                                                                            FILED
                                                                        Jul 16 2019, 9:53 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Marielena Duerring                                          Curtis T. Hill, Jr.
South Bend, Indiana                                         Attorney General of Indiana

                                                            J.T. Whitehead
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Mark Benner,                                                July 16, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-2614
        v.                                                  Appeal from the St. Joseph
                                                            Superior Court
State of Indiana,                                           The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff.                                         Judge
                                                            Trial Court Cause No.
                                                            71D03-1511-FC-9



Darden, Senior Judge.




Court of Appeals of Indiana | Opinion 18A-CR-2614 | July 16, 2019                               Page 1 of 12
                                             Statement of the Case
[1]   Appellant Mark Benner appeals his convictions of two counts of child
                      1
      seduction. We affirm.


                                                       Issue
[2]   Benner presents one issue for our review, which we restate as: whether there

      was sufficient evidence to sustain his convictions.


                                   Facts and Procedural History
[3]   P.A. was born in January 1996. She knew Benner and his family through her

      sports activities—Benner’s wife was her volleyball coach in middle school,

      Benner’s daughter was a basketball teammate and friend, and Benner coached

      P.A.’s summer league basketball team the summer after her eighth grade year.

      During the relevant time period, Benner had been coaching for more than two

      decades.


[4]   From a very young age, P.A. was interested in playing basketball and was

      identified in the community as a very good basketball player. Even before she

      was old enough to be on the school team, she attempted to join their practices,

      and, as soon as she was old enough, she joined the fourth grade team at her

      school. She was often described as being “very determined,” “very dedicated,”

      “very talented,” a hard worker, focused, and a “really good basketball player”



      1
          Ind. Code § 35-42-4-7(n) (2013).


      Court of Appeals of Indiana | Opinion 18A-CR-2614 | July 16, 2019      Page 2 of 12
      with a heightened ambition and drive greater than most of her peers. Tr. Vol.

      2, pp. 89, 104, 75. P.A. looked up to her coaches and explicitly followed their

      guidance and instructions and was highly impressed with Benner’s coaching

      ability.


[5]   Beginning with the 2009-2010 school year, Benner served as an assistant varsity

      coach for the girls basketball team at Mishawaka High School. In 2010-2011,

      when P.A. was a freshman, she played for both the junior varsity and the

      varsity basketball teams and was considered an important player at the varsity

      level. By that time, it was common knowledge that P.A. was a very passionate

      and dedicated basketball player who was always seeking to improve her skills

      and excel in her sport. All of her coaches viewed her as an integral component

      of the Mishawaka High School girls basketball program, and Benner knew that

      her ultimate goal was to obtain a scholarship to play college basketball.


[6]   With the aim of obtaining a college basketball scholarship, P.A. did extra one-

      on-one workouts with Benner several times a week during the summer of 2011

      to improve her basketball skills. Commencing her sophomore year, P.A. made

      the varsity team and remained at that level throughout her high school career.

      Benner served as the assistant varsity basketball coach until he submitted his

      resignation in 2013 at the end of P.A.’s junior year. Knowing P.A.’s intense

      motivation to excel, Benner worked more with her and provided her with more

      individual attention than he did with any other player. Because of this

      concentrated one-on-one time together, Benner developed a closer relationship

      with P.A. than with other players on the team.

      Court of Appeals of Indiana | Opinion 18A-CR-2614 | July 16, 2019           Page 3 of 12
[7]   In January 2013, concern arose at the school regarding some text messages that

      had been exchanged between Benner and P.A. It was later determined that the

      texts were basketball related, and no action was taken by the school against

      Benner. However, in March of 2013, at the end of the 2012-2013 basketball

      season, Benner resigned as assistant varsity coach. After submitting his letter of

      resignation, Benner drove to P.A.’s home, picked her up, and showed her his

      resignation letter. After P.A. read the letter, she became saddened and cried,

      and it was at that point that Benner kissed her. At that time, P.A. was

      seventeen and a junior in high school, and Benner was forty-three. Benner told

      P.A. that his resignation would not affect them working together to get her into

      college and that he would continue working with her on an individual basis.


