Rostochak v. State

Decision Date31 December 2012
Docket NumberNo. 92A05-1112-CR-688,92A05-1112-CR-688
PartiesRONALD ROSTOCHAK, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
CourtCourt of Appeals of Indiana

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

RICHARD J. THONERT

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER

Attorney General of Indiana

J.T. WHITEHEAD

Deputy Attorney General

Indianapolis, Indiana

APPEAL FROM THE WHITLEY CIRCUIT COURT

The Honorable James R. Heuer, Judge

Cause No. 92C01-0911-FA-132

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary

Ronald Rostochak had an ongoing sexual relationship with his live-in girlfriend's daughter that began when the daughter was twelve years old and continued until she was fourteen years old. A jury convicted Rostochak of one count of class A felony child molesting. The trial court then sentenced Rostochak to the advisory sentence of thirty years, with five years suspended to probation. On appeal, Rostochak claims: (1) certain pretrial rulings violated his due process rights and therefore constituted reversible error; (2) the record does not establish that the jury reached a unanimous verdict; (3) the State presented insufficient evidence to sustain his conviction; (4) the trial court abused its discretion when it admitted certain evidence; and, (5) his sentence is inappropriate in light of the nature of the offense and his character. Finding no reversible error and concluding that Rostochak has not demonstrated that his sentence is inappropriate, we affirm.

Facts and Procedural History

The facts most favorable to the verdict indicate that M.E. was born on December 23, 1994. Her parents are divorced. When M.E. was in sixth grade, her mother began dating Rostochak. Rostochak was born in 1977 and was approximately thirty years old at the time he began dating M.E.'s mother. After just a couple of months, M.E., her mother, and her siblings moved into Rostochak's Whitley County house and began living with him. M.E., who had a very strained relationship with her father, grew very fond of Rostochak.

Rostochak treated M.E. differently than her siblings. He took M.E. on shopping trips almost every weekend. He did not take her sisters or her brother shopping. He bought M.E.clothes, shoes, and an iPod. He almost never bought her siblings these kinds of gifts. He began telling M.E. what clothes he liked her to wear and became very possessive over M.E.'s time. He was jealous when she spent time with her friends and nicknamed her "Buttercup." Tr. at 228. He would take M.E. out riding on his tractor or combine. M.E. realized that her relationship with Rostochak was becoming more like that of a boyfriend and girlfriend and less like that of a father and daughter.

M.E. spent a great deal of time alone with Rostochak while her mother was at work and while her siblings were visiting her father. M.E. would not accompany her siblings to visit her father because she did not get along with her father. On one occasion, when M.E. was twelve years old, Rostochak touched her vagina and her breasts. Thereafter, around September 2007, twelve-year-old M.E. and Rostochak began engaging in sexual intercourse and deviate sexual conduct on a regular basis. M.E. told no one. The majority of the sexual encounters occurred after their shopping trips and would usually happen in Rostochak's house, in an apartment he was building in his barn, or in the back of his truck.

In late 2007, an old high school buddy of Rostochak's, Troy Tracey, visited with Rostochak at his home. During those visits, some of which were often overnight, Tracey noticed that Rostochak slept in the living room with M.E. and her siblings as opposed to in the bedroom with M.E.'s mother. Tracey also observed interactions between Rostochak and M.E. that made Tracey feel uncomfortable. One time, he saw M.E. sitting sideways on Rostochak's lap with her arms around his neck and her head on his shoulder. Another time, he watched as Rostochak sat on the couch and M.E. sat on the floor in front of Rostochak.M.E. had her hand up Rostochak's pants leg and was rubbing his leg. Yet another time, Tracey observed that, while watching television, M.E. laid her head in Rostochak's lap as Rostochak rubbed and twirled her hair.

After M.E.'s thirteenth birthday, Rostochak and M.E. continued to have sexual intercourse regularly. They had sexual intercourse ten or more times that year. After M.E.'s fourteenth birthday, the sexual intercourse continued, and they had sexual intercourse ten or more times that year as well. Sometimes, when it was dark out, Rostochak would drive M.E. down to property he owned by a lake where no one could see them have sexual intercourse. M.E. definitely felt like she and Rostochak were boyfriend and girlfriend. They exchanged many text messages. They also exchanged letters declaring their love and devotion to one another. Although M.E. often referred to Rostochak as "Daddy," the letters evidenced more of a romantic relationship. State's Exh. N-DD, Defendant's Exh. C.

