Opinion
23A-CR-2085
08-27-2024
Billy R. Burrow, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Gregory L. Fumarolo Fort Wayne, Indiana ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the DeKalb Superior Court The Honorable Adam C. Squiller, Judge Trial Court Cause No. 17D01-2112-F1-8
ATTORNEY FOR APPELLANT Gregory L. Fumarolo Fort Wayne, Indiana
ATTORNEY FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
WEISSMANN, JUDGE
[¶1] Billy Burrow and his fiancee, Amanda Allard, have twin children: A.R.B. (Daughter), and A.J.B. (Son) (collectively, Children). When Children were five months old, Burrow violently shook Daughter, causing her catastrophic brain injuries. Police investigated Burrow for neglect and soon discovered that he and Allard had exchanged thousands of text messages in which they discussed plans to molest Children. For all this and more, the State charged Burrow with three counts of neglect of a dependent, two counts of conspiracy to commit child molesting, and one count of child exploitation.
[¶2] Burrow was convicted of all six charges, and the trial court sentenced him a total of 140 years in prison, including a repeat sex offender enhancement. Burrow appeals all but one of his convictions, arguing insufficient evidence, a violation of Indiana's "one conspiracy, one conviction" rule, and substantive double jeopardy. Burrow also challenges his sentence on several grounds. We find that Burrow's repeat sex offender enhancement was calculated based on the wrong underlying offense and that Burrow's sentence should be 133 years. Accordingly, we reverse as to that issue and remand with instructions. We affirm as to all other issues.
Facts
[¶3] Burrow and Allard purchased a home in Spencerville, Indiana, with the stated intent of starting a family. Allard became pregnant with Children in September 2020, and Children were born in May 2021-five weeks premature. After four weeks in intensive care, Children were discharged from the hospital. And over the next four months, Children's family physician had no concerns about their health or well-being.
[¶4] Allard returned to work that August. Her administrative job required her to be at an office by 5:00 a.m. to process paperwork, which could take anywhere from two to five hours to complete. Allard would then return home and work remotely the rest of the day. Burrow would care for Children while Allard was at work, and he was the only person other than Allard who ever cared for them.
I. Daughter Suffers Catastrophic Brain Injuries
[¶5] On October 12, 2021, Allard awoke for work between 4:00 and 4:30 a.m. Daughter also awoke around this time, but Burrow and Son remained asleep. After feeding Daughter, Allard got ready for work while Daughter sat in a "boppy pillow" nearby. Tr. Vol. III, p. 117. According to Allard, Daughter was "completely normal" during this time. Id. Before leaving the house, Allard placed Daughter back in her crib, and Daughter began to fall back asleep.
[¶6] Allard was still at work when Burrow and Children woke up around 7:00 a.m. According to Burrow, Daughter was "fine" at this time. Exh. 26 (01:33). But Burrow and Allard soon exchanged the following text messages:
| 7:44 a.m. | Burrow: | "How much long (sic) u going to be" |
| a.m. | Allard: | "Leaving in 10" |
| 7:45 a.m. | Allard: | "Everything ok?" |
| 7:53 a.m. | Allard: | “[On my way]” |
| 8:00 a.m. | Burrow: | “She's doing some weird shit again hun.” |
[¶7] Allard and Burrow then spoke on the phone, and Allard could hear Daughter making "grunting noises" in the background. Tr. Vol. III, p. 120. When Allard suggested to Burrow that they take Daughter to the doctor, Burrow became angry. He accused Allard of being overprotective before hanging up on her. Burrow and Allard then exchanged the following text messages:
|
8:02 a.m. |
Burrow |
"I'm so f**king tired of talking to you or telling you anything" |
|
8:03 a.m. |
Allard: |
"I'll talk to you about this when I get home I'll be home soon" |
[¶8] Allard arrived home a few minutes later and found Burrow sitting on the couch, silently flipping through channels on the TV. Daughter was next to him on the couch, unresponsive. Her body was stiff, and her hands were curled inward. She had one eyelid closed and the other partially open, revealing a glossed-over eye. She was also making grunting noises, and her breathing was shallow.
[¶9] Neither Burrow nor Allard called 911. Instead, Burrow drove Allard and Children to their family physician's office in Harlan, Indiana. Finding it closed, the family next went to a fire station across the street. No one answered the door. Only then did Burrow drive to a hospital in Fort Wayne.
[¶10] Hospital physicians quickly determined Daughter's condition to be critical, and she was soon flown to Riley Children's Hospital in Indianapolis. There, Daughter underwent surgery to drain blood that was accumulating inside her skull and putting pressure on her brain. Daughter was ultimately diagnosed with "acceleration-deceleration injuries" to her brain, which are typically caused by violent shaking. Tr. Vol. II, p. 152. Both Children were also found to have multiple rib fractures at various stages of healing. Daughter's fractures were 10 to 30 days old, and Son's were 10 to 60 days old.
II. Police Find Sexually Explicit Text Messages
[¶11] During an investigation into Children's injuries, police obtained a warrant to search Burrow's and Allard's cellphones. What they found was disturbing. Between February 28, 2021 (while Allard was pregnant with Children) and October 11, 2021 (the day before Daughter's brain injuries), Burrow and Allard exchanged thousands of text messages in which they discussed molesting Children in various ways. Through these messages, Burrow and Allard also shared pornographic images-including child pornography-depicting others engaging in the sexual conduct being discussed.
