                                                                         FILED
                                                                    Sep 08 2016, 9:52 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joseph P. Hunter                                         Gregory F. Zoeller
Muncie, Indiana                                          Attorney General of Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Donald J. Burns,                                         September 8, 2016

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         27A02-1510-CR-1785
        v.                                               Appeal from Grant Circuit Court.
                                                         The Honorable Mark E. Spitzer,
                                                         Judge.
State of Indiana,                                        Cause No. 27C01-1310-MR-5
Appellee-Plaintiff.




Sharpnack, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1785 | September 8, 2016     Page 1 of 12
                                             Statement of the Case
                                                                                  1
[1]   Donald Burns appeals his convictions for murder, a felony, two counts of
                                                2                           3
      forgery, as Class C felonies, theft as a Class D felony, and two counts of
                                                                 4
      receiving stolen property, as Class D felonies. He also was found to be an
                                 5
      habitual offender. He alleges the trial court abused its discretion when it

      admitted certain photographs at trial, and that there is insufficient evidence of

      his intent to kill the victim to support a conviction of murder. We affirm.


                                                    Issues
[2]   Burns raises the following restated issues for our review:

                 I.       Whether the trial court abused its discretion when it admitted into
                          evidence photographs of the victim's remains; and

                 II.      Whether there was sufficient evidence of his intent to kill the
                          victim to support his conviction for murder.


                                     Facts and Procedural History
[3]   The facts most favorable to the verdict are as follows. Burns was in financial

      straits in June of 2011. He had been served an eviction notice for failure to pay



      1
          Ind. Code § 35-42-1-1(1) (2007).
      2
          Ind. Code § 35-43-5-2(b)(4) (2006).
      3
          Ind. Code § 35-43-4-2(a) (2009).
      4
          Ind. Code § 35-43-4-2(b) (2009).
      5
          Ind. Code § 35-50-2-8 (2005).


      Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1785 | September 8, 2016   Page 2 of 12
      fees associated with his trailer and lot rental, and a disconnect warning for

      failure to pay his utility bills. He no longer was engaged in full-time

      employment, and instead worked sporadically performing menial labor.


[4]   At some point on the day of June 13, 2011, Burns made contact with his

      seventy-four-year-old aunt, Dorothy Hurd. Hurd left her home with Burns,

      leaving a note for Robert “Bob” King, a friend of hers, stating: “Bob[,] I'll be

      back in a little bit. Went to the cemetery with Little [Donnie].” Tr. p. 181.

      The cemetery was located in Noblesville, Indiana, and was where her late

      husband as well as Burns’ deceased father (Hurd’s brother) were buried. Burns

      murdered Hurd and left her body in a thicket just off an access road near the

      Mississinewa River in Grant County in an area where Burns had fished in the

      past.


[5]   Later that evening, Burns used Hurd’s credit card to purchase three gold

      necklaces from the jewelry department at Walmart (located in Marion, Indiana)

      and attempted a second purchase from the jewelry counter which was rejected

      by the card service. At 5:20 p.m. on that day, Burns pawned Hurd’s wedding

      ring set at the EZ Pawn located in Marion, Indiana. He drove to his wife Janel

      Bishir’s home in Sweetser, Indiana, and left for her an envelope containing

      (among other things) a greeting card, a ring belonging to Hurd that had been

      given to Hurd by Bob King, and one of the gold necklaces that had been

      purchased by Burns using Hurd’s credit card.




      Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1785 | September 8, 2016   Page 3 of 12
[6]   On June 14, 2011, when members of Hurd’s family could not reach her by

      telephone, they went to her home and found the note Hurd had left taped to the

      side door window. They checked the voicemail on her phone and heard a

      message from Hurd’s bank that some suspicious transactions had been made

      and attempted with her credit card. They called the police.


[7]   A police officer drove to Burns’ trailer and attempted to speak with him about

      Hurd’s disappearance. At the time, Burns was on parole for a prior conviction.

      When the officer spotted Burns and called to him, Burns jumped into his

      vehicle and drove away. The officer pursued Burns and Burns soon stopped his

      vehicle and surrendered. Burns was taken into custody. That evening, a

      resident of the trailer park where Burns lived found a plastic bag on the

      premises containing Hurd’s VISA credit card that had been used by Burns at

      Walmart, a JC Penney credit card in Hurd’s name, a blank check from Hurd’s

      checking account, and two gold necklaces.


