Michael Mehringer v. State of Indiana

FILED
Aug 24 2020, 9:49 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bryan L. Ciyou Curtis T. Hill, Jr.
Alexander N. Moseley Attorney General of Indiana
Ciyou and Dixon, P.C.
Indianapolis, Indiana Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Michael Mehringer, August 24, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2281
v. Appeal from the Johnson Circuit
Court
State of Indiana, The Honorable Andrew Roesener,
Appellee-Plaintiff Judge
Trial Court Cause No.
41C01-1808-F3-38
May, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-2281 | August 24, 2020 Page 1 of 18
[1] Michael Mehringer appeals his conviction of and sentence for Level 3 felony
child molesting. 1 He presents five issues for our review, which we revise and
restate as:
1. Whether the State presented sufficient evidence to support
Mehringer’s conviction;
2. Whether the trial court abused its discretion by omitting
proposed mitigating circumstances from its sentencing statement;
3. Whether Mehringer’s sentence is inappropriate in light of the
nature of his offense and his character;
4. Whether Indiana Code section 35-38-1-7.5 unconstitutionally
encroaches on the judicial fact-finding function; and
5. Whether Mehringer’s right to due process was violated when
he was determined to be a sexually violent predator by operation
of law pursuant to Indiana Code section 35-38-1-7.5.
We affirm.
Facts and Procedural History
[2] After dating since 2006, Mehringer married a woman named Andrea, who had
a daughter from a previous relationship. Mehringer acted as a father figure
toward Andrea’s daughter and legally adopted her in 2012, making her name
1
Ind. Code § 35-42-4-3.
Court of Appeals of Indiana | Opinion 19A-CR-2281 | August 24, 2020 Page 2 of 18
G.M. Mehringer would help G.M. with her homework, attend her sporting
events, go on family vacations, and perform other parenting functions.
[3] While on winter break from school in December 2017, G.M., who was
approximately thirteen years old, attended twice-daily swim practices.
Mehringer would sometimes give G.M. massages to alleviate her soreness from
practice. That December, Mehringer had several days off from his job working
for the Federal Aviation Administration (“FAA”). The night before he was to
return to work, Mehringer visited G.M.’s bedroom and laid down next to her
on her bed. G.M. played games on Mehringer’s cell phone, and then she
decided to read a book. G.M. reached over Mehringer to grab the book from
the nightstand and then laid back down.
[4] G.M. was wearing panties and a long t-shirt, and as she was reading, Mehringer
“started to touch [G.M.’s] legs and then eventually went through [her]
underwear.” (Tr. Vol. I at 71.) Mehringer inserted his finger into G.M.’s
vagina and stated, “if I massage you too hard let me know.” (Id. at 72.) G.M.
froze while Mehringer touched her, and she eventually asked to use the
restroom. After using the restroom, G.M. returned to the bedroom and said
that she was going to bed. Mehringer got off G.M.’s bed, and G.M. laid down
on the edge of her bed. Mehringer then tried to lay down next to G.M., but he
fell off her bed. Mehringer asked G.M. if she wanted him to continue lying
next to her, and she indicated that she did not. Mehringer then promised G.M.
an iPod, a car on her 16th birthday, and “the best 21st birthday.” (Id. at 73.)
Court of Appeals of Indiana | Opinion 19A-CR-2281 | August 24, 2020 Page 3 of 18
[5] G.M. mentioned Andrea would be very upset if she found out what Mehringer
had done to her, and Mehringer told G.M. not to tell her mom about what
happened because Andrea would kick him out of the house if she found out.
Mehringer then asked, “what about the other times this happened[?],” alluding
to a time when he rubbed against G.M. while they were both lying on her bed
and a time when G.M. was sitting in the living room and Mehringer touched
her breast. (Id. at 76.) Mehringer then left G.M.’s bedroom. G.M. cried and
had trouble falling asleep that night. She decided not to go to swim practice the
next morning because she was too tired.
[6] While Andrea drove G.M. to her evening swim practice the day after the
incident, G.M. told Andrea that Mehringer “needs to tell you something when
he gets home.” (Id. at 66.) Andrea called Mehringer after dropping G.M. off,
and she asked Mehringer what happened the previous night. Mehringer said,
“‘I’m not sure. I know I did something wrong. I think I touched G.M.’” (Id.
at 28.) The three discussed the matter when G.M. returned home from swim
practice. Andrea did not immediately contact the police or the Department of
Child Services (“DCS”). Mehringer moved out of the house in January 2018.