[¶12] Burrow and Allard's discussions were extremely graphic. But they primarily concerned the following general conduct:
• Burrow performing and submitting to sexual intercourse, oral sex, and sex toy penetration with Daughter;
• Allard performing and submitting to sexual intercourse and oral sex with Son as well as oral sex and sex toy penetration with Daughter; and
• Daughter and Son performing and submitting to sexual intercourse and oral sex with each other while Burrow and Allard watched.
[¶13] During a search of Burrow and Allard's home, police found nine dildos of various sizes. Police also obtained Burrow's Google search history, which revealed he had recently searched the internet for incest and child pornography. The search queries were abundant but included: "really small dicks"; "tiny girl f**ks"; "young losing virginity"; "young family f**k little"; "young petite daughter real family f**k"; "having sex with daughter"; "f**king my young daughter"; "petite baby girl being f**ked"; "9 yrar (sic) old f**ks family"; and "pre-teen being f**ked." Exhs. Vol. I, pp. 231-41.
III. The State Prosecutes Burrow and Allard
[¶14] The State charged both Burrow and Allard with the same six crimes:
1. Neglect of a dependent resulting in catastrophic injury to Daughter (brain injuries), a Level 1 felony;
2. Neglect of a dependent resulting in serious bodily injury to Daughter (rib fractures), a Level 3 felony;
3. Neglect of a dependent resulting in serious bodily injury to Son (rib fractures), a Level 3 felony;
4. Conspiracy to commit child molesting against Son, a Level 1 felony;
5. Conspiracy to commit child molesting against Daughter, a Level 1 felony; and
6. Child exploitation, a Level 5 felony.The State also alleged that Burrow was a repeat sex offender based on prior convictions for Class B and Class C felony child molesting.
[¶15] Pursuant to a plea agreement with the State, Allard agreed to plead guilty to two counts of Level 3 felony neglect of a dependent two counts of Level 3 felony neglect of a dependent and to testify truthfully at Burrow's trial. In exchange, the State agreed to dismiss the remaining charges against her and to recommend a fixed sentence of 20 years imprisonment. The trial court accepted Allard's plea and sentenced her accordingly.
[¶16] At Burrow's jury trial, Allard testified that she participated in the text exchanges with Burrow but denied that she and Burrow intended to molest Children. Allard also denied that she or Burrow ever engaged in any sexual conduct with Children. According to Allard, the text messages were simply "role play" and "fantasy." Tr. Vol. III, p. 165.
[¶17] A child abuse pediatrician from Riley Children's Hospital testified that Daughter would have immediately shown neurological symptoms from her brain injuries, such as looking stunned, loss of consciousness, vomiting, and seizures. According to the pediatrician, these symptoms would have progressed rapidly as Daughter's injuries worsened. Thus, the severity of her condition was exasperated by the delay in getting her medical care. By the time Daughter arrived at Riley, she showed no purposeful movement and only responded to pain. Now, because of her injuries, Daughter's neurological function will not develop beyond what she was able to do at five months old. She also will not have a normal lifespan.
[¶18] The jury found Burrow guilty as charged and that he was a repeat sex offender. The trial court entered judgments of conviction on all six guilty verdicts and later sentenced Burrow to consecutive prison sentences for all six of his convictions. In total, Burrow received 140 years in the Indiana Department of Correction (DOC), including a 10-year repeat sex offender enhancement.
Discussion and Decision
[¶19] Burrow appeals five of six convictions as well as his 140-year sentence, raising the following issues:
I. Whether the State presented sufficient evidence to support Burrow's convictions for neglect of a dependent and conspiracy to commit child molesting.
II. Whether Burrow's two convictions for conspiracy to commit child molesting violate Indiana's "one conspiracy, one conviction" rule.
III. Whether Burrow's two convictions for conspiracy to commit child molesting constitute substantive double jeopardy.
IV. Whether Burrow's consecutive sentences for two non-violent Level 1 felonies, which totaled 75 years, violate Indiana Code § 35-50-1-2 (Consecutive Sentencing statute).
V. Whether Burrow's 10-year repeat sex offender enhancement was calculated based on the wrong underlying offense, in violation of Indiana Code § 35-50-2-14 (Repeat Sex Offender Statute).
VI. Whether Burrow's 140-year aggregate sentence was inappropriate under Indiana Appellate Rule 7(B).
[¶20] We consider each of these issues in turn. In the end, we reverse Burrow's 10-year repeat sex offender enhancement and remand for the trial court to enhance Burrow's sentence for Level 5 felony child exploitation by an additional 3-year advisory term. We affirm on all other grounds.
I. Sufficiency of the Evidence
[¶21] For his first argument, Burrow asserts that State presented insufficient evidence to support his convictions for neglect of a dependent and conspiracy to commit child molesting. When reviewing claims of insufficient evidence, we neither reweigh the evidence nor judge the credibility of the witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We consider only the probative evidence supporting the verdict and any reasonable inferences which may be drawn from this evidence. Id. We will 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.
A. Neglect of a Dependent
[¶22] A person commits neglect of a dependent when, while having care of the dependent, the person knowingly or intentionally places the dependent in a situation that endangers the dependent's life or health. Ind. Code § 35-46-1-4(a)(1). The basic offense is a Level 6 felony. Id. However, the offense becomes a Level 3 felony if it "results in serious bodily injury." Ind. Code § 35-46-1- 4(b)(2). And the offense becomes a Level 1 felony if it is committed "by a person at least eighteen (18) years of age and results in the death or catastrophic injury of a dependent who is less than fourteen (14) years of age or in the death or catastrophic injury of a dependent of any age who has a mental or physical disability." Ind. Code § 35-46-1-4(b)(3).
