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State v. Banks

Court of Appeals of Louisiana, Fifth Circuit

March 14, 2018

STATE OF LOUISIANA
v.
BRIAN K. BANKS

         ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-4235, DIVISION "I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Darren A. Allemand.

          COUNSEL FOR DEFENDANT/APPELLANT, BRIAN K. BANKS Katherine M. Franks.

          DEFENDANT/APPELLANT, BRIAN K. BANKS In Proper Person.

          Panel composed of Judges Jude G. Gravois, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore.

         AFFIRMED AND REMANDED

         MFE

         JGG

         HJL

          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 a 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]

         C.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 was 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. Detective Vado contacted the child's mother and arranged a meeting for June 9, 2015. The detective first interviewed the child alone. Detective Vado said that L.H. was sad and cried when she told him the details of the rape. Then Detective Vado spoke to C.H. without disclosing the details L.H. provided. C.H. told the detective that she was concerned because L.H. was acting out in school so she asked Donna Bowie, a friend from her church who worked with troubled youths, to talk to her daughter. L.H. told Ms. Bowie about the rape. Ms. Bowie told C.H and advised her to contact police. Detective Vado verified this with Donna Bowie to corroborate the information received from C.H. He also got the address of Banks' apartment at the time of the incident from C.H. and verified with the manager of the apartment complex that Banks was living there at that time.

         Detective Vado scheduled an appointment for a forensic interview with Jefferson Children's Advocacy Center (JCAC), a neutral setting. He monitored the interview to ensure the interviewer did not ask leading questions or feed information to the child. Detective Vado testified that proper procedures were followed and that all information and descriptions of the rape came from the victim.

         Brittney Bergeron, a forensic interviewer at the JCAC, testified that she is trained in conducting fact-finding interviews with any child who has made allegations of physical or sexual abuse or witnessed a violent crime. She described the advocacy center as a child-friendly, safe, neutral environment where children can talk about any allegation of abuse. Usually, these interviews are set up by a law enforcement officer who monitors the interview. In the interview, Ms. Bergeron speaks to the child alone without parents. The interview is recorded and the child is aware of the recording. Ms. Bergeron asks questions in a non-leading, non-suggestive way.

         In the interview, L.H. said that on her tenth birthday, she, Banks and J.H. went golfing, and when they returned to Banks' apartment he told L.H. to go into his room. L.H. told Ms. Bergeron that her father seemed mad, and she didn't know why. About twenty minutes later, she recalled that he came into the room while she was sitting on the bed and told her to take her pants and underwear off, and he "smacked" her with his hand when she said no. She recalled that J.H. was in the other room watching TV. She stated that her father, a big guy, began to unbuckle her pants and pulled off her pants and underwear at the same time as she was sitting on the bed kicking him. Defendant threw her pants and underwear on the floor and then turned her over, grabbed her by the waist and started raping her. She stated that he took his private area, his male part, and put it in her private area, her female part. In describing the location of the private areas, she gestured towards the middle of her body and genital area. She recalled that she was on her hands and knees at the time and only wearing a white and pink polka dot sparkle shirt. During the rape her father had the back of her shirt wrapped around his hand. L.H. said she tried to fight him, and it hurt really bad inside. She stated that he kept shoving his private area in and out of her private area, and it felt like three or four hours until defendant stopped, but it probably wasn't that long.

         L.H. stated that when he stopped, Banks told her that if she told anybody she would go to hell, and he "smacked" her with the back of his hand when she told him no. Then Banks left the room. When L.H. put her pants and underwear on she noticed that the carpet next to the bed felt wet but she did not know why. She left the room, and her father asked her if she wanted something to eat, to which she said no. About thirty minutes later, L.H. tried to urinate, but she said that it hurt and felt "weird."

         L.H. said that later that night she wanted to tell someone, but felt like she could not. She decided that since it was her tenth birthday and seven was her favorite number, and seven plus three is ten, she could not tell anyone for three years or until she was thirteen. She stated that when she was almost thirteen years old, she told Ms. Bowie when they were talking in her car after church. She did not want to tell her mother because she was scared, but Ms. Bowie told C.H. L.H. described her father as very abusive and "out of it." L.H. said that she had to do everything for him after the divorce, and if she did not do something right, he would "smack" her. She described the incident when she did something wrong while cooking red beans and Banks cut her on the back of her arm as punishment. She showed Ms. Bergeron the scar on the back of her arm from the cut inflicted by ...


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