In April or May of 2018, G.M. started to attend counseling. Around this time,
Andrea also contacted DCS and filed for divorce from Mehringer. DCS
contacted the Greenwood Police Department, and a detective interviewed
G.M.
[7] The State charged Mehringer with Level 3 felony child molesting on August 2,
2018. The court held a bench trial on August 26, 2019. At trial, Mehringer
Court of Appeals of Indiana | Opinion 19A-CR-2281 | August 24, 2020 Page 4 of 18
acknowledged lying next to G.M. on her bed and giving her a massage, but he
denied inserting his finger in her vagina. He testified that when he told G.M.
she was not going to get an iPod for Christmas as punishment for sending lewd
photographs to a teenage boy, G.M. accused him of touching her
inappropriately. The trial court found Mehringer guilty and entered judgment
of conviction.
[8] The court held a sentencing hearing on September 16, 2019. At the conclusion
of the hearing, Mehringer asked for a lenient sentence. He noted his lack of
criminal history, the good parenting behaviors he exhibited in raising G.M., his
inability to continue making child support payments while incarcerated, and his
low likelihood of recidivism. The State pointed out that Mehringer exploited a
position of trust to commit his crime and asked the court to sentence Mehringer
to an eleven-year term, with eight years executed followed by three years on
probation.
[9] In pronouncing sentence, the court recognized as an aggravating circumstance
that Mehringer occupied a position of trust when he committed his offense.
The court also recognized as mitigating factors Mehringer’s lack of criminal
history and his payment of child support for G.M. following his divorce.
However, the court assigned the latter circumstance minimal mitigating weight
because Mehringer victimized G.M. and because both G.M. and Andrea asked
for Mehringer to receive a long sentence. The court sentenced Mehringer to a
nine-year term, with seven years executed in the Indiana Department of
Correction (“DOC”) and two years suspended to probation. The court also
Court of Appeals of Indiana | Opinion 19A-CR-2281 | August 24, 2020 Page 5 of 18
found Mehringer to be an offender against children pursuant to Indiana Code
section 35-42-4-11 and a sexually violent predator (“SVP”) pursuant to Indiana
Code section 35-38-1-7.5.
Discussion and Decision
I. Sufficiency of the Evidence
[10] Mehringer asserts the State did not present sufficient evidence to sustain his
conviction. In assessing whether there was sufficient evidence to support a
conviction, we consider the probative evidence in the light most favorable to the
verdict. Burns v. State, 91 N.E.3d 635, 641 (Ind. Ct. App. 2018). “It is the fact-
finder’s role, not that of appellate courts, to assess witness credibility and weigh
the evidence to determine whether it is sufficient to support a conviction.”
Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). “Reversal is appropriate only
when no reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt. Thus, the evidence is not required to overcome
every reasonable hypothesis of innocence and is sufficient if an inference may
reasonably be drawn from it to support the verdict.” Burns, 91 N.E.3d at 641
(internal citation omitted).
[11] Indiana Code section 35-42-4-3 states: “A person who, with a child under
fourteen (14) years of age, knowingly or intentionally performs or submits to
sexual intercourse or other sexual conduct (as defined in IC 35-31.5-2-221.5)
commits child molesting, a Level 3 felony.” Indiana Code section 35-31.5-2-
221.5 defines “other sexual conduct” to include, in relevant part, “the
Court of Appeals of Indiana | Opinion 19A-CR-2281 | August 24, 2020 Page 6 of 18
penetration of the sex organ or anus of a person by an object.” Mehringer
argues the State failed to prove he acted knowingly or intentionally. The State
may prove intent through circumstantial evidence. Lee v. State, 973 N.E.2d
1207, 1210 (Ind. Ct. App. 2012), trans. denied. “Intent can be inferred from a
defendant’s conduct and the natural and usual sequence to which such conduct
logically and reasonably points. The fact finder is entitled to infer intent from
the surrounding circumstances.” Id. (internal citation omitted).
[12] While Mehringer maintains “the circumstantial evidence can only lead to the
inference that [Mehringer’s] conduct and actions were completely innocent, and
in no way different than any other night,” (Appellant’s Br. at 20), G.M.’s
reaction to Mehringer’s actions demonstrates they were out of the ordinary.
