Marvin J. Bufkin v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jun 04 2018, 8:42 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Elizabeth A. Bellin Curtis T. Hill, Jr. Elkhart, Indiana Attorney General of Indiana

Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Marvin J. Bufkin, June 4, 2018 Appellant-Defendant, Court of Appeals Case No. 20A03-1712-CR-2827 v. Appeal from the Elkhart Superior Court State of Indiana, The Honorable Teresa L. Cataldo, Appellee-Plaintiff Judge Trial Court Cause No. 20D03-1604-F3-14

Altice, Judge. Court of Appeals of Indiana | Memorandum Decision 20A03-1712-CR-2827 | June 4, 2018 Page 1 of 14

Case Summary [1] Marvin Bufkin appeals his conviction for Level 3 felony rape, as well as his

partially-suspended, fourteen-year sentence. He presents three issues for our

review:

1. Is the conviction supported by sufficient evidence?

2. Did the admission of certain evidence constitute fundamental error?

3. Is Bufkin’s sentence inappropriate in light of the nature of the offense and his character?

[2] We affirm.

Facts & Procedural History [3] On Friday September 19, 2015, Bufkin’s fourteen-year-old daughter K.B. and

two of her friends of the same age, R.B. and J.M., spent the night at Bufkin’s

home. This was J.M.’s first time meeting Bufkin. K.B. lived with her mother,

but she had recently started spending some overnights with Bufkin, who was

less strict than her mother. K.B.’s eighteen-year-old, half-brother Christian was

also staying there. Bufkin had been a father figure to Christian since birth but

was not Christian’s biological father.

Court of Appeals of Indiana | Memorandum Decision 20A03-1712-CR-2827 | June 4, 2018 Page 2 of 14 [4] When the girls woke the next morning, Bufkin had already left for work.

Bufkin returned home sometime after 5:00 p.m. and began drinking large

amounts of vodka. At some point, he told the girls that he had purchased a

bottle of vanilla vodka for them to share. K.B. and R.B. each tried a small

amount and thought it was disgusting, so they did not have more. J.M.,

however, drank up to ten shots over a few hours. Bufkin also provided J.M.

with beer and challenged her to chug it. J.M. became extremely intoxicated

and had difficulty walking. Additionally, J.M. started being “lovey dovey”

with everyone and “a little flirty” with Bufkin, who was also intoxicated.

Transcript Vol. II at 163. When J.M. walked to the bathroom, Bufkin made a

crude comment regarding the shape of J.M.’s body. [5] The group’s plans to go bowling that night were delayed by the drinking, but

they eventually left around 10:00 p.m. Christian had not been drinking, so he

drove with Bufkin in the front passenger seat and the girls in the back. When

they reached the bowling alley, Christian indicated that J.M. was too

intoxicated to be in public. Accordingly, the plans changed. Christian drove

J.M. and Bufkin home, while R.B. and K.B. met up with a friend and agreed to

be home by 1:30 or 2:00 a.m. [6] After Christian, Bufkin, and J.M. returned home, J.M. apparently vomited.

She then laid down on a brown loveseat and passed out. Christian placed a

blanket over her and tucked her in. Christian eventually fell asleep on another

couch in the same room.

Court of Appeals of Indiana | Memorandum Decision 20A03-1712-CR-2827 | June 4, 2018 Page 3 of 14 [7] K.B. and R.B. returned home around 12:30 a.m. and could hear loud music as

they approached the home. K.B. opened the front door and immediately saw

the back of her father. Bufkin was completely naked from the waist down and

bent over the arm of the brown couch where J.M. lay. R.B. had a better angle

to see J.M. and observed that J.M.’s pants were pulled down to her mid-thighs.

Bufkin turned and looked at the girls when they entered but then turned back to

J.M. and got closer to her. Scared of what Bufkin might do, the girls slowly

walked toward the attached kitchen. Bufkin said nothing and eventually

walked past them into his bedroom, where he locked the door. J.M. was still

passed out on the couch, with her pants unbuttoned and partially pulled down. [8] K.B. then rushed over to wake Christian, who was in a deep sleep on the couch.

