MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
                                                                          Apr 30 2019, 10:07 am
regarded as precedent or cited before any
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
Emilee L. Stotts                                          Curtis T. Hill, Jr.
Marion, Indiana                                           Attorney General of Indiana
                                                          Henry A. Flores, Jr.
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ryan W. Burnworth,                                        April 30, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-1265
        v.                                                Appeal from the Huntington
                                                          Superior Court
State of Indiana,                                         The Honorable Jennifer Newton,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          35D01-1701-F4-5



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1265 | April 30, 2019                     Page 1 of 10
                                                   Case Summary

[1]   Ryan Burnworth challenges his two convictions for child molesting, Level 4

      felonies. We affirm.


                                                          Issue

[2]   Burnworth raises one issue on appeal, which we restate as whether the trial

      court erred by excluding evidence that another individual, instead of

      Burnworth, could have molested J.M. 1


                                                          Facts

[3]   J.M. lived in a trailer court in Huntington with his mother and stepfather,

      Burnworth. During the 2014-2015 school year when J.M. was in the fourth

      grade 2, Burnworth would awaken J.M. and help J.M. get ready for school while

      J.M.’s mother continued to sleep. After J.M. was ready for school, J.M. and

      Burnworth would go to the couch in the living room and lie down while

      waiting for the bus. J.M. would lie on the front of the couch, and Burnworth

      would lie behind J.M.


[4]   While lying on the couch, Burnworth would reach down J.M.’s pants and

      underwear by “wiggl[ing] his hands” and touch J.M. on his penis. Tr. Vol. II p.

      202. On other occasions, Burnworth would touch J.M. on the outside of J.M.’s



      1
       In his brief, Burnworth asserts that “excluding this evidence violated his [S]ixth and [F]ourteenth
      amendment rights to an effective defense.” Appellant’s Br. p. 9. Because we find that the denial of the
      admission of evidence was proper under the Indiana Rules of Evidence, we do not address this argument.
      2
          J.M. would have been nine years old and turned ten years old during the school year.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1265 | April 30, 2019                 Page 2 of 10
      underwear. While doing this, Burnworth would make comments to J.M. like

      “look at that” or “[i]t’s getting bigger.” Id. at 203. Simultaneously, J.M. could

      feel Burnworth’s penis pressing against J.M.’s bottom through his clothes. J.M.

      stated that he often tried to stop these morning events by positioning himself on

      the couch to make it difficult for Burnworth to touch him.


[5]   J.M. stated that these events occurred frequently, sometimes once or twice a

      week, and some weeks daily. J.M. testified that the touching would occur for

      approximately “fifteen [] minutes to a half an hour” in the mornings. Id. at 207.

      Burnworth instructed J.M. on more than one occasion not to tell anyone about

      the events that occurred.


[6]   The following summer, J.M. went to live with his father and stepmother due to

      the incarceration of J.M.’s mother. J.M.’s stepmother stated that, shortly after

      J.M. began living with his father and stepmother, Burnworth would contact

      J.M.’s father and “demand[]” to see J.M. Id. at 239. In December 2016, J.M.

      disclosed to his stepmother that Burnworth molested him. At that point, J.M.’s

      stepmother and father contacted the police.


[7]   On January 6, 2017, Burnworth was charged with two counts of child

      molesting, Level 4 felonies, under Indiana Code Section 35-42-4-3(b). A jury

      trial was conducted in March 2018. At the beginning of the trial, the State

      made a motion in limine to preclude Burnworth from “introducing evidence or

      testimony that involves Travis Holley having been convicted of child




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1265 | April 30, 2019   Page 3 of 10
      molestation in 2015.” Id. at 59. According to Burnworth, Holley was J.M.’s

      “big brother” in the Big Brother Big Sister program.


[8]   The State argued its motion was based on Indiana Rules of Evidence 401, 403,

      and 412. The trial court granted the State’s motion in limine stating “there’s no

      evidence suggest[ing ] that the victim . . . is confused or that the molestation

      was against [J.M.] as it relates to Travis Holley.” Id. at 67. Accordingly, the

      trial court prohibited Burnworth or his counsel “from commenting on or

      making any direct or indirect mention whatsoever to Travis Holley or that he

      had access to . . . the child in this case.” Id.