[8]   While being held in jail, Burns wrote to his wife Janel Bishir urging her to “take

      those two things I gave you . . . and flush them down the toilet;” and, “get rid

      of them” so that “no one will ever know.” Tr. p. 594. Burns sent the letter

      sometime during the last week of June, 2011.


[9]   The police investigation of Hurd’s disappearance led to evidence of the above

      stated facts and that Burns’ cell phone, which Burns had told the police was

      always with him, had been used in the vicinity of Mississinewa River at 1:05

      p.m. on June 13, 2011, the day of Hurd’s disappearance. A search eventually


      Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1785 | September 8, 2016   Page 4 of 12
       led to the discovery of Hurd’s remains on February 9, 2012. A forensic

       investigation showed that Hurd had been struck multiple times, causing several

       factures to her skull and jaw prior to her death. Evidence was presented that

       her death, most likely, was due to that trauma, and that such trauma could not

       have been accidentally inflicted or inflicted by Hurd herself.


[10]   The remains were a skeletal torso and upper legs, scattered other bones, and a

       skull separated from the torso. It was concluded that Hurd’s body had been

       subjected to scavenging animals, causing the separation of the body and

       skeleton into pieces.


[11]   Burns was charged with Hurd’s murder, one count of theft, two counts of

       forgery, and two counts of receiving stolen property. At the conclusion of the

       trial, the jury found Burns guilty as charged and also found him to be an

       habitual offender. Burns received a total sentence of 103 years. He now

       appeals.


                                    Discussion and Decision
                                      I. Admissibility of Photographs

[12]   Burns contends that the trial court erred in admitting photographs of the site

       where Hurd’s bodily remains were discovered, photographs of Hurd’s bodily

       remains, and autopsy photographs. Burns argues the prejudice attributable to

       the photographs’ gruesomeness substantially outweighed their probative value,

       that some photographs were cumulative and duplicative, and that some

       photographs were taken after medical intervention or after the autopsy was

       Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1785 | September 8, 2016   Page 5 of 12
       completed. The State maintains the photographs were properly admitted

       “because they were probative, relevant, accurate representations of the crime.”

       Appellee’s Br. p. 18.


[13]   The admission and exclusion of evidence falls within the sound discretion of

       the trial court. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). This Court

       reviews the admission of photographic evidence only for an abuse of discretion.

       Pruitt v. State, 834 N.E.2d 90, 117 (Ind. 2005), cert. denied; Ealy v. State, 685

       N.E.2d 1047, 1049-50 (Ind. 1997). Photographs may be excluded only if their

       probative value is substantially outweighed by the danger of unfair prejudice.

       Ind. Evidence Rule 403; see also, Byers v. State, 709 N.E.2d 1024, 1028 (Ind.

       1999). No claimed error in admitting photographs will prevail “unless a

       substantial right of the party is affected.” Ind. Evidence Rule 103(a); see also,

       Pruitt, 834 N.E.2d at 117; Corbett v. State, 764 N.E.2d 622, 628 (Ind. 2002).

       “Whether an appellant’s substantial rights are affected is determined by

       examining the ‘probable impact of that evidence upon the jury.’” Pruitt, N.E.2d

       at 117 (quoting Corbett, 764 N.E.2d at 628).


[14]   Generally, photographs that depict a victim’s injuries or demonstrate the

       testimony of a witness are admissible. Corbett, 764 N.E.2d at 627 (citing Fentress

       v. State, 702 N.E.2d 721 (Ind. 1998)); Ind. Evidence Rules 401, 402.

       Photographs that may be gruesome in nature are admissible if they act as

       interpretive aids for the jury and have strong probative value. Spencer v. State,

       703 N.E.2d 1053, 1057 (Ind. 1999). Though autopsy photographs have been

       found to be inadmissible to avoid the risk that the finder of fact could

       Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1785 | September 8, 2016   Page 6 of 12
       mistakenly infer that the defendant inflicted the autopsy incision, Allen v. State,

       686 N.E.2d 760, 776 (Ind. 1997), cert. denied, exclusion of such photographs is

       not necessary if they are accompanied by testimony to explain what had been

       done to the body, thus minimizing the potential for confusion and showing that

       the probative value outweighed the prejudicial effect. Corbett, 764 N.E.2d at

       627 (citing Fentress, 702 N.E.2d at 722).


