlhat [she] and [Baugh] were sleeping together." Id. at 112.

On April 18, 2008, the State charged Baugh with two counts of class B felony sexual misconduct with a minor. As amended on April 25, 2008, each count alleged that "between November 1, 2007, and March 30, 2008," Baugh had intentionally performed or submitted to sexual intercourse with Z., "a child at least fourteen (14) years of age but less than sixteen (16) years of age." Appellant's App. at 23, 24. At trial, Z. testified to the foregoing. On September 1, 2009, the jury found Baugh guilty on both counts.

On September 4, 2009, pursuant to Indiana Code Section 35-38-1-7.5(e), the State filed a petition asking the trial court to order evaluations to determine whether Baugh was a sexually violent predator. The trial court granted the petition and requested that Dr. Rebecca Mueller and Dr. Frank Krause examine Baugh "to determine whether or not he is a Sexually Violent Predator." Id. at 175. The doe-tors conducted their examinations and submitted reports, each opining that Baugh suffered from a personality disorder and was likely to commit additional sexual offenses.

On October 7, 2009, the trial court held the sentencing hearing. The State argued that "[blased upon" the evaluations of Dr. Mueller and Dr. Krause and "the definition of a sexually violent predator," the trial court should find Baugh "to be a sexually violent predator and require him to register for life in the sex registry." Tr. at 427, 428. Baugh's counsel asserted that with respect "to the determination of the sexual violent predator, I think that the Court has to make that determination based upon the charge that he's been convicted [sie] and the doctors' reports, and I would leave that up to the Court." Id. at 429-80. The trial court "reviewed the reports of Dr. Mueller and Dr. Krause" and found that Baugh was a sexually violent predator "within the meaning of the statute." Id. at 277. The trial court sentenced Baugh to serve twelve years executed on each count, with the sentences "served consecutively." Id. at 482.

Discussion and Decision

I. Sexually Violent Predator Determination

Indiana Code Section 85-88-1-7.5 provides that a " 'sexually violent predator' means a person who suffers from a mental abnormality or personality disorder that makes the individual likely to repeatedly commit a sex offense (as defined in IC 11-8-8-5.2)" Ind.Code § The statute further provides that a person at least eighteen years of age who is convicted of certain specified erimes "is a sexually violent predator" by operation of

law. Ind.Code § 35-38-1-7.5(b). Sexual misconduct with a minor is not one of those offenses. Id. However, class B felony sexual misconduct with a minor is a sex offense as defined in Indiana Code Section 11-8-8-5.2 and requires registration with the local law enforcement authority under Indiana Code Chapter 11-8-8.¹ In such a case, i.e., when the person is convicted of class B felony sexual misconduct with a minor, Indiana Code Section 35-38-1-7.5 provides for the possibility of the trial court's determination, at sentencing, that he is a sexually violent predator.

Specifically, if, by operation of law, the person "is not a sexually violent predator under subsection (b)" but has been convicted of a specified sex offense requiring registration, the State

may request the court to conduct a hearing to determine whether the person ... 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.

Ind.Code § 35-38-1-7.5(e). A sexually violent predator-whether by operation of law, or adjudicated pursuant to the above statutory procedure-is required to register for life. Ind.Code § 11-8-8-19(b).

Baugh argues that the trial court failed to comply with the statutory requirements for making a sexually violent predator determination. Specifically, he notes that "[njo live testimony was presented at the sentencing hearing regarding the doctors' evaluations"; that no other "hearing on the matter was conducted"; and that there is no evidence "that the two persons who submitted reports had any expertise in criminal behavioral disorders." Appellant's Br. at 3. Accordingly, he argues, the determination that he is a sexually violent predator must be vacated. The State responds that Baugh "has waived this claim on appeal" because "he did not object to this determination at sentencing[.]" Ap-pellee's Br. at 5.

We agree with the State. Our supreme court has acknowledged that "[the term 'waiver' has been applied to several different concepts." Bunch v. State, 778 N.E.2d 1285, 1287 (Ind.2002). The concept addressed by the State is that of procedural default, which occurs when "a party has failed to take the necessary steps to preserve the issue." Id. The State correctly observes that, "as a general rule, a party may not present an argument or issue on appeal unless the party raised that argument or issue before the trial court." Washington v. State, 808 N.E.2d 617, 625 (Ind.2004). This rule "protects the integrity of the trial court, which should not be found to have erred as to an issue or argument that it never had an opportunity to consider." Nance v. Miami Sand & Gravel, LLC, 825 N.E.2d 826, 834 (Ind.Ct.App.2005), trans. denied. Because Baugh failed to present his argument to the trial court, we conclude that he has procedurally defaulted and thus waived it for purposes of this appeal.²

II. Sentence

In its sentencing order, the trial court found the following aggravating circumstances: Baugh's "history of adult criminal activity," consisting of ten misdemeanor and five felony charges, with two misdemeanor and two felony convictions; his recent probation violations; the "particularly heinous or disturbing" facts of the instant offenses; the "substantial degree of eare and planning and manipulation" of Baugh "in the commission" of the offenses; four prior unsuccessful attempts at correction and/or rehabilitation through detention, incarceration, and probation; and the "particularly devastating" effect of his offenses upon Z. and her family. Appellant's App. at 276, 277. The court "note[d]" the request of Z. and her family that the maximum sentence be imposed. Id. at 277. Finally, as mitigating cireum-stances, the trial court "considered" that Baugh had "some family backing and support and may be likely to respond affirmatively to a term of incarceration." Id.

