Richard Green Burns v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Dec 31 2015, 8:32 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth Johnson Gregory F. Zoeller
Michael R. Fisher Attorney General of Indiana
Marion County Public Defender Agency
Tyler G. Banks
Appellate Division Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard Green Burns, December 31, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1505-CR-348
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff. Grant W. Hawkins, Judge
Trial Court Cause No.
49G05-1403-MR-14307
Kirsch, Judge.
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[1] Richard Green Burns (“Burns”) was convicted after a jury trial of murder,1 a
felony, and attempted murder,2 a Class A felony and was sentenced to fifty-five
years for murder and thirty-five years for attempted murder with the sentences
ordered to be served consecutively for an aggregate sentence of eighty-five
years. On appeal, Burns raises the following restated issues:
I. Whether the State presented sufficient evidence to support his
convictions for murder and attempted murder; and
II. Whether his eighty-five-year sentence is inappropriate in light
of the nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History
[3] On March 18, 2014, Burns’s father, also named Richard Burns (“Richard”),
was celebrating his birthday. Richard spent the day at his home in
Indianapolis, Indiana, and that night, he was sitting in his bedroom, drinking
beer, and watching television, while his grandson, Timmy Moorman
(“Moorman”), slept downstairs in the basement, in a space he had converted
into a bedroom. At the same time, Richard’s friend of more than thirty years,
1
See Ind. Code § 35-42-1-1.
2
See Ind. Code §§ 35-42-1-1, 35-41-5-1. We note that, effective July 1, 2014, a new version of these criminal
statutes were enacted. Because Burns committed his crimes prior to July 1, 2014, we will apply the statutes
in effect at the time he committed his offenses.
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Sherman Wagers (“Wagers”), was awake and watching television in a space in
the garage he had converted into an apartment.
[4] In the early morning hours of March 19, Burns came to Wagers’s door and
asked Wagers for the keys to the main house. Richard and Wagers were the
only ones with keys to the house, and visitors would often come to Wagers to
use his set of keys. After Burns retrieved the keys, Wagers watched him enter
the main house. Within fifteen minutes, Burns returned to Wagers’s apartment.
Burns entered, struck Wagers in the head with a pistol, and then shot Wagers
twice in the left side of the chest from close range. Burns then left the
apartment and returned to the main house.
[5] Once inside the house, Burns entered Richard’s bedroom holding Wagers’s set
of keys. Burns told Richard that he had just killed Wagers and Moorman.
Richard did not believe Burns because Richard had heard no gun shots. While
he was talking to Richard, Burns was holding a gun, and he pointed it at
Richard several times and threatened to kill him. Burns was also talking about
his mother, who had died six years prior, and Richard knew that “when [Burns]
starts talking about his mom he’s upset.” Tr. at 144. Richard was able to calm
Burns down and walked Burns out to his vehicle. Richard told Burns to take
care of himself, and Burns drove away.
[6] After Burns left, Richard yelled to Wagers and asked him to come over and
celebrate his birthday. Wagers responded that Burns had shot him. After
hearing this, Richard then believed Burns’s earlier admission and went to check
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on Moorman in the basement. Richard found Moorman lying on the bed and
discovered that he had been shot once in the head. Moorman later died from
the gunshot wound. Wagers survived his injuries. Ballistic evidence later
showed that the same gun was used to shoot both Moorman and Wagers,
although it was never recovered.
[7] On March 21, 2014, the State charged Burns with murder and Class A felony
attempted murder. A jury trial was held, at the conclusion of which, Burns was
found guilty of both charges. The trial court sentenced Burns to fifty-five years
for his murder conviction and thirty-five years for his attempted murder
conviction and ordered the sentences to be served consecutively for a total
sentence of eighty-five years. Burns now appeals.
Discussion and Decision
I. Sufficient Evidence
[8] Burns argues that insufficient evidence was presented to support both his
conviction for murder and his conviction for attempted murder. The deferential
standard of review for sufficiency claims is well settled. When we review the
sufficiency of evidence to support a conviction, we do not reweigh the evidence
or assess the credibility of the witnesses. Cunningham v. State, 870 N.E.2d 552,
553 (Ind. Ct. App. 2007). We consider only the evidence most favorable to the
verdict and the reasonable inferences that can be drawn from that evidence.
Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App. 2014), trans. denied. We will
not disturb the jury’s verdict if there is substantial evidence of probative value to
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support it. Id. We will affirm unless no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt. Tooley v. State, 911
N.E.2d 721, 724-25 (Ind. Ct. App. 2009), trans. denied. As the reviewing court,
we respect “the jury’s exclusive province to weigh conflicting evidence.”
McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).
