Anthony P. Buehner v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Feb 21 2019, 5:49 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Curtis T. Hill, Jr.
Ellen M. O’Connor Attorney General of Indiana
Marion County Public Defender Agency Monika Prekopa Talbot
– Appellate Division Supervising Deputy Attorney
Indianapolis, Indiana General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony P. Buehner, February 21, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1291
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Marc T.
Appellee-Plaintiff. Rothenberg, Judge
Trial Court Cause No.
49G02-1510-MR-35345
Mathias, Judge.
[1] Following a jury trial in Marion Superior Court, Anthony P. Buehner
(“Buehner”) was convicted of murder. Buehner appeals and argues that the trial
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court erred in admitting evidence which he claims was irrelevant, unduly
prejudicial, and inadmissible as prior bad acts.
[2] We affirm.
Facts and Procedural History
[3] At the time relevant to this appeal, Buehner was in a romantic relationship with
Janet Cook (“Janet”) and lived with Janet in a home in Indianapolis. Buehner
was very controlling, and Janet’s formerly close relationship with her daughter,
Jessica Cook (“Jessica”), began to change, with Janet having less and less
contact with Jessica. Buehner was worried that Janet would rekindle her
relationship with Jason Sanders (“Sanders”), who was the father of Janet’s
youngest son, J.J. Buehner made threats to physically harm Sanders and told
people that J.J. was his son. Buehner also forbade Janet to have a telephone or
a Facebook account. When Jessica came to visit her mother, Buehner always
sat with Janet. And on one particular occasion, Janet would not even come out
of her bedroom to speak with Jessica. Jessica saw Buehner grab her mother by
the throat. And on one occasion, Buehner told Janet, in Jessica’s presence,
“[B]itch, I’ll kill you!” Tr. Vol. II, p. 89. Buehner claimed he was not serious,
but Jessica did not believe him. Approximately two weeks before her death,
Janet moved out of the home she shared with Buehner and moved in with her
sister. She later moved in with Jessica, who was recovering from surgery. Janet,
however, still maintained her relationship with Buehner.
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[4] On September 27, 2015, Buehner sold prescription drugs to Marcia Tolliver
(“Tolliver”), who informed Buehner that she and her boyfriend, Ashley Smiley
(“Smiley”), had been fighting. Buehner informed Tolliver that he had a gun and
could protect her. He also confided in her that he and his “girl” had also been
having relationship troubles. Id. at 166. Tolliver could tell by the tone of
Buehner’s voice that he was very angry with his girlfriend. Later that day,
Buehner spoke with Smiley, and the two discussed their relationship troubles.
Buehner told Smiley that he wanted to kill his girlfriend, who he claimed had
been unfaithful.1 Id. at 176. Smiley also observed that Buehner had a handgun
tucked into the back of his pants. Buehner then asked Tolliver if he could
borrow her vehicle, a Jeep, ostensibly to go to the gas station. Tolliver agreed.
But when Buehner did not return the following morning, Tolliver reported her
Jeep as stolen to the police.
[5] On October 1, 2015, Buehner showed up at Jessica’s house to see Janet. He had
brought J.J.’s bicycle with him. He also had a new mobile phone that he needed
assistance setting up. Frustrated that Jessica did not know how to assist him
with the phone, Buehner and Janet went to visit the people living in the other
half of the duplex in which Jessica lived. This was the last time that Jessica saw
her mother alive.
1
On direct examination, Smiley testified that Buehner stated that “he wanted to kill her.” Id. at 176. When
asked who he meant by “her,” Smiley replied, “Janet Cook.” Id. However, on cross-examination, Smiley
clarified that Buehner did not mention Janet by name when he stated that he wanted to kill his girlfriend. Id.
at 183.
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[6] In the other half of the duplex, Buehner and Janet argued about the phone.
Buehner told Janet that he would permit her to have a mobile phone, but not a
smart phone. Buehner gave Janet some cash, which she put in her bra. When
Buehner later asked Janet to return the cash, Janet refused. This apparently
upset Buehner, who indicated that he was leaving. Janet said that she was going
with him, to which Buehner replied, “[G]ood, bitch, if you do, I’ll put you in
the trunk.” Id. at 126. The two then left the duplex at approximately 1:00 a.m.
the following morning and went to the residence of Candace Rich (“Rich”),
who was the cousin of J.J.’s father and Janet’s ex-boyfriend, Sanders. Buehner
and Janet stayed at Rich’s home until approximately 4:00 a.m.
[7] At some point between 4:00 a.m. and 5:30 a.m. that morning, Buehner went to
the home of Jessica Hudson (“Hudson”) and Charles Trice and knocked loudly
and quickly at the front door. Hudson opened the door, and Buehner came
inside. Buehner had blood on the jeans and white tank top he was wearing.