She screamed and shook him as she said, “I think dad just raped J.M.” Id. at

116. Christian jumped up and ran to Bufkin’s bedroom door, kicking in the

door. He yelled at Bufkin, who denied that anything happened. The two came

out of the bedroom, and Christian pointed out that Bufkin’s shorts were on

sideways and that J.M.’s blanket was on the floor. [9] In the meantime, K.B. called her mother in a panic. Her mother rushed to the

scene while calling 911. J.M. awoke during the commotion, confused and

unaware of what had happened. Her last memory was being in the parking lot

of the bowling alley. After waking, J.M. noticed that her pants were

unbuttoned and there was “white stuff” on them. Id. at 197.

Court of Appeals of Indiana | Memorandum Decision 20A03-1712-CR-2827 | June 4, 2018 Page 4 of 14 [10] Officers with the Elkhart County Sheriff’s Department, including Corporal

Joseph Milovich, were dispatched to the home at 12:38 a.m. in response to “a

rape in-progress call.” Id. at 49. Corporal Milovich encountered the girls in

K.B.’s mother’s vehicle. They were crying hysterically and “talking very fast

and frantically”. Id. at 59. K.B. and R.B. told Corporal Milovich that they saw

Bufkin “on top of J.M., without his pants, he was laying on top of her, she was

on a couch and her pants were down, that she was passed out.” Id. at 60. [11] J.M. was taken by ambulance to Elkhart General Hospital for a sexual assault

examination. The physical examination revealed that J.M. had slight

erythema/redness on the inner labia of her vagina. This is a “very non-specific

finding” possibly indicating “some irritation or trauma, some rubbing”.

Transcript Vol. III at 82. A sexual assault kit was completed, which included

collection of vaginal cervical swabs. Additionally, J.M.’s blood alcohol content

was determined to be 0.120 at the time of testing, approximately 3:30 a.m. [12] DNA swabs from J.M. and Bufkin were analyzed by two forensic biologists

with the Indiana State Police Laboratory. Initial presumptive testing done by

Kimberly Marshall indicated the possible presence of seminal material in some

swabs taken from J.M., but additional confirmatory testing was negative.

Further, Marshall determined that an insufficient quantity of male DNA existed

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for autosomal STR analysis. Accordingly, Marshall referred the case to a

colleague, Melissa Meyers, to perform Y-STR testing.1 [13] The Y-STR analysis performed by Meyers in February 2016 resulted in more

conclusive results. Meyers determined that the Y-STR profile obtained from

the swabs of J.M.’s vaginal cervical area was consistent with the Y-STR profile

obtained from Bufkin. Thus, Bufkin (along with all of his male paternal

relatives) could not be excluded as potential Y-STR contributors. Meyers made

essentially the same findings with respect to a swab of J.M.’s anal area. [14] On April 18, 2016, the State charged Bufkin with Level 3 felony rape and Level

4 felony sexual misconduct with a minor. Bufkin’s jury trial was held

September 25 to September 27, 2017. The jury found him guilty as charged,

and the trial court entered judgments of conviction on both counts. At the

sentencing hearing on November 2, 2017, the trial court vacated the conviction

for sexual misconduct with a minor. With respect to the rape conviction, the

trial court sentenced Bufkin to fourteen years in prison, with three years

suspended to probation. Additional information will be provided below as

needed.

Discussion & Decision

1 This newer type of analysis is a “male-specific DNA test” that “look[s] at DNA that is located on the Y chromosome only.” Id. at 8. Meyers explained that when developing a Y-STR profile, male paternal relatives cannot be excluded from the profile. The statistical calculation used with Y-STR analysis differs from traditional DNA analysis but is “still a reliable method”. Id. at 15.