A. Murder
[9] Burns argues that the State did not present sufficient evidence to support his
conviction for murder because the testimony of Richard was incredibly
dubious. Burns specifically contends that Richard’s testimony was vague,
inconsistent, and internally contradictory. He further claims that the most
serious problem with Richard’s testimony was that it demonstrated that
Richard had a very serious memory impairment and could not recall much of
what he had previously told the police or the attorneys who questioned him at
the deposition. Burns asserts that, although the incredible dubiosity rule is
restricted to cases where only a single witness testifies, and here both Richard
and Wagers testified against him, it nevertheless seems logical that the rule
should also apply where a single witness testified to the critical elements of a
single charge, as occurred here.
[10] The incredible dubiosity rule provides that a court may impinge on the jury’s
responsibility to judge witness credibility only when confronted with inherently
improbable testimony or coerced, equivocal, wholly uncorroborated testimony
of incredible dubiosity. Carter v. State, 31 N.E.3d 17, 30-31 (Ind. Ct. App. 2015)
(citing Love v. State, 761 N.E.2d 806, 810 (Ind. 2002)), trans. denied. Application
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of this rule is rare, and the standard to be applied is whether the testimony is so
incredibly dubious or inherently improbable that no reasonable person could
believe it. Id. at 31 (quotations omitted). The rule applies only when a witness
contradicts herself or himself in a single statement or while testifying, and does
not apply to conflicts between multiple statements. Id. (citing Manuel v. State,
971 N.E.2d 1262, 1271 (Ind. Ct. App. 2012)). Therefore, to warrant application
of the incredible dubiosity rule, there must 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. Smith v. State, 34
N.E.3d 1211, 1221 (Ind. 2015). “Cases where we have found testimony
inherently improbable have involved situations either where the facts as alleged
‘could not have happened as described by the victim and be consistent with the
laws of nature or human experience,’ or where the witness was so equivocal
about the act charged that her uncorroborated and coerced testimony ‘was
riddled with doubt about its trustworthiness.’” Id. (quoting Watkins v. State, 571
N.E.2d 1262, 1265 (Ind. Ct. App. 1991), aff’d in relevant part, 575 N.E.2d 624
(Ind. 1991)).
[11] In the present case, Richard was not the sole testifying witness to Burns’s
crimes. Wagers testified that Burns came to his garage apartment and retrieved
the keys to the main house from him. Wagers then watched as Burns entered
the main house, which was the site of Moorman’s murder. Within fifteen
minutes, Burns returned to Wagers’s apartment and hit Wagers in the head
with a gun and shot him twice in the chest from close range. This testimony
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from Wagers placed Burns at the scene of Moorman’s murder around the time
of Moorman’s death as suggested by the evidence. Where there are multiple
testifying witnesses, even if not eyewitnesses, the incredible dubiosity rule does
not apply. See Moore v. State, 27 N.E.3d 749, 757-58 (Ind. 2015) (holding that,
when an eyewitness’s testimony is challenged as being incredibly dubious, the
rule does not apply when there are corroborating witnesses).
[12] Additionally, Richard’s testimony was not inherently contradictory. In order to
be found inherently contradictory, the testimony must be inconsistent within
itself and not with other evidence or prior testimony. Smith, 34 N.E.3d at 1221.
Richard’s testimony did not contain internal contradictions; rather, all of the
contradictions that Burns points to in his brief were either contradictions with
statements made outside of the trial or contradictions regarding what prior
statements Richard remembered. Burns does not specify any inconsistencies
within Richard’s testimony, only inconsistencies with previous out-of-court
statements. In his trial testimony, Richard consistently stated that Burns told
him that Burns had killed Moorman and Wagers and that Burns had a gun in
his possession while confessing to these crimes. Tr. at 142-44. Richard did not
contradict himself on this information, and although he may have contradicted
himself about his out-of-court statements, this is irrelevant to the application of
the incredible dubiosity rule. As to Richard’s lack of memory of his prior
statements to the police and in his deposition, although his testimony did
indicate problems with his memory, the incredible dubiosity rule has not been
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applied in such situations. Here, Richard’s memory issues were presented to
the jury, and defense counsel had ample opportunity to impeach Richard.
[13] Further, in addition to Richard’s testimony, circumstantial evidence of Burns’s
guilt was presented to the jury. Wagers’s testimony placed Burns at the place of
Moorman’s murder at the time the murder occurred. Ballistic evidence was
presented that the same gun was used to shoot both Wagers and Moorman.
Given that more than one witness testified, Richard’s testimony was not
inherently contradictory, and circumstantial evidence of Burns’s guilt was
presented, we conclude that the incredible dubiosity rule does not apply, and
sufficient evidence was presented to support Burns’s conviction for murder.
