Gregory A. Rose v. State of Indiana, 2015 Ind. App. LEXIS 449

Gregory A. Rose, great-uncle of the victim B.S. (born 2000), was tried and convicted of: Class A felony child molesting (sexual intercourse with a child under 14) and Class C felony child molesting (fondling). He later admitted repeat sexual offender status.
Allegations: when B.S. was ~10, Rose forced her to the floor, pulled down her pants, and inserted his penis into her vagina; on another occasion he touched her breast under her shirt while she sat in his lap.
The victim disclosed the abuse in a school note in January 2012; a forensic interview followed. Charges were filed June 27, 2012.
During jury selection an attorney, Teresa Cataldo, who was the sole candidate for judge of the trial court, served on the jury (and acted as foreman); neither party objected at trial and defendant expressly consented.
At sentencing the court imposed concurrent 45-year (Class A) and 7-year (Class C) terms, and added a 10-year repeat-sexual-offender enhancement as a separate consecutive sentence, yielding an aggregate 55 years; appellate court affirmed but remanded to attach the enhancement to the Class A sentence.

Issue	State's Argument	Rose's Argument	Held
Whether seating an attorney who was a candidate for the trial-court judgeship as a juror (and foreman) was fundamental error	No — seating was proper; Cataldo said she could be impartial; neither party objected	It violated due process and effectively amounted to a jury of one / bench-trial equivalent	No fundamental error; trial court did not err sua sponte; reversible error not shown
Whether evidence was sufficient to support convictions for Class A (intercourse) and Class C (fondling) child molesting	Victim’s in-court testimony described penetration and breast-touching; testimony alone suffices for conviction; intent inferred from conduct	Victim’s testimony was uncorroborated and inconsistent; incredible-dubiosity rule should apply	Evidence was sufficient; victim’s testimony was not inherently incredible or coerced; intent may be inferred from touching
Whether 55-year aggregate sentence was inappropriate	Sentence within statutory range including up to 10-year enhancement; aggravators (position of trust, threats, prior convictions, probation violations) supported sentence	Sentence excessive given circumstances; challenged appropriateness	Aggregate sentence not inappropriate; remand only to correct the mechanical error of treating the enhancement as a separate sentence

Jewell v. State, 887 N.E.2d 939 (Ind. 2008) (failure to object at trial generally forfeits appellate review)
Benson v. State, 762 N.E.2d 748 (Ind. 2002) (same)
Ryan v. State, 9 N.E.3d 663 (Ind. 2014) (explaining narrow fundamental-error doctrine)
Newman v. State, 677 N.E.2d 590 (Ind. Ct. App. 1997) (standard for reviewing sufficiency of evidence)
Turner v. State, 720 N.E.2d 440 (Ind. Ct. App. 1999) (child-victim testimony alone may sustain molesting conviction)
Stewart v. State, 768 N.E.2d 433 (Ind. 2002) (definition/understanding of "private part" in sexual-offense context)
Love v. State, 761 N.E.2d 806 (Ind. 2002) (scope of incredible-dubiosity rule)
Watkins v. State, 571 N.E.2d 1262 (Ind. Ct. App. 1991) (examples of inherently improbable testimony)
Cruz Angeles v. State, 751 N.E.2d 790 (Ind. Ct. App. 2001) (intent to arouse may be inferred from conduct)
Altes v. State, 822 N.E.2d 1116 (Ind. Ct. App. 2005) (touching under clothing supports intent to arouse)
Pedrick v. State, 593 N.E.2d 1213 (Ind. Ct. App. 1992) (similar inference of intent from touching)
Sharp v. State, 970 N.E.2d 647 (Ind. 2012) (appellate review under Ind. Appellate Rule 7(B) may consider credit-restricted status)
Harris v. State, 964 N.E.2d 920 (Ind. Ct. App. 2012) (habitual/repeat offender finding is an enhancement, not a separate crime)
Beldon v. State, 926 N.E.2d 480 (Ind. 2010) (repeat sexual offender is a specialized habitual-offender status)