Ronald Buttermore v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: May 30, 2014
• Docket: 48A05-1309-CR-472
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, May 30 2014, 7:18 am collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: PAUL J. PODLEJSKI GREGORY F. ZOELLER Anderson, Indiana Attorney General of Indiana

KATHERINE MODESITT COOPER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

RONALD BUTTERMORE, ) ) Appellant-Defendant, ) ) vs. ) No. 48A05-1309-CR-00472 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MADISON CIRCUIT COURT The Honorable Thomas Newman, Jr., Judge Cause No. 48C03-1303-FC-0558 48C03-1109-FD-1769

May 30, 2014 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge Ronald Buttermore (“Buttermore”) pleaded guilty in an open plea in Madison

Circuit Court to Class D felony battery, Class D felony strangulation, Class D felony

criminal confinement, Class C felony criminal confinement, Class A misdemeanor

domestic battery, Class D felony intimidation, and Class A misdemeanor interfering with

reporting a crime. The trial court ordered Buttermore to serve an aggregate sentence of

eleven years with five years executed and six years suspended to probation. The State

subsequently filed a petition to revoke Buttermore’s probation. The trial court found by a

preponderance of the evidence that Buttermore violated the terms of his probation and

ordered execution of the previously suspended sentence. Buttermore appeals and argues

that there was insufficient evidence to support the revocation of his probation.

We affirm.

Facts and Procedural History

On September 27, 2011, after receiving a tip from a concerned citizen, Elwood

police officers conducted a welfare check on Chrissy Payne (“Payne”) at her residence.

After the officers knocked on the door of Payne’s house, they saw Payne looking out a

nearby window and observed that her lip and nose were bloodied, there was blood on her

shirt, and she had a black eye. The officers knocked again. A man later identified as

Buttermore looked out the front door but refused to open it. Payne finally opened the

door but refused to allow the officers inside the house. While the record is not entirely

clear, Buttermore apparently opened the door to the officers, and after Payne’s daughter

pushed past him to run out to the officers, the officers arrested Buttermore. The officers

then took a statement from Payne, who reported that Buttermore had become upset with

2 her, had hit her several times on her body and face, had placed his hands around her neck

and applied pressure, and had confined her by force inside her bedroom. Payne stated

that her daughter had arrived home from school during the assault and witnessed

Buttermore attacking Payne.

That same day, the State charged Buttermore with Class D felony battery, Class D

felony strangulation, and Class D felony criminal confinement in cause number 48C03-

1109-FD-001769 (“cause number FD-1769”). The trial court held an initial hearing three

days later, on September 30, 2011, at which it issued a no-contact order prohibiting

Buttermore from contacting Payne. Buttermore posted bond, and on August 27, 2012,

when Buttermore failed to appear for trial, the trial court issued a warrant for his arrest.

Some seven months later, on March 14, 2013, Anderson police officers were

dispatched to the parking lot of a local mall in response to an apparent battery. When

officers arrived at the scene, they spoke with Debra Caplinger (“Caplinger”), who

reported that on March 9, she had been attacked by Buttermore, her live-in boyfriend at

the time. Caplinger stated that, during an argument, Buttermore shoved Caplinger, hit

her in the face multiple times, and knocked her to the ground. Though Caplinger

required medical treatment for her injuries, Buttermore refused to allow Caplinger to

leave the house, taking her cell phone, the house phone, and her car keys. After a few

days, Caplinger convinced Buttermore to allow her to leave the house, and she

subsequently called the police. At the scene, the officers observed that Caplinger had

dark bruising around both eyes and most of her face.

3 The police served the outstanding warrant on Buttermore at his home and arrested

him. On March 15, 2013, the State charged Buttermore with Class C felony criminal

confinement, Class A misdemeanor domestic battery, Class D felony intimidation, and

Class A misdemeanor interfering with the reporting of a crime under cause number

48C03-1303-FC-000558 (“cause number FC-558”), all arising from the incident

involving Caplinger. On the same date, the trial court issued a no-contact order

prohibiting Buttermore from having any contact with Caplinger.

On April 22, 2013, Buttermore pleaded guilty to all counts in both causes pursuant

to an open sentence plea that capped the executed portion of his sentence at five years.

