Brandan Lee Eakright v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 30, 2018
• Docket: 85A02-1710-CR-2577
• Status: Published

Opinion

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