MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Jul 21 2017, 6:41 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Randy M. Fisher                                          Curtis T. Hill, Jr.
Leonard, Hammond, Thoma & Terrill                        Attorney General of Indiana
Fort Wayne, Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian C. Banks,                                          July 21, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A05-1701-CR-55
        v.                                               Appeal from the Allen Superior
                                                         Court
State of Indiana,                                        The Honorable Frances C. Gull,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         02D06-1510-FB-11



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-55 | July 21, 2017              Page 1 of 13
[1]   Brian C. Banks appeals his convictions of Class B felony sexual misconduct

      with a minor, 1 Level 4 felony sexual misconduct with a minor, 2 Class C felony

      sexual misconduct with a minor, 3 and Level 5 felony sexual misconduct with a

      minor. 4 He argues the State did not present sufficient evidence he committed

      the crimes because the victim’s testimony was incredibly dubious. In addition,

      he argues the trial court abused its discretion when sentencing him and his

      sentence is inappropriate based on the nature of the offenses and Banks’

      character. We affirm.



                                Facts and Procedural History
[2]   Banks and his wife have two children, V.B. and M.B. V.B. befriended K.C. and

      the two began dating in 2013, the summer before their freshmen year of high

      school. While the pair were dating, K.C. became close with the Banks family

      and would spend time with them “at least once every other week.” (Tr. Vol. II

      at 41.)


[3]   Shortly after K.C.’s fifteenth birthday, in the winter of 2013, K.C. and V.B.

      decided to have sexual intercourse for the first time. V.B., K.C., and Banks all

      went into V.B.’s room. K.C. began to cry during sex with V.B. because it was




      1
          Ind. Code § 35-42-4-9 (2007).
      2
          Ind. Code § 35-42-4-9 (2014).
      3
          Ind. Code § 35-42-4-9 (2007).
      4
          Ind. Code § 35-42-4-9 (2014).


      Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-55 | July 21, 2017   Page 2 of 13
      too painful, and the pair stopped. While V.B. went to the bathroom to dispose

      of the condom, Banks had sex with K.C.


[4]   From that first encounter until spring of 2015, Banks would have sex with K.C.

      almost every time she was at the Banks residence, usually on a mattress in the

      basement with the basement door locked. During this time, Banks sent K.C.

      text messages saying he loved her and gave her multiple gifts, such as a

      handwritten card and love letter, a key to the family boat, a jewelry pendant

      key, Mickey Mouse items, and his class ring. In spring of 2015, V.B. broke up

      with K.C. Later during a get-together with a group of friends, K.C. told her

      friends that “[V.B.’s] dad had been having sex with me for about a year.” (Id. at

      91.) Within the next couple of weeks, K.C. told her counselor about the

      molestation, and the counselor informed police.


[5]   The State charged Banks with two counts of Class B felony sexual misconduct

      with a minor, one count of Class C felony sexual misconduct with a minor, 5

      two counts of Level 4 felony sexual misconduct with a minor, and one count of

      Level 5 felony sexual misconduct with a minor. 6 A jury found him guilty of

      one count each of Class B felony, Class C felony, Level 4 felony, and Level 5

      felony sexual misconduct with a minor. The trial court sentenced Banks to ten




      5
       The Class B felony and Class C felony charges were listed on the charging information as crimes committed
      between December 17, 2013 and June 30, 2014.
      6
       The Level 4 felony and Level 5 felony charges were listed on the charging information as crimes committed
      between July 1, 2014 and December 16, 2014.

      Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-55 | July 21, 2017            Page 3 of 13
      years executed for the Class B felony, six years executed for the Level 4 felony,

      four years executed for the Class C felony, and three years executed for the

      Level 5 felony. The trial court ordered all sentences served consecutively for an

      aggregate sentence of twenty-three years.



                                 Discussion and Decision
                                   Sufficiency of the Evidence
[6]   When reviewing sufficiency of the evidence in support of a conviction, we do

      not reweigh evidence or reassess credibility of witnesses. Walker v. State, 998

      N.E.2d 724, 726 (Ind. 2013). We consider only the probative evidence and

      reasonable inferences in the light most favorable to the judgment. Drane v.

