                                                                               Jun 09 2015, 6:24 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Donald R. Shuler                                           Gregory F. Zoeller
      Barkes, Kolbus, Rife & Shuler, LLP                         Attorney General of Indiana
      Goshen, Indiana
                                                                 George P. Sherman
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Gregory A. Rose,                                          June 9, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                20A03-1409-CR-343
              v.                                                Appeal from the Elkhart Superior
                                                                Court 3
      State of Indiana,
                                                                The Honorable George W.
      Appellee-Plaintiff                                        Biddlecome, Judge
                                                                Trial Court Cause No.
                                                                20D03-1206-FA-35




      Mathias, Judge.

[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:

      Court of Appeals of Indiana | Opinion 20A03-1409-CR-343 | June 9, 2015                          Page 1 of 18
              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


      Court of Appeals of Indiana | Opinion 20A03-1409-CR-343 | June 9, 2015     Page 2 of 18
      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



      Court of Appeals of Indiana | Opinion 20A03-1409-CR-343 | June 9, 2015       Page 3 of 18
      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.1


[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.2 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




      1
          See Ind. Code § 35-42-4-2 (1977).
      2
          Cataldo is now Judge of Elkhart Superior Court 3. See http://www.in.gov/judiciary/3386.htm.




      Court of Appeals of Indiana | Opinion 20A03-1409-CR-343 | June 9, 2015                        Page 4 of 18
       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 party objected to Cataldo serving as a juror. In fact, Rose’s

       trial counsel specifically stated:


               Your Honor, I have no objection to Ms. Cataldo remaining on the
               jury. I take her at her word [that] she had no recollection of this
               person she represented for a short time. The individual [is] not
               going to be testifying, so we have no objection – I’ve talked to my
               client – we have no objection to her remaining as a juror.

       Tr. p. 320. The trial court then directly asked Rose, “Do you agree with that,

       Mr. Rose?” To this, Rose replied, “Yes, sir, I do.” Id.


[11]   At the conclusion of the trial, the jury, with Cataldo acting as foreman, found

       Rose guilty as charged. Rose then admitted to being a repeat sexual offender

       based on his prior conviction for unlawful deviate conduct.


[12]   At the sentencing hearing held on September 4, 2014, the trial court found as

       aggravating circumstances that Rose had violated a position of trust; that Rose

       threatened the victim to remain silent; that Rose had two prior felony

       convictions, including one for criminal deviate conduct, and three prior



       Court of Appeals of Indiana | Opinion 20A03-1409-CR-343 | June 9, 2015    Page 5 of 18
       misdemeanor convictions; and that Rose had previously violated the terms of

       his probation three times. The trial court acknowledged as mitigating that Rose

       had admitted to being a repeat sexual offender. The court considered Rose’s

       claim that no physical violence occurred in the present case, but rejected this,

       noting: “the court finds that argument to be tenuous in light of the fact that the

       defendant is a grown man who forced himself on the victim, who was an 11-

       year-old child. The court considers that to be a violent act.” Appellant’s App. p.

       102. The trial court also rejected Rose’s proffered mitigator that he was

       addicted to alcohol and illicit drugs, noting that Rose “has been given two

       opportunities in the past to address those addictions through treatment, and he

       either failed or refused to responsibly do so.” Id.


[13]   The trial court sentenced Rose to forty-five years on the Class A felony child

       molesting conviction, a concurrent term of seven years on the Class C felony

       child molesting conviction, and enhanced the forty-five-year sentence by ten

       years as a result of the repeat sexual offender determination. The court also

       found that Rose was a credit-restricted felon. Thus, Rose received an aggregate

       sentence of fifty-five years. Rose now appeals.

             I. No Fundamental Error in Judicial Candidate Serving on Jury

[14]   Rose first contends that it was improper for Cataldo to serve on the jury, given

       her status as an attorney who was the sole candidate for the office of judge of

       the court in which the trial was taking place. Rose admits that he made no

       objection at trial to Cataldo serving as a juror. Thus, he failed to properly

       preserve this issue for appeal. See  Jewell v. State, 887 N.E.2d 939, 940 n.1 (Ind.

