Gregory A. Rose, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff
Appeal from the Elkhart Superior Court 3. The Honorable George W. Biddlecome, Judge. Trial Court Cause No. 20D03-1206-FA-35.
ATTORNEY FOR APPELLANT: Donald R. Shuler, Barkes, Kolbus, Rife & Shuler, LLP, Goshen, Indiana.
ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; George P. Sherman, Deputy Attorney General, Indianapolis, Indiana.
Mathias, Judge. May, J., and Robb, J., concur.
[¶1] Gregory A. Rose was convicted in Elkhart Superior Court 3 of Class A felony child molesting and Class C felony child molesting. Rose then admitted to being a repeat sexual offender, and the trial court sentenced him to an aggregate term of fifty-five years incarceration. Rose appeals and presents three issues for our review, which we restate as:
I. Whether fundamental error occurred when an attorney who was a candidate for the office of judge of the Elkhart Superior Court 3 was selected as a juror and served as the jury foreman;
II. Whether the State presented evidence sufficient to support Rose's convictions; and
III. Whether Rose's fifty-five year aggregate sentence is inappropriate in light of the nature of the offense and the character of the offender.
[¶2] We affirm Rose's convictions and sentence but remand with instructions that the trial court attach Rose's repeat sexual offender enhancement to the sentence imposed on the Class A felony conviction.
Facts and Procedural History
[¶3] In late 2009, Rose moved in with his sister, Brenda, who lived in Bristol, Indiana. Shortly before this, Brenda's son and his daughter, B.S., had moved out of Brenda's home. B.S., who was born in 2000, would frequently visit her grandmother Brenda's home, as Brenda provided childcare for B.S. while Brenda's son worked. Brenda's other grandchildren were also often at the home, and Rose was close with all of the children. He had a particularly close relationship with B.S., and the two would play games on Rose's computer and watch television together in the basement where Rose lived.
[¶4] One night in the summer of 2010, when B.S. was ten years old, she and her cousins slept at their grandmother's home in the basement. After the other children had fallen asleep, Rose entered the room and told B.S. that he wanted her to come and see something. B.S. followed Rose into his bedroom, where he closed the door. Rose then pushed B.S. to the ground and pulled down her pants. He held her shoulders to the ground and placed his penis into her " private part" " just enough to hurt." Tr. pp. 460-61. Rose eventually let Rose get up and go back into the other room but warned her that if she told anyone what had happened that he would " do it again." Id. at 462. Frightened, B.S. did not report what had happened at that time.
[¶5] Later that year, during the winter months, Rose and B.S. were playing a game on Rose's computer. As B.S. was sitting in Rose's lap, he began to rub her back. He then moved his hand toward the girl's side, under her shirt, and moved his hand higher until he touched her breast. Startled, B.S. jumped, and Rose told her, " I'm sorry." Tr. p. 465. B.S. did not initially report this incident.
[¶6] At a later date, Brenda had a discussion with B.S. about whether she knew about inappropriate touching. B.S. began to cry and eventually told her grandmother about Rose touching her. Brenda decided that they would discuss the allegations with B.S.'s father. Brenda also had her husband tell Rose to move out of the home. However, the allegations were not reported to the police at that time.
[¶7] Some time later, on January 31, 2012, B.S. was in sixth grade when she wrote a note to a friend informing him that she had been abused and " raped." Ex. Vol., Defendant's Ex. A. This friend's parent informed the school, and a school counselor met with B.S. to ask about the note. When she did, B.S. began to cry and stated that she had been raped when she was ten years old. B.S. was unable to speak but informed the counsellor by writing a note that someone had pulled her pants down and " stuck his penis in my private part." Tr. p. 337. The counsellor called the police to report B.S.'s allegations. Later that day, B.S. was interviewed by a forensic interviewer for the Child and Family Advocacy Center. During the interview, B.S. told the interviewer of Rose's sexual abuse.
[¶8] On June 27, 2012, the State charged Rose with Class A felony child molesting, Class C felony child molesting, and further alleged that Rose was a repeat sexual offender based on his 1982 conviction for Class B felony unlawful deviate conduct.
[¶9] A two-day jury trial was held on August 11 - 12, 2014. One of the prospective jurors in the venire was attorney Teresa Cataldo (" Cataldo" ). Cataldo had worked as a defense attorney, a deputy prosecuting attorney, and served as judge pro tempore. She was also the sole candidate on the November ballot for judge of Elkhart Superior Court 3, where the trial was taking place. Cataldo stated that she had interacted with the attorneys on both sides of the present case. She also stated, however, that neither her prior experience with these attorneys nor her experience with the legal system would interfere with her ability to be a fair and impartial juror. Cataldo acknowledged that the other jurors might look to her for guidance, but she knew that she was there as a " normal juror." Tr. pp. 184-85. Neither party objected to Cataldo as a juror, nor did either party use a peremptory strike to remove her as a juror. Cataldo was then selected as one of the jurors.
[¶10] On the second day of trial, the trial court was informed that Cataldo had represented B.S.'s mother in a juvenile paternity case from August 2007 to January 2008. When questioned about this by the trial court, Cataldo stated that she did not remember that case and that her involvement in that case would not affect or interfere with her ability to remain fair and impartial as a juror. Again, neither ...