G.M. cried and had trouble sleeping after Mehringer left her room. She
testified the digital penetration occurred for at least ten seconds and could have
lasted as long as three minutes. When G.M. confronted Mehringer about the
incident afterwards, he alluded to other times he sexually touched G.M. These
three facts demonstrate the touching was not accidental. Mehringer notes
several facts in support of his argument that he did not intend to penetrate
G.M.’s vagina with his finger, including that he routinely gave G.M. massages;
testimony that G.M.’s room was dark and the door was open on the night of
the incident; and that G.M. did not accuse Mehringer of misconduct before
December 2017. However, Mehringer is merely requesting that we reweigh the
evidence, which we will not do. See Wright v. State, 828 N.E.2d 904, 906 (Ind.
Court of Appeals of Indiana | Opinion 19A-CR-2281 | August 24, 2020 Page 7 of 18
2005) (holding defendant’s sufficiency of the evidence argument was a request
for the appellate court to reweigh the evidence, which it will not do).
II. Trial Court’s Sentencing Decision
[13] Mehringer contends the trial court erred in omitting proposed mitigating factors
from the sentencing statement. Sentencing decisions rest within the sound
discretion of the trial court, and we review such decisions for an abuse of
discretion. Hudson v. State, 135 N.E.3d 973, 979 (Ind. Ct. App. 2019). “An
abuse of discretion will be found where the decision is clearly against the logic
and effect of the facts and circumstances before the court or the reasonable,
probable, and actual deductions to be drawn therefrom.” Id. For example, a
trial court may abuse its discretion by:
(1) failing to enter a sentencing statement at all; (2) entering a
sentencing statement that includes aggravating and mitigating
factors that are unsupported by the record; (3) entering a
sentencing statement that omits reasons that are clearly
supported by the record; or (4) entering a sentencing statement
that includes reasons that are improper as a matter of law.
Id.[14] Nonetheless, the trial court is not required to accept the defendant’s arguments
regarding what constitutes a mitigating factor or assign proposed mitigating
factors the same weight as the defendant. Flickner v. State, 908 N.E.2d 270, 273
(Ind. Ct. App. 2009). “In cases where the trial court has abused its discretion,
we will remand for resentencing only ‘if we cannot say with confidence that the
Court of Appeals of Indiana | Opinion 19A-CR-2281 | August 24, 2020 Page 8 of 18
trial court would have imposed the same sentence had it properly considered
reasons that enjoy support in the record.’” Bryant v. State, 959 N.E.2d 315, 322
(Ind. Ct. App. 2011) (quoting Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.
2007), clarified on reh’g 875 N.E.2d 218 (Ind. 2007)).
[15] Mehringer argues the trial court abused its discretion by not considering three
proposed mitigating factors: (1) the crime was the result of circumstances
unlikely to recur; (2) Mehringer is likely to respond affirmatively to probation or
short term incarceration; and (3) Mehringer’s attitude and character indicate
that he is unlikely to commit another crime. In support of the argument that
Mehringer would respond well to probation or work release, he points to his
stable employment history and the testimony of his former coworkers that he
was a trustworthy employee. Mehringer also points to his lack of previous
interactions with the criminal justice system and the statements of support
presented at sentencing from his friends and family members as evidence that
his character and attitude make it unlikely he will reoffend. Mehringer also
argues the crime was the result of circumstances unlikely to recur because he is
not able to physically see G.M. due to his divorce.
[16] However, even acknowledging Mehringer’s positive work history and the
testimony presented on his behalf, the record fails to demonstrate that
Mehringer would respond well to probation or short-term incarceration or that
he is unlikely to commit another crime. While an offender’s risk assessment
scores should not be considered as aggravating or mitigating factors in and of
themselves, they “may be considered to ‘supplement and enhance a judge’s
Court of Appeals of Indiana | Opinion 19A-CR-2281 | August 24, 2020 Page 9 of 18
evaluation, weighing, and application of the other sentencing evidence in the
formulation of an individualized sentencing program appropriate for each
defendant.’” J.S. v. State, 928 N.E.2d 576, 578 (Ind. 2010) (quoting Malenchik v.
State, 928 N.E.2d 564, 573 (Ind. 2010)). The Indiana Risk Assessment System
placed Mehringer in the high-risk category to reoffend. During the Pre-
Sentence Investigation (“PSI”) interview, Mehringer reported drinking
regularly from 2012 or 2013 until 2018. During this time, Mehringer indicated
“[t]he only time he was sober was during work, church, and swim meets.”
(App. Vol. II at 37.) Also, while Mehringer had a positive work history, he lost
his job with the FAA because of his felony conviction. Further, he continues to
deny molesting G.M. and refuses to take responsibility for his crime. All these
facts contradict Mehringer’s proposed mitigating factors.
