Court of Appeals of Indiana | Memorandum Decision 19A-CR-1770 | January 31, 2020 Page 1 of 6

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

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.

ATTORNEY FOR APPELLANT

William T. Myers

McKown, Whitehurst & Myers, LLP

Marion, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Robert L. Yates

Angela Sanchez

Deputy Attorneys General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Ricky L. Burnett,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 31, 2020

Court of Appeals Case No.

19A-CR-1770

Appeal from the Huntington 

Circuit Court

The Honorable Davin G. Smith, 

Judge

Trial Court Cause No.

35C01-1808-F1-174

Mathias, Judge.

[1] Following a jury trial in Huntington Circuit Court, Ricky L. Burnett 

(“Burnett”) was convicted of one count of Level 1 felony child molesting and 
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four counts of Level 4 felony child molesting. Burnett appeals and presents one 

issue, which we restate as whether the State presented sufficient evidence to 

support Burnett’s conviction for Level 4 felony child molesting as to one of the 

victims. 

[2] We affirm. 

Facts and Procedural History

[3] From April 2016 until November 2017, Burnett and his three children lived 

with P.K., who was then engaged to Burnett. Also living at the home were 

P.K.’s three younger children: daughter S.W., born in June 2005; daughter 

A.V., born in October 2008, and son C.V., born in May 2010.1 From April to 

November 2016, the family lived on Olinger Street in Huntington, Indiana, and 

from December 2016 to November 2017, they lived on Warren Road in 

Huntington. 

[4] P.K.’s youngest child, C.V., has a learning disability and an individualized 

education plan at school. The younger daughter, A.V., was a stellar student. 

The older daughter, S.W., did well at school when she was younger, but began 

to struggle when the family moved to the Olinger Street house, and did even 

worse after the move to the Warren Road house. She became isolated and 

1 The two older children live with their father out of state. 
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apathetic, and failed to turn in her school assignments, resulting in failing 

grades. She eventually became suicidal and received counseling. 

[5] Burnett and P.K. broke up in November 2017, after which P.K. and her 

children moved into an apartment. One night shortly after the breakup, P.K. 

drove her family to a nearby town for church. During the drive, S.W. exhibited 

signs of serious stress and began to sob uncontrollably. S.W. then told her 

mother that Burnett had molested her during the time they lived with him. P.K. 

reported this to the police, and after speaking with the police and personnel 

from the Indiana Department of Family Services (“DCS”), P.K. took her 

children to a child advocacy center to undergo forensic interviews. After the 

interviews, S.W. and C.V. were examined by a sexual assault nurse. 

[6] On August 9, 2018, the State charged Burnett with six counts of Level 1 felony 

child molesting and five counts of Level 4 felony child molesting. Two of the 

Level 1 felony charges and three of the Level 4 felony charges named S.W. as 

the victim; four of the Level 1 felony charges and two of the Level 4 felony 

charges named C.V. as the victim. 

[7] A jury trial was held on June 25 and 26, 2019. At trial, S.W. testified that, at 

least twice a week when they lived on Olinger Street, Burnett insisted on 

bathing S.W., and touched her breasts, buttocks, and her genitals. Burnett 

placed his finger insider S.W.’s genitals, forced her to perform oral sex on him, 

and forced her to manipulate his penis until he ejaculated. When they moved to 

Warren Road, Burnett watched S.W. bathe while he masturbated. Burnett 
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threatened to kill S.W.’s mother if she reported the molestation. C.V. testified 

that Burnett held him down and rubbed C.V.’s penis in an up and down 

motion. Both S.W. and A.V. testified that they observed Burnett touching 

C.V.’s penis. At the conclusion of the trial, the jury found Burnett guilty of one 

count of Level 1 felony child molesting involving S.W., three counts of Level 4 

felony child molesting involving S.W., and one count of Level 4 felony child 

molesting involving C.V. The trial court sentenced Burnett to an aggregate term 

of forty-nine years, with forty-five years executed and four years suspended to 

probation. Burnett now appeals. 

Discussion and Decision

[8] Burnett claims that the State failed to present evidence sufficient to support his 

conviction for Level 4 felony child molesting against C.V. Upon review of a 

challenge to the sufficiency of the evidence to support a criminal conviction, we 

respect the jury’s exclusive province to weigh conflicting evidence. Miller v. 

State, 106 N.E.3d 1067, 1073 (Ind. Ct. App. 2018) (citing McHenry v. State, 820 

N.E.2d 124, 126 (Ind. 2005)), trans. denied. We therefore neither reweigh the 

evidence nor judge the credibility of the witnesses. Id. Instead, we consider only 

the probative evidence and reasonable inferences supporting the verdict. Id.

“Expressed another way, we have stated that appellate courts must 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. (quoting McHenry, 820 N.E.2d at 126). 
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[9] Burnett challenges only the sufficiency of the evidence supporting his 

conviction for Level 4 felony child molesting against C.V. This charge was set 

forth in Count 11 of the charging information as follows: 

On or about December of 2016 through November of 2017, in 

Huntington County, Indiana, Ricky Lee Burnett, performed 

fondling and/or touching of a child with the intent to arouse or 

satisfy his own sexual desires or the sexual desires of the child, 

when the child was under fourteen (14) years of age, to wit: a 

male child with the initials C.V.

Appellant’s App. p. 30. This tracks the statutory language, which defines Level 

4 felony child molesting as “perform[ing] or submit[ting] to any fondling or 

touching, of either the child or the older person, with intent to arouse or to 

satisfy the sexual desires of either the child or the older person[.]” Ind. Code § 

35-42-4-3(b). 

[10] Burnett argues that the State failed to prove that he touched C.V. with the intent 

to arouse or satisfy the sexual desires of either Burnett or C.V. “Mere touching 

alone is not sufficient to constitute the crime of child molesting.” Bowles v. State, 

737 N.E.2d 1150, 1152 (Ind. 2000). The State must also prove that the touching 

was accompanied by the intent to arouse or satisfy sexual desires. Id. “The 

intent element of child molesting may be established by circumstantial evidence 

and may be inferred from the actor’s conduct and the natural and usual 

sequence to which such conduct usually points.” Id. Indeed, the “[i]ntentional 

touching of the genital area can be circumstantial evidence of intent to arouse 

or satisfy sexual desires.” See Sanchez v. State, 675 N.E.2d 306, 311 (Ind. 1996).
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[11] Here, the jury could reasonably infer that Burnett, by touching C.V.’s penis in 

an up-and-down motion, intended to arouse or gratify his or C.V.’s sexual 

desires. See Rose v. State, 36 N.E.3d 1055, 1062–63 (Ind. Ct. App. 2015)

(evidence sufficient to establish defendant’s intent to arouse or gratify his or 

victim’s sexual desires by touching the victim’s breast underneath her shirt); 

Lockhart v. State, 671 N.E.2d 893, 903 (Ind. Ct. App. 1996) (evidence sufficient 

to establish defendant’s intent to arouse or gratify his sexual desires when he 

rubbed victim’s penis for approximately five minutes). We therefore affirm 

Burnett’s conviction for Level 4 felony child molesting against C.V.

[12] Affirmed. 

Kirsch, J., and Bailey, J., concur.