Ja'Shon Burks, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] After a jury trial, the trial court entered judgment of conviction against Ja'Shon Burks for three counts of Level 5 felony child seduction ¹ and five counts of Level 6 felony child seduction,² which he committed against eight separate victims. On appeal, Burks argues that the trial court committed reversible error in admitting certain testimony and committed fundamental error in failing to issue an instruction on unanimity. We affirm.

Facts and Procedural History

[2] In the fall of 2019, Burks was hired as a choir director at Lafayette Jefferson High School. Around September 21, 2022, Burks informed Principal Mark Preston that he had been told that three of his female students had attended rehearsals under the influence of marijuana and had threatened to “accuse him of sexually harassing them” if he “tried to get them in trouble for that[.]” Tr. Vol. 2 at 140. Preston asked Burks, “[W]hy would they say something like that[?]” Id. Burks replied, “[I]t's not uncommon when girls come into class that I might tell them I like their shirt or they look pretty.” Id. Burks declined Preston's offer to speak with the students and “said that he would like to speak with them first.” Id. at 139.

[3] On September 28, during class, eight or nine female students confronted Burks “[b]ecause [they] wanted him to stop what he was doing. Such as touching [them], flirting with [them], making weird comments about [them.]” Id. at 208. Preston saw the students as they exited the choir room and noticed that “[t]hey were visibly upset.” Id. at 143. Preston was told about the confrontation and interviewed twelve students about it that evening. Thereafter, Preston placed Burks on administrative leave and contacted the Department of Child Services.

[4] In June 2023, the State charged Burks with fifteen counts: Level 5 felony child seduction against Victim #1 (Count I); Level 6 felony child seduction against Victim #1 (Count II); Level 6 felony sexual battery against Victim #1 (Count III);³ Level 6 felony child seduction against Victim #2 (Count IV); Level 6 felony child seduction against Victim #3 (Count V); Level 6 felony sexual battery against Victim #3 (Count VI); Level 6 felony sexual battery against Victim #3 (Count VII); Level 6 felony child seduction against Victim #4 (Count VIII); Level 6 felony sexual battery against Victim #4 (Count IX); Level 6 felony child seduction against Victim #5 (Count X); Level 6 felony child seduction against Victim #6 (Count XI); Level 5 felony child seduction against Victim #7 (Count XII); Level 6 felony child seduction against Victim #7 (Count XIII); Level 5 felony child seduction against Victim #8 (Count XIV); and Level 6 felony child seduction against Victim #8 (Count XV).⁴

[5] A jury trial began in November 2024. Victim #1 testified that her family befriended Burks during her freshman year and that they would “hang out as a group” at her house. Tr. Vol. 2 at 181. When she was a junior, during a get-together in her basement, she sat on a couch and put a blanket on herself. Burks sat next to her, “moved the blanket on top of him and then he slid his hand under the blanket and on [her] thigh and then continued to move closer to [her] crotch.” Id. at 182. After “[a]bout ten seconds[,]” she was “able to wiggle away.” Id. In addition to choir class, Victim #1 took one-on-one voice lessons from Burks. Burks “put his hand up [her] shirt and on [her] back and then put his other hand on [her] stomach above [her] clothes and told [her] to breathe in and out[.]” Id. at 199. “[W]hile he was doing that, he said now don't go telling your parents that I'm touching you weird because that's the world that we live in today.” Id. On one occasion, when Victim #1 was in Burks's office, he “gave [her] a side hug and ․ wiggled [past her] clothes and then pushed his hand up through near [her] bra[.]” Id. at 185. Burks also told Victim #1 that she “was his type and that if [he] wasn't married he would go after [her] when [she turns] eighteen[.]” Id. at 214.

