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Buford v. State

Court of Appeals of Indiana

December 23, 2019

Antonio Buford, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.

          Appeal from the Marion Superior Court The Honorable Barbara Cook Crawford, Judge Trial Court Cause No. 49G01-1806-F3-20993

          ATTORNEY FOR APPELLANT Kevin Wild Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill Attorney General of Indiana George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana

          BROWN, JUDGE.

         [¶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 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 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 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, 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, ...

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