                                                                          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
