MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                      Mar 13 2017, 9:46 am
this Memorandum Decision shall not be
                                                                                 CLERK
regarded as precedent or cited before any                                    Indiana Supreme Court
                                                                                Court of Appeals
court except for the purpose of establishing                                      and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Leanna Weissmann                                        Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                   Attorney General of Indiana
                                                        Katherine Modesitt Cooper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Kilburn,                                        March 13, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        16A01-1606-CR-1419
        v.                                              Appeal from the Decatur Circuit
                                                        Court
State of Indiana,                                       The Honorable Timothy Day,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        16C01-1406-FA-388



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 16A01-1606-CR-1419| March 13, 2017                 Page 1 of 8
                               Case Summary and Issues
[1]   Following a bench trial, Michael Kilburn was convicted of two counts of child

      molestation, one count as a Class A felony and the other as a Class C felony.

      The trial court sentenced Kilburn to thirty years in the Indiana Department of

      Correction. Kilburn now appeals his convictions and sentence, raising two

      issues for our review: 1) whether the trial court abused its discretion in

      admitting evidence, and 2) whether his sentence is inappropriate in light of the

      nature of the offenses and his character. Concluding the trial court did not

      abuse its discretion in admitting evidence and Kilburn’s sentence is not

      inappropriate, we affirm.



                            Facts and Procedural History
[2]   Kilburn is the step-father of K.E., a twelve-year-old special needs child. On

      March 23, 2014, Kilburn removed K.E.’s clothes and touched her breasts with

      his hands and mouth and penetrated K.E.’s vagina with his fingers and tongue,

      causing K.E. to bleed. Kilburn threatened to kill K.E. if she told anyone. K.E.

      immediately told her mother, T.D. T.D. noticed K.E. was bleeding from her

      vaginal area and confronted Kilburn, who admitted to performing oral sex on

      K.E. but claimed K.E. had requested he do so. T.D. reported the incident to

      the Decatur County Sheriff’s Department.


[3]   On June 3, 2014, the State charged Kilburn with three counts of child

      molestation, two counts as Class A felonies and one count as a Class C felony.


      Court of Appeals of Indiana | Memorandum Decision 16A01-1606-CR-1419| March 13, 2017   Page 2 of 8
      During the day on June 4, 2014, Kilburn agreed to accompany law enforcement

      to the county jail for an interview. Law enforcement advised Kilburn of his

      Miranda rights. Kilburn indicated he understood his rights and signed a waiver

      form. The interview lasted approximately two hours. Near the end of the

      interview, Kilburn admitted to digitally penetrating and performing oral sex on

      K.E. He also claimed K.E. performed oral sex on him.


[4]   Prior to trial, Kilburn requested a competency evaluation and the trial court

      appointed a psychologist and a psychiatrist to evaluate him. Both medical

      professionals concluded Kilburn suffers from borderline intelligence but found

      him competent to stand trial.1 Kilburn also filed a motion to suppress the

      statements he made during the interview with law enforcement. After a hearing

      on the matter, the trial court denied the motion, concluding Kilburn’s

      statements were made voluntarily. At trial, the State admitted evidence of

      Kilburn’s recorded statement. The trial court found Kilburn guilty of two

      counts of child molestation, one count as a Class A felony and the other as a

      Class C felony, and entered judgment of conviction on both counts. The trial




      1
       The court-appointed psychiatrist filed a report with the court noting his reasons for concluding Kilburn
      suffers from borderline intelligence:
            The diagnosis of borderline intellectual functioning is based on the defendant’s presentation
            during the clinical interview and his report of being in special education for a learning disability.
            During the interview, Mr. Kilburn showed a limited vocabulary, used simple grammar, reported
            he had difficult reading the longer words in the newspaper, was able to do only addition
            problems, and showed a limited fund of knowledge and poor abstract abilities. . . . The
            defendant did not appear to meet criteria for a diagnosis of mild intellectual disability.
      Appellant’s Appendix, Volume 2 at 51.

      Court of Appeals of Indiana | Memorandum Decision 16A01-1606-CR-1419| March 13, 2017                  Page 3 of 8
      court sentenced Kilburn to concurrent terms totaling thirty years executed in

      the Department of Correction. This appeal ensued.



                                Discussion and Decision
                                  I. Admission of Evidence
                                      A. Standard of Review
[5]   Kilburn challenges the voluntariness of his confession under the United States

      and Indiana Constitutions. “If a defendant challenges the voluntariness of a

      confession under the United States Constitution, the [S]tate must prove the

      statement was voluntarily given by a preponderance of the evidence.” Pruitt v.

      State, 834 N.E.2d 90, 114 (Ind. 2005), cert. denied, 548 U.S. 910 (2006). Under

      the Indiana Constitution, the State must prove the statements were voluntary

      beyond a reasonable doubt. Id. at 114-15. The decision to admit a defendant’s

      statement is within the discretion of the trial court and will not be disturbed

      absent an abuse of that discretion. Ringo v. State, 736 N.E.2d 1209, 1211 (Ind.

      2000). In reviewing the trial court’s decision to admit a defendant’s statement,

      “we do not reweigh the evidence but instead examine the record for substantial

      probative evidence of voluntariness.” Id.


