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7th Circuit affirms cross burner's convictions

April 7, 2010

The 7th Circuit Court of Appeals found sufficient evidence to uphold a Muncie man's convictions stemming from his burning of a cross in front of the home of a family with biracial children.

Kyle Milbourn was sentenced to 121 months in prison for convictions of interfering with housing rights of another person, intimidation, using fire to commit a felony, and witness tampering. Milbourn and Kyle Shroyer decided after an evening of drinking to build and burn a cross in the front yard of Paula Tracy and Phillip Thrash's home in March 2006. Paula's three children from a previous relationship, who are biracial, lived there along with their African-American grandfather. Shroyer was dating Tracy's half-sister at the time, whom he later married. The two even took pictures of the burning and told others what they had done.

In United States of America v. Kyle Milbourn, No. 08-2525, Milbourn appealed because he claimed there was insufficient evidence to support the finding he was motivated by the racial makeup of the people who lived in the home and that the cross was burned to intimidate or interfere with their right to live there.

In addition to the photographs and statements made by Milbourn, the jury could have deduced he knew biracial children lived there because Shroyer was dating Tracy's half-sister, wrote Judge Terence Evans. Also, several witnesses said they heard Milbourn make racist comments about blacks and that he said it would be cool to join the Ku Klux Klan.

"And the frosting on the cake was that he picked, of all things, a cross to burn," he wrote. "And not just any cross, but one he and Shroyer constructed, crudely to be sure, in a shed near the trailer where they had been drinking and dancing."

The government presented evidence of the family's feelings of fear and anger after the cross burning and that they sought counseling for their oldest child, who had witnessed the event. The family even moved out of the home because of the incident.

The Circuit judges also found the prosecutor's comments during closing arguments on how Milbourn aspired to join the KKK didn't result in prosecutorial misconduct. A witness had testified that Milbourn had said he thought about joining the KKK.

Milbourn also waived his argument that the District judge should have disregarded the statutorily required mandatory minimum 10-year-sentence for the use of fire in commission of a felony.

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