Antonio Buford v. State of Indiana ( 2019 )

FILED
Dec 23 2019, 5:43 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kevin Wild Curtis T. Hill
Indianapolis, Indiana Attorney General of Indiana
George P. Sherman
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antonio Buford, December 23, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-956
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Barbara Cook
Appellee-Plaintiff. Crawford, Judge
Trial Court Cause No.
49G01-1806-F3-20993
Brown, Judge.
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[1] Antonio Buford appeals the trial court’s contempt finding and his sentence for
domestic battery as a level 6 felony. We affirm in part and reverse in part.
Facts and Procedural History
[2] In 2018, Buford and E.C., who had a child together, were in a relationship.
E.C. visited Buford at his home during a weekend in June, they consumed
alcohol, and a violent argument ensued during which Buford punched E.C. in
the eye while she was holding their infant son. When E.C.’s parents picked her
up, she had a “busted lip” and bruises on her forearm, and the left side of her
cheek was bruised and swollen. Transcript at 72. The State charged Buford as
amended with counts of criminal confinement as level 3, level 5, and level 6
felonies, strangulation as a level 6 felony, two counts of domestic battery as
level 6 felonies, and criminal recklessness as a level 6 felony under cause
number 49G01-1806-F3-20993 (“Cause No. 20993”). It also alleged that he
was an habitual offender.
[3] On July 16, 2018, the court issued a no contact order that prohibited Buford
from having contact with E.C. “in person, by telephone or letter, through an
intermediary, or in any other way, directly or indirectly.” Appellant’s
Appendix Volume II at 52. On February 26, 2019, the State filed a Notice of
Intent to Offer Out-Of-Court Statements and, in arguing for the admission of
hearsay and testimonial statements “made by [E.C.] to her mother, step-father,
Officers, and Detective,” indicated: in preparation for trial it had listened to
numerous jail calls Buford made to his mother, S.B., that during the calls
Buford and S.B. discussed aspects of the case including court dates, that Buford
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spoke to E.C. in the more-recent calls, and that it believed E.C. may not appear
at the scheduled trial based on the content of the calls. Id. at 138. It also filed
on the same day a Notice of Intent to Offer Potential 404(B) Evidence and
indicated that it would present evidence “in the form of a jail call from
February 25th, 2019[,] where [Buford] states explains [sic] to his mother that he
has been through the Court process before and the girl didn’t come [to Court][ 1],
so the case was thrown out” to establish “motive, intent, preparation, and/or
plan to absent [E.C.] from trial.” Id. at 152.
[4] On March 4, 2019, the court addressed the State’s notices of intent before
commencing the scheduled jury trial. The State presented the testimony of
S.B., who indicated she was Buford’s mother, identified her phone number, and
answered affirmatively when asked whether he calls her from the Marion
County Jail and whether “we discussed in the deposition that it is more than
ten (10) times.” Transcript at 12. Indianapolis Metropolitan Police Detective
Matthew Engelmann testified that he served E.C. in person with a subpoena to
appear in court, that he implied it was “for the trial” when he spoke with her,
that he served the subpoena at S.B.’s address which he indicated was also
E.C.’s residence at the time, and that E.C. signed the subpoena indicating that
she understood. Id. at 14. After listening to recordings of three telephone
conversations, the court allowed the State to present a redacted recording of a
1
The notice includes the phrase, “to Court,” within brackets. Appellant’s Appendix Volume II at 152.
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February 25th conversation between Buford and S.B. 2 and a recording of a
January 3rd conversation in which S.B., after speaking with Buford, handed
E.C. the phone.
[5] At the trial and in the presence of the jury, the court admitted State’s Exhibits
13 and 14, which Detective Engelmann identified as recordings and logs for
calls made from the Marion County Jail. A line item in State’s Exhibit 13
indicates that a single outgoing call took place on January 3, 2019. 3 The court
also admitted State’s Exhibit 15, which Detective Engelmann agreed was a
redacted version of “portions of the calls that we discussed that are relevant to
this case.” Transcript at 92. He indicated that he determined Buford made the
calls “[b]ased on the context of some of the conversations [Buford] was having”
and that he was able to, and did recognize, the voices of E.C. and S.B. on the
calls. Id. State’s Exhibit 15 was published to the jury after the State moved to
publish “the . . . (inaudible) that was ruled on in Pre-trial.” Id. at 95.
