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.

Court of Appeals of Indiana | Memorandum Decision 49A05-1309-CR-431 | July 2, 2015               Page 11 of 11