       Court of Appeals of Indiana | Opinion 20A03-1409-CR-343 | June 9, 2015      Page 6 of 18
       2008) (noting general rule that failure to object at trial constitutes procedural

       default precluding consideration of an issue on appeal) (citing Benson v. State,

       762 N.E.2d 748, 755 (Ind. 2002)).


[15]   Rose seeks to avoid this procedural default by claiming that Cataldo serving on

       the jury amounted to fundamental error.3 “The fundamental error doctrine is an

       exception to the general rule that the failure to object at trial constitutes a

       procedural default precluding consideration of an issue on appeal.” Id. Our

       supreme court recently summarized the law regarding fundamental error as

       follows:

                Fundamental error is an extremely narrow exception to the waiver
                rule where the defendant faces the heavy burden of showing that
                the alleged errors are so prejudicial to the defendant's rights as to
                make a fair trial impossible. In other words, to establish
                fundamental error, the defendant must show that, under the
                circumstances, the trial judge erred in not sua sponte raising the
                issue because alleged errors (a) constitute clearly blatant violations
                of basic and elementary principles of due process and (b) present
                an undeniable and substantial potential for harm. The element of
                such harm is not established by the fact of ultimate conviction but
                rather depends upon whether [the defendant’s] right to a fair trial
                was detrimentally affected by the denial of procedural
                opportunities for the ascertainment of truth to which he otherwise
                would have been entitled. In evaluating the issue of fundamental
                error, our task in this case is to look at the alleged misconduct in
                the context of all that happened and all relevant information given
       3
         The State argues that Rose invited any error and that the fundamental error exception is therefore
       inapplicable. See Brewington v. State, 7 N.E.3d 946, 975 (Ind. 2014) (holding that the fundamental error
       exception gives appellate courts leeway to mitigate the consequences of counsel’s oversight but that invited
       error precludes relief from counsel’s strategic decisions gone awry), reh’g denied. Because we reject Rose’s
       claim of fundamental error, we need not decide whether the error at issue was invited.




       Court of Appeals of Indiana | Opinion 20A03-1409-CR-343 | June 9, 2015                            Page 7 of 18
               to the jury—including evidence admitted at trial, closing
               argument, and jury instructions—to determine whether the
               misconduct had such an undeniable and substantial effect on the jury's
               decision that a fair trial was impossible.

               We stress that [a] finding of fundamental error essentially means
               that the trial judge erred . . . by not acting when he or she should
               have. . . . Fundamental error is meant to permit appellate courts a
               means to correct the most egregious and blatant trial errors that
               otherwise would have been procedurally barred, not to provide a
               second bite at the apple for defense counsel who ignorantly,
               carelessly, or strategically fail to preserve an error.  

       Ryan v. State, 9 N.E.3d 663, (Ind. 2014), reh’g denied (citations, internal

       quotations, and footnote omitted) (alterations and emphasis in original).


[16]   Rose argues that a possibility exists that he “received a trial in front of a jury of

       one, or the functional equivalent to a bench trial” because Cataldo sat as a

       juror. Appellant’s Br. at 8. First, by use of the word “possibility,” Rose

       effectively concedes that his argument in this regard is mere speculation. See

       May v. State, 578 N.E.2d 716, 725 (Ind. Ct. App. 1991) (noting that a sheerly

       speculative argument provides no basis for reversal). More importantly, at the

       time she sat on the jury, Cataldo had not been elected as judge; she was simply

       another citizen performing her civic duty to serve on a jury. We therefore reject

       Rose’s claim that he effectively received a bench trial.


[17]   To the extent that Cataldo was an attorney, she testified during voir dire that,

       despite her familiarity with the attorneys in the case, she would be able to act

       fair and impartially as a juror. Rose does not refer us to, and we are not aware

       of, any rule, statute, or authority that would disqualify an attorney or a judge to


       Court of Appeals of Indiana | Opinion 20A03-1409-CR-343 | June 9, 2015       Page 8 of 18
       serve as a juror. Cf. Ind. Code § 33-28-5-18 (listing disqualifications for jury

       service).