[6] The jury found Buford guilty of one count of domestic battery as a level 6
felony and not guilty of the other offenses. After the verdict, the court indicated
that evidence had been presented of a violation of the no contact order which
had occurred outside of its presence, set a Rule to Show Cause Hearing on why
2
Later, the court further redacted the recording to exclude the conversation’s last sentence “where he talks
about [sic] he had been in that last situation before with another woman,” which it found to be more
prejudicial than probative. Transcript at 47.
3
State’s Exhibit 13 includes numerous line items, only one of which lists an outgoing call on the date
“20190103.” Exhibits Volume at 95.
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Buford should not be held in contempt for violating its order, and instructed the
prosecutor to bring to the hearing a copy of the redacted version of the jail calls.
[7] On March 7, 2019, the court held a rule to show cause hearing, at which it
admitted into evidence the CD it had requested, took judicial notice of its entry
of the no contact order, and stated that during trial it had learned that “not only
did [Buford] send a letter to [E.C.], as evidence [sic] the redacted telephone
calls,” but he also had conversations with her, instructed S.B. to give particular
directions to E.C., and had conversations with S.B. “with regard to directing
[E.C.] having to do with the facts of the case.” Id. at 180.
[8] The court then asked: “Mr. Buford, is there any information that you want to
give me that might bear on my decision with regard of [sic] me holding you in
contempt for violating the [c]ourt’s order?” Id. Buford’s counsel answered she
would like to state, “before [Buford] answers the question,” that additional
charges were pending, mentioned an Obstruction of Justice charge “for directly
telling [E.C.] not to come to Court” and an undetermined number of charges
for Invasion of Privacy attached to the first charge, and requested to stay the
hearing or to “set out to track with the new case” “knowing that [Buford]
knows that these charges are pending and at this point he has a fifth (5th)
amendment right not to incriminate himself regarding those charges.” Id. at
180-181. She also stated “[i]t is in MC status right now,” indicated that “the
charges will be formerly [sic] filed this week,” and expressed a concern for a
potential double jeopardy issue. Id. The court stated there was no double
jeopardy issue, that its ruling had to do with Buford’s contact in the first place,
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the substance of which was not relevant, and that “he’s not going to be punished
or held accountable for two (2) separate acts or for the same act twice.” Id. at
182. (181) The State noted that, if the court were to “find[] it as a punitive
act,” it would then “not file the Invasion of Privacy for January 3, 2019” and
indicated that it had other Invasions of Privacy counts to bring regardless of the
ruling. Id. The court stated: “Mr. Buford you have blatantly without any
regard of the Court’s order disrespected the Court and held the Court’s order in
distained [sic] and to ensure that there is no further violation of the Court’s
order [t]he court is going to find you in contempt of the no contact order that
was issued.” Id. at 183. After ordering a sanction of ninety days in the Marion
County Jail “at this time as a coercive measure,” the court asked if there was
anything else from the State and Buford’s counsel, who answered “No Judge”
and “No Your Honor,” respectively. Id. The court’s contempt minute sheet
states “Sanctions ordered[:] 90 day (flat).” Appellant’s Appendix Volume III at
78.
[9] Also on March 7, 2019, the State charged Buford under cause number 49G01-
1903-F5-8877 (“Cause No. 8877”) with obstruction of justice as a level 5 felony
and seven counts of invasion of privacy as class A misdemeanors under Ind.
Code § 35-46-1-15.1(a)(5), 4 including Count II which alleged that Buford did
knowingly or intentionally violate a no contact order under Cause No. 20993,
4
Ind. Code § 35-46-1-15.1(a)(5) provides that a person who knowingly or intentionally violates a no contact
order issued “as a condition of pretrial release . . . or pretrial diversion” commits a class A misdemeanor.
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which was issued to protect E.C., on or about January 3, 2019. The affidavit
for probable cause stated:
Detective Engelmann reviewed jail calls made by Mr. Antonio
Buford.
*****
On 1/3/19 at 10:44 AM, Mr. Buford made another call . . . .
[S.B] was speaking to Mr. Buford when [E.C.] presumably
walked into the room, as [S.B.] told him, ‘Here she comes.’ A
female voice comes on the line that Detective Engelmann
recognized to be consistent with the voice of [E.C.] based on his
prior knowledge of speaking with her.
Cause No. 8877, Affidavit for Probable Cause.