Baugh argues that the trial court "abused its discretion in ordering each count to be served consecutively by giving improper or undue consideration to several alleged aggravating circumstances." Appellant's Br. at 7. Specifically, he asserts that four of the above aggravating cireum-stances should not have been considered and only two-his prior eriminal history and unsuccessful correction and/or rehabilitation-were "properly used" in the trial court's "determination to make the sentences consecutive." Id. at 9. Therefore, he concludes, his "sentence should be modified and ordered to run concurrently." Id. We disagree.

"[Slentencing decisions rest within the sound discretion of the trial court and are reviewed on appeal only for an abuse of discretion." Anglemyer v. State, 868 N.E.2d 482, 490 (Ind.2007), clarified on reh'g, 875 N.E.2d 218. A sentence "within the statutory range ... is subject to review only for abuse of discretion." Id. An abuse of discretion occurs if the decision is clearly against the logic and effects of the facts and cireumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom. Id. The weight to be given properly found aggravating and mitigating cireum-stances is a determination made by the trial court and not subject to review on appeal. Id. at 491. Finally, we note that "(al single aggravating factor is sufficient to justify the imposition of consecutive sentences." Forgey v. State, 886 N.E.2d 16, 23 (Ind.Ct.App.2008).

Even if we were to agree that some of the aggravating circumstances found by the trial court were improper, Baugh concedes the existence of two valid statutory aggravators. It is undisputed that Baugh's adult eriminal record included two misdemeanor and two felony convictions. Further, at trial, Baugh admitted that he was on probation at the time of the instant offenses.

Moreover, pursuant to Indiana Code Section 35-50-1-2, the trial court may order terms of imprisonment to be served consecutively. "The basis for the gross impact that consecutive sentences may have is the moral principle that each separate and distinet criminal act deserves a separately experienced punishment." Powell v. State, 895 N.E.2d 1259, 1263 (Ind.Ct.App.2008), trans. denied (2009). Here, the evidence established that Baugh committed sexual misconduct with Z-specifically, sexual intercourse-on two occasions. Therefore, the trial court "did not err in imposing consecutive sentences for these separate and distinct acts." Id.

III Double Jeopardy

Finally, Baugh argues that his two convictions violate the Indiana Constitution's prohibition of double jeopardy. He cites our supreme court's statement in Guyton v. State, 771 N.E.2d 1141, 1143 (Ind.2002), that the Indiana provision covers not only the double jeopardy analysis described in Richardson v. State, 717 N.E.2d 32 (Ind.1999), but also "a series of rules of statutory construction and common law that are often described as double jeopardy." Baugh asserts that the continuing crime doctrine³ is one such common law doctrine, and that it applies here, inasmuch as the evidence "showed that [his] actions constituted one continuous transaction." Appellant's Br. at 11. We disagree.

"The continuing crime doctrine essentially provides that actions that are sufficient in themselves to constitute separate criminal offenses may be so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction." Riehle v. State, 823 N.E.2d 287, 296 (Ind.Ct.App.2005) (citing Nunn v. State, 695 N.E.2d 124, 125 (Ind.Ct.App.1998)), trans. denied. As we noted in Richie, the continuous crime doctrine "does not seek to reconcile the double jeopardy implications of two distinct chargeable crimes; rather, the doctrine defines those instances where a defendant's conduct amounts to only a single chargeable crime." Id. Thus, the continuous crime doctrine "prevents the State from charging a defendant twice for the same continuous offense." Id.

Here, according to Z's testimony, Baugh's acts of sexual intercourse with her were not "so compressed in time, place, singleness of purpose, and continuity of action as to constitute a single transaction." Id. She testified that the first act of intercourse took place at E.'s home in December 2007, in E.'s bedroom; another act took place in Z.'s own home; the most recent act was in mid-March 2008; and several other additional acts of intercourse and inappropriate sexual contact occurred during the intervening four months. Further, in its sentencing order, the trial court specifically found "that the actions of the defendant were separate and distinct over a period of time." Appellant's App. at 277. Accordingly, we find that Baugh's conduct in committing sexual intercourse and inappropriate sexual contact with Z. on multiple occasions spanning a four-month period was conduct "separate in time," and not "a single transaction" implicating the continuous crime doctrine. Id.

Affirmed.

BAKER, C.J., concurs. DARDEN, J., dissents with separate opinion.

1 . The registration period for a person convicted of class B felony sexual misconduct with a minor is ten years. Ind.Code § 11-8-8-19(a).

2 . One exception to the waiver rule is the "extremely narrow fundamental error exception." Stokes v. State, 908 N.E.2d 295, 301 (Ind.Ct.App.2009) (citation and quotation marks omitted), trans. denied.

To qualify as fundamental, an error must be so prejudicial to the rights of the defendant as to make a fair trial impossible. The error must amount to a blatant violation of basic principles, the harm or potential for harm must be substantial, and the resulting error must deny the defendant fundamental due process.

Id. (citation omitted). Baugh does not make a fundamental error claim as to this issue. Additionally, we note that the State's "Petition Requesting Evaluation Regarding Determination of Sexually Violent Predator Status" mentions the requirement for a "hearing to determine whether or not the person is a sexually violent predator" pursuant to Indiana Code Section 35-38-1-7.5(e). Appellant's App. at 172. The petition indicates that a copy thereof was served on Baugh's counsel. Id. at 173. As such, Baugh's counsel was put on notice as to the statutory requirements for a sexually violent predator determination.

3 . Baugh refers to the "continuing act doctrine," citing to Nunn v. State, 695 N.E.2d 124 (Ind.Ct.App.1998), Appellant's Br. at 10, but Nunn does not use this phrase. In Riehle v. State, 823 N.E.2d 287 (Ind.Ct.App.2005), trans. denied, we discussed the "continuing crime" or "continuous crime" doctrine. Id. at 296.