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.




Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-348 | December 31, 2015     Page 1 of 12
[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.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-348 | December 31, 2015            Page 2 of 12
      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


      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-348 | December 31, 2015   Page 3 of 12
      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


      Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-348 | December 31, 2015   Page 4 of 12
       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
       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-348 | December 31, 2015   Page 5 of 12
       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


       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-348 | December 31, 2015   Page 6 of 12
       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




       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-348 | December 31, 2015   Page 7 of 12
       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


       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-348 | December 31, 2015   Page 8 of 12
       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


       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-348 | December 31, 2015   Page 9 of 12
       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.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-348 | December 31, 2015   Page 10 of 12
[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



       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-348 | December 31, 2015   Page 11 of 12
       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.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1505-CR-348 | December 31, 2015   Page 12 of 12