Indiana Code § 35-31.5-2-292 defines "serious bodily injury" to include bodily injury that causes "extreme pain." And Indiana Code § 35-31.5-2-34.5 defines "catastrophic injury" to mean "bodily injury so severe that a person's ability to live independently is significantly impaired for a period of at least one (1) year."
[¶23] The State charged Burrow with one count of Level 1 felony neglect resulting in catastrophic injury to Daughter (brain injuries) and two counts of Level 3 felony neglect resulting in serious bodily injury to Daughter and Son (rib fractures). Burrow argues that the State failed to prove he was responsible for Children's injuries. We disagree.
1. Catastrophic Injury to Daughter
[¶24] The undisputed evidence presented at trial showed that Daughter suffered catastrophic brain injuries due to being violently shaken on October 12, 2021. To prove that Burrow was responsible for Daughter's brain injuries, the State presented Allard's testimony that she and Daughter woke up that day between 4:00 and 4:30 a.m. According to Allard, Daughter was "completely normal" during this time and was falling back asleep in her crib when Allard left for work. Tr. Vol. III, p. 117. The State also presented a recorded statement in which Burrow told police that Daughter was "fine" when she woke up again around 7:00 a.m. Exh. 26 (01:33). Additionally, the State presented Burrow and Allard's text exchange from around 8:00 a.m. that day, which showed that Allard was on her way home from work when Burrow first informed her that Daughter was acting "weird." Exhs. Vol. XI, p. 214. According to Allard, she arrived home shortly thereafter and found Daughter unresponsive on the couch while Burrow sat next to her, apathetically watching TV.
[¶25] This evidence supports a reasonable inference that Burrow knowingly or intentionally placed Daughter in a situation that resulted in her brain injuries. In claiming otherwise, Burrow asserts that the evidence did not exclude Allard as having caused the injuries before she left for work. But a child abuse pediatrician testified that Daughter's neurological symptoms would have presented immediately and progressed rapidly after suffering the injuries. Thus, the evidence shows that Daughter would not have been "fine" at 7:00 a.m. if Allard had caused her injuries more than two hours earlier. Exh. 26 (01:33).
[¶26] Moreover, it is "not necessary that the evidence overcome every reasonable hypothesis of innocence" on appeal. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). Thus, Burrow's claim is an impermissible request to reweigh the evidence. See McHenry, 820 N.E.2d at 126. For these reasons, we conclude the State presented sufficient evidence to prove beyond a reasonable doubt that Burrow committed Level 1 felony neglect of a dependent resulting in catastrophic injury to Daughter.
2. Serious Bodily Injury to Daughter and Son
[¶27] The undisputed evidence also showed that Daughter and Son suffered multiple rib fractures at some point between August and October 2021. To prove that Burrow was responsible for these injuries, the State presented Allard's testimony that Burrow sometimes got "annoyed," "frustrated," and "stressed" with Children's crying. Tr. Vol. III, p. 95. Allard also testified that there were times when Burrow let his emotions get the best of him, and she admitted to leaving Children in Burrow's care while knowing he was a threat to their safety.
[¶28] The State also presented the testimony of family friend Joyce Ormsby, who explained that Burrow sometimes pushed a crying Son's legs into his stomach to alleviate gas pain. According to Ormsby, in July or August 2021, she saw Burrow use too much force when pushing on Son's legs. And when Ormsby tried to correct Burrow out of concern for Son, Burrow would not heed her advice. Ormsby further testified that, by September 2021, Daughter was crying more often than Son.
[¶29] This evidence supports a reasonable inference that Burrow knowingly or intentionally placed Children in situations that resulted in their rib fractures. In claiming otherwise, Burrow points to evidence that Children's family physician had no concerns about Children's health or well-being during the two months at issue. Children's ribs, however, were undoubtedly fractured at some point during this time. Thus, the family physician's opinion does nothing to negate the evidence that Burrow was responsible for Children's injuries. At best, Burrow's claim is another impermissible request to reweigh the evidence. See McHenry, 820 N.E.2d at 126.
[¶30] For these reasons, we conclude the State presented sufficient evidence to prove beyond a reasonable doubt that Burrow committed two counts of Level 3 felony neglect resulting in serious bodily injury to Daughter and Son, respectively.
B. Conspiracy to Commit Child Molesting
[¶31] A person commits conspiracy to commit child molesting when, with intent to perform or submit to sexual intercourse or other sexual conduct with a child less than 14 years of age, the person agrees with another person to perform or submit to those acts with the child, and either the person or the person with whom he or she agreed performs an overt act in furtherance of the agreement. Ind. Code § 35-42-4-3 (child molesting statute); Ind. Code § 35-41-5-2 (conspiracy statute). The basic offense is a Level 3 felony. Ind. Code § 35-41-5-2(a); see Ind. Code § 35-42-4-3(a) ("A conspiracy to commit a felony is a felony of the same level as the underlying felony."). However, the offense becomes a Level 1 felony if the person who plans to engage in sexual conduct with the child is at least 21 years of age. Ind. Code § 35-41-5-2(a)(1).
"Other sexual conduct" means an act involving: (1) a sex organ of one . . . person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object." Ind. Code § 35-31.52-221.5.
[¶32] The State charged Burrow with two counts of conspiracy to commit child molesting, both as Level 1 felonies. Burrow argues that the State failed to prove the agreement and overt act elements beyond a reasonable doubt. We disagree.
