Greenlee v. State

Opinion Concurring in Part, Dissenting in Part

Staton, P.J.

— I concur with the majority opinion that the conviction should be affirmed, but I dissent from the majority opinion where it affirms the ruling of the trial court upon the sexual deviant petition.

Greenlee should have been sentenced under the Criminal Sexual Deviancy Statutes.¹ IC 1971, 35-11-3.1-1 (Burns Code Ed.) defines “criminal sexual deviant” as “any person over the age of sixteen (16) years who has been convicted of a sexual offense or an offense which directly involved the commission of an illegal sexual act, . . .” (My emphasis). The majority bases its conclusion that Greenlee does not come under the purview of the statute on the wording of IC 1971, 35-11-3.1-3 (a) : “A petition may be made that a person be examined as a possible criminal sexual deviant after he has been convicted of and prior to sentencing for a sexual offense not excluded by the scope of this chapter [35-11-3.1-1 — 35-11-3.1-3].” (My emphasis). The majority focused on “convicted of ... a sexual offense. . . .”

This is only half of the test. I would affirm the conviction and remand for sentencing under the sexual deviant statute.

I.

Statutory Construction

The use of “or” in a statute indicates the disjunctive. Thus, two separate situations were contemplated by the legislature when the Criminal Sexual Deviancy Statutes were enacted: (1) where an individual is convicted of a sexual offense; (2) where an individual is convicted of an offense which directly involved the commission of an illegal sexual act. In IC 1971, 35-11-3.1-3(a), the words “sexual offense” necessarily encompass both situations; to construe the statute otherwise would leave the second circumstance unexplained in the law.

“In construing legislation, this Court must employ a reasonable interpretation of statutory language as a means of discovering the legislature’s true goals. It cannot be presumed that our lawmakers expect their enactments to be applied in an illogical or absurd manner.” Pryor v. State (1973), 260 Ind. 408, 412, 296 N.E.2d 125, 127.

The cardinal rule of statutory construction is to ascertain and give effect to the legislative intent. Hunt v. State (1924), 195 Ind. 585, 146 N.E. 329.

II.

Legislative Intent

A statement of the purpose of the Criminal Sexual Psychopath Statute (the predecessor of the Criminal Sexual Deviancy Statute) was contained in State v. Criminal Court (1955), 234 Ind. 632, 637, 130 N.E.2d 128, 131:

“The purpose of the proceedings and confinement under the [criminal sexual psychopath statute was] primarily to protect society against such persons regardless of criminal guilt.”

Likewise, the existence of Criminal Sexual Deviancy Statutes indicates a legislative recognition that something more than punishment per se may be necessary for the benefit of the society and the criminal.

III.

Sexual Deviancy Evidence

There was evidence that society needed to be protected from Greenlee’s behavior. Greenlee’s father testified that it was necessary for his son to seek help from a psychiatrist “. . . real early in either junior high or early high school.” He testified that his son had seen a psychiatrist more than ten times. The father revealed that Greenlee’s mother had been confined to a mental institution and that Greenlee’s younger brother had attempted to hang himself a week before the trial. Later, Rigg Scott, a friend, testified that Greenlee told him before his arrest that . . he thought he needed help from psychiatrists, . . .” and that he had gone to a Guidance Clinic in Valparaiso. The trial court could have reasonably inferred from this evidence that Greenlee may be a person who could injure society.

Sexual deviancy was suggested by Greenlee’s defense psychiatrist, Dr. Frieske. He testified: “I characterized him as having antisocial traits, a definite trend toward sexual deviation, voyeurism, exhibitionism, sadistic feelings, marked sexual aggressiveness.” He testified that Greenlee’s whole personality “. . . was skewed in this direction of deviant sexual behavior.” This diagnosis was not disputed by the court-appointed psychiatrist, Dr. Metcalfe, who testified that Greenlee was “suffering from more than sexual deviation and with a sexual orientation that more closely fitted in with a psychotic one or a schizophrenic ... I wouldn’t quibble too much with anyone who wished to call him a sexual psychopath.” Greenlee wanted treatment and without help there was a possibility that he would repeat these sexual crimes, since “. . . schizophrenia is a chronic mental illness that usually has some roots in one’s early life and there are some people who will even believe that there could be some hereditary aspect to it.” He concluded that a schizophrenic paranoid is treatable. On the 30th of August, 1973, Greenlee was suffering from a schizophrenic paranoid condition.

