MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                              Apr 30 2018, 7:14 am
this Memorandum Decision shall not be
                                                                        CLERK
regarded as precedent or cited before any                           Indiana Supreme Court
                                                                       Court of Appeals
court except for the purpose of establishing                             and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Justin R. Wall                                           Curtis T. Hill, Jr.
Wall Legal Services                                      Attorney General of Indiana
Huntington, Indiana
                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brandan Lee Eakright,                                    April 30, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         85A02-1710-CR-2577
        v.                                               Appeal from the Wabash Circuit
                                                         Court
State of Indiana,                                        The Honorable Robert R.
Appellee-Plaintiff.                                      McCallen, III, Judge
                                                         Trial Court Cause No.
                                                         85C01-1501-F5-48




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 85A02-1710-CR-2577| April 30, 2018        Page 1 of 13
                                             Case Summary
[1]   Brandan L. Eakright appeals his conviction and sentence for Level 5 felony

      sexual misconduct with a minor. We affirm.


                                                     Issues
[2]   The issues before us are:


              I.       whether the evidence is sufficient to sustain his conviction
                       for Level 5 felony sexual misconduct with a minor; and


              II.      whether his sentence is inappropriate.


                                                     Facts
[3]   On New Year’s Eve 2014, fourteen-year-old A.M. asked her parents to let her

      visit her great-grandmother in Wabash; they agreed. Once there, A.M. asked

      her great-grandmother for permission to visit Courtney Erwin, her twenty-three-

      year-old friend, whose children A.M. occasionally baby-sat. Courtney often

      bought alcohol for A.M. and drank with her. Late that evening, Courtney

      picked A.M. up, purchased alcohol, and drove to her trailer so they could drink

      with Courtney’s boyfriend, Jared Eakright (“Jared”). Jared was Brandan

      Eakright’s (Eakright) cousin. Jared invited Eakright to join them, and Eakright

      arrived before midnight.


[4]   A.M. had met Eakright once before in the Fall of 2014. Eakright was twenty-

      nine years old, 6' 6", and weighed 200 pounds. That night, A.M., who was 4'

      9" inches tall and weighed eighty-five pounds, drank more alcohol than she had

      Court of Appeals of Indiana | Memorandum Decision 85A02-1710-CR-2577| April 30, 2018   Page 2 of 13
      ever consumed before. The foursome drank, played cards, and retired to the

      living room. They drank “[e]nough that [they] were [all] drunk.” Tr. Vol. II p.

      220.


[5]   Jared and Courtney eventually went to bed, leaving A.M. and Eakright on the

      living room sofa with a blanket over them. Eakright placed A.M.’s hand on his

      penis over his clothing. A.M. “froze.” Id. at 144. Eakright then kissed her

      mouth, fondled her bare buttocks, and rubbed her vagina. Each time, A.M.

      told Eakright to stop. At least three or four times, he would briefly stop, only to

      resume trying to kiss her and touching her buttocks and vagina. A.M.

      eventually moved to the other end of the sofa. Eakright put on his shoes, said

      he was sorry, and left.


[6]   A.M. went into Courtney’s bedroom and shook Jared until he told her the

      address of the trailer. She did not tell Jared what his cousin had done. Afraid

      to call her parents, who thought she was with her great-grandmother and not

      out drinking with adults, A.M. called her friend, Payton Helton, in Peru. She

      was crying so much that Payton could not understand her. He hung up and

      sent her a text. A.M. replied that “a guy was touching [her].” Id. at 172.

      Payton drove to Wabash to pick A.M. up. A.M. then called her friend Bethany

      Caldwell’s parents. “[A.M.] was upset, crying, [and] asked if she could come to

      the [Caldwells’] house” because she “needed somewhere to go now.” Tr. Vol.

      III p. 30. Payton drove A.M. to the Caldwells’ house, and they called her

      parents and the police.



      Court of Appeals of Indiana | Memorandum Decision 85A02-1710-CR-2577| April 30, 2018   Page 3 of 13
[7]   On January 1, 2015, North Manchester Police Department Chief James Kirk,

      formerly a detective-captain with the Wabash Police Department, investigated

      the allegation. He interviewed A.M. and accompanied her and her parents to

      the Fort Wayne Sexual Assault Center, where A.M. underwent a rape kit

      examination. On January 5, 2015, Chief Kirk interviewed Eakright, who made

      a videotaped confession; however, Eakright later recanted, claiming his

      confession was coerced and prompted by fear and exhaustion.