[8]   In August 2013, before P.A.’s senior year of high school, a sexual relationship

      began between Benner and P.A. Their sexual activities included fondling, oral

      sex, and sexual intercourse and continued through P.A.’s senior year. P.A.

      graduated from Mishawaka High School in 2014. She then attended Indiana

      University South Bend on a basketball scholarship. Benner’s sexual

      relationship with P.A. continued until the spring of her freshman year of

      college. Their relationship ended when, in March 2015, Benner accidentally

      sent to his daughter a text message intended for P.A. It was only then that

      Benner’s wife and P.A.’s parents learned of their intimate relationship.


[9]   Once the relationship became known, an investigation was conducted, and, on

      November 20, 2015, the State charged Benner with two counts of child

      seduction, one as a Class D felony and one as a Class C felony. Benner filed a

      Court of Appeals of Indiana | Opinion 18A-CR-2614 | July 16, 2019          Page 4 of 12
       motion to dismiss both charges on February 23, 2016, claiming that to convict

       him of child seduction as charged would violate both the federal and state

       prohibitions against ex post facto laws. On April 25, 2016, Benner filed a

       supplemental motion to dismiss, alleging as an alternative ground for dismissal

       that the section of the child seduction statute under which he was charged is

       unconstitutionally vague. The State filed responses in opposition, and,

       following a hearing, the trial court denied Benner’s motions.


[10]   On June 9, 2016, Benner filed a motion to certify the trial court’s order for

       interlocutory appeal. The trial court granted the motion, and the Indiana Court

       of Appeals accepted jurisdiction over the appeal. Determining that there is no

       ex post facto violation and that the child seduction statute is not

       unconstitutionally vague as applied to Benner, the Court issued its

       memorandum decision affirming the trial court’s denial of Benner’s motions to

       dismiss. See Benner v. State, No. 71A03-1607-CR-1609 (Ind. Ct. App. July 27,

       2017), trans. denied.


[11]   A jury trial on the charges was held August 20-21, 2018, at the conclusion of

       which Benner was found guilty as charged. On October 5, the court sentenced

       Benner to consecutive terms of eighteen months and four years, all suspended

       to probation. Benner now appeals his convictions.


                                     Discussion and Decision
[12]   Benner challenges the sufficiency of the evidence supporting his convictions.

       When we review a challenge to the sufficiency of the evidence, we neither

       Court of Appeals of Indiana | Opinion 18A-CR-2614 | July 16, 2019         Page 5 of 12
       reweigh the evidence nor judge the credibility of the witnesses. Sandleben v.

       State, 29 N.E.3d 126, 131 (Ind. Ct. App. 2015), trans. denied. Instead, we

       consider only the evidence most favorable to the verdict and any reasonable

       inferences drawn therefrom. Id. If there is substantial evidence of probative

       value from which a reasonable fact-finder could have found the defendant

       guilty beyond a reasonable doubt, the verdict will not be disturbed. Labarr v.

       State, 36 N.E.3d 501, 502 (Ind. Ct. App. 2015). When an appellant challenges

       the sufficiency of the evidence of his or her convictions after a jury verdict, “the

       appellate posture is markedly deferential to the outcome below.” Bowman v.

       State, 51 N.E.3d 1174, 1181 (Ind. 2016).


[13]   Here, Benner was charged with child seduction under Indiana Code section 35-

       42-4-7(n), which provides:


               (n) A person who:


                        (1) has or had a professional relationship with a child at
                        least sixteen (16) years of age but less than eighteen (18)
                        years of age whom the person knows to be at least sixteen
                        (16) years of age but less than eighteen (18) years of age;


                        (2) may exert undue influence on the child because of the
                        person’s current or previous professional relationship with
                        the child; and


                        (3) uses or exerts the person’s professional relationship to
                        engage in sexual intercourse, deviate sexual conduct, or
                        any fondling or touching with the child with the intent to



       Court of Appeals of Indiana | Opinion 18A-CR-2614 | July 16, 2019               Page 6 of 12
                        arouse or satisfy the sexual desires of the child or the
                        person;


               commits child seduction.