1. Agreements to Molest Children
[¶33] To prove the requisite agreement in a conspiracy case, "the State need not prove the existence of a formal, express agreement in order to carry its burden." Forney v. State, 742 N.E.2d 934, 937 (Ind. 2001). "The agreement as well as the requisite guilty knowledge and intent may be inferred from circumstantial evidence alone, including overt acts of the parties in pursuance of the criminal act." Erkins v. State, 13 N.E.3d 400, 407 (Ind. 2014) (quoting Survance v. State, 465 N.E.2d 1076, 1080 (Ind. 1984)).
[¶34] Here, the State presented thousands of text messages and pornographic images that Burrow and Allard exchanged over the course of seven months. Through these messages and images, Burrow and Allard graphically discussed, among other things: (1) Burrow performing sexual intercourse and other sexual conduct with Daughter; and (2) Allard performing sexual intercourse and other sexual conduct with Son. As an example, we reluctantly provide the following text exchange from May 11, 2021-two days before Children's birth:
Burrow: "Do u want me or him to use condoms for u or her"
Allard: "[F]or her yes. Me doesn't matter."
Burrow: "So I have to wear a condom for her? And we don't have to use one for u"
Allard: "You don't have to. Because u can control your cum. He needs to. But none for me for either one of you"
Burrow: "Mmmmm" Burrow: "Dont u want me to cum in her"
Allard: "After we get her on birth control after her puberty stage. Before puberty it's fine too"
Burrow: "So when they come home she can be cummed in and on and u can lick suck and f**k him"
Allard: "Yes"
Burrow: "I didnt know she could be cummed in till she has a period .I cant wait till he can cum for u"
Allard: "The period is when you need to be careful because she's super fertile. That's all."Exhs. Vol. VI, pp. 172-74 (spelling, punctuation, and grammatical errors in original).
[¶35] This text exchange, along with thousands of others, sufficiently proved that Burrow and Allard agreed for Burrow to perform or submit to sexual intercourse with Daughter, and for Allard to perform or submit to sexual intercourse and oral sex with Son. In claiming otherwise, Burrow points to Allard's testimony that she and Burrow did not intend to molest Children and that their text exchanges were mere fantasies and role play. His claim, however, is an impermissible request to reweigh the evidence. See McHenry, 820 N.E.2d at 126.
2. Overt Act in Furtherance of Agreements
[¶36] The overt act required to prove a conspiracy "need not rise to the level of a 'substantial step" required for an attempt to commit the felony." Owens v. State, 929 N.E.2d 754, 756-57 (Ind. 2010) (quoting Ind. Code § 35-41-5-1). "A defendant may therefore be convicted of a conspiracy to commit a felony without committing the felony and without even an attempt to commit it." Id. at 757.
[¶37] The State alleged that Burrow and Allard performed overt acts in furtherance of their agreements to molest Daughter and Son by "researching pornography and child pornography on the internet for sex acts generally, and sex acts with children specifically." App. Vol. II, pp. 32-33. As to Daughter specifically, the State also alleged Burrow and Allard "obtain[ed a] junior-sized dildo to stretch out [Daughter's] female sex organ." Id. at 33.
[¶38] In support of the pornography research allegation, the State presented Burrow's Google search history, which included queries for "f**king my young daughter" and "young family f**k little," among other deplorable things. Exhs. Vol. I, pp. 237-38. The State also presented text messages in which Burrow and Allard asked each other to send pornographic images of the sexual conduct in which they planned to engage with Children. Moreover, the State presented thousands of text messages in which Burrow and Allard complied with each other's requests. See, e.g., Exhs. Vol III, p. 147 (Burrow sending Allard an image of others engaged in oral sex and stating, "That's what I want to see u and [Son] do"; Allard responding with an image of others engaged in sexual intercourse and stating, "Mmmm I wanna see [Daughter] do that to you.").
[¶39] As for the dildo allegation, the State presented text messages in which Burrow and Allard discussed using sex toys on Daughter. These included Allard stating, "We can start her off with a small dildo at first and then we can explore on what she likes." Exhs. Vol. VII, p. 105. The State also presented photographs of the nine dildos found in Burrow and Allard's home, one of which was smaller than the others. Burrow contends the State failed to prove he or Allard obtained the small dildo for use on Daughter. But regardless of the dildo allegation's truth, the evidence of Burrow's and Allard's pornography research sufficiently proved that they performed overt acts in furtherance of their agreements to molest Daughter and Son.
[¶40] For these reasons, we conclude the State presented sufficient evidence to prove beyond a reasonable doubt that Burrow committed two counts of Level 1 felony conspiracy to commit child molesting.
II. "One Conspiracy, One Conviction" Rule
[¶41] For his second argument, Burrow asserts that his two convictions for conspiracy to commit child molesting violate Indiana's "one conspiracy, one conviction" rule. This rule "derives from the notion that the agreement is the criminal act, and therefore one agreement supports only one conspiracy, even if multiple crimes are the object of the agreement." Drakulich v. State, 877 N.E.2d 525, 532 (Ind.Ct.App. 2007) (quoting Thacker v. State, 709 N.E.2d 3, 7 (Ind. 1999)). "[W]hen there are separate agreements, multiple convictions do not violate the one conspiracy, one conviction rule." Id. at 532-33; accord Turnley v. State, 725 N.E.2d 87, 91 (Ind. 2000). But "where evidence indicates that only one agreement took place, only one conspiracy conviction can stand." Drakulich, 877 N.E.2d at 532.
[¶42] "Whether one or several conspiracies occurred is a question of fact for the jury." Id. at 533. Thus, "our task on appeal is to determine whether sufficient evidence exists to support a jury's finding of multiple agreements." Id. In determining the number of distinct agreements, "relevant factors include: the nature of the criminal scheme, common participants, proximity in time, and the conspirator's involvement in each crime." Thacker, 709 N.E.2d at 8 n.2 (citing Mftari v. State, 537 N.E.2d 469, 475 (Ind. 1989)).
