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.
DEFENDANT/APPELLANT, BRIAN K. BANKS In Proper Person.
composed of Judges Jude G. Gravois, Hans J. Liljeberg, and
Marion F. Edwards, Judge Pro Tempore.
F. EDWARDS, JUDGE PRO TEMPORE JUDGE.
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.We affirm the conviction and sentence
and remand with instructions.
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.
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.
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.
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.
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
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.
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.
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. At this point authorities
were not notified about the incident.
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.
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.
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.
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.
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.
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
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."
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 ...