      State, 867 N.E.2d 144, 146 (Ind. 2007). The decision comes before us with a

      presumption of legitimacy, and we will not substitute our judgment for that of

      the fact-finder. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied.

      Conflicting evidence is considered most favorably to the verdict. Drane, 867

      N.E.2d at 146. We affirm a conviction unless no reasonable fact-finder could

      find the elements of the crime proven beyond a reasonable doubt. Id. It is

      therefore not necessary that the evidence overcome every reasonable hypothesis

      of innocence; rather, the evidence is sufficient if an inference reasonably may be

      drawn from it to support the verdict. Id. at 147.


[7]   To prove Banks committed Class B felony sexual misconduct with a minor, the

      State had to prove beyond a reasonable doubt that Banks: (1) was at least

      twenty-one years of age, (2) performed or submitted to sexual intercourse or
      Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-55 | July 21, 2017   Page 4 of 13
      deviate 7 sexual conduct, (3) with K.C., who was at least fourteen years of age

      but less than sixteen years of age. See Ind. Code § 35-42-4-9 (2007). To prove

      Banks committed Level 4 felony sexual misconduct with a minor, the State had

      to prove that Banks: (1) was at least twenty-one years of age, (2) performed or

      submitted to sexual intercourse or other sexual conduct, (3) with K.C., who was

      at least fourteen years of age but less than sixteen years of age. See Ind. Code §

      35-42-4-9 (2014). To prove Banks committed Class C felony and Level 5 felony

      sexual misconduct with a minor, the State had to prove that Banks: (1) was at

      least twenty-one years of age, (2) performed or submitted to fondling or

      touching with K.C., (3) who was a child at least fourteen years of age but less

      than sixteen, (4) with the intent of arousing or satisfying the sexual desires of

      K.C. or Banks. See Ind. Code § 35-42-4-9(b)(1) (2007 & 2014). 8 Banks

      maintains his innocence and argues the State did not present sufficient evidence

      he committed sexual misconduct with a minor because K.C.’s testimony was

      incredibly dubious. We disagree.


[8]   Under the incredible dubiosity rule, we may “impinge on the jury’s

      responsibility to judge the credibility of the witness only when it has confronted

      ‘inherently improbable testimony or coerced, equivocal, wholly uncorroborated




      7
        We note that Indiana Code Section 35-42-4-9 changed on July 1, 2014. The only difference between the
      2007 and 2014 versions of the statute is the change from “deviate sexual conduct” to “other sexual conduct
      (as defined in IC 35-31.5-2-221.5)” and the classification of the crimes into numbered “Levels” rather than
      lettered “Classes.”
      8
          It is undisputed Banks was older than twenty-one years at the time of the offenses.


      Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-55 | July 21, 2017               Page 5 of 13
       testimony of incredible dubiosity.’” Young v. State, 973 N.E.2d 1225, 1226 (Ind.

       Ct. App. 2012) (quoting Rodgers v. State, 422 N.E.2d 1211, 1213 (Ind. 1981)),

       reh’g denied, trans. denied. In Indiana, the rule of incredible dubiosity requires

       that there be: “1) a sole testifying witness; 2) testimony that is inherently

       contradictory, equivocal, or the result of coercion; and 3) a complete absence of

       circumstantial evidence.” Moore v. State, 27 N.E.3d 749, 756 (Ind. 2015). This

       rule is rarely applicable and should be applied here only if K.C.’s “testimony is

       so incredibly dubious or inherently improbable that no reasonable person could

       believe it.” See Rose v. State, 36 N.E.3d 1055, 1061 (Ind. Ct. App. 2015).

       Further, the witness’s testimony must run “counter to human experience.”

       Campbell v. State, 732 N.E.2d 197, 207 (Ind. Ct. App. 2000).