[¶43] Here, the evidence showed that Burrow and Allard's primary criminal scheme was for Burrow to molest Daughter and for Allard to separately molest Son. See e.g., Vol. II, p. 84 (Burrow texting Allard, "U train him and I'll train her [to be kinky]"); Exhs. Vol. V, p. 99 (Allard stating, "I want to see those pics with u n [Daughter]," and Burrow responding, "What do I get to see u and [Son] do"). Burrow and Allard' discussions rarely, if ever, focused on them both molesting Daughter or Son at the same time. See, e.g., Exhs. Vol. VI, p. 67 (Burrow asking, "What do you want [Children] doing," and Allard responding, "Licking, sucking, f**king, playing. All with either me and her, you and her, me and [him,] or her and [him]").
[¶44] From these facts, a jury could reasonably conclude that Burrow was involved in two separate agreements with Allard: one for Burrow to molest Daughter, and another for Allard to molest Son. We therefore conclude that Burrow's two convictions for conspiracy to commit child molesting do not violate Indiana's "one conspiracy, one conviction" rule.
Some Indiana cases have "cited double jeopardy, as opposed to statutory interpretation or general conspiracy doctrine, as the basis of [the 'one conspiracy, one conviction'] rule." Thacker v. State, 709 N.E.2d 3, 7-8 (Ind. 1999). The State therefore questions whether the rule survived our Supreme Court's decisions in Wadle v. State, 151 N.E.3d 227, 237 (Ind. 2020), and Powell v. State, 151 N.E.3d 256, 263 (Ind. 2020), which established new "analytical framework[s]" for resolving claims of substantive double jeopardy under Indiana law. As we find no violation of the "one conspiracy, one conviction" rule in this case, we need not address the rule's continued viability under Wadle and Powell.
III. Substantive Double Jeopardy
[¶45] For his third argument, Burrow asserts that his two convictions for conspiracy to commit child molesting constitute substantive double jeopardy-two punishments for the same offense. "Substantive double-jeopardy claims principally arise in one of two situations: (1) when a single criminal act or transaction violates multiple statutes with common elements, or (2) when a single criminal act or transaction violates a single statute and results in multiple injuries." Powell v. State, 151 N.E.3d 256, 263 (Ind. 2020). This case implicates the latter.
[¶46] For acts that violate a single statute but result, or potentially result, in multiple injuries, our double jeopardy analysis follows two steps. Under the first step, we review the text of the statute to identify the appropriate "unit of prosecution." Id. at 265. "The unit of prosecution is the minimum action required to commit a new and independent violation of a criminal statute." Jones v. State, 159 N.E.3d 55, 63 (Ind.Ct.App. 2020). If the unit of prosecution is clear, "whether expressly or by judicial construction, . . . then we follow the legislature's guidance and our analysis is complete." Powell, 151 N.E.3d at 264. But if the statute is ambiguous, we move to the second step in the process and "determine whether the facts-as presented in the charging instrument and as adduced at trial-indicate a single offense or whether they indicate distinguishable offenses." Id. We review questions of statutory law de novo. Id. at 262.
A. Unit of Prosecution
[¶47] Indiana's conspiracy to commit child molesting statute provides: "A person conspires to commit [child molesting] when, with intent to [perform or submit to sexual intercourse or other sexual conduct with a child under 14 years of age], the person agrees with another person to [perform or submit to that sexual conduct]," and "either the person or the person with whom he or she agreed perform[s] an overt act in furtherance of the agreement." Ind. Code § 35-41-5-2(a), (b); Ind. Code § 35-42-4-3(a). Because the plain language of this statute does not expressly identify a unit of prosecution, we must construe its terms to determine whether it is a conduct-based statute or a result-based statute. Powell, 151 N.E.3d at 265.
As indicated herein, conspiracy to commit child molesting technically derives from two statutes. See Ind. Code § 35-41-5-2 (conspiracy statute); Ind. Code § 35-42-4-3 (child molesting statute). But the crime "exists only by reading one statute 'in conjunction with' the other." Powell, 151 N.E.3d at 265 (quoting Kee v. State, 438 N.E.2d 993, 994 (Ind. 1982)). Therefore, for purposes of our analysis, we refer to conspiracy to commit child molesting as a single statutory offense.
[¶48] "A conduct-based statute . . . consists of an offense defined by certain actions or behavior (e.g., operating a vehicle) and the presence of an attendant circumstance (e.g., intoxication)." Id. at 265-66. "Under these statutes, the crime is complete once the offender engages in the prohibited conduct, regardless of whether that conduct produces a specific result (e.g., multiple victims)." Id. at 266. "A result-based statute, on the other hand, consists of an offense defined by the defendant's actions and the results or consequences of those actions." Id. (discussing murder, manslaughter, battery, and reckless homicide as examples). "[C]rimes defined by conduct . . . permit only a single conviction ...." Id. "But crimes defined by consequence . . . permit multiple convictions when multiple consequences flow from a single criminal act." Id.
[¶49] The conspiracy to commit child molesting statute does not require a specific consequence or result. Rather, the crime is complete when the defendant, acting with the requisite intent, "agrees with another person to [perform or submit to sexual intercourse or other sexual conduct with a child under 14 years of age]," and "either the [defendant] or the person with whom he or she agreed perform[s] an overt act in furtherance of the agreement." Ind. Code §§ 35-41-5-2(a)-(b), -3(a). This reading of the statute is supported by existing case law. See, e.g., Owens v. State, 929 N.E.2d 754, 756 (Ind. 2010) ("A conspiracy is complete upon the agreement and the performance of an overt act in furtherance of the agreement." (internal quotation marks omitted)).
