      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                          FILED
      regarded as precedent or cited before any                                  Feb 21 2019, 5:49 am

      court except for the purpose of establishing                                   CLERK
      the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court
      estoppel, or the law of the case.


      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                         Curtis T. Hill, Jr.
      Ellen M. O’Connor                                        Attorney General of Indiana
      Marion County Public Defender Agency                     Monika Prekopa Talbot
      – Appellate Division                                     Supervising Deputy Attorney
      Indianapolis, Indiana                                    General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA
      Anthony P. Buehner,                                      February 21, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-1291
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Marc T.
      Appellee-Plaintiff.                                      Rothenberg, Judge
                                                               Trial Court Cause No.
                                                               49G02-1510-MR-35345



      Mathias, Judge.


[1]   Following a jury trial in Marion Superior Court, Anthony P. Buehner

      (“Buehner”) was convicted of murder. Buehner appeals and argues that the trial

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019                  Page 1 of 10
      court erred in admitting evidence which he claims was irrelevant, unduly

      prejudicial, and inadmissible as prior bad acts.

[2]   We affirm.


                                 Facts and Procedural History
[3]   At the time relevant to this appeal, Buehner was in a romantic relationship with

      Janet Cook (“Janet”) and lived with Janet in a home in Indianapolis. Buehner

      was very controlling, and Janet’s formerly close relationship with her daughter,

      Jessica Cook (“Jessica”), began to change, with Janet having less and less

      contact with Jessica. Buehner was worried that Janet would rekindle her

      relationship with Jason Sanders (“Sanders”), who was the father of Janet’s

      youngest son, J.J. Buehner made threats to physically harm Sanders and told

      people that J.J. was his son. Buehner also forbade Janet to have a telephone or

      a Facebook account. When Jessica came to visit her mother, Buehner always

      sat with Janet. And on one particular occasion, Janet would not even come out

      of her bedroom to speak with Jessica. Jessica saw Buehner grab her mother by

      the throat. And on one occasion, Buehner told Janet, in Jessica’s presence,

      “[B]itch, I’ll kill you!” Tr. Vol. II, p. 89. Buehner claimed he was not serious,

      but Jessica did not believe him. Approximately two weeks before her death,

      Janet moved out of the home she shared with Buehner and moved in with her

      sister. She later moved in with Jessica, who was recovering from surgery. Janet,

      however, still maintained her relationship with Buehner.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019   Page 2 of 10
[4]   On September 27, 2015, Buehner sold prescription drugs to Marcia Tolliver

      (“Tolliver”), who informed Buehner that she and her boyfriend, Ashley Smiley

      (“Smiley”), had been fighting. Buehner informed Tolliver that he had a gun and

      could protect her. He also confided in her that he and his “girl” had also been

      having relationship troubles. Id. at 166. Tolliver could tell by the tone of

      Buehner’s voice that he was very angry with his girlfriend. Later that day,

      Buehner spoke with Smiley, and the two discussed their relationship troubles.

      Buehner told Smiley that he wanted to kill his girlfriend, who he claimed had

      been unfaithful.1 Id. at 176. Smiley also observed that Buehner had a handgun

      tucked into the back of his pants. Buehner then asked Tolliver if he could

      borrow her vehicle, a Jeep, ostensibly to go to the gas station. Tolliver agreed.

      But when Buehner did not return the following morning, Tolliver reported her

      Jeep as stolen to the police.


[5]   On October 1, 2015, Buehner showed up at Jessica’s house to see Janet. He had

      brought J.J.’s bicycle with him. He also had a new mobile phone that he needed

      assistance setting up. Frustrated that Jessica did not know how to assist him

      with the phone, Buehner and Janet went to visit the people living in the other

      half of the duplex in which Jessica lived. This was the last time that Jessica saw

      her mother alive.




      1
        On direct examination, Smiley testified that Buehner stated that “he wanted to kill her.” Id. at 176. When
      asked who he meant by “her,” Smiley replied, “Janet Cook.” Id. However, on cross-examination, Smiley
      clarified that Buehner did not mention Janet by name when he stated that he wanted to kill his girlfriend. Id.
      at 183.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019                 Page 3 of 10
[6]   In the other half of the duplex, Buehner and Janet argued about the phone.

      Buehner told Janet that he would permit her to have a mobile phone, but not a

      smart phone. Buehner gave Janet some cash, which she put in her bra. When

      Buehner later asked Janet to return the cash, Janet refused. This apparently

      upset Buehner, who indicated that he was leaving. Janet said that she was going

      with him, to which Buehner replied, “[G]ood, bitch, if you do, I’ll put you in

      the trunk.” Id. at 126. The two then left the duplex at approximately 1:00 a.m.

      the following morning and went to the residence of Candace Rich (“Rich”),

      who was the cousin of J.J.’s father and Janet’s ex-boyfriend, Sanders. Buehner

      and Janet stayed at Rich’s home until approximately 4:00 a.m.


