Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                        Jun 04 2014, 9:29 am
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:

R. PATRICK MAGRATH                                GREGORY F. ZOELLER
Alcorn Goering & Sage, LLP                        Attorney General of Indiana
Madison, Indiana
                                                  RICHARD C. WEBSTER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JACOB LUTZ,                                       )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )         No. 15A01-1310-CR-451
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE DEARBORN CIRCUIT COURT
                         The Honorable James D. Humphrey, Judge
                              Cause No. 15C01-1208-FB-38



                                         June 4, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BARTEAU, Senior Judge
                              STATEMENT OF THE CASE

       Jacob Lutz appeals the trial court’s determination that he is a sexually violent

predator. We affirm.

                        FACTS AND PROCEDURAL HISTORY

       In June 2012, the State filed a petition alleging Lutz, then seventeen years old, to

be a delinquent child for committing what would be Class B felony child molesting,

Class C felony child molesting, Class B felony criminal deviate conduct, and two counts

of Class D felony sexual battery if committed by an adult. The petition alleged that Lutz

had abused his ten- and eleven-year-old cousins. In August 2012, on the State’s motion,

the juvenile court waived jurisdiction to adult criminal court.

       The parties reached a plea agreement in April 2013. Pursuant to its terms, Lutz

would plead guilty to Class B felony child molesting and Class C felony child molesting.

In exchange, the State would dismiss the remaining charges and recommend an aggregate

sentence of twenty years with ten years suspended to probation (twenty years with ten

years suspended to probation for the B felony and a concurrent eight years for the C

felony). The trial court held a hearing on the negotiated plea and took the matter under

advisement.

       In May 2013, the State filed a motion for a sexually violent predator

determination. The court granted the motion in an order appointing psychologist Edward

Connor and psychiatrist George Parker to examine Lutz. Dr. Connor and Dr. Parker each

examined Lutz, filed their written reports with the trial court, and testified about their



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examinations and reports at a hearing combining the issues of the sexually violent

predator determination and sentencing.

       Dr. Connor testified about his evaluation of Lutz, which included interviews and

numerous assessments. Dr. Connor had supervised an evaluation of Lutz back in 2012,

when the Department of Child Services had asked him to perform a psychological

evaluation and risk assessment, so for the most recent evaluation he was able to use the

information gathered from the 2012 evaluation as a point of comparison. He found that

Lutz exaggerated his psychiatric conditionor malingeredin the earlier evaluation

where it might constitute a mitigating factor, but that he minimized his psychiatric

condition in the later evaluation so as to avoid a sexually violent predator determination.

       Dr. Connor believed Lutz was at moderate to high risk to sexually reoffend. He

found it particularly troubling that Lutz had been adjudicated a delinquent child in 2008

for molesting his stepsister, who was two years older than him, and that he then went on

to molest his two younger cousins. Lutz molested one of them for two years, and when

asked to estimate how many acts of molestation he had committed, he chuckled and said

there were too many to count. Dr. Connor noted that Lutz did not learn from experience,

tended to blame his victims for his behavior, accepted little responsibility for his

offenses, and had little remorse for his actions.      Dr. Connor concluded that Lutz’s

schizoid personality with antisocial features in combination with his diagnosis of

dysthymia, which is a mild but chronic grade of depression, constituted a mental

abnormality that made it likely that he would repeatedly commit a sex offense.



                                             3
       Dr. Parker testified Lutz reported he had been emotionally abused by his

stepfather and sexually abused by his brother. Dr. Parker also observed that Lutz’s prior

abuse of his stepsister, which involved approaching her while she slept, resembled the

behavior he perpetrated upon his younger cousins. Lutz began masturbating at age five,

and that early sexual behavior was reinforced by the inappropriate sexual behavior with

his brother when he was between the ages of eight and eleven. He reported being

aroused by sexually mature girls and women, but around age sixteen he became more

indiscriminate and was sexually aroused by females whether they were prepubescent,

adolescent, or mature women. Dr. Parker noted that Lutz had poor impulse control, lack

of insight, and strong sexual urges. Dr. Parker diagnosed Lutz with pedophilia and

believed he was at risk for sexually reoffending.

       The trial court concluded that Lutz suffered from a mental abnormality or

personality disorder that made him likely to repeatedly commit a sex offense. It thus

determined that Lutz was a sexually violent predator. The court accepted the plea

agreement, entered judgments of conviction for Class B and Class C felony child

molesting, sentenced Lutz to an aggregate term of twenty years with ten years suspended

to probation, and required him to register as a sex offender for life. Lutz now appeals.

                             DISCUSSION AND DECISION

       Indiana Code section 35-38-1-7.5(a) (2007) defines a sexually violent predator as

“a person who suffers from a mental abnormality or personality disorder that makes the

individual likely to repeatedly commit a sex offense.” Here, the State sought to have

Lutz found to be a sexually violent predator pursuant to subsection (e), which provides:

                                             4
       If a person is not a sexually violent predator under subsection (b), the
       prosecuting attorney may request the court to conduct a hearing to
       determine whether the person (including a child adjudicated to be a
       delinquent child) 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.