Buehner was “panicking,” and tossed a handgun at Hudson. Id. at 246. Hudson
did not touch the gun and let it fall to the floor. Buehner, panicking and pacing,
stated, “I shot ‘em. I shot ‘em. I shot ‘em.”2 Id. Hudson was worried that
Buehner might be wanted by the police and told him to park behind her home.
2
Hudson clarified that Buehner “didn’t say her. He didn’t say him. He just said, I shot ‘em.” Id. The word
“‘em,” is an informal variant of the pronoun “them.” See Merriam-Webster “‘em,” https://www.merriam-
webster.com/dictionary/'em. In informal speech, “them” can be used as a gender-neutral singular pronoun.
See Singular They, https://www.merriam-webster.com/words-at-play/singular-nonbinary-they; The Chicago
Manual of Style Online, § 5.48 “Singular ‘they,’” http://www.chicagomanualofstyle.org/book/ed17/part2/
ch05/psec048.html.
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Hudson left the front room for a few minutes, and when she returned, Buehner
and his gun were gone.
[8] At approximately 5:30 a.m., Buehner called Kelli Kashon (“Kashon”) and told
her that he needed to see her. Buehner told Kashon that he and his girlfriend
had broken up. Kashon gave Buehner directions to the home where she was
staying, and Buehner arrived in a Jeep, wearing jeans and a white tank top,
both of which were blood stained. Buehner physically broke his mobile phone,
as well as telling Kashon that he had beaten someone up after this person
allegedly did not pay Buehner in exchange for prescription pills. Buehner gave
Kashon some prescription drugs and handed her a blood-stained wad of cash.
The two went to the home of Kashon’s friend, Adam Bailey (“Bailey”), where
she had stored some of her clothes. Bailey was not at home, and although
Kashon had permission to enter the home, she did not have a key. Buehner
therefore opened a window, climbed into the house, and opened the front door
for Kashon. After having sexual intercourse with Kashon, Buehner fell asleep.
Kashon then went out to sell the prescription drugs Buehner had given her.
[9] At some point later in the morning of October 2, 2015, Jessica’s daughter and
neighbor saw Janet’s body lying on the front porch of the duplex where Jessica
lived. The neighbor informed Jessica, who went to the front porch, saw her
mother’s body, and telephoned the police. The police arrived on the scene and
observed that Janet had been shot one time in the left side of the head.
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[10] In the meantime, Buehner and Kashon had gone to sell prescription drugs at
another individual’s home. While there, Kashon saw Buehner’s photograph on
the television news. Kashon, still believing that Buehner had beaten someone
up, agreed to go with Buehner to Kentucky to sell more drugs. Kashon drove
Buehner to Kentucky in the Jeep Buehner had stolen from Tolliver. During the
trip, Kashon asked Buehner about the blood on his clothes, as he was still
wearing his blood-stained jeans. Specifically, Kashon asked “how bad did you
beat [the] dude up?” Buehner replied, “I didn’t beat him up, I shot him.” Id. at
152.
[11] After they had driven to Kentucky, a local police officer pulled over the Jeep for
reckless driving. The officer noted that Buehner, who was in the back seat, was
moving around a lot, which concerned the officer. The officer secured Kashon
and went to remove Buehner from the back seat. When he did so, he saw that
Buehner had removed his jeans and was wearing only his boxer shorts. Buehner
initially gave the police a false name, but later admitted that he was Anthony
Buehner. The police found Buehner’s blood-stained jeans in the back seat. The
police arrested the two for driving a stolen vehicle and later learned that
Buehner was wanted for murder. A search of Kashon’s person revealed the
blood-stained money Buehner had given her.
[12] In the meantime, Indianapolis police began to investigate Janet’s murder.
Autopsy results confirmed that Janet had been killed by a gunshot wound to the
left side of her head. The police searched the homes Buehner had visited on the
night in question, and they found Buehner’s tank top at Bailey’s home. Buehner
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had apparently attempted to destroy the shirt, as it was partially burned, but it
still contained blood stains. Subsequent DNA testing of Buehner’s shirt, jeans,
shoes, and the money he gave to Kashon revealed that the blood was Janet’s.
The police also found during their investigation handwritten lyrics, in
Buehner’s handwriting, on the back of a meal order form from the Marion
County Jail. The lyrics are crude, vulgar, and boast of Buehner’s sexual
accomplishments. The lyrics contain the line, “I almost f*cked her up over
him[.]” Ex. Vol., State’s Ex. 36.