B. Attempted Murder
[14] Burns next argues that insufficient evidence was presented to support his
conviction for attempted murder. He claims that the evidence did not support
the element that Burns acted with the specific intent to kill Wagers. Burns
asserts that there was a lack of medical evidence as to the location of Wagers’s
wounds and the track of the bullets to indicate that the shots were fired in a
manner likely to cause death or serious injury.
[15] In order to convict Burns of attempted murder, the State was required to prove
beyond a reasonable doubt that he, acting with the specific intent to kill,
engaged in conduct that constitutes a substantial step toward the commission of
murder. Ind. Code §§ 35-42-1-1, 35-41-5-1. Intent to kill may be inferred from
the nature of the attack and the circumstances surrounding the crime as well as
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from the use of a deadly weapon in a manner likely to cause death or great
bodily harm. Amos v. State, 896 N.E.2d 1163, 1171 (Ind. Ct. App. 2008) (citing
Kiefer v. State, 761 N.E.2d 802, 805 (Ind. 2002)), trans. denied. Indiana courts
have held that discharging a weapon in the direction of a victim is substantial
evidence from which the jury could infer intent to kill. Fuentes, 10 N.E.3d at 75
(citing Corbin v. State, 840 N.E.2d 424, 429 (Ind. Ct. App. 2006)).
[16] Here, Burns used a gun to first hit Wagers in the head and then to shoot him
twice in the left side of his chest at close range. After shooting Wagers, Burns
went into the main house and told Richard that he had just killed Wagers and
Moorman. This belief by Burns that he had killed Wagers is further proof of his
intent to kill Wagers when he shot him. Additionally, when Burns was
speaking to Richard, he showed him Wagers’s set of keys and stated, “that’s
how I got them, I killed him.” Tr. at 142. We conclude that the evidence
presented showed that Burns used the gun in a manner likely to cause death or
serious bodily injury, and the jury could infer that he acted with the specific
intent to kill Wagers when he shot him in the chest. Sufficient evidence was
presented to support Burns’s conviction for attempted murder.
II. Inappropriate Sentence
[17] Under Indiana Appellate Rule 7(B), “we may revise any sentence authorized by
statute if we deem it to be inappropriate in light of the nature of the offense and
the character of the offender.” Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct.
App. 2014). The question under Appellate Rule 7(B) is not whether another
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sentence is more appropriate; rather, the question is whether the sentence
imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App.
2008). It is the defendant’s burden on appeal to persuade the reviewing court
that the sentence imposed by the trial court is inappropriate. Chappell v. State,
966 N.E.2d 124, 133 (Ind. Ct. App. 2012), trans. denied.
[18] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind.
2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the
end of the day turns on “our sense of the culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other facts that
come to light in a given case.” Id. at 1224.
[19] Burns contends that his sentence is inappropriate in light of the nature of the
offense and the character of the offender. Specifically, he asserts that his
sentence is inappropriate as to the nature of the offense because this was a
senseless crime that can only be explained “by the emotional factor” suggested
by Richard when he testified that Burns was talking about his mom who had
passed away six years prior and that “usually when he starts talking about his
mom he’s upset.” Tr. at 144. Burns also claims that his sentence is
inappropriate in light of his character because he has no criminal record, a child
to care for, and a record of consistent employment.
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[20] Burns was convicted of murder and Class A felony attempted murder. “A
person who commits murder shall be imprisoned for a fixed term of between
forty-five (45) and sixty-five (65) years, with the advisory sentence being fifty-
five (55) years.” Ind. Code § 35-50-2-3(a). “(a) A person who commits a Class
A felony shall be imprisoned for a fixed term of between twenty (20) and fifty
(50) years, with the advisory sentence being thirty (30) years.” Ind. Code § 35-
50-2-4(a). The trial court sentenced Burns to the advisory term of fifty-five
years for his murder conviction and the advisory term of thirty years for his
attempted murder conviction and ordered the sentences to be served
consecutively for an aggregate sentence of eighty-five years.
[21] Considering the nature of the offense, Burns shot two defenseless people
without provocation. He murdered Moorman, his nephew, by shooting him in
the head while Moorman slept and attempted to kill Wagers by shooting him
twice in the chest. Although Burns did not kill Wagers, his statements to
Richard indicated that he believed that he had. Additionally, Burns pointed his
gun at Richard and threatened his father several times while speaking to him.
Further, although Burns calls his crimes senseless in order to suggest that they
were motivated by his mental health issues, no evidence of any mental health
condition was presented.
[22] As to Burns’s character, while it is true that he has no criminal record, his
present crimes of killing his nephew and attempting to kill a long-time family
friend without provocation demonstrates his poor character. Based on the
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nature of the offense and the character of the offender, we do not believe that
Burns’s sentence is inappropriate. We, therefore, affirm his sentence.
[23] Affirmed.
Mathias, J., and Brown, J., concur.
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