       Lutz contends the evidence is insufficient to sustain the trial court’s sexually

violent predator determination. When a defendant challenges the sufficiency of the

evidence supporting a sexually violent predator finding, our inquiry is whether there is

substantial evidence of probative value to sustain the trial court’s finding that the

defendant suffers from a mental abnormality or personality disorder that makes him or

her likely to repeatedly commit a sex offense. Mays v. State, 982 N.E.2d 387, 391 (Ind.

Ct. App. 2013).    We neither reweigh the evidence nor judge the credibility of the

witnesses.   Id.   We consider only the evidence supporting the judgment and any

reasonable inferences that can be drawn therefrom. Id.

       Dr. Connor and Dr. Parker each conducted evaluations of Lutz, submitted written

reports to the court, and testified at a hearing. Dr. Connor concluded that Lutz’s schizoid

personality with antisocial features in combination with his dysthymia constituted a

mental abnormality that made it likely that he would repeatedly commit a sex offense.

Dr. Parker concluded Lutz’s mental abnormality of pedophilia made it likely that he

would repeatedly commit a sex offense. Both testified regarding the processes they used

to examine Lutz and how they reached their conclusions.

                                            5
       Despite this clear evidence, Lutz argues the court improperly relied on his

malingering to support the sexually violent predator determination, see Tr. p. 67, because

the evidence shows he engaged in malingering in the 2012 examination and not in the

more recent examination. The trial court, however, was merely drawing attention to the

fact that Dr. Connor believed Lutz was crafting his responses to suit his needs of the

moment: he exaggerated his psychiatric condition in 2012 when it might be considered a

mitigating factor, and he minimized it in the later examination so as to avoid a sexually

violent predator determination.

       Lutz also argues that the conclusions of Dr. Connor and Dr. Parker were

improperly based primarily on the offenses to which he had pleaded guilty. We disagree.

Dr. Connor and Dr. Parker relied on more than the fact that Lutz had sexually abused his

young cousins. They also found it notable that he had just years before been adjudicated

a delinquent child for sexual battery against his stepsister in similar circumstances; that

is, he approached his victims while they slept. The evidence provided by Dr. Connor and

Dr. Parker showed they reviewed several aspects of his history and made their

conclusions accordingly.

       Finally, Lutz argues that the conclusions of Dr. Connor and Dr. Parker were too

conclusory and cites Marlett v. State, 878 N.E.2d 860 (Ind. Ct. App. 2007), trans. denied.

Marlett, however, involved a previous version of the sexually violent predator statute that

did not require a hearing and consideration of testimony from the court-appointed

experts. Id. at 871. In that case, the defendant pleaded guilty to criminal confinement,

and the trial court appointed experts to determine whether he should be classified as a

                                            6
sexually violent predator. Based on the doctors’ reports, the court determined he was a

sexually violent predator.

       On appeal, the defendant argued the doctors’ opinions were too conclusory to

support the trial court’s sexually violent predator determination and noted the State did

not call them to testify regarding their findings.

       The panel in Marlett observed that the sexually violent predator statute had

recently been amended to require a hearing at which the court-appointed experts would

testify, but the statute was amended after the defendant had been sentenced.

       The Marlett Court nonetheless found his concerns valid, particularly noting the

lack of specificity in the reports alongside the fact that the defendant had not committed

an overtly sexual crime. Specifically, one report concluded he was at risk for repeating

the offensecriminal confinement, which was not an overtly sexual crimeand the

other report concluded he should be classified as a sexually violent predator without

identifying what type of crime he would be at risk of repeatedly committing.           We

therefore remanded for the trial court to reconsider the defendant’s sexually violent

predator status after conducting a hearing pursuant to the amended version of the statute.

Id. at 872.

       The case before us is easily distinguishable from Marlett. Unlike the defendant in

Marlett, who was not convicted of an overtly sexual crime, Lutz was convicted of two

counts of child molesting. Also unlike Marlett, the trial court’s sexually violent predator

determination was not based solely on the doctors’ reports. Instead, in accordance with

statute, the trial court held a hearing where it received testimony from Dr. Connor and Dr.
                                              7
Parker regarding their examinations of Lutz. Lutz was able to cross-examine Dr. Connor

and Dr. Parker regarding their evaluations and their opinions as to whether he should be

classified as a sexually violent predator. See Edwards v. State, 952 N.E.2d 862, 871 (Ind.

Ct. App. 2011) (similarly distinguishing Marlett).

       The trial court, after consideration of the record, including the reports and

testimony of the doctors, determined that Lutz was a sexually violent predator. We

conclude the evidence is sufficient to sustain that determination. See Scott v. State, 895

N.E.2d 369, 376-77 (Ind. Ct. App. 2008) (evidence sufficient to sustain sexually violent

predator determination where defendant was convicted of overtly sexual crimes, had a

prior attempted child molesting conviction, lacked remorse, and one doctor’s written

report concluded he suffered from antisocial personality disorder and was “significantly

more likely than the average individual to engage in the offenses listed”).

                                     CONCLUSION

       We therefore affirm.

BAILEY, J., and PYLE, J., concur.




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