[7]   At some point between 4:00 a.m. and 5:30 a.m. that morning, Buehner went to

      the home of Jessica Hudson (“Hudson”) and Charles Trice and knocked loudly

      and quickly at the front door. Hudson opened the door, and Buehner came

      inside. Buehner had blood on the jeans and white tank top he was wearing.

      Buehner was “panicking,” and tossed a handgun at Hudson. Id. at 246. Hudson

      did not touch the gun and let it fall to the floor. Buehner, panicking and pacing,

      stated, “I shot ‘em. I shot ‘em. I shot ‘em.”2 Id. Hudson was worried that

      Buehner might be wanted by the police and told him to park behind her home.




      2
       Hudson clarified that Buehner “didn’t say her. He didn’t say him. He just said, I shot ‘em.” Id. The word
      “‘em,” is an informal variant of the pronoun “them.” See Merriam-Webster “‘em,” https://www.merriam-
      webster.com/dictionary/'em. In informal speech, “them” can be used as a gender-neutral singular pronoun.
      See Singular They, https://www.merriam-webster.com/words-at-play/singular-nonbinary-they; The Chicago
      Manual of Style Online, § 5.48 “Singular ‘they,’” http://www.chicagomanualofstyle.org/book/ed17/part2/
      ch05/psec048.html.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019              Page 4 of 10
      Hudson left the front room for a few minutes, and when she returned, Buehner

      and his gun were gone.

[8]   At approximately 5:30 a.m., Buehner called Kelli Kashon (“Kashon”) and told

      her that he needed to see her. Buehner told Kashon that he and his girlfriend

      had broken up. Kashon gave Buehner directions to the home where she was

      staying, and Buehner arrived in a Jeep, wearing jeans and a white tank top,

      both of which were blood stained. Buehner physically broke his mobile phone,

      as well as telling Kashon that he had beaten someone up after this person

      allegedly did not pay Buehner in exchange for prescription pills. Buehner gave

      Kashon some prescription drugs and handed her a blood-stained wad of cash.

      The two went to the home of Kashon’s friend, Adam Bailey (“Bailey”), where

      she had stored some of her clothes. Bailey was not at home, and although

      Kashon had permission to enter the home, she did not have a key. Buehner

      therefore opened a window, climbed into the house, and opened the front door

      for Kashon. After having sexual intercourse with Kashon, Buehner fell asleep.

      Kashon then went out to sell the prescription drugs Buehner had given her.


[9]   At some point later in the morning of October 2, 2015, Jessica’s daughter and

      neighbor saw Janet’s body lying on the front porch of the duplex where Jessica

      lived. The neighbor informed Jessica, who went to the front porch, saw her

      mother’s body, and telephoned the police. The police arrived on the scene and

      observed that Janet had been shot one time in the left side of the head.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019   Page 5 of 10
[10]   In the meantime, Buehner and Kashon had gone to sell prescription drugs at

       another individual’s home. While there, Kashon saw Buehner’s photograph on

       the television news. Kashon, still believing that Buehner had beaten someone

       up, agreed to go with Buehner to Kentucky to sell more drugs. Kashon drove

       Buehner to Kentucky in the Jeep Buehner had stolen from Tolliver. During the

       trip, Kashon asked Buehner about the blood on his clothes, as he was still

       wearing his blood-stained jeans. Specifically, Kashon asked “how bad did you

       beat [the] dude up?” Buehner replied, “I didn’t beat him up, I shot him.” Id. at

       152.


[11]   After they had driven to Kentucky, a local police officer pulled over the Jeep for

       reckless driving. The officer noted that Buehner, who was in the back seat, was

       moving around a lot, which concerned the officer. The officer secured Kashon

       and went to remove Buehner from the back seat. When he did so, he saw that

       Buehner had removed his jeans and was wearing only his boxer shorts. Buehner

       initially gave the police a false name, but later admitted that he was Anthony

       Buehner. The police found Buehner’s blood-stained jeans in the back seat. The

       police arrested the two for driving a stolen vehicle and later learned that

       Buehner was wanted for murder. A search of Kashon’s person revealed the

       blood-stained money Buehner had given her.

[12]   In the meantime, Indianapolis police began to investigate Janet’s murder.

       Autopsy results confirmed that Janet had been killed by a gunshot wound to the

       left side of her head. The police searched the homes Buehner had visited on the

       night in question, and they found Buehner’s tank top at Bailey’s home. Buehner

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019   Page 6 of 10
       had apparently attempted to destroy the shirt, as it was partially burned, but it

       still contained blood stains. Subsequent DNA testing of Buehner’s shirt, jeans,

       shoes, and the money he gave to Kashon revealed that the blood was Janet’s.

       The police also found during their investigation handwritten lyrics, in

       Buehner’s handwriting, on the back of a meal order form from the Marion

       County Jail. The lyrics are crude, vulgar, and boast of Buehner’s sexual

       accomplishments. The lyrics contain the line, “I almost f*cked her up over

       him[.]” Ex. Vol., State’s Ex. 36.