[10] On March 21, 2019, in Cause No. 20993 the court held a sentencing hearing, at
which it indicated that it had reviewed the presentence investigation report
(“PSI”) and found that “there are mitigating circumstances and he has
participated in programs that were available to him at the jail.” Transcript at
194. It noted that Buford had been through Anger Management before and had
been afforded a number of programs both as a juvenile and an adult, and found
that the aggravating factors outweighed the mitigating factors. Regarding
aggravating factors, it indicated it found
that his criminal behavior since the time he was thirteen (13) has
been one (1) of repeated offenses involving violence. Several of
them have involved Domestic Violence specifically. In addition,
there was a violation of the No Contact Order during the time
that this case was pending. The Court also finds that to be an
aggravating factor. The offense that was charged here was
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Domestic Battery in the Presence of a Child less than Sixteen
Years of Age. So, while I understand the State’s argument about
being in a committed relationship with the mother of this child;
the fact that this incident happened while a child was present for
the Court is also an aggravating factor.
Id. The court sentenced Buford in Cause No. 20993 to two-and-one-half years
in community corrections in the work release component for his conviction for
domestic battery. On May 31, 2019, the court sentenced him in Cause No.
8877 to one year suspended under Count II, which it ordered to be served
consecutive to a four-year sentence he received under Count I of that cause and
the sentence under Cause No. 20993. (Sentencing Order)
Discussion
[11] Buford first argues that the sanction for contempt ordered by the trial court was
improper. He contends that the contempt hearing involved criminal contempt.
The State does not dispute this characterization.
[12] Contempt is a “sui generis proceeding neither civil nor criminal in nature,
although both of those labels are used to describe certain categories of
contempt.” State v. Heltzel, 552 N.E.2d 31, 33 (Ind. 1990). Contempt
proceedings may be generally categorized as civil or criminal, according to the
nature and purpose of the sanction imposed. 6 I.L.E. Contempt § 5 (2000). See
also In re Contempt of Wabash Valley Hosp., Inc., 827 N.E.2d 50, 61 (Ind. Ct. App.
2005). A civil contempt is a violation of a court order resulting in a proceeding
for the benefit of the aggrieved party. Nat’l Educ. Ass’n v. South Bend Cmty. Sch.
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Corp., 655 N.E.2d 516, 522 (Ind. Ct. App. 1995). As such, any type of penalty
in a civil contempt proceeding must be coercive or remedial in nature. Id.
[13] By contrast, criminal contempt actions are punitive and are carried out in
response to “an act directed against the dignity and authority of the court which
obstructs the administration of justice and which tends to bring the court into
disrepute or disrespect.” In re A.S., 9 N.E.3d 129, 132 (Ind. 2014) (quoting
Heltzel, 552 N.E.2d at 34). Accordingly, a criminal contempt sanction is
punitive in nature “because its purpose is to vindicate the authority of the court,
and it benefits the State rather than the aggrieved party.” Jones v. State, 847
N.E.2d 190, 199 (Ind. Ct. App. 2006) (citing Int’l Union, UMWA v. Bagwell, 512
U.S. 821, 826-828, 114 S. Ct. 2552 (1994)), reh’g denied, trans. denied.
[14] Initially, we review the State’s notices of intent as it argued for the admission of
out-of-court statements and 404(B) evidence and find that the State mentioned
Buford’s violations of the court’s no contact order in anticipation of trying
Cause No. 20993. See Appellant’s Appendix Volume II at 134, 138, 152. We
additionally note Detective Engelmann’s testimony at the pretrial hearing and
the trial court’s subsequent reprimand of disrespect toward it and find that,
although the court later stated that it imposed the contempt sanction as a
coercive measure, the sanction in substance was punitive in nature inasmuch as
it benefitted the State as a whole, and the court sentenced Buford to jail without
permitting alternatives to incarceration and without conditioning the sentence.
See McCollum v. Ind. Fam. & Soc. Servs. Admin., 82 N.E.3d 368, 375 (Ind. Ct.