[15]   Burns challenges the admission of twenty-eight photographs, over his objections

       at trial, which included eleven photographs of Hurd’s skull, six photographs of

       her torso, two photographs of her hand, seven photographs depicting either the

       site where Hurd’s remains were found or the remains themselves in the

       condition in which they were discovered, and two photographs showing Hurd’s
                                                                 6
       torso at the time the autopsy was performed. The admission of these

       photographs was not error.


[16]   No incisions were made to Hurd’s remains during the autopsy. The forensic

       pathologist testified that the autopsy performed on Hurd’s remains was not “a

       full autopsy,” and that “[t]he coroner requested that I don't do any kind of

       incision or invasive testing.” Tr. p. 841. The remainder of the photographs

       show Hurd’s remains as they were on the day they were found and on the

       following day when the remains were recovered.




       6
         Four photographs, two depicting the site where Hurd’s remains were found and two showing Hurd’s skull
       lying in the woods, were admitted into evidence without objection.

       Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1785 | September 8, 2016     Page 7 of 12
[17]   The Indiana State Police crime scene investigator who was present when

       Hurd’s remains were found and recovered testified that the other twenty-six

       pictures, admitted over objection, depicted the site where Hurd’s remains were

       found, the actual remains as they were found, and that Hurd’s skull was found

       some distance from her torso and from where other remains were found. See,

       e.g., Amburgey v. State, 696 N.E.2d 44, 45 (Ind. 1998) (gory and revolting

       photographs may be admissible if they are relevant to some material issue or

       show scenes that a witness could describe orally).


[18]   Burns does not put forth an argument that his substantial rights were affected by

       the admission of the photographs and does not argue how the admission of the

       photographs might have prejudiced the jury. Furthermore, evaluating whether

       the photographs’ probative value was substantially outweighed by the danger of

       unfair prejudice is a discretionary task best performed by the trial court. See

       Dunlap v. State, 761 N.E.2d 837, 842 (Ind. 2002). The photographs, although

       unpleasant, were relevant to material issues and to the testimony of the criminal

       investigator and the forensic pathologist. We do not find any abuse of

       discretion by the trial court in admitting the photographs over Burns’

       objections.




                            II. Sufficiency of the Evidence of Intent to Kill

[19]   Burns next contends that insufficient evidence was presented by the State to

       prove beyond a reasonable doubt that he intended to kill Dorothy Hurd. Our

       standard of reviewing claims relating to sufficiency of the evidence is well
       Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1785 | September 8, 2016   Page 8 of 12
       established. On appeal, we do not weigh the evidence or judge the credibility of

       witnesses. Banks v. State, 567 N.E.2d 1126, 1129 (Ind. 1991). We consider only

       that evidence most favorable to the verdict together with all reasonable and

       logical inferences to be drawn therefrom. Id. If there is substantial evidence of

       probative value to support the conclusion of the trier of fact, the verdict will not

       be disturbed. Id. A conviction of murder may be sustained on circumstantial

       evidence alone. Green v. State, 587 N.E.2d 1314, 1315 (Ind. 1992). The

       reviewing court need not determine that circumstantial evidence is adequate to

       overcome every reasonable hypothesis of innocence, but only that an inference

       may reasonably be drawn which supports the finding of guilt. Smith v. State,

       468 N.E.2d 512, 515 (Ind. 1984).


[20]   Burns was charged with knowingly or intentionally killing another human

       being. See Ind. Code § 35-42-1-1. “A person engages in conduct ‘intentionally’

       if, when he engages in the conduct, it is his conscious objective to do so.” Ind.

       Code § 35-41-2-2(a) (1977). An intent to kill sufficient to sustain a murder

       conviction can be established in several ways. The intent to kill may be inferred

       from the use of a deadly weapon. Chapman v. State, 719 N.E.2d 1232, 1234

       (Ind. 1999). Intent may be inferred from the nature of the attack and the

       circumstances surrounding the crime. Corbin v. State, 563 N.E.2d 86, 88 (Ind.

