Antonio Buford v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: December 23, 2019
• Docket: 19A-CR-956
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Opinion 19A-CR-956 | December 23, 2019 Page 1 of 13 [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 Court of Appeals of Indiana | Opinion 19A-CR-956 | December 23, 2019 Page 2 of 13 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.

Court of Appeals of Indiana | Opinion 19A-CR-956 | December 23, 2019 Page 3 of 13 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.

Court of Appeals of Indiana | Opinion 19A-CR-956 | December 23, 2019 Page 4 of 13 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,

Court of Appeals of Indiana | Opinion 19A-CR-956 | December 23, 2019 Page 5 of 13 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.

Court of Appeals of Indiana | Opinion 19A-CR-956 | December 23, 2019 Page 6 of 13 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 Court of Appeals of Indiana | Opinion 19A-CR-956 | December 23, 2019 Page 7 of 13 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.

Court of Appeals of Indiana | Opinion 19A-CR-956 | December 23, 2019 Page 8 of 13 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

Court of Appeals of Indiana | Opinion 19A-CR-956 | December 23, 2019 Page 9 of 13 ‘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,”

Court of Appeals of Indiana | Opinion 19A-CR-956 | December 23, 2019 Page 10 of 13 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.”

Court of Appeals of Indiana | Opinion 19A-CR-956 | December 23, 2019 Page 11 of 13 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.

Court of Appeals of Indiana | Opinion 19A-CR-956 | December 23, 2019 Page 12 of 13 [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.

Court of Appeals of Indiana | Opinion 19A-CR-956 | December 23, 2019 Page 13 of 13