A second court-appointed psychiatrist, Dr. DuSold, testified that Greenlee’s “. . . psychiatric diagnosis is dissocial personality ... it falls most closely to the legal definition of the sexual deviate.” Greenlee’s “. . . release of sexual tension became not enough and he had to actually release the anger as well. . . . He has confessed to many, many things that this Court may or may not know anything about. . . . When he came into my office he put himself literally at my mercy by telling me things that the police know nothing about, any one of which could be damaging. He was aware enough of his own difficulties, of being unable to release the tension, that he sought help voluntarily — and this is also confirmed — before he was ever arrested.” He concluded that Greenlee was treatable and stated that . . he would not be benefitted nor would society by merely incarcerating him in jail . . . and there would come a time when we would have to turn him loose on society again without any change in his behavior.”

After reviewing this uncontroverted evidence, I can only conclude that Greenlee was indeed a sexual deviant and that society needed to be protected before he was released again. The conclusion of the trial court that the “. . . motion is not well-taken under the strict interpretation of the statute” is reversible error.²

IV.

Conclusion

Greenlee qualifies as a criminal sexual deviant. (1) He committed an offense directly involving the commission of an illegal sexual act; (2) some testimony at trial indicates his condition may be treatable (it would be up to the Department of Mental Health to make the final determination during the 120 day observation period prior to commitment); (3) the purposes of the sexual deviancy legislation would be subverted if only those convicted of sexual offenses could qualify for treatment. There is considerable flexibility in the selection of a charge to be placed upon a series of criminal acts. The charge-conviction criteria adopted by the majority opinion is only half of the total expressed legislative intent.³ The other half is an offense, here first degree burglary, which directly involved the commission of an illegal sexual act — here attempted rape and assault and battery with intent to gratify. In Greenlee’s case, the clear, uncontroverted evidence best serves the purpose of the sexual deviant statute. Greenlee was a sexual deviant seeking treatment. Untreated, he presented a potential threat to society. I would affirm the conviction and remand this cause to the trial court for sentencing under the sexual deviant statute.

Note. — Reported at 354 N.E.2d 312.

1 . IC 1971, 35-11-3.1-1 et seq. (Burns Code Ed.).

2 . While it is generally true that penal statutes are strictly construed, Kelley v. State (1954), 233 Ind. 294, 119 N.E.2d 322, the purpose of the Criminal Sexual Deviancy Statutes is not penal. Even were this not so, strict letter yields to obvious intent. Cyrus v. State (1924), 195 Ind. 346, 145 N.E. 497. And where ambiguity does exist in a criminal statute, it must be resolved in favor of the accused. Utley v. State (1972), 258 Ind. 443, 281 N.E.2d 888.

“In cases of ambiguity, we must search for legislative intent. If more than one construction is possible, the court may consider the consequences of a particular construction. . . . Once having determined such intent, however, the ambiguity disappears, and we are no more at liberty to adopt a construction that will not give effect to such intent than we would be had there been no ambiguity in the first instance.” State ex rel. Bynum v. La Porte Superior Court (1973), 259 Ind. 647, 650, 291 N.E.2d 355, 356.

At least two witnesses in addition to the prosecution and defense counsel found it implicit that Greenlee was charged with a sex offense, i.e., “first degree burglary, entering a residence or a dwelling house with intent to commit a felony, namely rape.”

This court held in Lindsey v. State (1972), Ind. App., 282 N.E.2d 854, 857, that “The crime of first degree burglary is not a sexual offense within the meaning of the criminal sexual deviancy act.” A more accurate statement would be that the crime of first degree burglary is not necessarily a sexual offense within the meaning of the criminal sexual deviancy act. Where, as here, the sexual components of the offense are blatant and the technicality of the official charge would obfuscate the intent of the legislation, first degree burglary would come within the statute.

3 . The Indiana Supreme Court in Pieper v. State (1976), 262 Ind. 580, 321 N.E.2d 196 at 200, stated:

“It is the judgment of the Legislature that no one will be re-routed to the Department unless he first be convicted of a non-excluded sexual offense. However, after initial re-routing, in determining whether an alleged criminal sexual deviant should be committed for treatment, the trial court may make the determination that he is a criminal sexual deviant partly upon consideration of convictions for any ‘offense which directly involved the commission of an illegal sexual act.’ ” (Original emphasis).

The Court therein recognized the two halves of the criteria for “sexual deviant.” It would be illogical to assume that the trial court may conr sider for commitment purposes convictions for any offense directly involving the commission of an illegal sexual act and not consider them for diagnostic purposes. The Supreme Court distinguished the uses in Pieper because a kidnapping conviction, in and of itself, cannot be, in either half of the defined scope, a sexual offense. First Degree Burglary may be.