The trial court held a sentencing hearing on May 6, 2013. At the hearing, Payne testified

that Buttermore’s attack caused her to suffer a crushed nose, concussion, four broken ribs,

and a black eye. Payne further testified that Buttermore threatened to kill her as he

strangled her. Caplinger testified that Buttermore’s battery caused her to suffer two black

eyes, a cut, a bruised face, and a scar. She also stated that, for several days immediately

following the attack, she was too afraid of Buttermore to leave the house.

In cause number FD-1769, the trial court imposed concurrent three-year sentences

for each of Buttermore’s three Class D felony convictions, for a total of three years. In

cause number FC-558, the trial court ordered Buttermore to serve concurrent sentences of

eight years on his Class C felony conviction, three years on his Class D felony conviction,

and one year on both Class A misdemeanor convictions, for a total sentence of eight

years. The trial court ordered that Buttermore’s sentence under cause number FC-558 be

4 served consecutive to his sentence under cause number FD-1769, for an aggregate

sentence of eleven years, with five years executed and six years suspended to probation.

At the sentencing hearing, the trial court orally advised Buttermore of the

conditions of his probation, including the conditions that he “obey all the laws of the

State of Indiana and United States” and that he “behave well in society.” Tr. p. 55. The

specific terms of Buttermore’s probation prohibited him from having contact with Payne

or Caplinger. The day of the sentencing hearing, in the presence of his probation officer,

Buttermore signed the probation order under the following language: “I have received

and read this copy of this Probation Order. I understand this Probation Order and agree

to comply with all conditions imposed by the Court.” State’s Ex. 7; Tr. p. 85.

At 5:35 p.m. on the day of Buttermore’s sentencing hearing, Caplinger received a

text message that read, “why oh why. I treated you good. Cool. I know the cops and I’ll

get your info when I get out and I’m coming for you bitch.” Tr. p. 66; State’s Ex. 1. On

June 10 and June 27, 2013, the State filed notices of probation violation in each of

Buttermore’s two causes. The trial court held an evidentiary hearing on August 26, 2013.

At the hearing, Caplinger testified about the text message she received and further

testified that Buttermore called Caplinger at least fifteen times after he was sentenced and

sent her a birthday card in July 2013. Caplinger identified the handwriting and signature

on the card and envelope as Buttermore’s, and the envelope contained Buttermore’s name

and prison address. Randy Tracy (“Tracy”) an investigator with the prosecutor’s office,

testified that the text message to Caplinger originated from a phone that belonged to Dean

Johnson, who was a fellow inmate of Buttermore’s. Johnson told Tracy that Johnson gave

5 the phone to Buttermore. Tracy also testified that Johnson identified Buttermore in a

photo lineup as the person to whom he gave the cell phone. Surveillance video from the

jail showed Johnson and Buttermore together in a jail cell, passing an item back and forth

to one another. Tracy testified that the video depicted Buttermore handing the item back

to Johnson at 5:35 and 42 seconds. Caplinger received the text message at 5:35 p.m.

After the State presented its evidence, Buttermore testified that he was unaware of

any prohibition against contacting Caplinger because he is unable to read and did not read

the terms of his probation order. Buttermore testified that he knew that he was not

permitted to contact Caplinger while on probation, but that he did not know the

restriction was in place while he was in jail. He also testified that he never texted

Caplinger from jail or had possession of any telephone while in jail.

After finding by a preponderance of the evidence that Buttermore violated the

conditions of his probation by committing the new offenses of invasion of privacy and

intimidation, the trial court revoked Buttermore’s probation and ordered that the

suspended portion of his sentence be executed in the Department of Correction.

Buttermore now appeals.

Discussion and Decision

The trial court’s decision to revoke probation is reviewed for an abuse of

discretion. Rosa v. State, 832 N.E.2d 1119, 1121 (Ind. Ct. App. 2005). “An abuse of

discretion occurs if the decision is against the logic and effect of the facts and

circumstances before the court.” Id. Under Indiana Code section 35-38-2-3(a), a court

may revoke probation if a person violates a condition of probation during the

6 probationary period. In addition, under Indiana Code section 35-38-2-1(b), the court may

revoke probation if a probationer commits any additional crime.

Buttermore argues that there was insufficient evidence for the trial court to revoke

his probation. When the sufficiency of evidence is challenged, we will neither “reweigh

the evidence nor reassess witness credibility.” Whatley v. State, 847 N.E.2d 1007, 1010

(Ind. Ct. App. 2006) (citing Marsh v. State, 818 N.E.2d 143, 148 (Ind. Ct. App. 2004)).