[17] While Mehringer argues his crime is the result of circumstances unlikely to
recur, his offense was not an isolated occurrence. G.M. testified Mehringer
inappropriately touched her twice before the incident for which he was
convicted. There is no indication in the record that Mehringer’s parental rights
over G.M. were terminated, and he did not place the custody decree from his
divorce into evidence. Accordingly, the record is unclear regarding the level of
interaction with G.M. that Mehringer is allowed following the divorce. None
of Mehringer’s proposed mitigating factors were supported by the record, and
therefore, the trial court did not abuse its discretion by omitting them from the
sentencing statement. Pennington v. State, 821 N.E.2d 899, 905 (Ind. Ct. App.
Court of Appeals of Indiana | Opinion 19A-CR-2281 | August 24, 2020 Page 10 of 18
2005) (holding proposed mitigating circumstances were not both significant and
clearly supported in the record).
III. Inappropriateness of Sentence
[18] Mehringer also argues his sentence is inappropriate given the nature of his
offense and his character. We evaluate inappropriate sentence claims using a
well-settled standard of review.
We “may revise a sentence authorized by statute if, after due
consideration of the trial court’s decision, [we find] the sentence
is inappropriate in light of the nature of the offense and the
character of the offender.” Ind. App. R. 7(B). Our role in
reviewing a sentence pursuant to Appellate Rule 7(B) “should be
to attempt to leaven the outliers, and identify some guiding
principles for the trial courts and those charged with
improvement of the sentencing statutes, but not to achieve a
perceived ‘correct’ result in each case.” Cardwell v. State, 895
N.E.2d 1219, 1225 (Ind. 2008). “The defendant bears the burden
of persuading this court that his or her sentence is inappropriate.”
Kunberger v. State, 46 N.E.3d 966, 972 (Ind. Ct. App. 2015).
“Whether a sentence is inappropriate ultimately turns on the
culpability of the defendant, the severity of the crime, the damage
done to others, and a myriad of other factors that come to light in
a given case.” Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct.
App. 2014).
Belcher v. State, 138 N.E.3d 318, 328 (Ind. Ct. App. 2019), trans. denied.
[19] When considering the nature of the offense, we first look to the advisory
sentence for the crime. Anglemyer, 868 N.E.2d at 494. Indiana Code section
35-50-2-5 states: “A person who commits a Level 3 felony (for a crime
Court of Appeals of Indiana | Opinion 19A-CR-2281 | August 24, 2020 Page 11 of 18
committed after June 30, 2014) shall be imprisoned for a fixed term of between
three (3) and sixteen (16) years, with the advisory sentence being nine (9)
years.” Thus, Mehringer’s sentence equaled the advisory term, and the court
exercised its grace and suspended two years of Mehringer’s term to probation.
See Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (“Probation is a matter of
grace left to trial court discretion, not a right to which a criminal defendant is
entitled.”); see also Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010) (holding
appellate review under Indiana Appellate Rule 7 may consider both the number
of years of a sentence and the manner in which the sentence is to be served).
[20] Mehringer argues that he “is a perfect match for a short term of imprisonment,
work release, and/or probation.” (Appellant’s Br. at 37.) However, the nature
of Mehringer’s offense is more egregious than the “typical” Level 3 child
molesting offense because Mehringer exploited a position of trust in carrying
out his offense. As the trial court explained at sentencing,
the position of trust that [Mehringer] had and the connection that
he had to Andrea and G.M. and the family was significant and
the court puts great emphasis on this position of trust. He was
her father. Um, and an involved father, and so the court finds
significant aggravation as it relates to that point.
(Tr. Vol. II at 30.) In addition, G.M. testified that Mehringer tried to convince
G.M. not to tell Andrea about the incident by promising G.M. gifts and
warning G.M. about what Andrea would do to him if she found out. Given
these circumstances, we see nothing inappropriate about his nine-year sentence.
See Mise v. State, 142 N.E.3d 1079, 1089 (Ind. Ct. App. 2020) (Court observed
Court of Appeals of Indiana | Opinion 19A-CR-2281 | August 24, 2020 Page 12 of 18
the defendant “committed his offenses against two young girls with whom he
shared a father-daughter relationship. He abused his position of trust with these
girls and robbed them of their youthful innocence when he molested them.”),
trans. denied.
