Kenneth J. Hobensack v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 5, 2018
• Docket: 06A04-1707-CR-1529
• Status: Published

Opinion

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.

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