[18]   Rose also argues that Cataldo should not have served on the jury because she

       had previously represented B.S.’s mother in an unrelated matter. This,

       however, occurred five years before the current trial, and Cataldo testified that

       she had no recollection of that case and that it would not affect her ability to act

       as an impartial juror. The trial judge, and indeed Rose’s trial counsel, credited

       Cataldo’s statements, and we cannot say that this decision, which resulted in

       Cataldo serving on the jury, had such an undeniable and substantial effect on

       the jury's decision that a fair trial was impossible.


                            II. Sufficient Evidence to Support Verdicts

[19]   Rose next claims that the State failed to present evidence sufficient to support

       his convictions. We address each conviction in turn.


       A. Standard of Review

[20]   Our standard of review for claims of insufficient evidence is well settled: we

       neither reweigh the evidence nor judge the credibility of the witnesses, and we

       consider only the evidence favorable to the verdict and all reasonable inferences

       that can be drawn therefrom. Newman v. State, 677 N.E.2d 590, 593 (Ind. Ct.

       App. 1997). We will affirm the convictions if substantial evidence of probative

       value exists from which a trier of fact could find guilt beyond a reasonable

       doubt. Moreover, a conviction for child molesting may rest solely upon the




       Court of Appeals of Indiana | Opinion 20A03-1409-CR-343 | June 9, 2015     Page 9 of 18
       uncorroborated testimony of the victim. Turner v. State, 720 N.E.2d 440, 447

       (Ind. Ct. App. 1999).


       B. Class A Felony Child Molesting

[21]   To convict Rose of Class A felony child molesting as charged, the State was

       required to prove beyond a reasonable doubt that he: “knowingly perform or

       submit to deviate sexual conduct or sexual intercourse with B.S., a child under

       fourteen (14) years of age.” Appellant’s App. p. 14; see also Ind. Code § 35-42-4-

       3(a)(1) (2004).4 Sexual intercourse is defined by statute as “an act that includes

       any penetration of the female sex organ by the male sex organ.” Ind. Code § 35-

       41-1-26 (2004).

[22]   Here, the State presented the testimony of B.S., who testified that Rose placed

       his penis inside of her and in her “private part.” Tr. p. 460. This testimony, if

       credited, was sufficient to support Rose’s conviction for Class A felony child

       molesting. See Turner v. State, 720 N.E.2d at 447; see also Stewart v. State, 768

       N.E.2d 433, 437 (Ind. 2002) (“we agree with the observation that the term

       ‘private part’ ‘is generally understood as a commonplace designation of genital

       procreative organs.’”) (quoting Washington v. Dennison, 435 P.2d 526, 529

       (1967)).


[23]   Rose nevertheless insists that we should discredit B.S.’s testimony because it

       was uncorroborated and inconsistent with her prior deposition. This is simply a


       4
           We refer to the version of the states in effect at the time Rose committed his crimes.




       Court of Appeals of Indiana | Opinion 20A03-1409-CR-343 | June 9, 2015                       Page 10 of 18
       request that we judge B.S.’s credibility and weigh her testimony differently than

       did the jury, which we may not do. See Newman, 677 N.E.2d at 593.


[24]   To the extent that Rose argues that we should discredit B.S.’s testimony under

       the “incredible dubiosity” rule, we disagree. The incredible dubiosity rule

       applies only in very narrow circumstances. See Love v. State, 761 N.E.2d 806,

       810 (Ind. 2002). The rule has been expressed as follows:

               If a sole witness presents inherently improbable testimony and
               there is a complete lack of circumstantial evidence, a defendant's
               conviction may be reversed. This is appropriate only where the
               court has confronted inherently improbable testimony or coerced,
               equivocal, wholly uncorroborated testimony of incredible
               dubiosity. Application of this rule is rare and the standard to be
               applied is whether the testimony is so incredibly dubious or
               inherently improbable that no reasonable person could believe it.