[9]    Banks asserts incredible dubiosity applies because K.C. was the only witness to

       testify to sexual contact between the two, parts of her testimony were

       contradicted by other witnesses, and her version of events was overall

       “unbelievable.” (Appellant’s Br. at 22.) Banks notes testimony from his family

       contradicts K.C.’s testimony. For example, Banks points to K.C.’s testimony

       that, during these sexual encounters, Banks would lock the basement door and

       have sex with her on a mattress. However, Banks argues, K.C. did not enter

       into evidence a picture of the mattress, the police did not find the mattress

       during a search of Banks’ home, and Banks’ family members denied there being

       a mattress in the basement or a lock on the basement door.


[10]   Next, Banks points to K.C.’s testimony that Banks gave her a key to the

       family’s boat, whereas the Banks family testified their boat has an electronic

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-55 | July 21, 2017   Page 6 of 13
       start which would not use a traditional key. They also testified K.C. was not

       present during M.B.’s birthday, the night K.C. said her first sexual encounter

       with both V.B. and Banks occurred. V.B. testified he and K.C. never had

       sexual intercourse during their relationship. K.C. also testified that, when she

       was at the Banks home, Banks would lure her away from the rest of the family

       by telling V.B. and M.B. to go finish chores or homework. In contrast, the

       Banks family testified K.C. was never present in the home before homework

       and chores were done, as that would be a violation of house rules. Finally,

       K.C. stated Banks gave her his class ring as a present. However, Mrs. Banks

       testified she had shown K.C. and V.B. the class ring, but then she never saw it

       again and she believed K.C. stole the ring.


[11]   Banks also argues K.C.’s testimony is unbelievable. Specifically, he contends it

       is unbelievable that he would have sex with K.C. unnoticed while M.B.’s

       friends were at the house for a birthday party, that he had sex with K.C.

       multiple times in the basement when no DNA evidence was found in the

       basement and the basement door is near where Mrs. Banks watches TV, and

       that K.C. would not tell anyone about the abuse for over a year. Banks also

       asserts: “It goes against all logic and reason to believe a teenager would allow a

       parent to be present in the same room for any, let alone their first [sic] sexual

       intercourse experience.” (Id. at 21-22.)


[12]   None of Banks’ arguments render K.C.’s testimony incredibly dubious. It is not

       inherently unusual that a sexual abuse victim would keep the abuse a secret for

       a year before divulging the story to a close group of friends. Cf. Baumholser v.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-55 | July 21, 2017   Page 7 of 13
       State, 62 N.E.3d 411, 415 (Ind. Ct. App. 2016) (expert witness “testified as to

       the propensity of victims of child molestation to delay disclosure of the event”),

       trans. denied. Further, it was the jury’s responsibility to determine which

       testimony to believe. As K.C.’s testimony was not incredibly dubious, we

       decline Banks’ invitation to invade the province of the jury by reweighing the

       evidence and reassessing witness credibility. See Feyka v. State, 972 N.E.2d 387,

       394 (Ind. Ct. App. 2012), trans. denied. While the surrounding facts are

       somewhat unusual, they are not so counter to human experience that a

       reasonable jury could not have believed K.C.’s version of events.


[13]   Nor is there an absence of circumstantial evidence in this case. Circumstantial

       evidence alone can sustain a verdict “if that circumstantial evidence supports a

       reasonable inference of guilt.” Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000).

       Our Indiana Supreme Court has also held “where there is circumstantial

       evidence of an individual’s guilt, reliance on the incredible dubiosity rule is

       misplaced.” Moore, 27 N.E.3d at 759. The State presented evidence that K.C.

       and Banks exchanged hundreds of text messages over the course of her and

       V.B.’s relationship; often in these message Banks would tell K.C. that he loved

       her. The State presented evidence that Banks gave K.C. multiple gifts over this

       time, such as his class ring, Mickey Mouse items, a key to the family boat, a

       jewelry pendant key, a handwritten card, and a letter from Banks to K.C. that

       professed Banks’ love for her. As K.C.’s testimony was not inherently

       improbable or counter to human experience and there was circumstantial

       evidence of Banks’ guilt, we hold K.C.’s testimony was not incredibly dubious.