[14]   Indiana Code section 35-42-4-7(i) additionally provides that a person has a

       “professional relationship,” as that term is used in Section 35-42-4-7(n), with a

       child if:


               (1) the person:


                        (A) has a license issued by the state or a political
                        subdivision on the basis of the person’s training and
                        experience that authorizes the person to carry out a
                        particular occupation; or


                        (B) is employed in a position in which counseling,
                        supervising, instructing, or recruiting children forms a
                        significant part of the employment; and


               (2) the person has a relationship with a child that is based on the
               person’s employment or licensed status as described in
               subdivision (1).


               The term includes a relationship between a child and a mental
               health professional or military recruiter. The term does not
               include a coworker relationship between a child and a person
               described in subdivision (1)(B).


[15]   We pause here to briefly address a footnote in Benner’s brief. He points to the

       statutory language “is employed” in Section 35-42-4-7(i)(1)(B) and remarks that

       he “continues to refute the notion that when he engaged in the sexual conduct
       Court of Appeals of Indiana | Opinion 18A-CR-2614 | July 16, 2019             Page 7 of 12
with P.A. that this statute made such conduct illegal because he was not

employed in a professional relationship” at that time. Appellant’s Br. p. 8, n.2.

However, this issue was decided in Benner’s prior appeal where the Court

determined:


        We disagree with Benner’s reading of the child seduction statute.
        Contrary to Benner’s claim, the “is employed” language of
        subsection (i) does not require a current professional relationship
        at the time the prohibited conduct occurs. Subsection (i) simply
        defines what constitutes a professional relationship. This
        determination is made by looking at the nature and
        circumstances of the relationship at the time the relationship
        existed, hence the language “is employed.” It is of no moment
        that this definition did not exist at the time Benner was the
        assistant basketball coach. It is enough that as of July 1, 2013,
        Benner was on notice that his previous position as one of P.A.’s
        basketball coaches might constitute a “professional relationship.”


        Our reading of subsection (i) is buttressed by the language of
        subsection (n), which explicitly provides that a charge of child
        seduction may be based on a person who “has or had” a
        professional relationship. I.C. § 35-42-4-7 (emphasis supplied).
        The 2013 amendment to the child seduction statute did not
        criminalize Benner’s prior professional relationship with P.A.
        Rather, subsection (n) criminalized sexual conduct with a child
        between the ages of sixteen and eighteen occurring on or after
        July 1, 2013 if the person “has or had” a professional relationship
        with the child. I.C. § 35-42-4-7. The statute clearly does not
        limit the criminal offense to a person who is currently in a
        professional relationship.


Benner, No. 71A03-1607-CR-1609, slip op. at 3 (footnote omitted). Thus, we

neither need to nor can we address it here.

Court of Appeals of Indiana | Opinion 18A-CR-2614 | July 16, 2019         Page 8 of 12
[16]   We turn now to the issue in the current case. In order to obtain convictions for

       child seduction in this case, the State must have proved beyond a reasonable

       doubt that (1) Benner (2) has or had a professional relationship (3) with P.A., a

       child of at least sixteen but less than eighteen years of age, (4) whom Benner

       knew was at least sixteen but less than eighteen years of age (5) when he used or

       exerted his professional relationship (6a) to engage in fondling or touching with

       P.A. and (6b) to engage in sexual intercourse or deviate sexual conduct with

       P.A. (7) with the intent to arouse or satisfy the sexual desires of P.A. or himself.

       See Appellant’s App. Confidential Vol. 2, p. 2; Ind. Code § 35-42-4-7(n).

       Benner challenges the State’s evidence as to his use or exertion of his

       professional relationship with P.A. to engage in these acts.


[17]   In determining whether Benner used or exerted his professional relationship

       with P.A. to engage in sexual intercourse, deviate sexual conduct, and fondling

       or touching with the intent to arouse or satisfy the sexual desires of P.A. or

       himself, the jury could consider any of the following: (1) the age difference

       between Benner and P.A., (2) whether Benner was in a position of trust with

       respect to P.A., (3) whether Benner’s conduct with P.A. violated any ethical

       obligations of Benner’s profession or occupation, (4) the authority that Benner

       had over P.A., (5) whether Benner exploited any particular vulnerability of

       P.A., and (6) any other evidence relevant to Benner’s ability to exert undue

       influence over P.A. See Ind. Code § 35-42-4-7 (o).


