Rosenbaum v. State
| Decision Date | 22 July 2022 |
| Docket Number | Court of Appeals Case No. 21A-CR-1409 |
| Parties | John William ROSENBAUM, III, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Attorney for Appellant: Zachary J. Stock, Carmel, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Ian A. T. McLean, Deputy Attorney General, Indianapolis, Indiana
[1] Appellant-Defendant, John Rosenbaum, III (Rosenbaum), appeals his convictions for child molesting, a Level 3 felony, Ind. Code § 35-42-4-3(a), and child molesting, a Level 4 felony, I.C. § 35-42-4-3(b).
[2] We affirm.
[3] Rosenbaum presents this court with two issues, which we restate as:
[4] Mother was previously married to J.V., and that union produced daughter V.V., who was born on May 24, 2013. Mother and J.V. divorced, and Mother subsequently married Rosenbaum sometime in 2016. In December 2019, Mother and Rosenbaum lived at a home in Avon, Indiana, with V.V. and V.V.’s older brother, N.V. J.V. had parenting time with V.V. and N.V. every other weekend.
[5] On December 30, 2019, Mother worked from home at her job as a medical claim examiner. Rosenbaum, who was unemployed, was home that day, as were V.V. and N.V. During her lunch break, Mother lay down with Rosenbaum, who was resting in bed in their bedroom. V.V. came in and found a spot between Mother and Rosenbaum on the bed. As the three were sharing time together, Mother saw Rosenbaum kiss V.V.’s neck in a manner that concerned her, as the kisses resembled those Rosenbaum gave to Mother. Mother, who as a volunteer at her church had received training on body safety for children, did not say anything to Rosenbaum at that moment. After Mother's lunch break was over and she had returned to her desk to work, V.V. approached Mother and told her that Rosenbaum wanted kisses and had asked her to lift her shirt. Mother confronted Rosenbaum and asked him if he had asked V.V. to lift her shirt, which he denied. Rosenbaum left the house for a doctor's appointment, and Mother and V.V. had a discussion about good and bad secrets. During this discussion, V.V. reported molestation by Rosenbaum. After Rosenbaum returned from his appointment, Mother asked him if he had touched V.V. without specifically relating what V.V. had told her. Rosenbaum denied having touched V.V.
[6] Mother took the children and went to her parents’ home. Mother asked V.V. questions about how Rosenbaum had touched her, and V.V. responded by sticking her hand down her pants. Mother contacted law enforcement. V.V. was taken that day to Riley Children's Hospital for a sexual assault examination. On December 31, 2019, V.V. was interviewed by Emily Perry (Perry) at Susie's Place in Avon, a child advocacy center. During the interview, V.V. reported that on more than one occasion Rosenbaum had touched her "private parts" with his hand inside her underwear. (Exh. 1). When demonstrating this act, V.V. made a vigorous digging motion with her hand on her vagina. V.V. also reported that Rosenbaum had directed her to touch his "thing", which "stuck out", and that something had come out of Rosenbaum's "thing". (Exh. 1). When demonstrating this act, V.V. made a motion with her hand in the air simulating an act of masturbation on a penis. At times during the interview, V.V. began to weep and had difficulty continuing. Perry suggested that V.V. draw to relate what happened instead of just talking. V.V. drew a picture of her and Rosenbaum lying sideways in a bed, with Rosenbaum's arm reaching to her vagina. V.V. reported that Rosenbaum "did a bad secret" because he had told her not to tell anybody what had happened. (Exh. 1).
[7] Also on December 31, 2019, investigators of the Avon Police Department (APD) found Rosenbaum at home. Upon greeting the officers, Rosenbaum commented, "I know what this is about and I'm not coming home any time soon." (Transcript Vol. III, p. 16). Later that day, Rosenbaum provided a recorded statement at the APD to lead investigator Officer Brian Nugent (Officer Nugent). Although neither Mother nor Officer Nugent told Rosenbaum the specifics of V.V.’s report, Rosenbaum stated in his interview that Mother had confronted him with V.V.’s report that he had touched V.V.’s vagina, he had V.V. touch his penis, and that he had referred to this conduct as "wee wee time." (Tr. Vol. III, p. 23). Rosenbaum told Officer Nugent that on December 30, 2019, he had accidentally touched V.V.’s lips with his lips after Mother had gotten out of bed at the end of her lunch break. Even though he had not been told that he was being charged or that he was under arrest, during a break in the interview when Rosenbaum was left in the room alone, he placed a cell phone call and stated, "I'm going to jail now." (Tr. Vol. III, p. 27). At the conclusion of the interview, Rosenbaum was taken into custody.
