Burrow v. State

• Docket Number: 23A-CR-2085
• Decision Date: 27 August 2024
• Parties: Billy R. Burrow, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
• Court: Indiana Appellate Court

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Billy R. Burrow, Jr., Appellant-Defendant
v.
State of Indiana, Appellee-Plaintiff

No. 23A-CR-2085

Court of Appeals of Indiana

August 27, 2024

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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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

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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

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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?"

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7:53 a.m.	Allard:	“[On my way]”
8:00 a.m.	Burrow:	“She's doing some weird shit again hun.”

Exhs. Vol. XI, pp. 213-14.

[¶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"

Exhs. Vol. XI, p. 214.

[¶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,

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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:

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• 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;

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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

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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...