MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Mar 05 2018, 10:15 am
regarded as precedent or cited before any                                    CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jeffrey S. Jacob                                         Curtis T. Hill, Jr.
Jacob, Hammerle & Johnson                                Attorney General of Indiana
Zionsville, Indiana
                                                         Ian McLean
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana


                                            IN THE
      COURT OF APPEALS OF INDIANA

Kenneth J. Hobensack,                                    March 5, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         06A04-1707-CR-1529
        v.                                               Appeal from the Boone Superior
                                                         Court
State of Indiana,                                        The Honorable Matthew C. Kincaid,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         06D01-1603-FA-48



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 06A04-1707-CR-1529 | March 5, 2018             Page 1 of 10
                                             Case Summary
[1]   Kenneth J. Hobensack appeals his convictions, following a jury trial, for three

      counts of class A felony child molesting and one count of class B felony sexual

      misconduct with a minor. The trial court imposed a sixty-five-year aggregate

      sentence. Hobensack contends that the evidence is insufficient to support his

      convictions and that the trial court abused its discretion in admitting or

      excluding certain evidence. He also asserts that his sentence is inappropriate.

      Finding the evidence sufficient, and concluding that Hobensack has waived our

      review of his evidentiary claims as well as the challenge to his sentence, we

      affirm.


                                 Facts and Procedural History
[2]   K.M. was three years old when her mother, C.H., married twenty-two-year-old

      Hobensack in April 2001. K.M. and her younger half brother lived with their

      mother and Hobensack, who went on to have three children of their own. One

      day, when K.M. was nine or ten years old and in the fourth grade, Hobensack

      pulled her out of the shower and told her she was not washing herself correctly.

      He forced her into a bed in the adjacent bedroom and had sexual intercourse

      with her. Hobensack had sexual intercourse with K.M. on several more

      occasions that year, and many more times when she was in fifth and sixth

      grade. He also forced K.M. to perform oral sex on him on several occasions.

      Hobensack threatened K.M. that he would kill her or her mother if she told

      anybody about what he had done to her.



      Court of Appeals of Indiana | Memorandum Decision 06A04-1707-CR-1529 | March 5, 2018   Page 2 of 10
[3]   Hobensack and C.H. separated when K.M. was in sixth grade. However, one

      night Hobensack came to the home and argued with C.H. During the

      argument, he threatened to take all the kids away and told C.H. that she would

      never see them again. He grabbed K.M. and took her to his car and locked the

      doors. While in the car, he repeated his threat to K.M. that he would kill her or

      C.H. if K.M. ever told anyone about the sexual abuse he had inflicted upon her.


[4]   Hobensack and C.H. lived apart for several years but then reunited, and he

      returned to the home when K.M. was in ninth grade. On at least two occasions

      that year, Hobensack forced K.M. to have sexual intercourse with him.

      Specifically, he held her down by placing blankets over her wrists so that she

      would not show any bruises. He would pull her hair and call her a “slut.” Tr.

      Vol. 2 at 166. At some point C.H. filed for divorce and obtained a protective

      order against Hobensack. Hobensack then moved to Florida.


[5]   Not long after Hobensack moved away, K.M. accused C.H. of letting “all this

      happen” and letting Hobensack “hurt” her. Id. at 157. C.H. called Captain

      Debra Martin of the Boone County Sheriff’s Department and reported what

      K.M. had told her. K.M. was then interviewed at a child advocacy center and

      revealed that Hobensack had once pulled her out of the shower while he was

      also naked and had rubbed her back. She did not provide any details about

      Hobensack also having sex with her because she “didn’t want him to find out

      and hurt” her or her mom. Id. at 159-60. Personnel from the child advocacy

      center forwarded the report to Florida authorities who, in turn, contacted

      Hobensack. He denied K.M.’s allegations. Soon thereafter, in September 2013,

      Court of Appeals of Indiana | Memorandum Decision 06A04-1707-CR-1529 | March 5, 2018   Page 3 of 10
      K.M. and her family returned home from church to find Hobensack at their

      residence in violation of the protective order. K.M. felt “[t]errified” by seeing

      Hobensack. Id. at 160.


[6]   In 2015, K.M. was again interviewed at the child advocacy center. Although

      K.M. indicated to the interviewer that “something had happened” between her

      and Hobensack, she provided very little detail. Id. at 230. When asked why she

      was providing such “limited information,” she told the interviewer that they

      “couldn’t keep her safe” and the “last time when [she] even told half the story

      he came to [her] house.” Id. at 162, 231. Eventually, K.M. decided she may be

      able to “help other people” by sharing her story, so she contacted Captain

      Martin and reported Hobensack’s sexual abuse. Id. at 163.