[13]   On October 6, 2015, the State charged Buehner with Janet’s murder. The State

       subsequently filed a notice of its intent to offer evidence under the exceptions

       set forth in Indiana Evidence Rule 404(b). The State indicated that it intended

       to introduce evidence of the following: that Buehner was controlling of Janet

       and that Janet distanced herself from her daughter after she began her

       relationship with Buehner; that Buehner verbally threatened to kill Janet; that

       Buehner put his hands on Janet’s neck; that Buehner was jealous of Janet’s

       prior relationship with the father of her youngest son; and that Buehner did not

       want Janet to attend a family birthday party and threatened to “shoot up” the

       party if she did attend. Appellant’s App. Vol. II, p. 151. The trial court held a

       hearing on the State’s motion on October 19, 2017, and, after hearing testimony

       from Jessica and subsequent briefing by the parties, the trial court granted the

       State’s motion on November 1, 2017.

[14]   A three-day jury trial commenced on April 6, 2018. Immediately before trial,

       Buehner filed a motion in limine seeking to exclude testimony from Smiley that

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019   Page 7 of 10
       Buehner had indicated his desire to kill his girlfriend. The trial court denied the

       motion. At trial, Buehner objected to Smiley’s testimony regarding Buehner’s

       statements, but the trial court overruled the objection and permitted Smiley to

       testify that Buehner had stated his desire to kill his girlfriend. Buehner also

       objected to Jessica’s testimony regarding her mother’s relationship with

       Buehner, but the trial court also overruled this objection. Buehner objected

       again when the State offered to introduce the lyrics written by Buehner. The

       trial court overruled this objection too and permitted the State to offer to the

       jury a redacted version of the lyrics.3 At the conclusion of the trial, the jury

       found Buehner guilty as charged. On May 9, 2018, the trial court sentenced

       Buehner to sixty-three years of incarceration. Buehner now appeals.


                                           Discussion and Decision

[15]   Buehner contends that the trial court abused its discretion by admitting

       evidence that he claims was inadmissible pursuant to Indiana Evidence Rule

       404(b). Decisions regarding the admission or exclusion of evidence are left to

       the sound discretion of the trial court. Laird v. State, 103 N.E.3d 1171, 1175

       (Ind. Ct. App. 2018), trans. denied (citing Harrison v. State, 32 N.E.3d 240, 250

       (Ind. Ct. App. 2015), trans. denied). On appeal, we review the trial court’s

       decision only for an abuse of that discretion. Id. The trial court abuses its

       discretion only if its decision regarding the admission of evidence is clearly




       3
           The trial court also entered an unredacted copy of the lyrics into the record.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019    Page 8 of 10
       against the logic and effect of the facts and circumstances before it, or if the

       court has misinterpreted the law. Id.


[16]   Buehner argues that the trial court abused its discretion in admitting evidence

       regarding the nature of his relationship with Janet, specifically Jessica’s

       testimony that Buehner was controlling and interfered with Janet’s relationship

       with her daughter, and at least once placed his hands on Janet’s neck. He also

       argues that the evidence regarding his prior threats to kill or injure Janet were

       improperly admitted, as was the sheet containing the vulgar lyrics. Having

       reviewed the record before us, we conclude that even if we assume arguendo that

       this evidence was improperly admitted, any error was harmless.


[17]   As we set forth in Harrison:


               We will not reverse a defendant’s conviction if the error was
               harmless. An error is harmless if substantial independent
               evidence of guilt satisfies the reviewing court that no substantial
               likelihood exists that the challenged evidence contributed to the
               conviction. Generally, errors in the admission of evidence are to
               be disregarded unless they affect the substantial rights of a party.


       32 N.E.3d at 254 (citations omitted).

[18]   Buehner claims that the admission of this evidence was not harmless, noting the

       circumstantial nature of the case against him. We note that, whether or not the

       evidence was circumstantial, it was overwhelming. Buehner was seen with

       Janet on the night/early morning of her death. The two were seen arguing over

       cash that Buehner had given to Janet and that Janet refused to return. Buehner

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019   Page 9 of 10
       was seen trying to get rid of a handgun later that morning, and he was covered

       in blood. Buehner attempted to burn his blood-stained shirt and fled to

       Kentucky. When he was arrested, he had removed his blood-stained jeans. The

       woman Buehner was apprehended with, Kashon, was found in possession of

       cash that was also bloodstained. Subsequent DNA testing of the blood found on

       Buehner’s shirt, jeans, shoes, and the cash revealed that the blood found on

       these items belonged to Janet. Thus, Buehner was the last person seen with

       Janet while she was alive, had possession of a handgun, attempted to destroy

       incriminating evidence, and later fled the state covered in Janet’s blood and in

       possession of the cash over which the two had been arguing. Janet was later

       found dead from a gunshot wound to the head.


[19]   Given the strength of this evidence, we can only conclude that the admission of

       evidence regarding the nature of Buehner’s relationship with Janet, his threats

       toward her, and the lyrics sheet was harmless. That is, there was independent

       evidence of guilt such that there was no substantial likelihood that the

       challenged evidence contributed to the jury’s verdict.


[20]   Accordingly, we affirm the judgment of the trial court.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1291 | February 21, 2019   Page 10 of 10
