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

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.

ATTORNEYS FOR APPELLANT

Ruth Johnson

Michael R. Fisher

Marion County Public Defender Agency

Appellate Division 

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Tyler G. Banks

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Richard Green Burns,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 31, 2015

Court of Appeals Case No.

49A02-1505-CR-348

Appeal from the 

Marion Superior Court

The Honorable

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 2 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. 
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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. 
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[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 fiftyfive (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 
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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.