[¶50] Based on the foregoing, it is reasonable to conclude that conspiracy to commit child molesting is a conduct-based statute for which only one conviction may stand, regardless of the number of potential victims. But the statute clearly contemplates a potential victim by using the indirect object, "a child under 14 years of age." Ind. Code § 35-42-4-3(a). This language suggests that each potential victim of a conspiracy to commit child molesting calls for separate punishment. See Powell, 151 N.E.3d at 267 (stating attempted murder statute's use of indirect object "another human being" suggests each potential victim in an attempted murder calls for a separate punishment). Thus, conspiracy to commit child molesting can be reasonably interpreted as a result-based statute as well.
[¶51] Given these alternative readings, the statute is ambiguous. We therefore move to the second step in our double jeopardy analysis
B. Distinguishable Offenses
[¶52] To determine whether the facts indicate a single offense or distinguishable offenses, we examine whether the defendant's acts were "so compressed in terms of time, place, singleness of purpose and continuity of action as to constitute a single transaction." Powell, 151 N.E.3d at 264. "Any doubt counsels against turning a single transaction into multiple offenses." Id. (internal quotation marks omitted).
[¶53] Here, Burrow's agreements to molest Children constituted distinguishable offenses. As discussed above, one involved Burrow's intent to perform or submit to sexual intercourse with Daughter, and the other involved Burrow's intent for Allard to perform or submit to sexual intercourse or other sexual conduct with Son. Thus, the agreements did not have singleness of purpose. See id. at 270 (finding defendant's successive gunshots at an occupied car did not have singleness of purpose where evidence showed defendant had intent to kill two different people inside the car).
[¶54] The agreements were also not compressed in terms of time. They occurred over seven months via thousands of text exchanges between Burrow and Allard. In some, they discussed Burrow molesting Daughter; in others, they discussed Allard molesting Son. Moreover, these exchanges were regularly interrupted with normal text messages about money, work, chores, food, and other everyday things. See Jones v. State, 159 N.E.3d 55, 64 (Ind.Ct.App. 2020) (finding defendant's two acts of throwing hot water on victim did not occur at the same time where, after the first act, victim crawled away from defendant, was beaten, went to the bathroom, started taking off her clothes, and was alone for a moment before defendant committed the second act).
[¶55] For these reasons, we conclude Burrow's two convictions for conspiracy to commit child molesting do not a constitute substantive double jeopardy.
IV. Consecutive Sentencing Statute
[¶56] For his fourth general argument, Burrow asserts that his consecutive sentences, totaling 75 years, on two counts of Level 1 felony conspiracy to commit child molesting violate Indiana's Consecutive Sentencing Statute. That statute generally authorizes a trial court to order terms of imprisonment to be served consecutively. Ind. Code § 35-50-1-2(c). But it provides, in pertinent part:
[Except for enumerated crimes of violence], the total of the consecutive terms of imprisonment to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct may not exceed [42 years] . . . [i]f the most serious crime for which the defendant is sentenced is a Level 1 felony.Ind. Code § 35-50-1-2(d)(6).
[¶57] Child molesting is an enumerated crime of violence under the Consecutive Sentencing Statute. Ind. Code § 35-50-1-2(a). But conspiracy to commit a crime of violence is not. Coleman v. State, 952 N.E.2d 377, 383 (Ind.Ct.App. 2011). Therefore, if Burrow's two convictions for conspiracy to commit child molesting arose from the same episode of criminal conduct, his consecutive sentences for those Level 1 felonies could not exceed 42 years.
[¶58] An "episode of criminal conduct" refers to "offenses or a connected series of offenses that are closely related in time, place, and circumstance." Ind. Code § 35-50-1-2(b). "Whether certain offenses constitute a single episode of criminal conduct is a fact-intensive inquiry determined by the trial court." Fix v. State, 186 N.E.3d 1134, 1144 (Ind. 2022) (internal quotation marks omitted). "While 'the ability to recount each charge without referring to the other' offers 'guidance on the question of whether a defendant's conduct constitutes an episode of criminal conduct,' we focus our analysis on 'the timing of the offenses' and 'the simultaneous and contemporaneous nature of the crimes,' if any." Id. (quoting Reed v. State, 856 N.E.2d 1189, 1200 (Ind. 2006)).
[¶59] As discussed above, Burrow's conspiracy to molest Daughter and his conspiracy to molest Son were not so compressed in time that they constituted a single transaction. They developed through Burrow and Allard's exchange of thousands of text messages and pornographic images over the course of seven months. The conspiracies were occasionally discussed simultaneously. See, e.g., Exhs. Vol. V, p. 126 (Allard stating, "I def wanna try the top [pornographic image] with u f**king [Daughter] and [Son] f**king me," and Burrow responding, "Mmmmmm ok mama"). But the vast majority of the time, Burrow and Allard's discussions concerned Burrow molesting Daughter and Allard separately molesting Son.
We note that the Consecutive Sentencing Statute's "single episode of criminal conduct" test applies even where the underlying convictions are based on separate victims. See Gober v. State, 163 N.E.3d 347, 357 (Ind.Ct.App. 2021) (concluding mother's consecutive sentences on two counts of Level 1 neglect and one count of Level 6 felony neglect could not exceed 42 years under Indiana Code § 35-50-1-2(d)(6) because all three convictions arose from mother's actions in leaving her three young children alone in their locked apartment for fifteen hours).