[6] Victim #2 testified that Burks hugged her almost every day and sometimes “would slide his hand up the back of [her] shirt, underneath [her] shirt, and underneath [the] bra line as well.” Tr. Vol. 3 at 28. She also testified that Burks would “crack” her back and neck, telling her that “he knew how to do that because his whatever was a chiropractor[.]” Id. at 61. On one occasion when Burks and Victim #2 were alone in the choir room before rehearsal, Burks “was complimenting [her] in some way and he had put his hand on [her] thigh when [she] had shorts on, pretty high up on [her] thigh.” Id. When Victim #2 dressed up as a cowgirl for “spirit week before homecoming game,” Burks “pulled [her] away from the group of girls [she] was talking to and whispered in [her] ear, I can be your horse and you can ride me anytime you want.” Id. at 43. Toward the end of her junior year, Victim #2 “was having a rough week” and went into Burks's office to talk. Id. at 48. He “pulled [her] in for a hug” and “placed both of his hands on [her] butt and grabbed [her] butt.” Id.

[7] Victim #3 testified that Burks gave her “short hugs” when she was a sophomore and started giving her “longer” and “tighter” hugs and “nestling his chin in [her] neck” when she was a junior. Id. at 179, 180. He also “started telling [her] that he loved [her] and that he cared about [her].” Id. at 180. During a choir outing at a bowling alley, Burks talked to Victim #3 “for a few minutes before his arm went from the shoe rack through [her] back and down to [her] butt” for “[a] few seconds[.]” Id. at 192. On September 10, 2022, Victim #3 waited on a bench outside Burks's office for her father to pick her up from school. Burks sat beside her and “told [her] it was a law, he had to wait for every kid to leave[.]” Id. at 180. Burks “put his hand up the back of [her] shirt and he grabbed [her] bra strap[.]” Id. at 180-81. He also touched her thigh, buttocks, and knee. Victim #3 slapped Burks's face, and he ”got mad” and “stared at [her].” Id. at 187. This incident was recorded by school security cameras. Finally, Victim #3 testified that Burks “used to require” students to use Snapchat to “send him a picture of what [they] were wearing” to choir competitions “so he could check and make sure it was the right length or didn't show too much cleavage or something like that.” Id. at 195. Victim #3 did not send Burks any photos because she “didn't believe in it” and “thought it was gross[.]” Id.

[8] Victim #4 testified that during a charter bus ride after a choir performance, Burks sat in the back of the bus with her. She was “talking about a stupid boy” when he touched her “upper thighs” and “grazed [her] crotch” with his hand. Id. at 70-71. When she got up from her seat, he “touched [her] butt.” Id. at 71. After that trip, Burks told Victim #4 that “when [she] was eighteen he would leave his wife for [her]” and they could “Netflix and chill[,]” i.e., “have sex.” Id. at 73. When Victim #4 wore “heavily ripped jeans” to school, Burks “said it was easy access.” Id. at 74. On another occasion, she went into Burks's office wearing a cropped sweater. Burks placed his hand under the sweater and touched her bra, and then he “went lower and touched [her] butt” over her clothes. Id. at 76. And on her seventeenth birthday, Burks asked Victim #4 if she was “eighteen yet and [she] said no, and he said dangit.” Id. at 75.

[9] Victim #5 is Victim #1's older sister. During her junior year, Burks made “insinuating comments” to her “like if I didn't have a wife, or like you have a big butt for a [white] girl, or things like that.” Tr. Vol. 2 at 250. Victim #5 found out that she did not get a scholarship and went into Burks's office crying. He hugged her and put the “tips of his fingers in the top of [her] leggings.” Tr. Vol. 3 at 6. After a choir competition at another school, Burks sat next to Victim #5 on the bus and complimented her about how well she sang. As he did so, he put his hand “midway up [her] thigh” and then “moved his hand more inward[.]” Id. She “scooted more towards the window until he moved away.” Id.

[10] Victim #6 testified that Burks “would make little comments about [her] appearance[,]” hug her and kiss her on the forehead, and tell her “details about his sex life with his wife.” Tr. Vol. 3 at 239. She perceived that Burks would be upset if she “did not go to his office during the lunchtime.” Id. at 240. When she was in his office, he would “hug [her] and then he would just lift [her] shirt up and go underneath [her] shirt to hug [her].” Id. at 241. He gave her “long, long hugs” that made her “feel uncomfortable.” Id. at 243. Victim #6 occasionally talked to Burks about her long-term romantic relationship, and he told her that she should break up with her boyfriend so that she “could date an older man.” Id. at 244. He also told her that “when [she] turned eighteen, he would like to take [her] on a date.” Id. Burks would “frequently touch [her] thighs and touch ․ the inner parts of [her] thighs, which made [her] feel uncomfortable.” Id. at 245. He would also “bear hug” Victim #6 from behind and “crack” her back; she “was able to feel his genitals” when he did so. Id. at 247.