App. 2017) (“In other words, the contemnor must be given the opportunity to
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‘purge’ the contempt and gain release from prison. Significantly, we have held
that ‘incarceration for contempt is legally allowable only where the support
order upon which release is conditioned is attainable by the obligor.’” (internal
citations omitted) (emphasis omitted)); Reed v. Cassady, 27 N.E.3d 1104, 1114
(Ind. Ct. App. 2015) (“A jail sentence for civil contempt must be coercive rather
than punitive in nature, and, to avoid being purely punitive, a contempt order
must offer an opportunity for the recalcitrant party to purge himself or herself of
the contempt.”), reh’g denied, trans. denied; Jones, 847 N.E.2d at 196, 199
(finding, in a case involving contempt for failure to obey a subpoena to appear
for a deposition and a subsequent sanction involving a sentence of
imprisonment for “200 days flat,” that the contempt was criminal in nature
inasmuch as the sanction did not abate upon compliance with the trial court’s
order and it benefitted the State as a whole).
[15] Having found that the contempt sanction was punitive and thus that the
sanction of ninety days in the Marion County jail constituted a punishment, we
find that the State’s filing, on the same day as the contempt hearing, of Count II
concerning the January 3, 2019 invasion of privacy in Cause No. 8877
constitutes double jeopardy concerns. See Hunter v. State, 802 N.E.2d 480, 483
(Ind. Ct. App. 2004) (“The test for determining whether a sanction, other than a
criminal sentence, constitutes a jeopardy is whether the civil sanction
constitutes a punishment.”) (citing D.W. v. State, 673 N.E.2d 509 (Ind. Ct. App.
1996), trans. denied), trans. denied. We observe that, despite assuring the court
that it would not file the “Invasion of Privacy [count] for January 3, 2019,”
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Transcript at 182, the State did precisely that and Buford was convicted and
sentenced for that offense. Accordingly, we vacate Buford’s contempt finding
under this cause.5
[16] Buford next argues that the court abused its sentencing discretion in using a
material element under Ind. Code § 35-42-2-1.3 as an aggravating factor to
support his domestic battery sentence above the advisory level and contends
that there is nothing unique about the circumstances of his crime. 6 The State
contends that his lengthy criminal record standing alone shows that his
sentence is proper.
[17] We review the sentence for an abuse of discretion. Anglemyer v. State, 868 N.E.2d
482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. An abuse of discretion
occurs if the decision is “clearly against the logic and effect of the facts and
circumstances before the court, or the reasonable, probable, and actual
deductions to be drawn therefrom.” Id. A trial court abuses its discretion if it: (1)
fails “to enter a sentencing statement at all;” (2) enters “a sentencing statement
that explains reasons for imposing a sentence – including a finding of aggravating
and mitigating factors if any – but the record does not support the reasons;” (3)
enters a sentencing statement that “omits reasons that are clearly supported by
5
As we vacate the finding of contempt, we need not address Buford’s other arguments concerning it.
6
Buford specifically points to Ind. Code § 35-42-2-1.3(b) which provided at the time of the incident that the
offense is a level 6 felony if the person who committed the offense is at least eighteen years of age and
committed the offense against a family or household member “in the physical presence of a child less than
sixteen (16) years of age, knowing that the child was present and might be able to see or hear the offense.”
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the record and advanced for consideration;” or (4) considers reasons that “are
improper as a matter of law.” Id. at 490-491. If the trial court has abused its
discretion, we will remand for resentencing “if we cannot say with confidence
that the trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.” Id. at 491. The relative
weight or value assignable to reasons properly found, or those which should have
been found, is not subject to review for abuse of discretion. Id.
[18] A single aggravating circumstance may be sufficient to enhance a sentence. See
Hackett v. State, 716 N.E.2d 1273, 1278 (Ind. 1999). “Generally, the nature and
circumstances of a crime is a proper aggravating circumstance.” Gomillia v.
State, 13 N.E.3d 846, 853 (Ind. 2014). When a trial court improperly applies an
aggravator but other valid aggravating circumstances exist, a sentence
enhancement may still be upheld. Hackett, 716 N.E.2d at 1278. We conclude
based on our review of the record that, even if the court considered an improper
aggravator, other valid aggravating circumstances, which Buford does not
challenge, justify the sentence enhancement. We note that the court, having
reviewed the PSI before it, found that his criminal behavior since the age of
thirteen included repeated felony offenses involving violence and domestic
violence. It also found Buford violated the no contact order as the case was
pending. We cannot say that the trial court abused its discretion in sentencing
Buford to two-and-one-half years in community corrections for his domestic
battery conviction.
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[19] For the foregoing reasons, we vacate the finding of contempt and affirm
Buford’s domestic battery sentence.
[20] Affirmed in part and reversed in part.
Altice, J., and Tavitas, J., concur.
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