State v. Banks

241 So. 3d 1240
CourtLouisiana Court of Appeal
DecidedMarch 14, 2018
DocketNO. 17–KA–358
StatusPublished
Cited by2 cases

This text of 241 So. 3d 1240 (State v. Banks) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Banks, 241 So. 3d 1240 (La. Ct. App. 2018).

Opinion

MARION F. EDWARDS, JUDGE PRO TEMPORE, JUDGE

Defendant, Brian Banks, appeals his conviction and sentence on a charge of aggravated rape of a child under the age of thirteen in violation La. R.S. 14:42.1 We affirm the conviction and sentence and remand with instructions.

Banks was charged by grand jury indictment with the crime of aggravated rape of *1242a child under the age of thirteen on November 12, 2015. He pled not guilty and in due course was tried by a jury. On September 1, 2016, the trial ended in a deadlocked jury and a mistrial. The matter was set for re-trial on September 26, 2016. Banks filed a motion to recuse the presiding judge who declared a mistrial in the first trial, alleging that the judge would be unable to conduct a fair and impartial trial in second prosecution based on comments he made in a bond reduction hearing. That motion was granted and the matter went to a second jury trial before a different judge on February 6, 2017, after which the jury found Banks guilty as charged. Banks filed motions for new trial and for post-verdict acquittal. The trial court denied both motions and sentenced Banks to serve life in prison without benefit of parole, probation or suspension of sentence. This timely appeal followed.

FACTS

The victim, L.H., is the biological daughter of defendant Brian Banks and C.H. The couple has one other younger child, J.H. Banks and C.H. divorced in 2011, and defendant moved into an apartment near Oakwood Mall in Gretna. Banks had visitation rights with his children and took them for weekend visits until he moved to Texas in 2012.

At trial, L.H. testified that on one of those weekend visits in February of 2012, Banks raped her. L.H. explained that February 20, 2012 was her tenth birthday, and that morning her father took her and her little brother, J.H., to play golf. When they arrived back home, J.H. went into the living room to watch television. Banks told L.H. to go into his bedroom. Because he sounded angry, she obeyed. About twenty minutes later Banks came into the room and told L.H. to take off her pants and underwear. When she refused, her father started to undress her. She kicked and told him "no" but he continued. He picked her up by the waist and turned her over and raped her. L.H. described the rape and stated that at some point she stopped fighting and telling her father to stop because she didn't want her brother to see what was happening. When it was over, Banks told L.H. she would go to hell if she told anyone. L.H. told her father she was not going to hell and he "smacked" her. Then Banks left the room and L.H. put her pants and underwear back on.

L.H. testified that she didn't tell anyone what happened because she was embarrassed. She was in pain for a while, but felt physically better the next day. The night of the incident she thought about when she should tell someone and decided that it would be after three years. Her reasoning was that she was ten-years-old the day it happened and seven was her favorite number, so she subtracted seven from ten and got three. She testified that during those three years she didn't get much sleep and had recurring nightmares about her father. Shortly after the incident, defendant moved to Texas and L.H. has had little contact with him since then. L.H. explained that she didn't know what rape was at the time it happened, but learned later about sex in sex education at school.

L.H. related that her father also physically abused her when she was nine or ten. She stated that he would hit her in the mouth with the back of his hand. She also said that one time Banks cut her on the back of her arm when she did "something wrong" to the red beans she was cooking for him.2

*1243C.H., L.H.'s mother, testified that after her tenth birthday, L.H. became moody and had a bit of an attitude, but C.H. attributed that behavior to the divorce. In January of 2015, L.H. attended Lakewood Elementary School in Luling and was suspended for passing a razor blade in class. Since L.H. had never been in trouble before, C.H. was concerned and wanted to put an end to any bad behavior.

After L.H. was suspended, C.H. approached Donna Bowie, a fellow church member who worked with troubled youths, and asked her to speak with L.H. Ms. Bowie agreed and took L.H. to Taco Bell after their church service. According to Ms. Bowie, L.H. began to cry and became visibly upset during their conversation. Ms. Bowie asked L.H. what was wrong, and L.H. responded that her dad had raped her the weekend of her tenth birthday when she and J.H. were visiting him at his apartment, and she had never told anyone. L.H. said defendant told her to go into the bedroom and not to ask questions.

In her testimony, L.H. verified that Ms. Bowie was the first person she told about the incident. L.H. explained that she was in trouble in school for passing a razor blade to a friend and was suspended for nine days. Her mother was worried about her and wanted her to talk to someone because "a whole bunch of stuff was different." When Ms. Bowie told C.H. what L.H. had disclosed to her, C.H. consulted an attorney and, taking her advice, filed proceedings to terminate defendant's parental rights.3 At this point authorities were not notified about the incident.

In April of 2015, L.H. was adopted by C.H.'s current husband. On the day the adoption was final, L.H., who was a student at LaPlace Elementary School in St. John the Baptist Parish, was found exchanging notes with another student in which they shared experiences of rape. The teacher who discovered the notes took them to the school counselor, Mechelle Terrio, who spoke to each of the girls individually. When confronted, L.H. began to cry. She told Ms. Terrio that she was raped by her father on the weekend of her tenth birthday and that her mother knew about it. Ms. Terrio called L.H.'s mother, who confirmed that she knew about the rape and stated that her lawyer was "handling this." Ms. Terrio advised the mother to make a police report. Ms. Terrio, who is statutorily bound to report sexual abuse, called Detective Anne Taylor, a detective with the St. John the Baptist Parish Sheriff's Office.

Detective Taylor met with Ms. Terrio and viewed the note. She also went to interview L.H. and her mother. Detective Taylor testified that L.H. was nervous and frightened. L.H. told the detective she and her little brother spent the weekend of her tenth birthday with their father. During that weekend, her father raped her in the bedroom of his apartment. Although L.H. could not tell the detective where the apartment was located, she recalled that it was behind a mall. When Detective Taylor realized L.H was talking about Oakwood Mall in Gretna, the detective immediately ended the interview out of concern for L.H. Detective Taylor explained that Oakwood Mall is in Jefferson Parish and therefore out of her jurisdiction. She also explained that in her experience children become more traumatized with every discussion of the event.

Detective Taylor reported the incident to the Jefferson Parish Sheriff's Office and advised C.H. to report it also. The matter *1244was assigned to Detective Christopher Vado, of the personal violence unit in the Jefferson Parish Sheriff's Office. Detective Vado spoke with Detective Taylor who told him about the note and the allegations.

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Bluebook (online)
241 So. 3d 1240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-banks-lactapp-2018.