Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before 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:
BRENT WESTERFIELD                                  GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   ERIC P. BABBS
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana
                                                                                    FILED
                                                                                 Nov 26 2012, 9:45 am

                               IN THE                                                    CLERK
                     COURT OF APPEALS OF INDIANA
                                                                                       of the supreme court,
                                                                                       court of appeals and
                                                                                              tax court




N.L.,                                              )
                                                   )
        Appellant-Respondent,                      )
                                                   )
            vs.                                    )        No. 47A01-1205-JV-245
                                                   )
STATE OF INDIANA,                                  )
                                                   )
        Appellee-Petitioner.                       )

                     APPEAL FROM THE LAWRENCE CIRCUIT COURT
                          The Honorable Andrea K. McKord, Judge
                              Cause No. 47C01-1011-JD-505


                                        November 26, 2012
                  MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       The Lawrence Circuit Court ordered N.L., a juvenile, to register as a sex offender.

N.L. appeals and claims that there was insufficient evidence to support the juvenile

court’s decision.

       We affirm.

                              Facts and Procedural History

       In September 2010, when N.L. was sixteen years old, he convinced a nine-year-

old boy, S.K., into playing a game of “truth or dare.” S.K. was a former neighbor of N.L.,

and N.L. used the game to engage in sexual activity with the boy, including touching

each other’s penises. Eventually, N.L. told S.K. to perform oral sex upon him, and

exposed his erect penis to the boy. S.K.’s father walked into the room before S.K.

actually performed oral sex on N.L. and stopped the activity.

       N.L. was eventually interviewed by the police regarding this incident.        N.L.

admitted to some of his behavior, but he also lied to the police and told them that S.K.

was the same age as he was. He also told a probation officer that his penis had not been

erect. It was later discovered that N.L. had engaged in similar conduct with S.K. two

years before the current incident.

       On November 19, 2010, the State filed an allegation that N.L. was a delinquent

child for committing what would be Class C felony child molesting if committed by an

adult. After an initial denial, N.L. agreed on April 4, 2011, to admit to committing what

would be Class D felony sexual battery if committed by an adult.           This included

admitting that S.K. was so mentally disabled or deficient that he could not consent to

N.L.’s touching.

                                            2
       The pre-dispositional report indicated that during a one-month period in 2009, N.L.

had rented $2,000 worth of pornographic content on cable television. At the time of the

dispositional hearing, N.L. was viewing internet pornography multiple times on a daily

basis. N.L. had not attended school since dropping out in the sixth grade, and his

grandmother, who was his adoptive mother, provided only minimal supervision of the

teenager. An assessment conducted shortly before the dispositional hearing indicated that

N.L. was at a high risk of reoffending, and N.L. tried to minimize the seriousness of his

behavior.   In its dispositional order, the juvenile court placed N.L. in the Resolute

Treatment Facility (“Resolute”).

       The staff at Resolute evaluated N.L. and found that he was amenable to treatment.

During his eight-month stay at Resolute, N.L. participated in a variety of therapies, and

successfully completed his treatment program. However, N.L.’s family appeared to not

understand the gravity of N.L.’s behavior and tended to minimalize its seriousness.

N.L.’s grandmother also failed to adequately supervise him, due to her advanced age and

health problems. N.L. also admitted that, during home visitations, he had viewed internet

pornography on two occasions. The probation department was worried that N.L. would

not be adequately supervised if released to his grandmother. And release to his father

was ruled out because his father’s wife, N.L.’s stepmother, was relatively young.

Therefore, N.L. was released to the Jackson County Juvenile Home in January 2012. N.L.

continued his improvement at the Juvenile Home, and became involved in high-school

activities. He also participated in family therapy and individual counseling.



                                             3
       On February 9, 2012, the juvenile court conducted a review hearing and heard

evidence regarding whether N.L. should register as a sex offender. The clinical director

of Resolute testified that N.L.’s risk of reoffending, which had initially been high, had

been significantly reduced by his treatment at Resolute.        The clinical director also

testified regarding a risk assessment that had been performed on N.L. on February 1,

2012. This evaluation indicated that N.L.’s “overall risk” of reoffending “appears to be

moderate.” Appellant’s App. p. 84. The juvenile court took the matter under advisement.