In approximately February 2008, Rostochak contacted Jody Hively, a caseworker for the Whitley County Department of Child Services, because he wanted to discuss with her "some allegations that he thought were going to be made against him." Tr. at 192. He discussed his living situation with M.E.'s family. He told Hively that he was not in love with M.E.'s mother, that he loved M.E., and that he was just trying to "fill in" for her father. Id. at 195. He said that M.E. also loved him. He did not discuss his relationship with M.E.'s siblings. He focused the discussion entirely on M.E.

Pursuant to a police investigation, in March 2008, Columbia City Police Detective Timothy Longenbaugh interviewed Rostochak, M.E.'s mother, M.E., and one of M.E.'ssiblings. Rostochak denied any sexual contact with M.E. M.E. also denied any sexual contact and told Detective Longenbaugh that her relationship with Rostochak was like a father-daughter relationship and that he had never touched her inappropriately. She assured Detective Longenbaugh that she was being honest and not trying to protect Rostochak. The police investigation was then suspended.

In late July 2009, Rostochak and M.E. met up at the 4-H fair. Rostochak asked M.E. if he could take her to lunch. They left in his truck and drove to his barn. They had sexual intercourse in the apartment he was building in the barn. Rostochak was annoyed at M.E. because she said that she needed to get back to the fair because her sister was going to be showing horses. They returned to the fair. After that day, M.E. and Rostochak ceased having a sexual relationship. M.E. decided that she "really didn't want anything to do with him." Id. at 284.

Sometime later, M.E. met with Hively and gave her a videotaped statement. She was not truthful with Hively about her sexual relationship with Rostochak. She told Hively only about one event when she and Rostochak had sexual intercourse in the barn. She described the event as a "rape." Id. at 285. M.E. eventually told her mother about the sexual intercourse with Rostochak, and in November 2009, M.E.'s mother contacted Detective Longenbaugh. M.E. came to the police station and agreed to place a phone call to Rostochak. Detective Longenbaugh, M.E.'s mother, M.E.'s aunt, and M.E.'s boyfriend were all present while M.E. called Rostochak, and the phone call was recorded.

On November 25, 2009, the State charged Rostochak with Count I, class A felony child molesting, and Count II, class B felony sexual misconduct with a minor. Count I alleged that, between the dates of September 1, 2007, and December 31, 2007, Rostochak performed sexual intercourse with a child under fourteen years of age. Count II alleged that, between the dates of July 17, 2009, and July 26, 2009, Rostochak performed sexual intercourse with a child at least fourteen years of age but less than sixteen years of age.

At an initial hearing held on November 30, 2009, Rostochak appeared with counsel Jeffrey Arnold and the trial court set an omnibus date for January 25, 2010. Thereafter, Arnold withdrew his appearance. New counsel, Travis Friend, entered an appearance on Rostochak's behalf on December 3, 2009, and filed a motion for pretrial discovery. Thereafter, on December 8, 2009, Rostochak successfully moved to reschedule the pretrial conference, which was held on January 11, 2010. Both parties appeared, and Rostochak requested a continuance of the conference until February 16, 2010. On that date, the parties again appeared and a jury trial was scheduled for July 13, 2010. Rostochak filed a witness and exhibit list and statement of defenses on March 11, 1010. Rostochak filed another discovery request on June 10, 2010. The State filed its witness and exhibit list on June 21, 2010. Then, on June 23, 2010, Rostochak moved to continue the trial. The trial court granted the motion and rescheduled trial for October 26, 2010. The State filed an amended witness and exhibit list on September 10, 2010.

On September 24, 2010, the State filed a motion to amend the charging information to expand the relevant dates. The amended information provided that Count I, child molesting, was expanded to include from September 1, 2007, to December 23, 2008, and Count II, sexual misconduct with a minor, was expanded to include from December 24, 2008, to August 1, 2009. Rostochak objected to the proposed amended information and again moved to continue the trial. On October 5, 2010, the trial court granted both the State's motion to amend and Rostochak's motion for continuance, and also scheduled a pretrial conference for October 18, 2010. On October 15, 2010, Friend withdrew his appearance and new counsel, Robert Love, entered an appearance on Rostochak's behalf. Rostochak filed another motion...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT