Ricky L. Burnett v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: January 31, 2020
• Docket: 19A-CR-1770
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jan 31 2020, 7:23 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William T. Myers Curtis T. Hill, Jr. McKown, Whitehurst & Myers, LLP Attorney General of Indiana Marion, Indiana Robert L. Yates Angela Sanchez Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ricky L. Burnett, January 31, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1770 v. Appeal from the Huntington Circuit Court State of Indiana, The Honorable Davin G. Smith, Appellee-Plaintiff. Judge Trial Court Cause No. 35C01-1808-F1-174

Mathias, Judge.

[1] Following a jury trial in Huntington Circuit Court, Ricky L. Burnett

(“Burnett”) was convicted of one count of Level 1 felony child molesting and

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1770 | January 31, 2020 Page 1 of 6 four counts of Level 4 felony child molesting. Burnett appeals and presents one

issue, which we restate as whether the State presented sufficient evidence to

support Burnett’s conviction for Level 4 felony child molesting as to one of the

victims.

[2] We affirm.

Facts and Procedural History [3] From April 2016 until November 2017, Burnett and his three children lived

with P.K., who was then engaged to Burnett. Also living at the home were

P.K.’s three younger children: daughter S.W., born in June 2005; daughter

A.V., born in October 2008, and son C.V., born in May 2010. 1 From April to

November 2016, the family lived on Olinger Street in Huntington, Indiana, and

from December 2016 to November 2017, they lived on Warren Road in

Huntington.

[4] P.K.’s youngest child, C.V., has a learning disability and an individualized

education plan at school. The younger daughter, A.V., was a stellar student.

The older daughter, S.W., did well at school when she was younger, but began

to struggle when the family moved to the Olinger Street house, and did even

worse after the move to the Warren Road house. She became isolated and

1 The two older children live with their father out of state.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1770 | January 31, 2020 Page 2 of 6 apathetic, and failed to turn in her school assignments, resulting in failing

grades. She eventually became suicidal and received counseling.

[5] Burnett and P.K. broke up in November 2017, after which P.K. and her

children moved into an apartment. One night shortly after the breakup, P.K.

drove her family to a nearby town for church. During the drive, S.W. exhibited

signs of serious stress and began to sob uncontrollably. S.W. then told her

mother that Burnett had molested her during the time they lived with him. P.K.

reported this to the police, and after speaking with the police and personnel

from the Indiana Department of Family Services (“DCS”), P.K. took her

children to a child advocacy center to undergo forensic interviews. After the

interviews, S.W. and C.V. were examined by a sexual assault nurse.

[6] On August 9, 2018, the State charged Burnett with six counts of Level 1 felony

child molesting and five counts of Level 4 felony child molesting. Two of the

Level 1 felony charges and three of the Level 4 felony charges named S.W. as

the victim; four of the Level 1 felony charges and two of the Level 4 felony

charges named C.V. as the victim.

[7] A jury trial was held on June 25 and 26, 2019. At trial, S.W. testified that, at

least twice a week when they lived on Olinger Street, Burnett insisted on

bathing S.W., and touched her breasts, buttocks, and her genitals. Burnett

placed his finger insider S.W.’s genitals, forced her to perform oral sex on him,

and forced her to manipulate his penis until he ejaculated. When they moved to

Warren Road, Burnett watched S.W. bathe while he masturbated. Burnett

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1770 | January 31, 2020 Page 3 of 6 threatened to kill S.W.’s mother if she reported the molestation. C.V. testified

that Burnett held him down and rubbed C.V.’s penis in an up and down

motion. Both S.W. and A.V. testified that they observed Burnett touching

C.V.’s penis. At the conclusion of the trial, the jury found Burnett guilty of one

count of Level 1 felony child molesting involving S.W., three counts of Level 4

felony child molesting involving S.W., and one count of Level 4 felony child

molesting involving C.V. The trial court sentenced Burnett to an aggregate term

of forty-nine years, with forty-five years executed and four years suspended to

probation. Burnett now appeals.

Discussion and Decision [8] Burnett claims that the State failed to present evidence sufficient to support his

conviction for Level 4 felony child molesting against C.V. Upon review of a

challenge to the sufficiency of the evidence to support a criminal conviction, we

respect the jury’s exclusive province to weigh conflicting evidence. Miller v.

State, 106 N.E.3d 1067, 1073 (Ind. Ct. App. 2018) (citing McHenry v. State, 820

N.E.2d 124, 126 (Ind. 2005)), trans. denied. We therefore neither reweigh the

evidence nor judge the credibility of the witnesses. Id. Instead, we consider only

the probative evidence and reasonable inferences supporting the verdict. Id.

“Expressed another way, we have stated that appellate courts must affirm if the

probative evidence and reasonable inferences drawn from the evidence could

have allowed a reasonable trier of fact to find the defendant guilty beyond a

reasonable doubt.” Id. (quoting McHenry, 820 N.E.2d at 126).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1770 | January 31, 2020 Page 4 of 6 [9] Burnett challenges only the sufficiency of the evidence supporting his

conviction for Level 4 felony child molesting against C.V. This charge was set

forth in Count 11 of the charging information as follows:

On or about December of 2016 through November of 2017, in Huntington County, Indiana, Ricky Lee Burnett, performed fondling and/or touching of a child with the intent to arouse or satisfy his own sexual desires or the sexual desires of the child, when the child was under fourteen (14) years of age, to wit: a male child with the initials C.V.

Appellant’s App. p. 30. This tracks the statutory language, which defines Level

4 felony child molesting as “perform[ing] or submit[ting] to any fondling or

touching, of either the child or the older person, with intent to arouse or to

satisfy the sexual desires of either the child or the older person[.]” Ind. Code §

35-42-4-3(b).

[10] Burnett argues that the State failed to prove that he touched C.V. with the intent

to arouse or satisfy the sexual desires of either Burnett or C.V. “Mere touching

alone is not sufficient to constitute the crime of child molesting.” Bowles v. State,

737 N.E.2d 1150, 1152 (Ind. 2000). The State must also prove that the touching

was accompanied by the intent to arouse or satisfy sexual desires. Id. “The

intent element of child molesting may be established by circumstantial evidence

and may be inferred from the actor’s conduct and the natural and usual

sequence to which such conduct usually points.” Id. Indeed, the “[i]ntentional

touching of the genital area can be circumstantial evidence of intent to arouse

or satisfy sexual desires.” See Sanchez v. State, 675 N.E.2d 306, 311 (Ind. 1996).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1770 | January 31, 2020 Page 5 of 6 [11] Here, the jury could reasonably infer that Burnett, by touching C.V.’s penis in

an up-and-down motion, intended to arouse or gratify his or C.V.’s sexual

desires. See Rose v. State, 36 N.E.3d 1055, 1062–63 (Ind. Ct. App. 2015)

(evidence sufficient to establish defendant’s intent to arouse or gratify his or

victim’s sexual desires by touching the victim’s breast underneath her shirt);

Lockhart v. State, 671 N.E.2d 893, 903 (Ind. Ct. App. 1996) (evidence sufficient

to establish defendant’s intent to arouse or gratify his sexual desires when he

rubbed victim’s penis for approximately five minutes). We therefore affirm

Burnett’s conviction for Level 4 felony child molesting against C.V.

[12] Affirmed.

Kirsch, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1770 | January 31, 2020 Page 6 of 6