       1990). The duration and brutality of the attack and the relative strengths of the

       defendant and victim may also indicate an intent to kill. Gibson v. State, 515

       N.E.2d 492, 496 (Ind. 1987); see also Shackelford v. State, 264 Ind. 698, 702-04,

       349 N.E.2d 150, 154 (1976). Additionally, where blows of magnitude are

       Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1785 | September 8, 2016   Page 9 of 12
       repeated, a jury could conclude that the defendant had an intent to kill. Nunn v.

       State, 601 N.E.2d 334, 339 (Ind. 1992).


[21]   Burns argues there was insufficient evidence of his intent to kill because the

       cause and manner of Hurd’s death were undetermined and no formal autopsy

       was performed. We disagree. Hurd’s remains were found eight months after

       her disappearance in a remote part of the Mississinewa River area, in a thicket

       located off of an access road in a wooded area. Evidence indicated Burns was

       familiar with the area because he fished the Mississinewa River. Forensic

       analysis revealed that Hurd suffered multiple fractures to her skull. A forensic

       pathologist testified at trial that the most likely cause of Hurd’s death was a

       head injury inflicted by another person. A forensic anthropologist testified that

       Hurd suffered blunt force trauma to the left side of her face, her cheek bone,

       and her lower jaw; that the trauma occurred “around the time of [Hurd’s]

       death;” and that the trauma did not occur after Hurd’s death. Tr. p. 806. She

       further testified that the trauma could have been caused by a baseball bat or

       some other “long” instrument like a crow bar that could impact both the middle

       of Hurd’s chin and her cheek bone at the same time. Id. at 814.


[22]   Evidence was presented that Hurd told one of her daughters that she wanted to

       meet with “little Donnie” so that she could give him family photographs.

       Other evidence was presented showing Burns was not doing well financially,

       was not steadily employed, was perpetually behind in paying his rent, and was

       behind in paying his electricity bill. On the day that Hurd was last heard from

       by relatives, Hurd left a note taped to the side door of her Noblesville, Hamilton

       Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1785 | September 8, 2016   Page 10 of 12
       County, Indiana, residence that indicated she was going to the cemetery with

       Burns. Early in the afternoon on that day, Burns’ cell phone, which evidence

       indicated he always carried with him, was used near the area where Hurd’s

       remains were found, a remote area of Grant County near the Mississinewa

       River. Later still that day, Burns was seen in a Walmart in Marion, Indiana,

       using Hurd’s credit card to make jewelry purchases, and in a pawn shop

       pawning Hurd’s wedding ring set. Also on that day, Burns delivered to his wife

       one of the necklaces he purchased at Walmart using Hurd’s credit card and a

       ring that belonged to Hurd. Evidence indicated that Burns must have taken

       Hurd’s property from her person, as there were no signs of forced entry into

       Hurd’s home, and evidence was presented that Hurd rarely removed her

       wedding ring set from her finger.


[23]   When a police officer attempted to approach Burns and question him about the

       disappearance of Hurd, Burns fled. After Burns was apprehended and

       questioned, he showed no concern and asked no questions about Hurd’s

       disappearance. Burns also lied to the police when he was asked his

       whereabouts on the day of Hurd’s disappearance. While incarcerated and

       awaiting trial, Burns wrote to his wife and told her to “get rid” of the items he

       gave her and to deny knowledge of the gifts. Tr. p. 594. He also wrote that

       “things just got so out of control.” Tr. p. 595. Hurd was a five foot two inch,

       seventy-four-year-old woman of slight build. Burns was a five foot ten inch,

       forty-seven-year-old man weighing approximately 190 pounds. The multiple

       blows to Hurd’s head and consequent fractures support an inference of intent to


       Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1785 | September 8, 2016   Page 11 of 12
       kill. The fact that Hurd knew Burns and that he could not avoid prosecution

       for robbing her if she lived to tell of it also supports an inference of intent to kill.


[24]   Although no single fact proves Burns’ intent to kill Hurd, we find that the

       collective circumstantial evidence was sufficient to allow a reasonable jury to

       infer that Burns intended to kill Hurd. Considering these facts together, the jury

       could have found beyond a reasonable doubt that Burns intended to kill

       Dorothy Hurd. Thus, sufficient evidence supports Burns’ murder conviction.


                                                Conclusion
[25]   For the reasons stated above, the judgment of the trial court is affirmed.


[26]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 27A02-1510-CR-1785 | September 8, 2016   Page 12 of 12