[8]   On January 23, 2015, the State charged Eakright with Level 5 felony sexual

      misconduct with a minor and Class A misdemeanor contributing to the

      delinquency of a minor. He was tried by a jury on February 9, 2016, resulting

      in a partial mistrial when the jury found Eakright not guilty of contributing to

      the delinquency of a minor, but deadlocked as to the Level 5 felony charge.


[9]   He was retried as to the Level 5 felony charge on September 26, 2017. During

      the State’s case-in-chief, A.M. testified to the foregoing facts. Courtney testified

      that she woke at approximately 6:00 A.M. on New Year’s Day and was “just

      really shocked” to “find this note” from A.M., and “neither one of them

      [Eakright or A.M.] there.” Tr. Vol. II p. 198-99. She testified further that she

      “thought something had happened to [A.M.] . . . . [S]he had never done that

      before.” Id. at 199. Bethany’s mother, Brandi Caldwell, testified that she called

      the police and A.M.’s parents after a “frantic” and “bawling” A.M. arrived at

      her house on New Year’s Day 2015. Tr. Vol. III p. 32.




      Court of Appeals of Indiana | Memorandum Decision 85A02-1710-CR-2577| April 30, 2018   Page 4 of 13
[10]   Chief Kirk testified that he interviewed Eakright. The jury watched the video-

       recording of Eakright’s interview, in which Eakright confessed to putting his

       hand in A.M.’s pants and rubbing her vagina and buttocks. Chief Kirk testified

       that during the interview, “[Eakright] started thinking about what he did,” and

       began to cry. Tr. Vol. III p. 12. Meredith Livingston, forensic DNA analyst at

       the Indiana State Police laboratory, testified that DNA evidence retrieved from

       A.M.’s face, cheek, and lips was “consistent with . . . Brandan Eakright” such

       that “[he] and all of his male paternal relatives cannot be excluded as potential”

       contributors. Id. at 242.


[11]   During his testimony, Eakright denied kissing A.M. or touching her buttocks

       and vagina. On direct examination, the following colloquy ensued:


               Q:    Okay. We saw video of your interview with Detective
               Kirk. Was that pretty accurate in terms of what happened?


               A:       Yeah.


               Q:    Ultimately, you indicate you don’t remember what
               happened and then seem to indicate, yes, I kissed her, yes, I
               rubbed her vagina. You saw that, right?


               A:       Yeah, I seen [sic] it.


               Q:       Why did you say that?


               A:     I was in shock. I didn’t know what to think. I didn’t
               know what to say. . . . I never dealt with anything like that
               before. And I didn’t know how to handle it.

       Court of Appeals of Indiana | Memorandum Decision 85A02-1710-CR-2577| April 30, 2018   Page 5 of 13
       Id. at 87-88. At the close of the evidence, the jury returned a guilty verdict.


[12]   At Eakright’s sentencing hearing on October 23, 2017, the trial court found no

       aggravating circumstances and, after considering Eakright’s lack of criminal

       history, concluded that factor was not mitigating. The trial court ordered

       Eakright to serve three years in the Department of Correction with six months

       suspended to probation; he now appeals.


                                                   Analysis
                                       I.      Sufficiency of the Evidence

[13]   Eakright argues that the evidence is insufficient to sustain his conviction

       because A.M.’s testimony was incredibly dubious. He argues,


               A.M. is the only single witness to provide even a shadow of
               testimony that implicates Eakright of committing the crime as
               alleged. Her testimony is unsupported by any circumstantial
               evidence, other than potentially inconclusive DNA evidence, or
               by testimony of any other witness who heard or saw the alleged
               event occurring. Additionally, A.M.’s testimony was
               contradictory and convoluted at time and her recollection . . .
               was clearly clouded by her intoxication and fueled by potential
               criminal mischief and/or punishment that she could have faced.


       Appellant’s Br. p. 24. When reviewing the sufficiency of the evidence needed

       to support a criminal conviction, we neither reweigh evidence nor judge witness

       credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider

       only the evidence supporting the judgment and any reasonable inferences that

       can be drawn from such evidence.” Id. We will affirm if there is substantial


       Court of Appeals of Indiana | Memorandum Decision 85A02-1710-CR-2577| April 30, 2018   Page 6 of 13
       evidence of probative value such that a reasonable trier of fact could have

       concluded the defendant was guilty beyond a reasonable doubt. Id.