[11] Victim #7 testified that Burks cracked his students’ backs and necks and then “progressed into hugging a lot of the time[,]” as well as “kisses on the head.” Id. at 93. During her senior year, she had a free period and would lie down “across two chairs” in Burks's office; he would “tuck [her] in with a blanket” and touch her body “from the shoulders and go all the way down.” Id. During a multiday choir camp, Burks inserted himself into a game with his students and started divulging “promiscuous details, such as he had made a woman finish before, he had been in a threesome. He had done anal.” Id. at 100. Burks told Victim #7 that when she “turned eighteen he would smoke weed with [her]” and “take [her] out on a date[.]” Id. at 106, 107.

[12] Victim #8 testified that during her voice lessons with Burks, he would put his hands “flat on [her] back and around [her] stomach” under her shirt and “pulled [her] into him to check [her] breathing.” Id. at 133. He told her, “don't go telling your parents that Burks is touching you weird because it's my job to do this.” Id. “[S]ometimes he would slip his fingers under [her bra] band.” Id. at 134. When she visited his office, “he would pull [her] in and like hug [her] for a really long time and hold [her] for too long.” Id. at 138. He would also “crack [her] back .․ [i]n his office with the door closed.” Id. at 139. According to Victim #8, Burks “would have [her] feet dangling and he would just hold [her] for too long.” Id. at 140-41. She “felt his stomach on [her] back and then [she] would always feel his private area and it wasn't soft.” Id. at 141.

[13] In addition to the eight victims, the State called as a witness one of their classmates, J.N. Burks objected to her testimony based on Indiana Evidence Rule 404(b), and the trial court overruled the objection. J.N. testified that she participated in choir during her freshman through junior years. She also took voice lessons from Burks during her freshman year and “stopped about the middle of [her] sophomore year” because she “didn't feel comfortable taking them anymore.” Id. at 221. Burks told her when she “first started lessons that [she] was going to be touched, not to tell [her] parents and he would touch [her] back and check my breathing.” Id. He would also touch her stomach. “But [she] had taken lessons prior with other teachers and that was not something that they had to do to check.” Id. J.N. also testified that Burks “would initiate long hugs with [her] that [she] could not escape” and “pop [her] back a lot. Sometimes without [her] even asking.” Id. at 225.

[14] Burks testified in his defense. He claimed that he would ask students’ permission before he touched them, denied touching Victim #1 under the blanket at her house, and denied touching anyone “with a sexual manner.” Tr. Vol. 4. at 170. According to Burks, “[s]tudents asked [him] to crack their backs all the time[,]” and it was “not possible” that anyone felt his penis. Id. at 142, 143. He admitted to hugging and kissing students and becoming “too emotionally invested” in them. Id. at 150-51. Burks denied making any comments about leaving his wife and requiring students to send him photos of their outfits.

[15] The jury found Burks not guilty on the two sexual battery counts and guilty on the remaining counts. The trial court entered judgment on a single conviction per victim, resulting in three convictions for Level 5 felony child seduction (Counts I, XII, and XIV) and five convictions for Level 6 felony child seduction (Counts IV, V, VIII, X, and XI). The court imposed an aggregate sentence of seven years, with five years executed and two years suspended to probation. Burks now appeals his convictions.

Discussion and Decision

Issue One: Admissibility of J.N.’s Testimony

[16] Burks contends that the trial court committed reversible error in admitting J.N.’s testimony. “Our standard of review for the admissibility of evidence is well established.” Whiteside v. State, 853 N.E.2d 1021, 1025 (Ind. Ct. App. 2006). The admission or exclusion of evidence lies within the trial court's sound discretion and is afforded great deference on appeal. Id. We will reverse the trial court's ruling only for an abuse of discretion. Id. “An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances before it.” Id. “Errors in the admission or exclusion of evidence are considered harmless unless they affect the substantial rights of a party.” Id. “To determine whether an error in the admission of evidence affected a party's substantial rights, we assess the probable impact of the evidence on the jury.” Id.