                                             B. Confession
[6]   Kilburn claims the trial court abused its discretion in admitting the statements

      he made to law enforcement because such statements were not made



      Court of Appeals of Indiana | Memorandum Decision 16A01-1606-CR-1419| March 13, 2017   Page 4 of 8
      voluntarily. Specifically, he claims law enforcement tactics coupled with his

      borderline intelligence made his confession involuntary. We disagree.


[7]   “A statement is voluntary if, in the light of the totality of the circumstances,

      the confession is the product of a rational intellect and not the result of physical

      abuse, psychological intimidation, or deceptive interrogation tactics that have

      overcome the defendant’s free will.” State v. Keller, 845 N.E.2d 154, 165 (Ind.

      Ct. App. 2006) (citation and internal quotation marks omitted). In determining

      whether a statement is given voluntarily, the trial court must consider the

      totality of the circumstances, including police coercion; the length, location,

      and continuity of the interrogation; and the defendant’s maturity, education,

      physical condition, and mental health. Pruitt, 834 N.E.2d at 115.


[8]   At the outset, we acknowledge the clinical reports indicating Kilburn suffers

      from borderline intelligence. However, we must emphasize the determination

      of whether a statement is voluntary turns on the totality of the circumstances.

      Keller, 845 N.E.2d at 165. In considering the totality of the circumstances, we

      have carefully reviewed the recording and transcript of Kilburn’s interview with

      law enforcement. Prior to questioning, law enforcement read Kilburn his

      Miranda rights, Kilburn indicated he understood, and Kilburn signed a form

      waiving those rights. During the two-hour interview, Kilburn understood why

      he was being interviewed and the questions asked of him. Kilburn conversed

      rationally with law enforcement and did not appear confused. His answers to

      law enforcement’s questions were clear, and at times, detailed. In fact, he was

      able to provide law enforcement with a layout of the home where the sexual

      Court of Appeals of Indiana | Memorandum Decision 16A01-1606-CR-1419| March 13, 2017   Page 5 of 8
      acts took place and utilized a drawing of the home to help explain his answers.

      As to the demeanor of law enforcement, we note the deputies questioning

      Kilburn were cordial, polite, and respectful. At no point during the interview

      did law enforcement threaten or make any promises to Kilburn. After

      previously claiming K.E. made sexual advances toward him that he consistently

      rebuffed, he admitted to digitally penetrating and performing oral sex on K.E.

      and receiving oral sex from K.E. He also acknowledged this conduct was

      wrongful and a mistake, further indicating he understood the seriousness of his

      crimes and the nature of law enforcement’s questions. In light of the totality of

      the circumstances, we conclude the State proved Kilburn’s statements were

      voluntary under the United States and Indiana Constitutions. Therefore, the

      trial court did not abuse its discretion in admitting the statement into evidence.


                                 II. Inappropriate Sentence
[9]   Indiana Appellate Rule 7(B) provides, “The Court may revise a sentence

      authorized by statute if, after due consideration of the trial court’s decision, the

      Court finds that the sentence is inappropriate in light of the nature of the offense

      and the character of the offender.” The defendant bears the burden of

      persuading this court his or her sentence is inappropriate. Childress v. State, 848

      N.E.2d 1073, 1080 (Ind. 2006). Whether we regard a sentence as inappropriate

      turns on “the culpability of the defendant, the severity of the crime, the damage

      done to others, and myriad other factors that come to light in a given

      case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). The principal role



      Court of Appeals of Indiana | Memorandum Decision 16A01-1606-CR-1419| March 13, 2017   Page 6 of 8
       of appellate review is to “leaven the outliers,” not achieve the perceived

       “correct” result in each case. Id. at 1225.


[10]   The advisory sentence is the starting point the legislature selected as

       an appropriate sentence for the crime committed. Anglemyer v. State, 868

       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).

       Here, Kilburn was convicted of two counts of child molestation, one count as a

       Class A felony and the other as a Class C felony. A person convicted of a Class

       A felony shall be imprisoned for a fixed term of between twenty and fifty years,

       with the advisory sentence being thirty years. Ind. Code § 35-50-2-4(a). A

       person convicted of a Class C felony shall be imprisoned for a fixed term of

       between two and eight years, with the advisory sentence being four years. Ind.

       Code § 35-50-2-6(a). The trial court sentenced Kilburn to thirty years executed

       for child molestation as a Class A felony and four years executed for child

       molestation as a Class C felony, to be served concurrently.


[11]   As to the nature of the offenses, we note Kilburn was K.E.’s step-father and in a

       position of trust and care over the twelve-year-old special needs child.

       Kilburn’s sexual acts caused bleeding from K.E.’s vaginal area and he

       threatened to kill her if she told anyone of his acts. As to his character, we

       acknowledge Kilburn does have borderline intelligence, but note Kilburn has

       previously violated probation. In light of the nature of the offenses and his

       character, we conclude Kilburn’s advisory sentence is not inappropriate.



                                              Conclusion
       Court of Appeals of Indiana | Memorandum Decision 16A01-1606-CR-1419| March 13, 2017   Page 7 of 8
[12]   We conclude the trial court did not abuse its discretion in admitting Kilburn’s

       statements and Kilburn’s sentence is not inappropriate in light of the nature of

       the offenses and his character. Accordingly, we affirm.


[13]   Affirmed.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 16A01-1606-CR-1419| March 13, 2017   Page 8 of 8