[14]   To convict Eakright of Level 5 felony sexual misconduct with a minor, the

       State was required to prove that he, “a person at least eighteen (18) years of

       age,” did “perform[ ] or submit[ ] to sexual intercourse or other sexual conduct

       (as defined in IC 35-31.5-2-221.5)” with A.M., who was “a child at least

       fourteen (14) years of age but less than sixteen (16) years of age.” See Ind. Code

       § 35-42-4-9(a).


[15]   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

       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 only if the alleged victim’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). The witness’s testimony must run “counter to human experience.”

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



       Court of Appeals of Indiana | Memorandum Decision 85A02-1710-CR-2577| April 30, 2018   Page 7 of 13
[16]   Eakright contends that the incredible dubiosity rule applies because:


               ultimately, the DNA sampling and testing could not prove, nor
               disprove, that Eakright committed the alleged act. At best, . . .
               Eakright could not be excluded, nor could any of his male
               relatives be excluded[;]


                                                    *****


               [H]is ‘confession’ [wa]sn’t a true confession and was induced by
               the nature of the circumstances of the interview, the unfamiliar
               surroundings, the pressure from Chief Kirk, lack of sleep and flat
               out being scared and just wanting to get the interview process
               over with[; and]


                                                    *****


               [T]hrough much of A.M.’s testimony, she cannot recall a lot of
               the facts of what happened and undertook no actions . . . to have
               prevented touching or at least to have stopped the touching as
               alleged . . . . [And] A.M.’s actions and statement during that
               course of the night seem very much to be convoluted and
               inconsistent with someone who has allegedly been touched
               inappropriately[.]


                                                     *****


               A.M. had started . . . that night by lying to her mother, obtaining
               money for alcohol from her great-grandmother, under false
               pretenses, going to a residence that she did not have permission
               to go to, consuming alcohol underage with adults, consuming
               such a quantify [sic] of alcohol sufficient to cause her to vomit . .
               . . A.M.’s version of events that night was concocted to . . . get



       Court of Appeals of Indiana | Memorandum Decision 85A02-1710-CR-2577| April 30, 2018   Page 8 of 13
               her out of potential criminal trouble, or . . . trouble with her
               mother and/or great-grandmother.


       Appellant’s Br. p. 19, 20, 22, 24.


[17]   None of Eakright’s arguments render A.M.’s testimony inherently improbable

       or incredibly dubious. A.M. was the only eyewitness to the underlying sexual

       acts, as is common in cases involving sex crimes. The record shows her to be a

       consistent and confident witness. She testified unequivocally that Eakright

       kissed her and tried to kiss her, placed her hand on his penis over his clothing,

       touched her buttocks, and rubbed her vagina. She also testified that she

       repeatedly told him to stop, but he repeated his actions three or four times.


[18]   In invoking the incredible dubiosity rule, Eakright seizes upon the fact that

       A.M. cannot recall whether he digitally penetrated her vagina. Given her slight

       eighty-five-pound frame, her heavy alcohol consumption that night, and her

       testimony that she “passed out” at one point, it is not inherently improbable

       that she might not recall Eakright’s every action against her. See Tr. Vol. II p.

       145. Eakright also makes much of the fact that A.M. did not immediately wake

       Courtney and Jared or call her parents to report his sexual misconduct. It is not

       inconsistent with the laws of human nature or experience that A.M. was

       reluctant to report Eakright to his cousin or was afraid to call her parents after a

       night of underage drinking. The jury was free to decide whether “to believe or

       disbelieve” A.M. See Murray v. State, 761 N.E.2d 406, 409 (Ind. 2002).




       Court of Appeals of Indiana | Memorandum Decision 85A02-1710-CR-2577| April 30, 2018   Page 9 of 13
       Additionally, it is not uncommon for sexual abuse victims to be reluctant to

       report, to feel shameful and alone, or to be traumatized into silence by abuse.1


[19]   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. A.M. testified that Eakright kissed and

       tried to kiss her as he fondled her. The State presented evidence that DNA

       evidence collected from A.M.’s face was consistent with Eakright’s profile.