[¶60] Guided by the ability to recount each conspiracy without referring to the other, the trial court could reasonably conclude that Burrow's two convictions for Level 1 felony conspiracy to commit child molesting did not arise from the same episode of criminal conduct. We therefore conclude that Burrow's consecutive sentences for those convictions, which totaled 75 years, did not violate the Consecutive Sentencing Statute.
V. Repeat Sex Offender Statute
[¶61] For his fifth argument, Burrow asserts that the trial court calculated his repeat sex offender enhancement based on the wrong underlying offense, in violation of Indiana's Repeat Sex Offender Statute. That statute provides, in pertinent part: "The court may sentence a person found to be a repeat sexual offender to an additional fixed term that is the advisory sentence for the underlying [sex] offense." Ind. Code § 35-50-2-14(f). "However, the additional sentence may not exceed ten (10) years." Id.
[¶62] As an initial matter, however, the State correctly observes the court's sentencing order did not apply the enhancement to any particular conviction. Instead, the court ordered the enhancement served consecutively to Burrow's sentences for his six, now-five convictions. This was improper. "[A] repeat sexual offender finding does not itself generate a separate conviction for which a defendant can be separately sentenced, rather it allows the trial court to impose an enhanced sentence on a proper conviction." Eckrich v. State, 73 N.E.3d 744, 747 (Ind.Ct.App. 2017). Accordingly, we must remand for the trial court to apply Burrow's enhancement to a particular conviction. But to which one?
[¶63] The Repeat Sex Offender Statute specifically defines the term "sex offense" to mean "a felony conviction under IC 35-42-4-1 through IC 35-42-4-9 or under IC 35-46-1-3." Ind. Code § 35-50-2-14(a). The State contends Burrow was convicted of three underlying sex offenses: two counts of Level 1 felony conspiracy to commit child molesting and one count of Level 5 felony child exploitation. And because Burrow's 10-year repeat sex offender enhancement exceeds the 3-year advisory sentence for a Level 5 felony, the State presumes it should apply to one of Burrow's Level 1 felony conspiracy convictions. See Ind. Code §§ 35-50-2-4(b), -6(b) (setting 3-year advisory sentence for Level 5 felony and 30-year advisory sentence for Level 1 felony).
[¶64] Burrow, however, contends Level 5 felony child exploitation is the only sex offense of which he was convicted. Thus, we presume he seeks reversal of the 10-year enhancement and remand for the trial court to enhance his sentence for that Level 5 felony by an additional 3-year advisory term, as allowed by the Repeat Sex Offender Statute. We find this to be the proper resolution.
[¶65] Child exploitation falls within the statutory definition of a "sex offense." Ind. Code § 35-50-2-14(a) (defining "sex offense" to include Indiana Code § 35-42-44 (child exploitation statute)). But contrary to the State's assertion, conspiracy to commit a sex offense does not. In fact, both conspiracy and attempt were removed from the statutory definition of "sex offense" before Burrow committed any of the offenses in this case. Compare Ind. Code § 35-50-2-14(a) (2019), with Ind. Code § 35-50-2-14(a) (2021). Accordingly, the trial court could neither issue a 10-year repeat sex offender enhancement nor apply such an enhancement to one of Burrow's conspiracy to commit child molesting convictions.
[¶66] For these reasons, we reverse Burrow's generic 10-year repeat sex offender enhancement. We also remand with instructions for the trial court to vacate that enhancement and, instead, specifically enhance Burrow's sentence for Level 5 felony child exploitation by an additional 3-year advisory term.
VI. Appropriateness of Sentence
[¶67] Finally, Burrow argues that his 140-year aggregate sentence was inappropriate under Indiana Appellate Rule 7(B). That rule permits an appellate court to revise a sentence if, "after due consideration of the trial court's decision, the sentence is found to be inappropriate in light of the nature of the offense and the character of the offender." Ind. Appellate Rule 7(B). In reviewing the appropriateness of a sentence, our principal role is to attempt to leaven the outliers, not to achieve a perceived "correct" sentence. Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014). Accordingly, we give "substantial deference" to the trial court's sentencing decision. Id. The trial court's judgment should prevail unless it is "overcome by compelling evidence portraying in a positive light the nature of the offense ... and the defendant's character." Stephenson v. State, 29 N.E.3d 111, 112 (Ind. 2015).
[¶68] In assessing the appropriateness of a sentence, we first look to the statutory ranges established for the offenses at issue. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. Burrow was convicted of three Level 1 felonies, two Level 3 felonies, and one Level 5 felony. Those offenses, their sentencing ranges and advisory sentences, and the sentences issued by the trial court are contained in the chart below.
Ind. Code § 35-50-2-4(b) (Level 1 felony); Ind. Code § 35-50-2-5(b) (Level 3 felony); Ind. Code § 35-50-2-6(b) (Level 5 felony).
Offense
Sentencing Range
Advisory Sentence
Sentence Issued
Level 1 felony Conspiracy to commit child molesting (Daughter)
20-40 years
30 years
40 years
Level 1 felony Conspiracy to commit child molesting (Son)
20-40 years
30 years
35 years
Level 1 felony Neglect of a dependent resulting in catastrophic injury (Daughter)
20-40 years
30 years
40 years
Level 3 felony Neglect of a dependent resulting in serious bodily injury (Daughter)
3-16 years
9 years
6 years
Level 3 felony Neglect of a dependent resulting in serious bodily injury (Son)
3-16 years
9 years
6 years
Level 5 felony Child exploitation
1-6 years
3 years
3 years
[¶69] Altogether, including a repeat sex offender enhancement of 3 years, Burrow faced a sentencing range of 70 to 161 years and an advisory sentence of 114 years. He was effectively sentenced to a total of 133 years, which we do not find inappropriate.
