Ronald Buttermore v. State of Indiana ( 2014 )

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MEMORANDUM DECISION – NOT FOR PUBLICATION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.
9