ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Steven J. Bruce Gregory F. Zoeller
Public Defender Attorney General of Indiana
Muncie, Indiana
Nicole Dongieux Wiggins
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
FILED
In the Sep 29 2010, 11:51 am
Indiana Supreme Court CLERK
of the supreme court,
court of appeals and
tax court
_________________________________
No. 18S04-1007-CR-398
MATTHEW A. BAUGH, Appellant (Defendant below),
v.
STATE OF INDIANA, Appellee (Plaintiff below).
_________________________________
Appeal from the Delaware Circuit Court, No. 18C04-0804-FB-7
The Honorable John M. Feick, Judge
_________________________________
On Transfer from the Indiana Court of Appeals, No. 18A04-0911-CR-621
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September 29, 2010
Dickson, Justice.
In this direct appeal, the defendant challenges his two convictions for class B felony Sex-
ual Misconduct with a Minor and the determination that he is a sexually violent predator. Ad-
dressing the three issues he presented, the Court of Appeals affirmed. Baugh v. State, 926
N.E.2d 497 (Ind. Ct. App. 2010). Seeking transfer on one issue, the defendant urges that the trial
court erred by failing to hold a hearing and to receive testimony of two psychologists or psy-
chiatrists before determining that he is a sexually violent predator requiring lifetime registration
with the Indiana Sex and Violent Offender Registry. The Court of Appeals determined that this
claim was procedurally defaulted due to the defendant's failure to present this argument to the
trial court. Id. at 500–01. We granted transfer and now affirm on grounds of invited error.1
The defendant contends that his convictions did not automatically establish his status as a
sexually violent predator and that the trial court failed to follow the statutory requirements for
determining such status. Although the commission of Sexual Misconduct with a Minor does not
by operation of law designate the offender as a sexually violent predator, Indiana Code § 35-38-
1-7.5(e) provides:
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 per-
son (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 ap-
point two (2) psychologists or psychiatrists who have expertise in criminal beha-
vioral disorders to evaluate the person and testify at the hearing. After conducting
the hearing and considering the testimony of the two (2) psychologists or psy-
chiatrists, the court shall determine whether the person is a sexually violent preda-
tor under subsection (a). A hearing conducted under this subsection may be com-
bined with the person's sentencing hearing.2
The defendant argues that the trial court made its determination without conducting a hearing,
without receiving testimony, and without any showing that the mental health providers perform-
ing the evaluations had expertise in criminal behavioral disorders.
After the jury found the defendant guilty of two counts of Sexual Misconduct with a Mi-
nor, the trial court scheduled a sentencing hearing, and the State petitioned the trial court to ap-
point two psychologists or psychiatrists to evaluate the defendant and to conduct a hearing to de-
termine whether the defendant is a sexually violent predator. The trial court thereupon appointed
psychiatrist Rebecca Mueller, M.D., and psychologist Frank Krause, Ed.D., to evaluate the de-
fendant "as to whether or not he is a Sexually Violent Predator" and scheduled a hearing thereon
at the same time as the sentencing hearing. Appellant's App'x at 174. The doctors evaluated the
1
As to the other issues, we summarily affirm the Court of Appeals. Ind. App. R. 58(A)(2).
2
For his convictions of class B felony Sexual Misconduct with a Minor, the defendant, by opera-
tion of law, was deemed a sex offender. See Ind. Code § 11-8-8-4.5(a)(8). Sex offenders must register
with the Indiana Sex and Violent Offender Registry for a period of ten years. Ind. Code § 11-8-8-19(a).
If an offender is a sexually violent predator, he must register for life. Ind. Code § 11-8-8-19(b).
2
defendant and filed separate reports with the court, a brief three-page report from Dr. Mueller
and a brief four-page report from Dr. Krause. Dr. Mueller's report identified herself as a "Board
Certified Adult Psychiatrist" and "Child, Adolescent, and Geriatric Psychiatrist," id. at 249, and
Dr. Krause identified himself as an "Indiana Licensed Clinical Psychologist," "Health Services
Provider in Psychology," "Marriage and Family Therapist," "Fellow, Professional Academy of
Custody Evaluators," and "School Psychologist (Life)." Id. at 253. Both reports opined that the
defendant suffered from a condition known as Antisocial Personality Disorder and that he likely
would commit future sex offenses. Only Dr. Krause's report explicitly provided an opinion on
whether the defendant was a sexually violent predator, stating that he should be so classified. Id.
As the sentencing hearing began, the trial court inquired whether, and the defense ac-
knowledged that, the defendant had received copies of the reports from Dr. Mueller and Dr.
Krause. The court also noted receipt of several letters from the defendant's family and suppor-
ters. The defendant called three witnesses to testify and offered into evidence medical records
from his recent visit to a physician. The State called one witness, the mother of the victim. Nei-
ther Dr. Mueller nor Dr. Krause presented any live testimony at the hearing. At the conclusion
of the hearing, the defendant, exercising his right to allocution, expressed his hope that his letters
helped the judge appreciate that he was a family-oriented person and that "there are people out
there that need me" and "I need them." Tr. at 424. In closing, he stated, "I'm not this monster
that they're making me out to be. So, I just hope that they make a difference to you, sir." Id.