[13] On October 6, 2015, the State charged Buehner with Janet’s murder. The State
subsequently filed a notice of its intent to offer evidence under the exceptions
set forth in Indiana Evidence Rule 404(b). The State indicated that it intended
to introduce evidence of the following: that Buehner was controlling of Janet
and that Janet distanced herself from her daughter after she began her
relationship with Buehner; that Buehner verbally threatened to kill Janet; that
Buehner put his hands on Janet’s neck; that Buehner was jealous of Janet’s
prior relationship with the father of her youngest son; and that Buehner did not
want Janet to attend a family birthday party and threatened to “shoot up” the
party if she did attend. Appellant’s App. Vol. II, p. 151. The trial court held a
hearing on the State’s motion on October 19, 2017, and, after hearing testimony
from Jessica and subsequent briefing by the parties, the trial court granted the
State’s motion on November 1, 2017.
[14] A three-day jury trial commenced on April 6, 2018. Immediately before trial,
Buehner filed a motion in limine seeking to exclude testimony from Smiley that
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Buehner had indicated his desire to kill his girlfriend. The trial court denied the
motion. At trial, Buehner objected to Smiley’s testimony regarding Buehner’s
statements, but the trial court overruled the objection and permitted Smiley to
testify that Buehner had stated his desire to kill his girlfriend. Buehner also
objected to Jessica’s testimony regarding her mother’s relationship with
Buehner, but the trial court also overruled this objection. Buehner objected
again when the State offered to introduce the lyrics written by Buehner. The
trial court overruled this objection too and permitted the State to offer to the
jury a redacted version of the lyrics.3 At the conclusion of the trial, the jury
found Buehner guilty as charged. On May 9, 2018, the trial court sentenced
Buehner to sixty-three years of incarceration. Buehner now appeals.
Discussion and Decision
[15] Buehner contends that the trial court abused its discretion by admitting
evidence that he claims was inadmissible pursuant to Indiana Evidence Rule
404(b). Decisions regarding the admission or exclusion of evidence are left to
the sound discretion of the trial court. Laird v. State, 103 N.E.3d 1171, 1175
(Ind. Ct. App. 2018), trans. denied (citing Harrison v. State, 32 N.E.3d 240, 250
(Ind. Ct. App. 2015), trans. denied). On appeal, we review the trial court’s
decision only for an abuse of that discretion. Id. The trial court abuses its
discretion only if its decision regarding the admission of evidence is clearly
3
The trial court also entered an unredacted copy of the lyrics into the record.
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against the logic and effect of the facts and circumstances before it, or if the
court has misinterpreted the law. Id.[16] Buehner argues that the trial court abused its discretion in admitting evidence
regarding the nature of his relationship with Janet, specifically Jessica’s
testimony that Buehner was controlling and interfered with Janet’s relationship
with her daughter, and at least once placed his hands on Janet’s neck. He also
argues that the evidence regarding his prior threats to kill or injure Janet were
improperly admitted, as was the sheet containing the vulgar lyrics. Having
reviewed the record before us, we conclude that even if we assume arguendo that
this evidence was improperly admitted, any error was harmless.
[17] As we set forth in Harrison:
We will not reverse a defendant’s conviction if the error was
harmless. An error is harmless if substantial independent
evidence of guilt satisfies the reviewing court that no substantial
likelihood exists that the challenged evidence contributed to the
conviction. Generally, errors in the admission of evidence are to
be disregarded unless they affect the substantial rights of a party.
32 N.E.3d at 254 (citations omitted).
[18] Buehner claims that the admission of this evidence was not harmless, noting the
circumstantial nature of the case against him. We note that, whether or not the
evidence was circumstantial, it was overwhelming. Buehner was seen with
Janet on the night/early morning of her death. The two were seen arguing over
cash that Buehner had given to Janet and that Janet refused to return. Buehner
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was seen trying to get rid of a handgun later that morning, and he was covered
in blood. Buehner attempted to burn his blood-stained shirt and fled to
Kentucky. When he was arrested, he had removed his blood-stained jeans. The
woman Buehner was apprehended with, Kashon, was found in possession of
cash that was also bloodstained. Subsequent DNA testing of the blood found on
Buehner’s shirt, jeans, shoes, and the cash revealed that the blood found on
these items belonged to Janet. Thus, Buehner was the last person seen with
Janet while she was alive, had possession of a handgun, attempted to destroy
incriminating evidence, and later fled the state covered in Janet’s blood and in
possession of the cash over which the two had been arguing. Janet was later
found dead from a gunshot wound to the head.
[19] Given the strength of this evidence, we can only conclude that the admission of
evidence regarding the nature of Buehner’s relationship with Janet, his threats
toward her, and the lyrics sheet was harmless. That is, there was independent
evidence of guilt such that there was no substantial likelihood that the
challenged evidence contributed to the jury’s verdict.
[20] Accordingly, we affirm the judgment of the trial court.
Vaidik, C.J., and Crone, J., concur.
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