                                                                           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
