David Butler v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 2, 2015
• Docket: 49A05-1309-CR-431
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Jul 02 2015, 9:49 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Robert B. Turner Gregory F. Zoeller Lee & Fairman, LLP Attorney General of Indiana Indianapolis, Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David Butler, July 2, 2015

Appellant-Defendant, Court of Appeals Case No. 49A05-1309-CR-431 v. Appeal from the Marion Superior Court. The Honorable Kurt Eisgruber, State of Indiana, Judge. Appellee-Plaintiff Cause No. 49G01-1104-FC-30191

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1309-CR-431 | July 2, 2015 Page 1 of 11 [1] David Butler appeals his convictions for two counts of Robbery, 1 a class C

felony, and two counts of Official Misconduct, 2 a class D felony. Butler argues

that the trial court erroneously admitted evidence of a civil monetary judgment

against him and subsequent garnishment of his wages. He also argues that the

evidence is insufficient to support the robbery convictions. Finding that the

evidence of the civil judgment was relevant to Butler’s motive and not unfairly

prejudicial, and that the evidence supporting the robbery convictions was

sufficient, we affirm.

Facts [2] In 2010, then-Officer David Butler was a twenty-year veteran of the

Indianapolis Metropolitan Police Department (IMPD). On September 7, 2010,

a judgment in small claims court was entered against Butler in the amount of

$4,905. At that time, Butler was living paycheck to paycheck and working

security jobs to make ends meet. In November 2010, Butler’s wages were

garnished as a result of the civil judgment against him, which then totaled

$5,031.78 with interest.

[3] On September 27, 2010, Butler was on duty and was driving a marked police

vehicle. At about 6:45 p.m., Butler initiated a traffic stop just north of 34th

1 Ind. Code § 35-42-5-1. 2 Ind. Code § 35-44-1-2. This statute has been amended and recodified and can now be found at Indiana Code section 35-44.1-1-1. The amendment and recodification have an effective date of July 1, 2014, so we have cited to the statute in place at the time Butler committed these offenses.

Court of Appeals of Indiana | Memorandum Decision 49A05-1309-CR-431 | July 2, 2015 Page 2 of 11 Street and High School Road. The driver, later identified as Andrez Salasar,

pulled into a bank parking lot, and Butler followed.

[4] When an IMPD officer initiates a traffic stop, he or she is required to “mark

out,” meaning that the officer must inform control, either by radio or laptop,

that a traffic stop has been initiated. Tr. p. 41. It was a “very clear” directive to

mark out at traffic stops to ensure officer safety. Id. at 152-54, 159-60, 171.

[5] After Butler had initiated the traffic stop of Salasar, Officer Kollin Anslow

pulled in and stopped parallel to Butler’s vehicle to serve as backup. Officer

Anslow discovered that Butler had not marked out, so Officer Anslow called

control to communicate that the stop was in progress. Butler approached

Salasar and asked him for his driver’s license and vehicle registration. Salasar is

from Oaxaca, Mexico, and had been in the United States illegally for about five

years. Salasar told Butler that he did not have a driver’s license but did have

identification, pulling his wallet out of his back pocket to retrieve it. Butler

grabbed the wallet and kept it.

[6] Officer Brian Finley also came to serve as backup to Butler. Butler asked

Officer Anslow to pat-down Salasar and asked Officer Finley to run Salasar’s

identification. While Officer Anslow was conducting the pat-down and Officer

Finley was in his vehicle running the identification, Butler leaned inside

Salasar’s vehicle at the driver’s side door. Officer Finley never saw Salasar’s

wallet, which held $4,000 in cash from several paychecks that Salasar had just

cashed.

Court of Appeals of Indiana | Memorandum Decision 49A05-1309-CR-431 | July 2, 2015 Page 3 of 11 [7] The identification check revealed no driving history or open warrants for

Salasar. Butler told Salasar that he was driving without a license and that if

Butler saw him driving again, he would arrest him. The three officers left the

scene. Salasar returned to his vehicle and found his wallet under the driver’s

seat. Upon arriving home, he discovered that $2,000 was missing from his

wallet. Salasar was unsure what to do, so he asked a neighbor, who called 911

and reported the incident. IMPD began an internal affairs investigation as a

result of Salasar’s report.

[8] During the early evening hours of January 12, 2011, Butler pulled into a

Marathon gas station at 34th and Moeller behind a driver later identified as

Emiliano Vasquez. Butler initiated a traffic stop of Vasquez, who, like Salasar,

is from Oaxaca, Mexico, and has been in the United States illegally for

approximately twelve years. Butler did not mark out. He approached Vasquez

and asked for his driver’s license and registration. Vasquez removed his wallet

from his back pocket and pulled out his Mexican Consulate card. As Vasquez

started to put his wallet into his back pocket, Butler told him to leave the wallet

on the driver’s seat. Butler then removed Vasquez from the vehicle, ordered

him to stand at the back of the vehicle and not to move, and informed him that

he was going to inspect the vehicle. Butler then searched the vehicle, remaining

at the driver’s side door for over a minute. Butler approached Vasquez,

returned his identification, and told him that if he stopped him again, he would

be arrested. Butler acted angry, and Vasquez was afraid. Vasquez returned to

his vehicle and found his wallet on the driver’s seat. He later discovered that

Court of Appeals of Indiana | Memorandum Decision 49A05-1309-CR-431 | July 2, 2015 Page 4 of 11 $700 was missing from his wallet. Vasquez called a friend, who encouraged

him to report the incident. He returned to the gas station and found another

IMPD officer, to whom he reported the incident.