After the defendant's statement, the attorneys presented their final arguments. The State asked
the court to impose the maximum sentence on each conviction, to have the sentences run conse-
cutively, and to designate the defendant as a sexually violent predator. Defense counsel urged
that a twelve-year sentence, instead of the maximum fifteen-year sentence, was appropriate and
that consecutive sentences would be improper in this case. Significantly, defense counsel then
stated, "As far as the determination of the sexual [sic] violent predator, I think the Court has to
make that determination based upon the charge that he's been convicted and the doctors' reports,
and I would leave that up to the Court." Tr. at 429–30. The trial court's resulting sentencing or-
der included the following, "The Court, having reviewed the reports of Dr. Mueller and Dr.
Krause, now determines that the defendant is a sexually violent predator within the meaning of
the statute." Appellant's App'x at 277.
3
The defendant's contention that the determination was made without a hearing is clearly
incorrect. The trial court ordered the hearing on sexually violent predator status to be conducted
as part of the sentencing hearing, as expressly permitted by statute. See Ind. Code § 35-38-1-
7.5(e). The hearing commenced with the court's confirmation that the defense had received the
doctors' reports, and it closed with defense counsel expressly commenting on the sexually violent
predator determination.
The defendant also asserts that the trial court's sexually violent predator determination
was made without receiving testimony, and without any showing that the persons performing the
evaluation had expertise in criminal behavioral disorders, contrary to the statutory requirements.
We note that the statute specifies that the court appointed psychologists or psychiatrists "have
expertise in criminal behavioral disorders" and that they "testify at the hearing." Ind. Code § 35-
38-1-7.5(e). It also requires that the court's determination occur after "considering the testimo-
ny" of the psychologists or psychiatrists. Id. In this case, there was no such testimony, and there
is slight evidence in the record to show that Doctors Mueller and Krause have specific expertise
in criminal behavioral disorders.
At the hearing, however, defense counsel's actions avoided any amplification of the doc-
tors' summary reports by not insisting on their direct testimony. Rather, the defense expressly
urged the trial court that "[a]s far as the determination of the sexual [sic] violent predator, I think
the Court has to make that determination based upon the charge that he's been convicted and the
doctors' reports, and I would leave that up to the Court." Tr. at 429–30.
A defendant may not request a trial court to take an action and later claim on appeal that
such action is erroneous. Wright v. State, 828 N.E.2d 904, 907 (Ind. 2005). Under the invited
error doctrine, "a party may not take advantage of an error that she commits, invites, or which is
the natural consequence of her own neglect or misconduct." Id. (quoting Witte v. Mundy, 820
N.E.2d 128, 133 (Ind. 2005)). The invited error doctrine applies here to preclude consideration
of the defendant's appellate claims based on the absence of the doctors' live testimony at the
hearing and the alleged insufficient expertise in criminal behavioral disorders.
4
Conclusion
Having rejected the defendant's assertion of procedural irregularities in the trial court's
determination of sexually violent predator status and having summarily affirmed the Court of
Appeals as to the defendant's other appellate claims, we affirm the judgment of the trial court.
Shepard, C.J., and Sullivan, Boehm, JJ., concur. Rucker, J., concurs with separate opinion in
which Shepard, C.J., and Sullivan, J., join.
5
Rucker, J., concurring.
I concur in the majority opinion. I write separately to express my view that but for in-
vited error, Baugh would be entitled to relief. I read Indiana Code section 35-38-1-7.5(e) as
mandating a hearing at which the two court appointed experts “testify”; and that the trial court’s
sexually violent predator determination must be based on a consideration of the experts’ “testi-
mony.” See Id.; see also Marlett v. State, 878 N.E.2d 860, 871 (Ind. Ct. App. 2007) (observing
that as a result of a 2007 amendment to the statute: “No longer can an SVP determination be
made on the basis of paper reports . . . .”), trans. denied.3 Indeed, although citing Baugh’s proce-
dural default in this case, the State otherwise concedes as much. See Br. of Appellee at 5 n.1
(“The State acknowledges that the statute requires live testimony from the evaluating doctors and
that the evaluating doctors did not testify in this case.”). Thus had Baugh requested the live tes-
timony of the experts, the trial court would have been compelled to honor the request. Here the
State contends that Baugh waived this issue “because he failed to object” at sentencing. Br. of
Appellee at 4. But Baugh did more than merely fail to object. As the majority correctly points
out Baugh affirmatively invited the trial court to make its sexually violent predator determination
based in part on “the doctors’ reports.” Slip op. at 4 (quoting Tr. at 429-30). The trial court ob-
liged Baugh. He cannot now be heard to complain.4
Shepard, C.J., and Sullivan, J., join.
3
A sexually violent predator (“SVP”) is defined as “a person who suffers from a mental abnormality or
personality disorder that makes the individual likely to repeatedly commit a sex offense.” Indiana Code §
35-38-1-7.5.
4
I also note in passing Baugh makes no claim that the evidence was insufficient to sustain the trial court’s
determination that he met the statutory definition of “sexually violent predator” under Indiana Code § 35-
38-1-7.5.