[9]   During the trial, Burnworth’s attorney made an offer of proof regarding the

      evidence related to Holley. Detective Shane Blair with the Huntington City

      Police Department testified during the offer of proof regarding the investigation

      of the child molestation allegations against Holley. Detective Blair’s police

      report was entered into evidence as part of the offer of proof. Burnworth also

      testified for purposes of the offer of proof. According to Burnworth, Holley and

      J.M had regular contact, and the two would be alone together at times, with

      Holley even visiting J.M. at the residence. 3 Burnworth also stated that, about a

      week after J.M.’s mother was arrested, Holley sent Burnworth a text message

      asking “what was going on with [J.M.]” after Holley discovered J.M.’s mother

      was arrested. Tr. Vol. III p. 52. Burnworth added that Holley told Burnworth



      3
       Burnworth did state that, to his knowledge, Holley never came over before J.M. went to school in the
      mornings. Burnworth also was not aware of a time Holley was lying on the couch behind J.M during a visit.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1265 | April 30, 2019               Page 4 of 10
       that he needed to speak to J.M. because Holley “[wanted to] let [J.M.] know it

       wasn’t [Holley’s] fault.” Id. After the offer of proof, the trial court maintained

       that it would deny admission of the evidence regarding Holley because

       Burnworth “has not shown in any way that the evidence is relevant or that any

       probative value would outweigh the prejudicial effect.” Id. at 54.


[10]   Subsequently, Detective Blair testified regarding an interview he had with

       Burnworth regarding J.M.’s allegations in January 2017. During the interview,

       Burnworth told the officer that, at times, he would have to assist J.M. in turning

       on and off the shower, and “while [Burnworth] was in there, he’d take it upon

       himself to dry off [J.M.], and he may have touched [J.M.’s] penis during that

       time.” Id. at 73. Burnworth, also told police 4 that he “admitted to retaliating

       against [J.M.] for striking [Burnworth’s] genitals by reaching in [J.M.’s] pants

       and wrongfully squeezing or harming [J.M.’s] genitals or a playful touching

       that could have been charged as a battery.” Appellant’s Br. p. 7.


[11]   The jury found Burnworth guilty of both counts of child molesting, Level 4

       felonies. Burnworth now appeals.


                                                       Analysis

[12]   Burnworth argues that the trial court erred “when it suppressed exculpatory

       evidence that was offered to rebut the claims that the appellant was the



       4
         We attempted to review the audio recording of the interview with police provided as State’s Exhibit 1;
       however, the disc appeared to be corrupted and we were unable to listen to the audio. Accordingly, we
       instead cite Burnworth’s characterization of his own admission from his brief.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1265 | April 30, 2019                   Page 5 of 10
       perpetrator in molesting the victim.” Appellant’s Br. p. 10. Burnworth claims

       that, had he been able to present this evidence, it “would have shown that

       another man, namely, Travis Holley, who had one on one weekly contact with

       the victim, was charged with and ultimately convicted of child molestation in

       which the crime occurred during the same charging period as this case, with

       factually similar allegations.” Id. at 12.


[13]   The State, during the motion in limine arguments, argued that the evidence was

       precluded under Indiana Rule of Evidence 412, and was inadmissible due to the

       “relevance Rules of Evidence [] 401 and 403.” Tr. Vol. II p. 66. In its brief, the

       State also argues that the evidence was inadmissible under Indiana Rule of

       Evidence 404(b).


[14]   A trial court has broad discretion in ruling on the admissibility of evidence, and

       we disturb those rulings only upon an abuse of that discretion. Carr v. State, 106

       N.E.3d 546, 552 (Ind. Ct. App. 2018), trans. denied. An abuse occurs only

       where the trial court’s decision is clearly against the logic and effect of the facts

       and circumstances. Cole v. State, 997 N.E.2d 1143, 1145 (Ind. Ct. App. 2013).

       There is a strong presumption that the trial court properly exercised its

       discretion. Warner v. State, 773 N.E.2d 239, 247 (Ind. 2002). We will not

       reverse a trial court’s evidentiary ruling if we may sustain it on any ground. See

       Crawford v. State, 770 N.E.2d 775, 780 (Ind. 2002).


[15]   Indiana Rule of Evidence 401 states:


               Evidence is relevant if:

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1265 | April 30, 2019   Page 6 of 10
               (a) it has any tendency to make a fact more or less probable than
                   it would be without the evidence; and


               (b) the fact is of consequence in determining the action.


       Indiana Rule of Evidence 403, however, puts limits on relevancy, stating:


               The court may exclude relevant evidence if its probative value is
               substantially outweighed by a danger of one or more of the
               following: unfair prejudice, confusing the issues, misleading the
               jury, undue delay, or needlessly presenting cumulative evidence.


[16]   Burnworth argues that the purpose of introduction of the evidence was “to

       impeach and prove that someone else other than [Burnworth] perpetrated the

       crime against J.M.” and to “bolster [Burnworth’s] defense of innocence.”