[9] At the request of a sergeant, Officer Finley drove to the Marathon gas station to

watch the surveillance video of the Vasquez incident. While Officer Finley was

watching the video in the back room of the gas station, Butler arrived. Butler

tried to lure Officer Finley away from the video by telling him that his vehicle

was unlocked and that the dome light was on; Officer Finley refused to leave.

The video showed the traffic stop, and Officer Finley had a “bad feeling” and

thought there was a good possibility that Butler was the officer in the video. Tr.

p. 314-15. Later, Butler emphatically and repeatedly denied having conducted

the traffic stop of Vasquez. Eventually, in April 2011, Butler gave a recorded

statement as part of IMPD’s criminal investigation into the Salasar and

Vasquez incidents. Butler continued to deny being the officer who stopped

Vasquez until the very end of the interview, when he was confronted by the fact

that the IMPD vehicle in the video was his vehicle. Butler then admitted that

he had stopped Vasquez and did not mark out, but denied that he took any

money from Vasquez’s wallet.

[10] On April 29, 2011, and as later amended on September 9, 2011, the State

charged Butler with the following offenses committed against Vasquez, Salasar,

and three other alleged victims:

 Count I: class C felony robbery (Vasquez)  Count II: class D felony official misconduct (Vasquez) Court of Appeals of Indiana | Memorandum Decision 49A05-1309-CR-431 | July 2, 2015 Page 5 of 11  Count III: class C felony robbery (Salasar)  Count IV: class D felony official misconduct (Salasar)  Count V: class C felony robbery (Z. Melecio)  Count VI: class D felony official misconduct (Z. Melecio)  Count VII: class C felony robbery (E. Prieto)  Count VIII: class D felony official misconduct (E. Prieto)  Count IX: class D felony theft (R. Jolley)  Count X: class D felony official misconduct (R. Jolley)

Counts IX and X related to Jolley were severed from the remaining counts, and

following a mistrial in June 2012, the State dismissed Counts V and VI related

to Melecio.

[11] Butler’s second jury trial took place in February 2013. The jury found him

guilty of the counts relating to Vasquez and Salasar, and not guilty of the counts

relating to Prieto. The trial court sentenced Butler to four years for each class C

felony robbery conviction and to 545 days for each class D felony official

misconduct conviction, with the robbery sentences to be served consecutively

and the misconduct sentences to be served concurrently. Thus, Butler’s

aggregate sentence was eight years, with four years executed, four years

suspended, and one year of probation. In June 2013, Butler pleaded guilty to

the two severed charges related to Jolley. The trial court sentenced Butler to

one year for theft and one year for official misconduct, to be served

consecutively to the sentences imposed for the Vasquez/Salasar convictions.

Butler now appeals the Vasquez/Salasar convictions.

Court of Appeals of Indiana | Memorandum Decision 49A05-1309-CR-431 | July 2, 2015 Page 6 of 11 Discussion and Decision I. Admission of Evidence [12] First, Butler contends that the trial court erroneously admitted evidence of the

civil monetary judgment against him and subsequent wage garnishment. The

decision to admit evidence is within the trial court’s sound discretion, and an

abuse of discretion occurs only when the trial court’s decision is clearly against

the logic and effect of the facts and circumstances before it. Lindsey v. State, 916

N.E.2d 230, 238 (Ind. Ct. App. 2009).

[13] Butler seems to be arguing that this evidence is unfairly prejudicial and should

therefore have been excluded. Initially, we note that Butler cites to no legal

authority in making this argument and that he appears to be raising this issue

for the first time on appeal. He has, consequently, waived the argument.

[14] Waiver notwithstanding, we note that in general, relevant evidence is

admissible. Ind. Evidence Rule 402. The trial court may, however, exclude

relevant evidence if its probative value is substantially outweighed by a danger

of, among other things, unfair prejudice. Evid. R. 403.