       Id. Those cases where we have found testimony inherently improbable or of

       incredible dubiosity have involved either situations where the facts as alleged

       “could not have happened as described by the victim and be consistent with the

       laws of nature or human experience,” Watkins v. State, 571 N.E.2d 1262, 1265

       (Ind. Ct. App. 1991), aff'd in part and vacated in part, 575 N.E.2d 624 (Ind. 1991),

       or the witness was so equivocal about the act charged that his uncorroborated

       and coerced testimony “was riddled with doubt about its trustworthiness.” Id.

       The case before us does not fall within either category.


[25]   Nothing in B.S.’s testimony was inconsistent with the laws of nature or human

       experience. Indeed, our case law is replete with horrid examples of children

       being sexually abused by adults. Although B.S.’s testimony has some


       Court of Appeals of Indiana | Opinion 20A03-1409-CR-343 | June 9, 2015    Page 11 of 18
       inconsistencies, this was for the jury to consider. See Murray v. State, 761 N.E.2d

       406, 409 (Ind. 2002) (“The fact that a witness gives trial testimony that

       contradicts earlier pre-trial statements does not necessarily render the trial

       testimony incredibly dubious.”); Beckham v. State, 531 N.E.2d 475, 476 (Ind.

       1988) (question of whether child victim’s testimony, which was inconsistent at

       times, was to be believed was for the jury to determine); Hill v. State, 646

       N.E.2d 374, 378 (Ind. Ct. App. 1995) (noting that we have long recognized that

       a young child in an adversarial courtroom setting may demonstrate a degree of

       confusion and inconsistency). Moreover, no indication exists that B.S.’s

       testimony was in any way coerced, nor was it equivocal. Under these facts and

       circumstances, Rose cannot avail himself of the incredible dubiosity rule.


       C. Class C Felony Child Molesting

[26]   To convict Rose of Class C felony child molesting as charged, the State had to

       prove beyond a reasonable doubt that Rose: “with B.S., a child under the age of

       fourteen (14) years of age, did knowingly perform or submit to any fondling or

       touching of either the child or the older person, with intent to arouse or gratify

       the sexual desires of either the child or the older person.” Appellant’s App. p.

       14; see also Ind. Code § 35-42-4-3(b) (2004).


[27]   Here, the State again relied on the testimony of B.S., who testified that while

       she was sitting on Rose’s lap, he rubbed her back and side, then slid his hand up

       underneath her shirt and touched her breast. This startled B.S., and Rose told

       her, “I’m sorry.” Tr. p. 465. Rose acknowledges this evidence but claims it is



       Court of Appeals of Indiana | Opinion 20A03-1409-CR-343 | June 9, 2015    Page 12 of 18
       insufficient to establish that he had an intent to arouse or gratify either his or

       B.S.’s sexual desires as required by statute. We disagree.

[28]   The element of intent of child molesting may be established by circumstantial

       evidence and inferred from the defendant’s conduct and the natural and usual

       sequence to which such conduct usually points. Cruz Angeles v. State, 751 N.E.2d

       790, 797 (Ind. Ct. App. 2001), trans. denied. The jury could reasonably infer

       Rose’s intent to arouse or gratify his or B.S.’s sexual desires by his act of

       touching the young girl’s breast underneath her shirt. See Altes v. State, 822

       N.E.2d 1116, 1122 (Ind. Ct. App. 2005) (sufficient evidence to support

       inference of intent to arouse or gratify sexual desire where defendant rubbed her

       upper body, first over her clothes, then under her shirt, touching her bare skin

       from her shoulders to the waist), trans. denied; Cruz Angeles, 751 N.E.2d at 798

       (sufficient evidence to support inference of intent to arouse or gratify sexual

       desire where defendant touched victims’ breasts over their clothing); Pedrick v.

       State, 593 N.E.2d 1213, 1220 (Ind. Ct. App. 1992) (sufficient evidence to

       establish intent to arouse or gratify sexual desire where defendant put his arm

       around child’s shoulder let his hand hang and touch her breast and where he

       placed his hand on the shoulder of another child and then on her breast).

[29]   Based on well-established law and the evidence in this case, the State presented

       sufficient evidence to establish that Rose had sexual intercourse with B.S. and

       touched her breast with the intent to arouse or gratify his or her sexual desires.