[21] As to Mehringer’s character, he notes that he helped Andrea file her taxes and
complete other tasks after moving out of the house. He paid his child support
obligation during the pendency of the criminal proceedings against him, and he
was employed throughout most of his adult life. He did not have a criminal
history, and several former coworkers, family members, and friends testified or
sent letters to the court on his behalf. However, the court appears to have taken
these positive aspects of his character into account because he is required to
serve only seven years of his nine-year sentence in the DOC. Nevertheless,
while Mehringer deserves credit for seeking treatment for alcohol abuse
following his divorce, his statement to Andrea the night after the incident that
he could not remember what he did to G.M. and his self-report in the Pre-
Sentence Investigation that he drank a fifth of rum daily before receiving
treatment demonstrate that he allowed his alcohol problem to get out of control
before seeking help. Consequently, we cannot say Mehringer’s sentence is
inappropriate given the nature of his offense and his character. See Vega v. State,
119 N.E.3d 193, 204 (Ind. Ct. App. 2019) (holding sentence for child molesting
and child solicitation was not inappropriate given defendant’s long history of
marijuana use and defendant’s abuse of his position of trust over the victim).
Court of Appeals of Indiana | Opinion 19A-CR-2281 | August 24, 2020 Page 13 of 18
IV. Separation of Powers
[22] Indiana’s legislature proscribed that a person is an SVP by operation of law if
he, being at least eighteen years of age, commits one of several enumerated
offenses. Ind. Code § 35-38-1-7.5(2014) (“SVP Statute”).2 An SVP is subject to
additional restrictions beyond those imposed on non-SVP sex offenders. For
example, while sex offenders are generally required to register with local law
enforcement for ten years, a sex offender who is also an SVP is required to
register for life. Ind. Code § 11-8-8-19. In addition, while a non-SVP sex
offender has seven days to register with local law enforcement upon the
occurrence of any of eight statutory enumerated events, an SVP must register
within 72 hours. Ind. Code § 11-8-8-7. Furthermore, local law enforcement
authorities are required to contact and verify the residence of an SVP more
frequently than a non-SVP sex offender. Ind. Code § 11-8-8-13.
[23] One of the enumerated offenses that automatically renders a person an SVP is a
Level 3 felony child molesting conviction, Ind. Code § 35-38-1-7.5(b)(1)(C),
which is the crime Mehringer committed. He argues the SVP Statute is
unconstitutional because it violates the principle of separation of powers.3
2
The statute has been amended twice, with effective dates of March 15, 2018, and July 1, 2020. These
amendments do not, however, impact this appeal.
3
The State argues Mehringer waived appellate review of his claim under Article 3, Section 1 of the Indiana
Constitution because he did not raise the claim before the trial court in a motion to dismiss. However, the
State’s reliance on Donaldson v. State, 904 N.E.2d 294 (Ind. Ct. App. 2009), is misplaced. Donaldson
challenged for the first time on appeal the constitutionality of the statute under which he was convicted. Id.
at 298. Mehringer does not challenge the constitutionality of the statute under which he was convicted.
Mehringer became an SVP by operation of law upon conviction, and he challenges the constitutionality of
Court of Appeals of Indiana | Opinion 19A-CR-2281 | August 24, 2020 Page 14 of 18
When a party challenges a statute based upon a violation of the
Indiana Constitution, our standard of review is well-settled.
Every statute stands before us clothed with the presumption of
constitutionality until clearly overcome by a contrary showing.
The party challenging the constitutionality of the statute bears the
burden of proof, and all doubts are resolved against that party. If
there are two reasonable interpretations of a statute, we will
choose the interpretation that permits upholding the statute.
Stoffel v. Daniels, 908 N.E.2d 1260, 1267 (Ind. Ct. App. 2009) (internal citation
and quotation marks omitted).
[24] Article 3, Section 1 of the Indiana Constitution states:
The powers of the Government are divided into three separate
departments; the Legislative, the Executive including the
Administrative, and the Judicial: and no person, charged with
official duties under one of these departments, shall exercise any
of the functions of another, except as in this Constitution
expressly provided.
As our Indiana Supreme Court has explained, “this provision recognizes ‘that
each branch of the government has specific duties and powers that may not be
usurped or infringed upon by the other branches of government.’” Lemmon v.
Harris, 949 N.E.2d 803, 814 (Ind. 2011) (quoting State v. Monfort, 723 N.E.2d
407, 411 (Ind. 2000)). The legislature is charged with determining which acts
should be considered criminal and setting the appropriate penalties. Id. The
the SVP Statute. See Burke v. State, 943 N.E.2d 870, 873 (Ind. Ct. App. 2011) (addressing constitutional
challenge on appeal even though defendant did not raise issue in motion to dismiss), trans. denied.