[17] Indiana Evidence Rule 404(b)(1) provides, “Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.” In criminal cases, “[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Evid. R. 404(b)(2).

The test for assessing the admissibility of 404(b) evidence is: (1) the court must determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant's propensity to commit the charged act; and (2) the court must balance the probative value of the evidence against its unfair prejudicial effect pursuant to Indiana Evidence Rule 403.

Carr v. State, 255 N.E.3d 519, 527 (Ind. Ct. App. 2025), trans. denied. Under Evidence Rule 403, a court “may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.”

[18] When the State called J.N. as a witness, Burks objected,

She's not a named alleged victim here and we've heard from seven other alleged victims, the same thing. They just pile it on with another person. This is essentially what they're trying to do here. There's no need to have another person come in here. We've got eight alleged victims here.

Tr. Vol. 3 at 218. The State responded that J.N.’s testimony could be admitted to establish “[t]he same MO, the knowledge, the plan. Defendant's intent.” Id. Burks replied, “They've done that with every single witness here though.․ They're essentially trying to pile it on here or bolster the other individuals[’] testimony by putting [J.N.] on.” Id. at 219. The trial court overruled Burks's objection and allowed J.N. to testify as described above.

[19] We view Evidence Rule 404(b)’s “exceptions to the rule excluding evidence of the accused's extraneous bad acts as examples of legitimate purposes for which evidence of such acts may be offered into evidence, and not as an inventory of excuses used to justify the admission of that type of evidence when the true purpose is to prove the accused's bad character.” Sundling v. State, 679 N.E.2d 988, 993 (Ind. Ct. App. 1997). To the extent that Burks's modus operandi, knowledge, plan, and intent were at issue, the incremental probative value of J.N.’s testimony was minimal at best.⁵ By the same token, the danger of unfair prejudice was also minimal because the eight charged victims offered similar—and even more damaging—testimony against Burks.

[20] Assuming, without deciding, that the trial court abused its discretion in admitting J.N.’s testimony, we must conclude that the error was harmless because the ruling did not affect Burks's substantial rights. The probable impact of the evidence on the jury was negligible, given the voluminous testimony provided by the eight charged victims.⁶ Accordingly, Burks is not entitled to reversal on this ground. See Tobar v. State, 740 N.E.2d 106, 108 (Ind. 2000) (“Evidence that is merely cumulative is not grounds for reversal.”).

Issue Two: Unanimity Instruction

[21] Burks observes that the State presented evidence of more than one act to support his convictions “for Counts I, II, IV, V, and VIII, along with Counts X through XV[,]” and he argues that the trial court erred in failing “to instruct the jury that before they find Burks guilty, they must all unanimously find and agree the State proved beyond a reasonable doubt Burks committed the same specific, single act.” Appellant's Br. at 17. Because Burks failed to object or tender an appropriate instruction, he has waived this claim for review. See Abd v. State, 120 N.E.3d 1126, 1136 (Ind. Ct. App. 2019) (“The failure to tender an instruction or to object at trial to the omission of an instruction generally waives any claim of error on appeal.”), trans. denied.

[22] “We will review an issue that was waived at trial if we find fundamental error occurred.” Baker v. State, 948 N.E.2d 1169, 1178 (Ind. 2011).

The fundamental error doctrine provides a vehicle for the review of error not properly preserved for appeal. In order to be fundamental, the error must represent a blatant violation of basic principles rendering the trial unfair to the defendant and thereby depriving the defendant of fundamental due process. The error must be so prejudicial to the defendant's rights as to make a fair trial impossible. In considering whether a claimed error denied the defendant a fair trial, we determine whether the resulting harm or potential for harm is substantial. Harm is not shown by the fact that the defendant was ultimately convicted. Rather, harm is determined by whether the defendant's right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he would have been entitled.