       While not conclusive, the State’s DNA evidence was certainly corroborative.


[20]   The foregoing facts are not so counter to human nature and experience that a

       reasonable jury could not have believed A.M.’s account. Nor is A.M.’s

       testimony “so incredibly dubious or inherently improbable that no reasonable

       person could believe it.” See Rose, 36 N.E.3d at 1061. We conclude that the

       incredible dubiosity rule is inapplicable here and decline Eakright’s 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).

       As a conviction of child molesting may rest on the uncorroborated testimony of




       1
         After the underlying sexual abuse, a counselor diagnosed A.M. with post-traumatic stress disorder
       (“PTSD”). See Tr. Vol. III p. 148.




       Court of Appeals of Indiana | Memorandum Decision 85A02-1710-CR-2577| April 30, 2018           Page 10 of 13
       the victim, we hold the evidence was sufficient for the jury to find Eakright

       guilty of sexual misconduct with a minor. See Young, 973 N.E.2d at 1227.


                                                   II.     Sentence

[21]   Eakright argues that his sentence is inappropriate. Indiana Appellate Rule 7(B)

       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 offenses and the character of the

       offender. When considering whether a sentence is inappropriate, we need not

       be “extremely” deferential to a trial court’s sentencing decision. Rutherford v.

       State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still, we must give due

       consideration to that decision. Id. We also understand and recognize the

       unique perspective a trial court brings to its sentencing decisions. Id. Under

       this rule, the burden is on the defendant to persuade the appellate court that his

       or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006).


[22]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the

       sentence on any individual count.” Id. When reviewing the appropriateness of

       a sentence under Rule 7(B), we may consider all aspects of the penal
       Court of Appeals of Indiana | Memorandum Decision 85A02-1710-CR-2577| April 30, 2018   Page 11 of 13
       consequences imposed by the trial court in sentencing the defendant, including

       whether a portion of the sentence was suspended. Davidson v. State, 926 N.E.2d

       1023, 1025 (Ind. 2010).


[23]   Eakright faced a term of one to six years, with an advisory sentence of three

       years. Ind. Code § 35-50-2-6(b). The trial court here found no aggravating or

       mitigating circumstances and imposed the advisory, three-year sentence with

       two and one-half years executed and six months suspended to probation.


[24]   Eakright argues that “he qualifies for a reduced sentence” because the nature of

       the offense “is not particularly egregious due to the nature and location of the

       touch[ing] and [because there was allegedly] no penetration of A.M.’s private

       areas”; “the touching occurred over a short period of time on one evening”;

       alcohol was “potentially a driving factor”; and “A.M. appears to have had no

       long-term injuries,” as evidenced by her “apparent success in school” and her

       ability to juggle being a high school senior, a cheerleader, and working a job.

       Appellant’s Br. 27, 28. We disagree.


[25]   Regarding the nature of the offense, twenty-nine-year-old Eakright—who was

       6'6" and approximately 200 pounds—engaged in sexual conduct with and

       performed sexual acts upon A.M., a fourteen-year-old child, who was 4'9",

       weighed eighty-five pounds, and was acutely intoxicated. Undeterred by her

       protests, he kissed and tried to kiss her, placed her hand on his penis over his

       clothing, fondled her bare buttocks, and rubbed her vagina multiple times.




       Court of Appeals of Indiana | Memorandum Decision 85A02-1710-CR-2577| April 30, 2018   Page 12 of 13
[26]   As for Eakright’s character, despite his conviction by the jury, he failed to show

       remorse at his sentencing. He offers as evidence of his good character that he

       has no prior criminal history. We are not persuaded and regard the references

       in his brief to A.M.’s intoxication; her inability to recall “a lot . . . of what

       happened”; and her “undert[aking] no actions . . . to have prevented or . . .

       stopped the touching” as suggesting his belief that A.M., rather than himself, is

       accountable for their inappropriate interaction. See Appellant’s Br. p. 22. We

       do not find, under the circumstances before us, that his character renders his

       advisory sentence inappropriate.


                                                 Conclusion
[27]   The State presented sufficient evidence to support Eakright’s conviction of

       Level 5 felony sexual misconduct with a minor. His sentence is not

       inappropriate.


[28]   Affirmed.


[29]   Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 85A02-1710-CR-2577| April 30, 2018   Page 13 of 13