[7]   The State charged Hobensack with three counts of class A felony child

      molesting and one count of class B felony sexual misconduct with a minor. A

      jury found him guilty as charged. The trial court sentenced him to concurrent

      fifty-year sentences on each of the child molesting counts, to be served

      consecutive to a fifteen-year sentence on the sexual misconduct count, for an

      aggregate sentence of sixty-five years. This appeal ensued.


                                     Discussion and Decision

               Section 1 – The evidence is sufficient to support the
                                  convictions.
[8]   Hobensack contends that the State presented insufficient evidence to support his

      convictions. When reviewing a claim of insufficient evidence, we neither

      Court of Appeals of Indiana | Memorandum Decision 06A04-1707-CR-1529 | March 5, 2018   Page 4 of 10
       reweigh the evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495,

       499 (Ind. 2015). We look to the evidence and reasonable inferences drawn

       therefrom that support the conviction, and will affirm if there is probative

       evidence from which a reasonable factfinder could have found the defendant

       guilty beyond a reasonable doubt. Id. In short, if the testimony believed by the

       trier of fact is enough to support the conviction, then the reviewing court will

       not disturb it. Id. at 500.


[9]    To convict Hobensack of class A felony child molesting, the State was required

       to prove that Hobensack, being at least twenty-one years of age, “perform[ed]

       or submit[ted] to sexual intercourse or deviate sexual conduct” with K.M. when

       she was under fourteen years of age. Ind. Code § 35-42-4-3(a)(1). To convict

       Hobensack of class B felony sexual misconduct with a minor, the State was

       required to prove that Hobensack, being at least twenty-one years of age,

       “perform[ed] or submit[ted] to sexual intercourse or deviate sexual conduct”

       with K.M. when she was at least fourteen years of age, but less than sixteen

       years of age. Ind. Code § 35-42-4-9(a)(1).


[10]   Here, K.M. testified that Hobensack had sexual intercourse with her on

       multiple occasions when she was under fourteen years of age and at least once

       when she was between fourteen and sixteen years of age. Hobensack’s sole

       argument on appeal is an attack on K.M.’s credibility. Specifically, he

       concentrates on K.M.’s failure to report the sexual abuse earlier despite having

       the opportunity to do so when interviewed by authorities, and he surmises that

       K.M. simply fabricated the molestations and sexual misconduct because she

       Court of Appeals of Indiana | Memorandum Decision 06A04-1707-CR-1529 | March 5, 2018   Page 5 of 10
       “really wanted out of her mother’s home” and did not want to be considered “a

       runaway.” Appellant’s Br. at 13. However, the jury was presented with this

       theory below, but chose instead to believe K.M.’s testimony recounting the

       abuse and explaining why she did not report it earlier, which is the jury’s

       prerogative. Hobensack merely requests that we reweigh the evidence and

       reassess witness credibility on appeal, which we will not do. Bell, 31 N.E.3d at

       499.


[11]   Hobensack briefly mentions the incredible dubiosity rule, pursuant to which “a

       court will impinge on the jury’s responsibility to judge the credibility of the

       witnesses only when it has confronted ‘inherently improbable’ testimony or

       coerced, equivocal, wholly uncorroborated testimony of ‘incredible dubiosity.’”

       Moore v. State, 27 N.E.3d 749, 755 (Ind. 2015) (citation omitted). Hobensack

       fails to put forth cogent argument as to why the rule should apply here, and

       thus the issue is waived. Morell v. State, 933 N.E.2d 484, 493 (Ind. Ct. App.

       2010) (defendant waived argument on appeal by failing to develop a cogent

       argument).


[12]   Waiver notwithstanding, K.M.’s trial testimony was neither improbable nor

       “inconsistent with itself.” Moore, 27 N.E.3d at 755. K.M. was consistent and

       specific with her testimony regarding Hobensack’s multiple acts of sexual

       abuse, and, as noted above, the jury was free “to believe or disbelieve” K.M.

       Murray v. State, 761 N.E.2d 406, 409 (Ind. 2002). The State presented sufficient

       evidence to support the convictions.



       Court of Appeals of Indiana | Memorandum Decision 06A04-1707-CR-1529 | March 5, 2018   Page 6 of 10
           Section 2 – Hobensack has waived appellate review of his
                             evidentiary claims.
[13]   Hobensack next contends that the trial court abused its discretion regarding

       certain evidentiary rulings. Evidentiary rulings rest within the sound discretion

       of the trial court, and we review those rulings only for an abuse of discretion.

       Griffith v. State, 31 N.E.3d 965, 969 (Ind. 2015). An abuse of discretion occurs

       when the trial court’s decision is against the logic and effect of the facts and

       circumstances before the court. Watson v. State, 784 N.E.2d 515, 520 (Ind. Ct.