       Court of Appeals of Indiana | Opinion 20A03-1409-CR-343 | June 9, 2015     Page 13 of 18
                             III. Rose’s Sentence is Not Inappropriate

[30]   Rose lastly claims that his aggregate sentence of fifty-five years is inappropriate.

       Even if a trial court acted within its statutory discretion in imposing a sentence,

       Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent

       appellate review and revision of a sentence imposed by the trial court. Trainor v.

       State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied (citing

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007)). This authority is

       implemented through Indiana Appellate Rule 7(B), which provides that the

       court on appeal “may revise a sentence authorized by statute if, after due

       consideration of the trial court’s decision, the Court finds that the sentence is

       inappropriate in light of the nature of the offense and the character of the

       offender.”


[31]   Still, we must and should exercise deference to a trial court’s sentencing

       decision, because Rule 7(B) requires us to give ‘due consideration’ to that

       decision and because we understand and recognize the unique perspective a

       trial court brings to its sentencing decisions. Id. Although we have the power to

       review and revise sentences, the principal role of appellate review should be to

       attempt to level the outliers, and identify some guiding principles for trial courts

       and those charged with improvement of the sentencing statutes, but not to

       achieve what we perceive to be a “correct” result in each case. Fernbach v. State,

       954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied (citing Cardwell v.

       State, 895 N.E.2d 1219, 1225 (Ind. 2008)).




       Court of Appeals of Indiana | Opinion 20A03-1409-CR-343 | June 9, 2015    Page 14 of 18
[32]   Our review under Appellate Rule 7(B) should focus on “the forest—the

       aggregate sentence—rather than the trees—consecutive or concurrent, number

       of counts, or length of the sentence on any individual count.” Id. The

       appropriate question is not whether another sentence is more appropriate;

       rather, the question is whether the sentence imposed is inappropriate. Former v.

       State, 876 N.E.2d 340, 344 (Ind. Ct. App. 2007). It is the defendant’s burden on

       appeal to persuade us that the sentence imposed by the trial court is

       inappropriate. Id. (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).


[33]   Here, Rose was convicted of a Class A felony, a Class C felony, and was found

       to be a repeat sexual offender. The sentencing range for a Class A felony is

       twenty to fifty years, with thirty years being the advisory sentence. See Ind.

       Code § 35-5-2-4 (2005). The sentencing range for a Class C felony is two to

       eight years, with four years being the advisory sentence. See Ind. Code § 35-50-

       2-6 (2005). In addition, a trial court “may sentence a person found to be a

       repeat sexual offender to an additional fixed term that is the advisory sentence

       for the underlying offense. However, the additional sentence may not exceed

       ten (10) years.” Ind. Code § 35-50-2-14(f) (2009). Thus, Rose faced a possible

       sentence of between twenty-six to sixty-eight years. The trial court fashioned a

       sentence of fifty-five years.


[34]   We also note that Rose is a credit-restricted felon who can earn only one day of

       credit time for every six days of time served. See Ind. Code § 35-41-1-5.5(1)

       (2008) (defining “credit restricted felon” to include those convicted of child

       molesting involving sexual intercourse where the defendant is over the age of

       Court of Appeals of Indiana | Opinion 20A03-1409-CR-343 | June 9, 2015   Page 15 of 18
       twenty-one and the victim is under the age of twelve); Ind. Code § 35-50-6-4

       (2008) (providing that a credit restricted felon is initially assigned to Class IV for

       purposes of credit time); Ind. Code § 35-50-6-3 (2008) (providing that a person

       assigned to Class IV earns one day of credit for every six days the person in is

       imprisoned for a crime or confined awaiting trial or sentencing). Our supreme

       court has held that “evaluation of a defendant’s sentence [under Appellate Rule

       7(B)] may include consideration of the defendant’s credit time status because

       this penal consequence was within the contemplation of the trial court when it

       was determining the defendant's sentence.” Sharp v. State, 970 N.E.2d 647, 651

       (Ind. 2012). With all of this in mind, we address the appropriateness of Rose’s

       sentence.