Rather, we look to the evidence most favorable to the State and affirm the judgment if

“there is substantial evidence of probative value supporting revocation.” Id. The State’s

burden of proof regarding alleged probation violations is proof by a preponderance of the

evidence. Id.

Buttermore contends that he “was not properly and sufficiently advised of the

prospective standard of conduct that was expected of him as a result of his suspended

sentence.” Appellant’s Br. at 6. Specifically, he argues that, because he was unable to

read the terms of his probation order and neither his probation officer nor the trial court

specifically orally advised him that he was not to contact Payne or Caplinger, he did not

have sufficient notice that he was prohibited from contacting Caplinger. He argues, “in

order for Buttermore’s revocation to survive appeal, he must have been orally advised of

the conditions of his probation and further acknowledge that he understood those

conditions on the record, which certainly is not the case.” Id. at 8.

The record reveals that on May 6, 2013, at his sentencing hearing, when the trial

court asked Buttermore if he had “had a chance to read the pre-sentence report,”

Buttermore responded, “Yes, sir.” Tr. p. 19. On August 7, 2013, Buttermore also

7 answered, “Yes, sir,” to the trial court’s question, “[c]an you read, write, and understand

the English language pretty well?” Tr. p. 58. Buttermore also answered, “Yes, I did,”

when the trial court asked if he had read and understood the State’s notice of violation of

suspended sentence. Id. It was not until Buttermore’s revocation hearing on August 26,

2013, after the State had presented its evidence, that Buttermore claimed he was unable to

read. The trial court assigned little credibility to Buttermore’s self-serving statement that

he could not read and found by a preponderance of the evidence that Buttermore violated

the terms of his probation by committing invasion of privacy. Under these facts and

circumstances, we conclude that there was sufficient evidence to support the trial court’s

conclusion that Buttermore committed invasion of privacy and, in doing so, violated the

terms of his probation. Buttermore’s argument is merely an invitation to reweigh the

evidence, which we will not do. See Pokes v. State, 971 N.E.2d 178, 179 (Ind. Ct. App.

2012).

Even if we were to conclude that Buttermore had no notice of the probation terms

prohibiting him from contacting Caplinger and Payne, Buttermore still would not prevail

on his claim that the evidence is insufficient to support the revocation of his probation.

In Braxton v. State, 651 N.E.2d 268, 270 (Ind. 1995), our supreme court held that “[t]he

law of this state is well-established that although a trial court must specify the conditions

of probation in the record, it is always a condition of probation that a probationer not

commit an additional crime.” (Internal citations omitted). During the May 6, 2013

hearing, the trial court orally advised Buttermore that a term of his probation was that he

was not to commit any other crimes. Also on May 6, 2013, Buttermore signed a

8 statement on a probation order affirming that he understood that he was prohibited from

contacting Caplinger or Payne and was to obey all state and federal laws. Yet, incredibly,

later that very day, Buttermore sent a threatening text message to Caplinger using a

borrowed cell phone.

Buttermore claims that the trial court failed to orally advise him that he was not to

contact the victims. However, even if the trial court found Buttermore’s claimed inability

to read to be credible, the notice of Buttermore’s violation of his probation was based in

part on evidence that Buttermore committed Class D felony intimidation when he sent the

text message to Caplinger. The trial court found by a preponderance of the evidence that

Buttermore committed the crime of intimidation, which is itself a violation of the terms

of Buttermore’s probation, independent of his commission of the crime of invasion of

privacy. Therefore, even if Buttermore was unaware of the no-contact order, and there is

no credible evidence of this claim, there was sufficient evidence to support the trial

court’s revocation of Buttermore’s probation. See Hubbard v. State, 683 N.E.2d 618, 622

(Ind. Ct. App. 1997) (noting that a single violation is sufficient to warrant revocation of

probation). Buttermore’s argument otherwise amounts to a request that we reweigh the

evidence, which we will not do. See Pokes, 971 N.E.2d at 179.

For all of these reasons, we conclude that the trial court did not abuse its discretion

by finding that there was sufficient evidence to revoke Buttermore’s probation.

Affirmed.

FRIEDLANDER, J., and PYLE, J., concur.