Finding no juror misconduct or any fundamental error in the admission of certain testimony during a man’s trial for molesting his daughter, the Indiana Court of Appeals upheld his multiple molestation convictions. He will also have to file a petition for post-conviction relief to challenge his habitual offender adjudication.
Brandon Robey was found guilty of four counts of Class A felony child molesting and two counts of Class C felony child molesting for molesting his six-year-old daughter, A.P. After trial, he admitted that he was a habitual offender and habitual substance offender, and he was sentenced to an aggregate term of 110 years.
But in Brandon Robey v. State of Indiana, 12A02-1306-CR-502, Robey argued that the trial court erred in denying his motion to correct error on the basis of alleged juror misconduct. Juror John Brannan knew of Robey from his previous employment at the county jail. Brannan did not work there when Robey was incarcerated on the molestation charges.
After he was convicted, two other jurors had a conversation on Facebook that said Brannan told them Robey bragged about raping his daughter and getting away with it. When juror Julie Gillespie testified about the conversation, she said that information came up after the jury had made a unanimous decision to convict Robey.
The Court of Appeals rejected Robey’s request for a retrial, finding the court was entitled to believe Gillespie’s testimony and did. They declined to reweight the evidence.
The judges also found he was not denied a fair trial based on the admission of statements by his daughter’s child services interviewer and her psychologist. The DCS case managers comments were general in nature, and she did not directly comment on whether A.P.’s accusations against Robey were true in particular or whether A.P. was a truthful person in general, as allowed by Kindred v. State, 973 N.E.2d 1245 (Ind. Ct. App. 2012), Judge Cale Bradford wrote.
The judges only found one statement by the child’s counselor that constituted impermissible vouching, however, it was at most merely cumulative of her previous statements, both of which were elicited by Robey.
And even though Robey’s prior conviction for possession of a controlled substance can’t be used to support his habitual offender adjudication, he cannot challenge it on direct appeal based on Tumulty v. State, 666 N.E.2d 394 (Ind. 1996).
“There is, quite simply, no room in Tumulty’s holding for any exceptions to the rule that you cannot challenge a habitual offender adjudication on direct appeal after pleading guilty. If Robey wishes to further challenge the factual basis underlying his admission to being a habitual offender, he will have to do so in a PCR petition,” Bradford wrote.