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

• Court: Indiana Court of Appeals
• Decided: February 21, 2019
• Docket: 18A-CR-1291
• Status: Published

Opinion

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

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019 Page 1 of 10 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.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019 Page 2 of 10 [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.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019 Page 3 of 10 [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.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019 Page 4 of 10 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.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019 Page 5 of 10 [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

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019 Page 6 of 10 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

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019 Page 7 of 10 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.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019 Page 8 of 10 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

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019 Page 9 of 10 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.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019 Page 10 of 10