[8] On January 2, 2020, the State filed an Information, charging Rosenbaum with Level 3 felony child molesting for performing or submitting to other sexual conduct with V.V. and with Level 4 felony child molesting for performing or submitting to fondling or touching V.V. with the intent to arouse or satisfy his desires. The theory of the Level 3 felony charge was that Rosenbaum had penetrated V.V.’s vagina with his hand, and the Level 4 felony charge was based on the State's allegation that Rosenbaum had directed V.V. to place her hand on his penis. On August 25, 2020, Rosenbaum filed his notice of intention to depose V.V. on September 3, 2020, to which the State responded on August 28, 2020, objecting that V.V. was protected from deposition by the then newly effective CDS which prohibited the deposition of child victims under the age of sixteen unless certain conditions were met. V.V. did not appear for the scheduled deposition. On September 9, 2020, Rosenbaum filed a motion to depose V.V., arguing that the CDS conflicted with the Indiana Trial Rules and was without effect. On September 25, 2020, the State filed its further objection to Rosenbaum deposing V.V. and requested a hearing. On October 26, 2020, the trial court held a hearing on Rosenbaum's request to depose V.V. On October 27, 2020, the trial court issued its written order denying Rosenbaum's request, declining to find the CDS invalid and finding that Rosenbaum had not met the CDS's requirements to show that V.V.’s deposition was necessary.
[9] On March 25, 2021, the State filed its notice of intent to introduce V.V.’s forensic interview pursuant to Indiana's Protected Persons Statute (PPS) and requested a hearing on the matter. Rosenbaum objected to the use of both V.V.’s recorded interview and her in-trial testimony, arguing that the State could present either form of testimony but not both. On April 5, 2021, the trial court held the PPS hearing at which Perry described Susie's Place and testified that Indiana follows the Child First interview protocol for child interviews, the goals of which are to take a child's report in the least traumatizing, but nonleading or suggestive, manner possible. Perry detailed the measures in place at Susie's Place to assure that interviews were conducted in adherence with professional standards, and she confirmed that those standards were followed when she interviewed V.V. V.V. testified at the PPS hearing and was cross-examined about the circumstances of her first report to Mother, what she reported during her examination at Riley Hospital, and the circumstances of her parenting time with J.V. On April 7, 2021, the trial court issued its written order, granting the State's request to admit V.V.’s forensic interview. The trial court found that V.V. was a protected person under the PPS, V.V. was subject to cross-examination at the PPS hearing, Perry was a trained forensic interviewer, and that the State, through Perry and V.V.’s testimony and the recording of the interview, had established sufficient indicia of the reliability of V.V.’s statement to allow its admission at trial pursuant to the PPS.
[10] On April 12, 2021, the trial court convened Rosenbaum's two-day jury trial. Rosenbaum entered a continuing objection to the State's intent to call V.V. as a trial witness and have her recorded interview admitted into evidence. Mother testified about the events of December 30 and 31, 2019, but did not state the details of V.V.’s reports concerning the offenses. V.V.’s recorded interview was admitted during Perry's testimony. V.V. testified and, using a facial tissue box, demonstrated how Rosenbaum had touched her vagina with his hand, which the prosecutor described for the record as "[r]ight on the side on the inside ... with ... two fingers." (Tr. Vol. II, p. 247). V.V. was cross-examined about the facts that Mother had talked to her about good touch/bad touch, V.V. called both Rosenbaum and J.V. ‘Dad’ at times, and Mother having talked to her about good boundaries with J.V.’s new male roommate who was present during J.V.’s parenting time with V.V. and N.V. Officer Nugent testified that he had never spoken to V.V., and he refrained from repeating V.V.’s reports to Mother and others apart from testifying about Rosenbaum's statements regarding what Mother had told him about V.V.’s reports. The jury found Rosenbaum guilty as charged.
[11] On June 7, 2021, the trial court held Rosenbaum's sentencing hearing. The trial court sentenced Rosenbaum to nine years in the Department of Correction for his Level 3 felony conviction. The trial court sentenced Rosenbaum to six years for his Level 4 felony conviction, all suspended to probation, with four years to be served on home detention...
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