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

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
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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.
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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
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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).
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[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).
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[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.
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