Id. at 1178-79 (citations omitted).

[23] Our Supreme Court has explained that “the State may in its discretion designate a specific act (or acts) on which it relies to prove a particular charge.” Id. at 1177.

However if the State decides not to so designate, then the jurors should be instructed that in order to convict the defendant they must either unanimously agree that the defendant committed the same act or acts or that the defendant committed all of the acts described by the victim and included within the time period charged.

Id.

[24] In Baker, which involved three child molesting victims, “the State did not designate which specific act or acts of child molestation that it would rely upon to support the three-count charging information[,]” and the jury was not instructed “that in order to convict Baker [it] must either unanimously agree that he committed the same act or acts or that he committed all of the acts described by the victim and included within the time period charged.” Id. at 1178. In that case, as in this case, “the only issue was the credibility of the alleged victims[,]” and Baker's only defense was to undermine the victims’ credibility. Id. at 1179. The Supreme Court observed that the jury ultimately “resolved the basic credibility dispute against [Baker] and would have convicted the defendant of any of the various offenses shown by the evidence to have been committed.” Id. (quoting State v. Muhm, 775 N.W.2d 508, 521 (S.D. 2009)). The Court thus concluded that Baker had “not demonstrated that the instruction error ․ so prejudiced him that he was denied a fair trial.” Id.

[25] Here, the State argues, and we agree, that “[t]here is no reason to believe that the jury would have believed the witnesses in a piecemeal fashion, crediting their accounts about some of the acts that would have qualified as child seduction and not others.” Appellee's Br. at 27. Therefore, we conclude that Burks has failed to establish fundamental error, and we affirm his convictions.⁷

[26] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-4-7(m), -(q)(3) (eff. July 1, 2019, to June 30, 2023).

2.   I.C. § 35-42-4-7(m), -(q)(1) (eff. July 1, 2019, to June 30, 2023).

3.   I.C. § 35-42-4-8(a)(1)(A).

4.   As relevant here, Level 5 felony child seduction is the fondling or touching of a child at least fourteen years of age but less than sixteen years of age by a child care worker, i.e., a person at least eighteen years of age employed by a school corporation attended by the child victim, with the intent to arouse or satisfy the sexual desires of either the child care worker or the child. Ind. Code § 35-42-4-7(m), -(q)(3) (eff. July 1, 2019, to June 30, 2023). And Level 6 felony child seduction is the fondling or touching of a child at least sixteen years of age but less than eighteen years of age by a child care worker at least eighteen years of age, with the intent to arouse or satisfy the sexual desires of either the child care worker or the child. I.C. § 35-42-4-7(m), -(q)(1) (eff. July 1, 2019, to June 30, 2023).

5.   Burks faults the trial court for failing “to issue a limiting instruction clarifying the specific purpose of J.N.’s testimony.” Appellant's Br. at 12. Because Burks failed to request such an instruction, his argument is waived. See Evid. R. 105 (“If the court admits evidence that is admissible against a party or for a purpose--but not against another party or for another purpose--the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.”) (emphasis added); Humphrey v. State, 680 N.E.2d 836, 840 (Ind. 1997) (holding that “Rule 105 means what it says” and that “by failing to request an admonition Humphrey has waived any error based on the absence of an admonition”).

6.   In light of this ratio, we are unpersuaded by Burks's reliance on Craun v. State, 762 N.E.2d 230 (Ind. Ct. App. 2002), trans. denied, in which we reversed the defendant's child molesting convictions against a single victim based on the improper admission of testimony from two witnesses who were not charged victims in that proceeding.

7.   Burks argues that Baker is no longer good law in light of Ramos v. Louisiana, 590 U.S. 83 (2020), which decided a different unanimity question: whether the Sixth Amendment allows for a conviction if any jurors voted against conviction. We find Ramos inapplicable here. In any event, the State points out that the jury was instructed not to “sign any verdict form for which there is not unanimous agreement[,]” Tr. Vol. 5 at 10, and that Burks declined to poll the jury after it rendered its verdict.

Bailey, Judge.

Judges Brown and Weissmann concur. Brown, J., and Weissmann, J., concur.