Then, on May 24, 2012, the probation department filed a report indicating that N.L. had

become uncooperative at the Juvenile Home, likely due to him having been taken off of

an antidepressant medication. The probation department recommended that N.L. be

released from the Juvenile Home to live with his grandmother under a four-month term of

probation. The probation department further recommended that N.L. be required to

register as a sex offender. The juvenile court adopted these recommendations in its May

24, 2012 order. It is from this order requiring N.L. to register as a sex offender that N.L.

now appeals.

                                Discussion and Decision

       The sole issue presented on appeal is whether the trial court erred in ordering N.L.

to register as a sex offender. Indiana’s Sex Offender Registration Act requires sex

offenders to register with local law enforcement authorities in the area where the offender

resides. Ind. Code § 11-8-8-7; B.W. v. State, 909 N.E.2d 471, 476 (Ind. Ct. App. 2009).

       A juvenile may be found to be a sex offender under the Sex Offender Registration

Act if he is:

                                             4
        a child who has committed a delinquent act and who:
        (A) is at least fourteen (14) years of age;
        (B) is on probation, is on parole, is discharged from a facility by the
        department of correction, is discharged from a secure private facility (as
        defined in IC 31–9–2–115), or is discharged from a juvenile detention
        facility as a result of an adjudication as a delinquent child for an act that
        would be an offense described in subsection (a)1 if committed by an adult;
        and
        (C) is found by a court by clear and convincing evidence to be likely to
        repeat an act that would be an offense described in subsection (a) if
        committed by an adult.

Ind. Code § 11-8-8-5(b)(2).

        The decision whether to place a juvenile on the sex offender registry is not to be

taken lightly. During the decision-making process, the juvenile court is statutorily

required to consider expert testimony regarding whether a juvenile is likely to reoffend.

Ind. Code § 11-8-8-5(c); B.W., 909 N.E.2d at 476. Before a juvenile may be ordered to

register as a sex offender, the juvenile court must hold an evidentiary hearing and find by

clear and convincing evidence that the juvenile is likely to commit another sex offense.

Ind. Code § 11-8-8-5(b)(2); B.W., 909 N.E.2d at 476 (citing J.C.C. v. State, 897 N.E.2d

931, 933 (Ind. 2008)). Our General Assembly has required this burden of proof “in

recognition of the serious social consequences of sex offender registration[.]” J.C.C., 897

N.E.2d at 934.

        If a juvenile has been placed in a secure private facility, a sex offender registry

hearing can be conducted only after the juvenile has been released from the facility.

B.W., 909 N.E.2d at 476 (citing J.C.C., 897 N.E.2d at 934). “The legislative intent

1
  This includes sexual battery, which is what N.L.’s actions would have constituted had he been an adult.
See I.C. § 11-8-8-5(a)(10).
                                                   5
behind holding a hearing upon the juvenile's release ‘is to hold the sex offender

registration determination in abeyance so that the juvenile has the opportunity to be

rehabilitated during detention.’” Id. Accordingly:

      the focus of the inquiry, with respect to a juvenile who has been released
      from a secure facility, is whether the treatment received in that facility has
      resulted in the juvenile’s rehabilitation. If that is the case, there cannot be
      clear and convincing evidence that the juvenile is likely to re-offend and the
      juvenile cannot be placed on the sex offender registry.

J.C.C., 897 N.E.2d at 935 (quoting B.J.B. v. State, 805 N.E.2d 870, 873 (Ind. Ct. App.

2004)); accord B.W., 909 N.E.2d at 476. The decision to order a juvenile to register as a

sex offender cannot be based solely on evidence of the juvenile’s behavior that occurred

prior to his placement in a treatment facility. See J.C.C., 897 N.E.2d at 934 (reversing

finding that juvenile was likely to reoffend when the only evidence presented by the State

was an evaluation of the juvenile’s behavior prior to his commitment); see also B.J.B,

805 N.E.2d at 873 (reversing finding that juvenile was likely to reoffend because “there

needed to be an evaluation of whether that period of treatment sufficiently rehabilitated

[the juvenile] and whether he was likely to commit another sex offense.”). The juvenile

court therefore needs to evaluate whether the juvenile’s treatment sufficiently

rehabilitated him and whether he is likely to commit another sex offense. Id.

      On review of a juvenile court’s determination that a delinquent register as a sex

offender, we neither reweigh the evidence nor judge the credibility of the witnesses.

B.W., 909 N.E.2d at 476. We instead consider only the evidence that supports the

juvenile court’s decision along with the reasonable inference to be drawn from this

evidence. Id. We will affirm the juvenile court’s decision unless no reasonable trier of

                                            6
fact could have found that the elements of I.C. § 11-8-8-5(a)(2) were proven by clear and

convincing evidence. R.G. v. State, 793 N.E.2d 238, 240 (Ind. Ct. App. 2003) (referring

to predecessor statute).