       Appellant’s Br. p. 14, 16. The relevance, according to Burnworth, was mainly

       to negate the element of the crime that requires the jury to find that Burnworth,

       and not another person, was the person who molested J.M.


[17]   We disagree with Burnworth that this evidence was relevant. Importantly,

       there was never any allegation or evidence that J.M. was unsure of the identity

       of the person who touched him. J.M., who maintained that the molestations

       occurred in the home he shared with Burnworth, consistently described

       Burnworth as the person who molested him, including a description of the

       pajama pants that Burnworth would wear when they were together on the

       couch in the mornings. Second, although Holley appeared to interact on a

       somewhat regular basis with J.M., the evidence demonstrated that Holley did

       not visit J.M.’s home in the mornings. The only connection between the
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1265 | April 30, 2019   Page 7 of 10
       allegations against Holley and Burnworth’s case is that Holley interacted with

       J.M. The trial court did not abuse its discretion when it found this evidence

       was not relevant.


[18]   Even if this evidence was in some way relevant, it was not admissible under the

       parameters set in Indiana Rule of Evidence 404(b). Although Burnworth does

       not address this rule in his brief, the State does. Evidence Rule 404(b) provides:


               Crimes, Wrongs, or Other Acts.


               (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
               admissible to prove a person’s character in order to show that on
               a particular occasion the person acted in accordance with the
               character.


               (2) Permitted Uses; Notice in a Criminal Case. This evidence may be
               admissible for another purpose, such as proving motive,
               opportunity, intent, preparation, plan, knowledge, identity,
               absence of mistake, or lack of accident. On request by a
               defendant in a criminal case, the prosecutor must:


                        (A) provide reasonable notice of the general nature of any
                        such evidence that the prosecutor intends to offer at trial;
                        and


                        (B) do so before trial--or during trial if the court, for good
                        cause, excuses lack of pretrial notice.


       Ind. R. Evid. 404 (emphasis supplied).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1265 | April 30, 2019    Page 8 of 10
[19]   In Camm v. State, our Supreme Court addressed the introduction of evidence

       regarding a third party’s prior bad acts. 908 N.E.2d 215, 230 (Ind. 2009). Our

       Supreme Court stated that a “prior crime of a third party must be ‘strikingly

       similar’ to the current crime to be probative of identity.” Camm, 908 N.E.2d at

       231 (quoting Garland v. State, 788 N.E.2d 425, 431 (2003)). “Specifically, the

       inquiry is whether the crimes are so strikingly similar that one can say with

       reasonable certainty that one and the same person committed them?” Id.

       (citations and quotations omitted). “Not only must the methodology of the two

       crimes be strikingly similar, but the method must be unique in ways which

       attribute the crimes to one person.” Id. (citations and quotations omitted).


[20]   The child in Holley’s case stated he was staying with Holley when the child

       woke up and observed Holley putting the child’s hand on Holley’s penis. When

       the child pulled his hand away, Holley stated that he unconsciously moved the

       child’s hand in his sleep. The child tried to take Holley’s phone because he

       wanted to go home, but Holley took the phone away from the child, and asked

       the child not to tell anyone about the incident. 5 We disagree with Burnworth

       that there are similarities in the two accounts that make the accusations against

       Holley admissible. See Lashbrook v. State, 762 N.E.2d 756 (Ind. 2002)

       (concluding that the defendant failed to present material evidence that




       5
        The exhibits include several redactions over what we believe to be the child’s name. We are uncertain,
       however, if there were two separate incidents involving the same or different children. Regardless, the two
       paragraphs in the police report are very similar versions of the events.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1265 | April 30, 2019                   Page 9 of 10
       connected a third party to the crime, other than the alleged statement that the

       victim “was gonna die,” which did not connect the third party to the crime).


[21]   The evidence of Holley’s conduct was not relevant to the issue of whether

       Burnworth molested J.M. The identity of the perpetrator was never at issue.

       Regardless, the evidence was impermissible under Indiana Rule of Evidence

       404(b). The trial court did not abuse its discretion in granting the State’s

       motion in limine and declining to admit evidence regarding the allegations of

       child molestation against Holley. 6


                                                     Conclusion

[22]   The trial court did not abuse its discretion in granting the State’s motion in

       limine and declining to admit the evidence. We affirm.


[23]   Affirmed.


       Baker, J., and May, J., concur.




       6
           Accordingly, we decline to address Burnworth’s argument under Indiana Rule of Evidence 412.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1265 | April 30, 2019               Page 10 of 10