Burrow's 133-year sentence can be calculated as follows: 140 years (original sentence), minus 10 years (reversed repeat sex offender enhancement), plus 3 years (repeat sex offender enhancement on remand).
A. Nature of the Offenses
[¶70] Burrow rightfully acknowledges the nature of his offenses as "senseless and reprehensible." Appellant's Br. p. 30. That said, we find the trial court's characterization more accurate: Burrow's crimes "shock the conscience" and "were so reprehensible that they are hard to even comprehend." Tr. Vol. IV, p. 21.
[¶71] Through thousands of sexually explicit text messages and pornographic images, including child pornography, Burrow conspired with Allard to turn his own children into sex slaves for his and Allard's personal gratification. Other than Burrow executing his and Allard's plans, it is hard to imagine him committing a greater violation of his position of trust as Children's father. See generally id. ("A harsher sentence is . . . more appropriate when the defendant has violated a position of trust that arises from a particularly close relationship between the defendant and the victim, such as a parent-child or stepparent-child relationship."). But, of course, he did.
[¶72] Burrow's own violent tendencies appear to be the only thing that stopped he and Allard from executing their disturbing plan. After stubbornly fracturing infant Son's ribs, Burrow violently shook five-month-old Daughter, causing her catastrophic brain injuries. See generally Hamilton v. State, 955 N.E.2d 723, 727 (Ind. 2011) ("The younger the victim, the more culpable the defendant's conduct."). And Daughter's injuries were also exasperated by Burrow's apathy and delay in getting her medical care. And now, her neurological function is, at best, frozen in time. She will never progress beyond her abilities as a five-month-old infant, and she will not have a normal lifespan. See generally Ind. Code § 35-38-1-7.1(a)(1) ("In determining what sentence to impose for a crime, the court may consider," as an aggravating circumstance, that [the injury] suffered by the victim of an offense was: (A) significant; and (B) greater than the elements necessary to prove the commission of the offense.").
[¶73] The nature of Burrow's offenses does not compel us to revise his sentence.
B. Character of the Offender
[¶74] As for his character, Burrow has an extensive juvenile history that includes six delinquency petitions and three adjudications. Recurring themes in these cases were acts that would have constituted Class A or B misdemeanor battery and Class D felony theft if committed by an adult. And despite receiving a variety of services as a juvenile, such as probation, counseling, electronic monitoring, residential placement, and secure detention, Burrow's unlawful conduct has continued into adulthood unabated.
[¶75] Burrow has five prior felony and four prior misdemeanor convictions. Most notably, he was convicted of Class B and Class C felony child molesting in 2009. For this, he was sentenced to 13 years in the DOC, with 3 years suspended to probation, 2 of which were ordered served on home detention. But in 2014, Burrow's probation was revoked because he violated probation rules concerning internet access and contact with people under 18 years of age.
[¶76] Burrow's probation has been revoked on other occasions as well. And he has an extensive history of disciplinary action while incarcerated. Among other rules violations, Burrow has been repeatedly disciplined for resisting jail officers, destruction of jail property, battery, threats of battery, vulgarity/profanity, and attempting to contact inmates in other cellblocks.
[¶77] Burrow was released from DOC in February 2020, just a year before he began conspiring to molest Children. And at the time of his sentencing in this case, Burrow had two other criminal cases pending against him. In those two cases combined, he faced three counts of Level 5 felony burglary and one count of Level 4 felony unlawful possession of firearm by a serious violent felon.
[¶78] Burrow's character does not compel us to revise his sentence.
C. Additional Claims
[¶79] Ultimately, Burrow makes little effort to convince us that his now-133-year sentence is inappropriate in light of the nature of his offenses or his character. Instead, he asks us to compare his sentence to the 20-year sentence Allard received pursuant to her plea agreement with the State. We need not do so. Dennis v. State, 908 N.E.2d 209, 214 (Ind. 2009). But we note that Burrow's aggregate sentence is appropriately longer than Allard's because they were not convicted of the same offenses or under the same circumstances.
[¶80] Burrow also contends that his lengthy sentence violates Article 1, Section 18 of the Indiana Constitution. That section states: "The penal code shall be founded on the principles of reformation, and not of vindictive justice." Ind. Const. art. 1, § 18. But it "applies only to the penal code as a whole, not to individual sentences." Henson v. State, 707 N.E.2d 792, 796 (Ind. 1999). Thus, Burrow's contention that his particular sentence violates Article 1, Section 18 "is not a cognizable claim on which relief can be granted." Kedrowitz v. State, 199 N.E.3d 386, 409 (Ind.Ct.App. 2022), trans. denied.
[¶81] For these reasons, we conclude Burrow's sentence is not inappropriate under Appellate Rule 7(B).
Conclusion
[¶82] We reverse Burrow's generic 10-year repeat sex offender enhancement and remand with instructions for the trial court to vacate that enhancement and, instead, specifically enhance Burrow's sentence for Level 5 felony child exploitation by an additional 3-year advisory term.
[¶83] We affirm Burrow's convictions for Level 1 felony neglect of a dependent causing catastrophic injury to Daughter, Level 3 felony neglect of a dependent causing serious bodily injury to Son, Level 1 felony conspiracy to commit child molesting against Daughter, and Level 1 felony conspiracy to commit child molesting against Son. We also affirm his now-133-year prison sentence.
[¶84] Affirmed in part, reversed in part, and remanded for correction to the sentencing order.
Mathias, J., and Tavitas, J., concur.