[15] Evidence of the judgment and subsequent wage garnishment were relevant in

this case because they established a motive for Butler’s actions. Evidence of

motive is relevant in the proof of a crime. E.g., Tompkins v. State, 669 N.E.2d

394, 397 (Ind. 1996) (also emphasizing that “the admission of evidence having

a tendency to create an inference of motive is within the discretion of the trial

court”). Although Butler argues that this evidence caused “extreme prejudice” Court of Appeals of Indiana | Memorandum Decision 49A05-1309-CR-431 | July 2, 2015 Page 7 of 11 to him, he does not explain why that is the case. Appellant’s Br. p. 26. While

this evidence may have been prejudicial to Butler, he has not explained, and we

cannot discern, why the prejudice was unfair. Moreover, we agree with the

State that because “very few people today have no debt or financial struggles,

an average juror would not have attached undue prejudice to these financial

documents.” Appellee’s Br. p. 24. Consequently, we find no error in the trial

court’s decision to admit this evidence.3

II. Sufficiency [16] Next, Butler contends that there is insufficient evidence supporting the two class

C felony robbery convictions. When we review a challenge to the sufficiency of

the evidence, we neither reweigh the evidence nor assess witness credibility.

McClellan v. State, 13 N.E.3d 546, 548 (Ind. Ct. App. 2014), trans. denied.

Instead, we consider only the probative evidence supporting the conviction and

the reasonable inferences to be drawn therefrom. Id. If there is substantial

evidence of probative value from which a reasonable factfinder could have

drawn the conclusion that the defendant was guilty beyond a reasonable doubt,

then the verdict will not be disturbed. Id.

[17] To convict Butler of class C felony robbery, the State was required to prove

beyond a reasonable doubt that he knowingly or intentionally took property

3 Additionally, we note that even if we had found error, we would have found it harmless, given the wealth of other, independent evidence supporting Butler’s convictions.

Court of Appeals of Indiana | Memorandum Decision 49A05-1309-CR-431 | July 2, 2015 Page 8 of 11 from Salasar and Vasquez by threatening the use of force on Salasar and

Vasquez or by putting Salasar and Vasquez in fear. I.C. § 35-42-5-1.4 Butler

argues that there is insufficient evidence establishing that he threatened the use

of force on Salasar and Vasquez or that he put them in fear.

[18] With respect to Vasquez, we note that Vasquez testified that he was, in fact,

afraid. Tr. p. 194. His testimony alone is sufficient to support the jurors’

conclusion that Butler took Vasquez’s property by putting him in fear.

[19] With respect to Salasar, we observe that the offense of robbery does not require

that a certain amount or type of force be proved to establish the commission of

that offense. Maul v. State, 467 N.E.2d 1197, 1199 (Ind. 1984). “The nature of

the threatened force is not material in the definition of robbery as a Class C

felony and any threat of force, conveyed by word or gesture will suffice.” Id. at

1199-1200.

[20] In this case, Butler, a uniformed IMPD officer on duty and driving a fully

marked police vehicle, initiated a traffic stop of Salasar, who pulled over and

submitted to the officer’s authority. Butler then ordered Salasar to exit his

vehicle. Butler “grabbed” Salasar’s wallet and retained it while Officer Anslow

conducted a pat-down of Salasar. Tr. p. 91, 134.

4 This statute, along with much of the Indiana criminal code, was amended by the General Assembly in 2014, with an effective date of July 1, 2014. We refer to and apply the version of the statute in place at the time Butler committed these offenses.

Court of Appeals of Indiana | Memorandum Decision 49A05-1309-CR-431 | July 2, 2015 Page 9 of 11 [21] We agree with the State that Butler “did not have to violently remove the

money from Salasar and Vasquez, as his use of force against these two men

came from his act of seizing their persons and removing them from their

vehicles.” Appellee’s Br. p. 21. Here, under the color of law, a fully armed

police officer seized the persons of two illegal immigrants, grabbing one victim’s

wallet and ordering the other victim to place his wallet in his vehicle and step to

the rear of the vehicle. We find that these actions easily amount to a threat to

use force and that a reasonable juror could readily infer that Butler’s actions put

Salasar in fear. See Maul, 467 N.E.2d at 1200 (holding that the victim need not

testify that he/she was put in fear; instead, there need only be evidence from

which the jury can infer that the victim was put in fear). Therefore, we find the

evidence sufficient to support these convictions.

[22] Finally, Butler emphasizes certain inconsistencies between the testimony of

Vasquez and Salasar at trial compared to their police statements and deposition

testimony. This amounts to a request that we step into the shoes of the

Court of Appeals of Indiana | Memorandum Decision 49A05-1309-CR-431 | July 2, 2015 Page 10 of 11 factfinder, reweigh the evidence, and reassess witness credibility. We decline

this request, and again find the evidence sufficient to support the convictions. 5

May, J., and Mathias, J., concur.

5 Butler also seems to argue that there was an unconstitutional variance between what was alleged in the probable cause affidavit and the evidence that was actually presented at trial. He neither cites to any legal authority nor explains what, precisely, the alleged differences were. Therefore, we are unable to address this argument. We note our agreement with the State that “a conviction is based upon evidence introduced at trial and not information provided in a probable cause affidavit, which is the means by which to file charges against a defendant.” Appellee’s Br. p. 17. We see no reason that a variance between information contained in a probable cause affidavit and evidence presented at trial would violate a defendant’s due process rights.

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