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