       On appeal, N.L. claims that the State failed to prove by clear and convincing

evidence that he was likely to repeat as a sex offender. N.L. notes that his treatment had

a significant impact on his likelihood to reoffend, going from high to moderate. He also

refers to the improvements he made in his social stability, such as becoming involved in

high school activities. He further notes that he is continuing in his treatment.

       The problem with N.L.’s argument, however, is that he refers almost exclusively

to evidence contrary to our standard of review. Certainly, evidence was presented that

would have supported a decision not to require N.L. to register as a sex offender. Indeed,

another, reasonable trier of fact might have come to a different conclusion from the one

reached by the juvenile court here. But we are not acting as the trier of fact, and we are

unable to say that, based upon the evidence before the juvenile court, no reasonable trier

of fact could have found that there was clear and convincing evidence that N.L. was

likely to reoffend.

       Importantly, there was substantial evidence that, despite his treatment, N.L. was

still a moderate risk to reoffend. Moreover, while in his treatment, he admitted to

viewing pornography during his home visits. N.L.’s excessive use of pornography was

one of the reasons for placing him in the treatment facility. Moreover, N.L. had become

increasingly difficult at the Juvenile Home, likely as a result of a change in his

medication. In addition, N.L.’s grandmother was in poor health, and had proven unable

                                              7
to properly supervise N.L.     Thus, despite the progress that N.L. had made in the

structured environment of the treatment facility and juvenile home, his release on

probation as a juvenile with a moderate risk of reoffending would put him back in the

unsupervised, unstructured home environment which facilitated his prior offenses. These

facts are unlike the situations in J.C.C. and B.J.B., where the only evidence presented

related to the juveniles’ behavior and risk prior to their incarceration and treatment. See

J.C.C., 897 N.E.2d at 934 B.J.B, 805 N.E.2d at 873; cf. A.O. v. State, 837 N.E.2d 219,

222 (Ind. Ct. App. 2005) (reversing order requiring juvenile to register as a sex offender

where no expert witnesses testified regarding the juvenile’s propensity to reoffend and no

evidentiary hearing was conducted after his release from a correctional facility). From

the evidence before it, the juvenile court could reasonably conclude that there was clear

and convincing evidence that N.L. was likely to reoffend.

       We also agree with N.L. that the evidence in this case was not as compelling as

that presented in B.W., where we affirmed the trial court’s order requiring a juvenile to

resister as a sex offender. In B.W., as here, there was evidence that the juvenile had

made progress in his treatment and had completed a treatment program. 909 N.E.2d at

479. But in B.W, there was also evidence presented regarding the juvenile’s disturbing

history of inappropriate sexual behavior, which included sexual contacts with humans

and animals, his planning and premeditation in these incidents to avoid detection, his

admission that his motivation to not repeat his offenses was fear of punishment, acts of

running away and violence a few months prior to his release from treatment, and his

moderate risk level of reoffending despite almost two years of treatment. Id.

                                            8
       The important similarity between the two cases is the fact that both B.W. and N.L.,

despite their treatment, still presented a moderate risk of reoffending. And, as we noted

in B.W., the completion of a treatment program does not “automatically equate to the

requisite level of rehabilitation that would preclude the juvenile court from determining

there was clear and convincing evidence he is likely to reoffend.” Id. Instead, “the

completion of a treatment program is a factor in the prerequisite rehabilitation

evaluation[.]” Id. Thus, a juvenile court may determine a juvenile is not sufficiently

rehabilitated despite completing a treatment program. Id.

       Despite the fact that the evidence presented here was not as strong as that

presented in B.W., we are unable to say that the evidence presented here, and the

reasonable inferences to be drawn therefrom, was so insufficient that no reasonable trier

of fact could have found by clear and convincing evidence that N.L. was likely to

reoffend.

       Our decision should not be read to minimize the progress N.L. has made in

addressing his sexual problems. To the contrary, it appears undisputed that N.L. had

made a strong effort to improve himself and address his problems, and we commend him

for his efforts. However, under our standard of review, we are unable to say that the

decision reached by the juvenile court was unreasonable.

       In conclusion, there was sufficient evidence to support the juvenile court’s

decision to require N.L. to register as a sex offender as a condition of his probation.

       Affirmed.

VAIDIK, J., and BARNES, J., concur.

                                              9