       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-55 | July 21, 2017   Page 8 of 13
[14]   Banks asks us to reweigh evidence and judge the credibility of witnesses, which

       we cannot do. See Drane, 867 N.E.2d at 146 (appellate court will not reweigh

       evidence or judge credibility of witnesses). As a conviction of child molesting

       may rest on the uncorroborated testimony of the victim, we hold the evidence

       was sufficient for the jury to find Banks guilty of sexual misconduct with a

       minor. See, e.g., Young, 973 N.E.2d at 1227 (child victim’s testimony not

       incredibly dubious, despite inconsistencies between child’s trial testimony and

       deposition testimony, when she testified in detail regarding multiple incidents

       of sexual contact between her and the defendant).


                                          Abuse of Discretion
[15]   Sentencing decisions rest within the sound discretion of the trial court and are

       reviewed only for abuse of discretion. Amalfitano v. State, 956 N.E.2d 208, 211

       (Ind. Ct. App. 2011), trans. denied. To provide for meaningful appellate review,

       trial courts are required to enter reasonably detailed sentencing statements

       when imposing a sentence for a felony. Anglemyer v. State, 868 N.E.2d 482, 490

       (Ind. 2007), clarified on reh’g 875 N.E.2d 218 (2007). A trial court may abuse its

       discretion when issuing a sentencing statement if: 1) it does not enter a

       sentencing statement at all, 2) the statement explains reasons for imposing a

       sentence but those reasons are not supported in the record, 3) the statement

       omits reasons clearly supported by the record that were advanced for

       consideration, or 4) reasons given in a statement are improper as a matter of

       law. Id. at 490-91. If a sentencing order lists aggravating and mitigating



       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-55 | July 21, 2017   Page 9 of 13
       circumstances, the order must identify all such circumstances and explain why

       each has been determined to be aggravating or mitigating. Id. at 490.


[16]   The sentencing order listed two aggravating factors: 1) Banks’ violation of

       K.C.’s trust, and 2) the nature and circumstances of the crimes committed. At

       sentencing, the trial court found the latter aggravator was “particularly

       egregious,” (Tr. Vol. III at 115), based on the crimes he committed against K.C.

       for over a year. The trial court stated, “You did groom her . . . . You gained

       her trust, you gained her family’s trust, and then you repeatedly and egregiously

       molested her,” (id. at 116), and the court noted the fact that Banks sent K.C.

       multiple text messages saying he loved her, a handmade card, and a love letter.


[17]   The sentencing order listed two mitigators: 1) no prior criminal history, and 2)

       the strong support from his family and friends. The trial court took Banks’ lack

       of prior criminal history “at face value,” (id. at 114), and did not “weigh it very

       heavily.” (Id.) The court declined to accept as mitigators Banks’ history of full-

       time employment and the hardship Banks’ incarceration would have on the rest

       of his family. Banks argues on appeal that the trial court failed to identify or

       find significant and clearly supported mitigators.


[18]   “An allegation that the trial court failed to identify or find a mitigating factor

       requires the defendant to establish that the mitigating evidence is both

       significant and clearly supported by the record.” Anglemyer, 868 N.E.2d at 493.

       Banks asserts specifically that the trial court did not give proper weight to his

       lack of prior criminal history because the trial judge only took that mitigating


       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-55 | July 21, 2017   Page 10 of 13
       circumstance “at face value.” (Appellant’s Br. at 17). However, under the post-

       Anglemyer advisory sentencing scheme, we are no longer able to review an

       Appellant’s argument that the trial court failed to properly weigh mitigating

       factors. Powell v. State, 895 N.E.2d 1259, 1262 (Ind. Ct. App. 2008), trans.

       denied. As the trial court found Banks’ lack of criminal history to be a

       mitigating circumstance, we find that the trial court did not abuse its discretion.

       See id. at 1262 (trial court did consider defendant’s lack of criminal history as a

       mitigating factor during sentencing).