[18]   At trial, the State presented evidence that P.A. was seventeen when the sexual

       activity began between her and Benner. Benner’s wife testified that Benner was

       Court of Appeals of Indiana | Opinion 18A-CR-2614 | July 16, 2019         Page 9 of 12
       born in December 1969, which made him forty-three years old in the spring

       and summer of 2013—an age difference of twenty-six years. It appears from

       the evidence that Benner began coaching P.A. from the time she was in the

       eighth grade and was well aware of her age.


[19]   From the beginning, Benner was in a position of trust with P.A., both as her

       basketball coach and a family friend. This early foundation of a trusting

       relationship was a springboard from which Benner was able to increase the level

       of trust in order to secure unsupervised contact with P.A. to train her on a one-

       on-one basis. As a result, their relationship and trust continued to grow and

       become even stronger. Additionally, although at the time the sexual conduct

       occurred Benner was no longer P.A.’s official coach, P.A. and her family still

       trusted him to train her in preparation for her to obtain a college basketball

       scholarship.


[20]   With regard to any violation of ethical obligations, the jury heard evidence that,

       during the time Benner was coaching P.A., Kevin Gradeless, the girls varsity

       coach, became aware of texts between Benner and P.A. that caused him

       concern. He alerted the administration at the high school, and the school

       administration investigated the issue. While it does not appear that the school

       system prohibited coaches texting their team members, the high school

       principal testified that it is “not something we would like to see our coaches do,

       especially if they’re male to female athlete.” Tr. Vol. 2, p. 82. School officials

       met with Benner and P.A., and no formal action was taken at the time.



       Court of Appeals of Indiana | Opinion 18A-CR-2614 | July 16, 2019        Page 10 of 12
[21]   Next, we turn to the authority Benner had over P.A. It is undisputed that at the

       time the one-on-one workouts began, Benner had coaching authority over P.A.

       In addition, the State presented evidence that P.A. highly respected Benner’s

       coaching authority. She admitted that she looked up to her coaches, listened to

       them, and followed their instructions and guidance. Considering their

       relationship, Benner was in a position to influence and subsequently persuade

       P.A. to continue the one-on-one training sessions with him even after he

       submitted his resignation to the school.


[22]   The final two statutory factors concerning Benner’s exploitation of particular

       vulnerabilities of P.A. and Benner’s ability to exert undue influence over P.A.

       lend themselves to being examined in tandem. The State’s overwhelming

       evidence showed that Benner was well aware of P.A.’s intense desire and

       motivation to improve her basketball skills. He was specifically aware of P.A.’s

       aspiration and the rigorous work ethic she employed in an effort to obtain a

       college scholarship to play basketball. This lofty goal made any extra coaching

       and instruction on a one-on-one basis invaluable to P.A. to the degree that she

       was willing to be trained by Benner on an individual basis.


[23]   The extra individual training allowed Benner to be alone with P.A. for

       extended periods of time, which enabled him to capitalize on this relationship,

       thus fostering a deeper personal connection between them. Indeed, Benner

       admitted that he “knew P.A.’s emotions pretty well” from working with her

       and that she “was very emotional” and “sentimental.” Tr. Vol. 3, pp. 45-46. In

       addition, Gradeless acknowledged at trial that Benner and P.A. had a close

       Court of Appeals of Indiana | Opinion 18A-CR-2614 | July 16, 2019      Page 11 of 12
       relationship and that it was much closer than Benner had with other players on

       the team, and that, in his opinion, the relationship between Benner and P.A.

       was more than it should have been between coach and player. He also testified

       that Benner gave more individual attention to P.A. than he did other players.

       Further, even before he told the rest of the team, Benner went to P.A.’s home to

       privately inform her of his resignation as assistant coach, and it was then that he

       kissed P.A.


[24]   Considering the totality of the facts and circumstances, the evidence firmly

       establishes Benner’s use of his professional coach-player relationship with P.A.

       as a conduit for establishing a sexual relationship with her.


                                                  Conclusion
[25]   For the reasons stated, we conclude the State presented sufficient evidence to

       establish Benner used or exerted his professional relationship to engage in

       sexual conduct with P.A.


[26]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2614 | July 16, 2019       Page 12 of 12