Court of Appeals of Indiana | Opinion 19A-CR-2281 | August 24, 2020 Page 15 of 18
judiciary possesses the authority to affix the penalty and impose sentence on an
individual convicted of a crime. Id.[25] Merhringer argues the SVP Statute violates Article 3, Section 1 of the Indiana
Constitution “because it usurps a traditional judicial function, that being
‘determining the status of offenders and their likelihood to reoffend.’”
(Appellant’s Br. at 41) (quoting Lemmon, 949 N.E.2d at 815). He notes
subsection (a) of the SVP Statute states: “As used in this section, ‘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 § 35-38-1-7.5. Mehringer
argues that by classifying every person convicted of certain offenses to be an
SVP, the legislature has impermissibly encroached on the judicial function of
fashioning a sentence specific to the individual offender.
[26] However, rather than imposing an indiscriminate penalty, the SVP Statute
reflects the legislature’s belief that the “default” status for persons convicted of
certain offenses is that they should be considered SVPs. Lemmon, 949 N.E.2d at
815. Beginning ten years after an SVP’s release from incarceration, the SVP
can petition a court to remove the SVP designation. Ind. Code § 35-38-1-7.5(g).
If the court chooses to conduct a hearing on such a petition, it shall appoint two
psychologists or psychiatrists to evaluate whether the SVP should retain that
status. Id. If the court is satisfied the offender should no longer be considered
an SVP, the court may grant the offender’s petition. Id. Therefore, as our
Indiana Supreme Court observed in Lemmon, the SVP Statute “leaves to the
Court of Appeals of Indiana | Opinion 19A-CR-2281 | August 24, 2020 Page 16 of 18
courts at various stages the power to determine the status of offenders and their
likelihood of recidivism.” 949 N.E.2d at 815. We hold the SVP Statute is not
an unconstitutional legislative encroachment on judicial authority. See id.
(holding SVP statute did not allow the executive branch to reopen final
judgments in violation of the Indiana Constitution’s separation of powers
provision).
V. Due Process
[27] Mehringer contends his due process rights were violated because he was
deemed an SVP by operation of law and could not rebut the statutory
presumption that he is likely to reoffend. He frames his argument as a
challenge to the SVP statute on vagueness grounds. Whenever the
constitutionality of a statute is challenged, we begin with the presumption that
the statute is constitutional. State v. Lombardo, 738 N.E.2d 653, 655 (Ind. 2000).
“A statute will not be found unconstitutionally vague if individuals of ordinary
intelligence would comprehend it adequately to inform them of the proscribed
conduct.” Id. at 656. The SVP Statute clearly lays out which offenders are
designated as SVPs by operation of law. The statute lists the crimes that make
an individual an SVP, and the statute also lists an exception to being considered
an SVP if certain conditions are met. See Ind. Code § 35-38-1-7.5(h) (“A person
is not a sexually violent predator by operation of law under subsection (b)(1) if
all of the following conditions are met: . . . .”).
Court of Appeals of Indiana | Opinion 19A-CR-2281 | August 24, 2020 Page 17 of 18
[28] Mehringer was duly convicted of child molesting, and his SVP designation
follows from that conviction. As explained supra, the SVP designation is
merely a default status that an SVP can petition to have removed after ten
years. See Lemmon, 949 N.E.2d at 815. The SVP Statute does not deprive
Mehringer of his opportunity to prove that he is unlikely to reoffend. The
statute just delays his opportunity to do so until he has been released from
prison and functioned in society for period of time. Therefore, the SVP statute
is not unconstitutionally vague, and Mehringer’s due process rights were not
violated when he was deemed an SVP by operation of law.
Conclusion
[29] The State presented sufficient evidence to sustain Mehringer’s conviction.
Mehringer’s penetration of G.M.’s vagina and his attempt to persuade G.M.
not to tell Andrea about the incident indicate Mehringer intended to molest
G.M. The trial court did not abuse its discretion by omitting mitigating factors
in its sentencing statement, nor is Mehringer’s sentence inappropriate given the
nature of his offense and his character. Finally, Indiana Code section 35-38-1-
7.5 does not violate either the separation of powers clause of the Indiana
Constitution or Mehringer’s due process rights. Therefore, we affirm the trial
court’s judgment.
[30] Affirmed.
Robb, J., and Vaidik, J., concur.
Court of Appeals of Indiana | Opinion 19A-CR-2281 | August 24, 2020 Page 18 of 18