       App. 2003).


[14]   Hobensack first asserts that the trial court abused its discretion in excluding

       “any testimony or evidence as to whether DCS [Department of Child Services]

       ‘substantiated’ or ‘unsubstantiated’ [abuse] allegations” based upon the State’s

       pretrial motion in limine requesting such exclusion. Appellant’s App. Vol. 2 at

       136. It is well established that a trial court’s ruling on a motion in limine does

       not determine the ultimate admissibility of the evidence; that determination is

       made by the trial court in the context of the trial itself. Clausen v. State, 622

       N.E.2d 925, 927 (Ind. 1993). The evidence must be offered at trial to give the

       trial court an opportunity to rule on its admissibility at that time. Miller v. State,

       716 N.E.2d 367, 370 (Ind. 1999). “Absent either a ruling admitting evidence

       accompanied by a timely objection or a ruling excluding evidence accompanied

       by a proper offer of proof, there is no basis for a claim of error.” Hollowell v.

       State, 753 N.E.2d 612, 615-16 (Ind. 2001).




       Court of Appeals of Indiana | Memorandum Decision 06A04-1707-CR-1529 | March 5, 2018   Page 7 of 10
[15]   Hobensack did not object to the State’s motion in limine, and, significantly, he

       points to no evidence that he attempted to present at trial through an offer of

       proof that was excluded by the trial court. Indeed, it is clear from the record

       that Hobensack did in fact introduce evidence regarding DCS investigations

       without objection by the State or adverse ruling from the trial court. While

       Hobensack complains that any DCS findings should have been admitted in

       their entirety, because he failed to offer such evidence at trial, he has failed to

       preserve any error for our review. See id.


[16]   Hobensack also maintains that the trial court abused its discretion in admitting

       evidence that he intimidated and/or threatened K.M. on two occasions, first

       when he locked her in his car, and second when he violated a protective order

       and showed up at her residence. Hobensack asserts that while each of these

       pieces of evidence was only “mildly prejudicial” on their own, collectively they

       were unfairly prejudicial in violation of Indiana Evidence Rule 403. That rule

       provides in pertinent part that the trial court “may exclude relevant evidence if

       its probative value is substantially outweighed by a danger” of unfair prejudice.

       Ind. Evidence Rule 403.1 Hobensack failed to object to any of this evidence

       when presented at trial, and therefore he has again failed to preserve any error

       for our review. The failure to make a contemporaneous objection to evidence




       1
         Although Hobensack refers to these as “[Indiana Evidence Rule] 404(b) event[s,]” his appellate argument
       regarding admissibility focuses solely upon Indiana Evidence Rule 403. Appellant’s Br. at 19.

       Court of Appeals of Indiana | Memorandum Decision 06A04-1707-CR-1529 | March 5, 2018           Page 8 of 10
       when it is offered waives any claim of error in its admission on appeal. Bean v.

       State, 913 N.E.2d 243, 253 (Ind. Ct. App. 2009), trans. denied.2


           Section 3 – Hobensack has waived appellate review of his
                    claim that his sentence is inappropriate.
[17]   Finally, Hobensack asserts that his sentence is inappropriate and invites this

       Court to revise it pursuant to Indiana Appellate Rule 7(B), which provides that

       we may revise a sentence authorized by statute if, after due consideration of the

       trial court’s decision, we find that the sentence “is inappropriate in light of the

       nature of the offense and the character of the offender.” It is well settled that

       the defendant bears the burden to persuade this Court that his or her sentence is

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


[18]   Hobensack makes no specific argument regarding the nature of his offenses or

       his character and merely instructs this Court to “look to the entirety of the

       circumstances of this case” to determine that his sixty-five-year sentence is

       inappropriate. Appellant’s Br. at 21. This falls short of satisfying his burden on

       appeal, and he has consequently waived his Appellate Rule 7(B) argument.

       Perry v. State, 921 N.E.2d 525, 528 (Ind. Ct. App. 2010) (failure to make cogent

       argument regarding nature of defendant’s offense and defendant’s character




       2
         We recognize that claims that have been waived by a defendant’s failure at trial to properly preserve the
       errors can be reviewed on appeal if the reviewing court determines that fundamental error occurred.
       Konopasek v. State, 946 N.E.2d 23, 27 (Ind. 2011). Here, however, Hobensack does not raise any claim of
       fundamental error.

       Court of Appeals of Indiana | Memorandum Decision 06A04-1707-CR-1529 | March 5, 2018               Page 9 of 10
       results in waiver of inappropriateness claim). In sum, we affirm Hobensack’s

       convictions and sentences.


[19]   Affirmed.


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 06A04-1707-CR-1529 | March 5, 2018   Page 10 of 10