[35]   We first consider the nature of the offenses for which Rose was convicted. Rose

       was the great-uncle of the victim and often spent time with her in the house of

       her grandmother and his sister, where B.S. stayed when her father was at work.

       Abusing this position of trust, Rose fondled B.S. and also forcibly held the ten-

       year-old girl down by her shoulders and placed his penis in her vagina, causing

       her physical pain. He then threatened to do the same to her if she told anyone

       about the molestation.


[36]   Turning to the character of the offender, we note that Rose has a relatively

       extensive criminal history, nor is this Rose’s first conviction for sexual

       misconduct. As noted, Rose was convicted in 1982 for Class B felony unlawful

       deviate conduct and received a twenty-year sentence. Upon his release from

       prison in 1993, he committed another felony, Class D felony possession of


       Court of Appeals of Indiana | Opinion 20A03-1409-CR-343 | June 9, 2015       Page 16 of 18
       cocaine or narcotic drug, in 2004. For this offense, he received a thirty-month

       sentence, suspended to probation. After his first probation violation, the trial

       court opted to continue probation in the “Justice Alternatives” program.

       Appellant’s App. p. 132. However, Rose again violated the terms of his

       probation, and the trial court sentenced him to home detention. Rose then

       violated the terms of his probation yet again, and the trial court vacated his

       probation and sentenced him to the Department of Correction. Rose's criminal

       history also includes misdemeanor convictions for criminal recklessness, check

       deception, and operating while intoxicated. Although his Class B felony

       conviction was in 1982, his subsequent convictions occurred in 2004, 2006, and

       2011. Rose also admitted to having used marijuana, methamphetamine,

       cocaine, and LSD. Appellant’s App. p. 147. Clearly, Rose’s past experiences

       with the criminal justice system have not deterred his criminal behavior.

[37]   Under these facts and circumstances, we cannot say that Rose has met his

       burden of demonstrating that his aggregate sentence of fifty-five years is

       inappropriate. See Sharp, 970 N.E.2d at 651 (concluding that defendant’s

       sentence of forty years was not inappropriate despite his status as a credit-

       restricted felon where he was convicted of two counts of molesting his step-son,

       one by deviate sexual conduct and the other by fondling).

[38]   We note, sua sponte, however, that the trial court ordered Rose’s ten-year repeat

       sexual offender enhancement to be served as a separate sentence, consecutive to

       the sentence on the Class A felony conviction. This is improper. A habitual




       Court of Appeals of Indiana | Opinion 20A03-1409-CR-343 | June 9, 2015   Page 17 of 18
       offender finding5 does not constitute a separate crime, nor does it result in a

       separate sentence; instead, a habitual offender finding results in a sentence

       enhancement imposed upon the conviction of a subsequent felony. Harris v.

       State, 964 N.E.2d 920, 927 (Ind. Ct. App. 2012), trans. denied. We therefore

       remand with instructions that the trial court vacate the separate sentence on the

       repeat sexual offender enhancement and attach the ten-year enhancement to

       Rose’s sentence for Class A felony child molesting. See id.


                                                      Conclusion

[39]   Rose was not denied fundamental due process when an attorney who was

       running for the office of judge of the court in which he was tried was seated as a

       juror. The testimony of the victim, which was not incredibly dubious, is

       sufficient to support Rose’s convictions for child molesting. Rose’s aggregate

       sentence of fifty-five years is not inappropriate in light of the nature of the

       offense and the character of the offender. However, we remand with

       instructions that the trial court attach the repeat sexual offender enhancement to

       the sentence imposed on the Class A felony conviction.


[40]   Affirmed and remanded with instructions.


       May, J., and Robb, J., concur.




       5
        A repeat sexual offender finding is a habitual offender finding. See Beldon v. State, 926 N.E.2d 480, 482 (Ind.
       2010) (noting that repeat sexual offender status is a “specialized habitual offender status”).




       Court of Appeals of Indiana | Opinion 20A03-1409-CR-343 | June 9, 2015                            Page 18 of 18