                                      Inappropriate Sentencing
[19]   Banks argues his twenty-three-year sentence is inappropriate under Indiana

       Appellate Rule 7(B). Under Appellate Rule 7(B), we may revise a sentence if,

       after due consideration of the trial court’s decision, we find the sentence

       inappropriate in light of the nature of the offense and the character of the

       offender. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App. 2008). Our

       review is deferential to the trial court’s decision, and our goal is to determine

       whether the defendant’s sentence is inappropriate, not if some other sentence

       would be more appropriate. Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012),

       reh’g denied. The defendant bears the burden of demonstrating his sentence is

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


[20]   When considering the nature of the offense, the advisory sentence is the starting

       point for determining the appropriateness of a sentence. Anglemyer, 868 N.E.2d

       at 494. The advisory sentence for a Class B felony is ten years, with the range


       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-55 | July 21, 2017   Page 11 of 13
       being six to twenty years. Ind. Code § 35-50-2-5 (2005). For a Level 4 felony,

       the advisory sentence is six years, and the range is two to twelve years. Ind.

       Code § 35-50-2-5.5 (2014). The advisory sentence for a Class C felony is four

       years, with the range being two to eight years. Ind. Code § 35-50-2-6 (2005).

       The advisory sentence for a Level 5 felony is three years, with the range being

       one to six years. Ind. Code § 35-50-2-6(b) (2014).


[21]   Banks received the advisory sentence for each conviction and the court ordered

       the sentences served consecutively for an aggregate sentence of twenty-three

       years, half of the total sentence possible for these offenses. 9 Banks was in a

       position of trust to the victim. He molested her multiple times from December

       2013 through spring of 2015 while she was visiting his home. He gave her a

       handwritten card professing his love for her, and he text messaged the victim

       often enough that both her parents called Banks to attempt to end the

       inappropriate communication. At sentencing, the court heard a victim impact

       statement from K.C. in which she stated the multiple ways her personality

       changed after the abuse. K.C. wrote, “Once [Banks] started abusing me, I lost

       my energy, my sense of humor,” (Tr. Vol. III at 107), and she was diagnosed

       with depression, anxiety, and PTSD. Because Banks violated the victim’s trust




       9
         Banks argues on appeal that the nature of his convicted crimes was not significant enough for the
       imposition of four consecutive sentences. “However, a single aggravating factor is sufficient to support the
       imposition of enhanced or consecutive sentences.” Hayden v. State, 830 N.E.2d 923, 930 (Ind. Ct. App.
       2005), trans. denied. The trial court found aggravating circumstances including the violation of the victim’s
       trust and the nature and circumstances of the crimes committed. As such, the trial court did not err in
       ordering Banks’ sentences served consecutively.

       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-55 | July 21, 2017                Page 12 of 13
       and was convicted for repeated sexual misconduct with a fifteen-year-old, we

       do not see his sentence as inappropriate.


[22]   Regarding Banks’ character, the trial court acknowledged Banks’ lack of prior

       criminal history and strong support from his family and friends. Banks

       contends these factors, his history of involvement with his church, and his years

       of work at his job, all show his character in a positive light such that his

       sentence is inappropriate. Banks was in a position of trust with K.C., and he

       molested her repeatedly for over a year whenever she was a visitor in his home.

       Despite the convictions from the jury, Banks refused to show any remorse for

       his crimes. Accordingly, he has failed to demonstrate his character renders his

       sentence inappropriate. See Hayden, 830 N.E.2d at 930 (defendant’s consecutive

       sentences for sexual misconduct with a minor not inappropriate when he was in

       a position of trust to his victims).



                                               Conclusion
[23]   The State presented sufficient evidence Banks committed four counts of sexual

       misconduct with a minor. We may not review the weight the trial court

       assigned to the mitigating circumstances it found, and Banks’ sentence is not

       inappropriate. We affirm.


[24]   Affirmed.


       Brown, J., and Pyle, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 02A05-1701-CR-55 | July 21, 2017   Page 13 of 13