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1. Sufficiency

[15] When we consider a challenge to the sufficiency of the evidence, we neither

reweigh the evidence nor assess the credibility of the witnesses. Suggs v. State,

51 N.E.3d 1190, 1193 (Ind. 2016). Instead, we consider only the evidence and

reasonable inferences supporting the conviction. Id. We will affirm if there is

probative evidence from which a reasonable trier of fact could have found the

defendant guilty beyond a reasonable doubt. Id. [16] As charged, the State was required to establish that Bufkin knowingly had

sexual intercourse with J.M. or caused her to submit to other sexual conduct

when J.M was unaware that the sexual intercourse or other sexual conduct was

occurring. Ind. Code § 35-42-4-1(a)(2); Appendix Vol. II at 17. “Sexual

intercourse” is an act that “includes any penetration of the female sex organ by

the male sex organ.” Ind. Code § 35-31.5-2-302. “Other sexual conduct” is

defined to include an act involving “the penetration of the sex organ…of a

person by an object.” I.C. § 35-31.5-2-221.5. [17] In challenging the sufficiency of the evidence, Bufkin asserts that the only

evidence he engaged in sexual intercourse or other sexual contact with J.M.

was that the Y-STR results from one vaginal cervical swab could not exclude

him as a DNA contributor, nor any of his male relatives. Bufkin also notes that

Christian was sleeping on another couch in the same room as J.M. We reject

this blatant request to reweigh the evidence.

Court of Appeals of Indiana | Memorandum Decision 20A03-1712-CR-2827 | June 4, 2018 Page 7 of 14 [18] The evidence favorable to the conviction reveals that after supplying fourteen-

year-old J.M. with alcohol, Bufkin found an opportunity to take advantage of

her. When his daughter and R.B. returned home earlier than expected, they

found Bufkin naked from the waist down and leaning over J.M. from the end of

the couch. J.M. was passed out on the couch with her pants pulled down to her

mid-thighs. The blanket that had been covering J.M. was on the floor. Bufkin

said nothing to the girls when they entered. He simply looked at them and then

turned his attention back to J.M., likely pulling up her pants. He then went into

his bedroom and locked the door. When J.M. was eventually awakened by her

hysterical friends, she noticed that her pants were unbuttoned and there was

“white stuff” on her jeans. Transcript Vol. II at 197. From this evidence, it

could reasonably be inferred that Bufkin had engaged in some kind of sexual

contact with J.M., who was unaware due to her intoxication. [19] Bufkin focuses his sufficiency argument on the purported lack of evidence

regarding penetration. The evidence, however, indicates that J.M. had redness

on the inner labia of her vagina after her encounter with Bufkin. More notably,

the DNA evidence reveals that swabs taken from J.M.’s cervix had a Y-STR

profile consistent with Bufkin’s Y-STR profile. This means that Bufkin and his

male paternal relatives could not be excluded as potential contributors to the

sample. Considering all of the evidence in the case, we find unpersuasive

Bufkin’s suggestion that the male-specific DNA found inside J.M.’s vagina

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could have belonged to someone other than him. 2 In sum, we conclude that a

reasonable jury could find beyond a reasonable doubt that Bufkin knowingly

penetrated J.M.’s vagina with his penis, finger, or some other object while she

was unaware of such sexual conduct.

2. Admission of Evidence

[20] Next, Bufkin complains that two witnesses – K.B. and Corporal Milovich –

were allowed to offer legal conclusions as to the ultimate issue in violation of

Indiana Evidence Rule 704(b).3 Bufkin directs us to Corporal Milovich’s

testimony that he responded to the scene in response to “a rape in-progress

call.” Transcript Vol. II at 49. Additionally, Bufkin notes K.B.’s testimony that

when she screamed to wake Christian, she said, “I think dad just raped J.M.”

Id. at 116. Acknowledging that he did not preserve the alleged errors below,

Bufkin now asserts fundamental error to avoid waiver. [21] The fundamental error exception permits appellate review of otherwise

procedurally defaulted claims. Sciaraffa v. State, 28 N.E.3d 351, 356 (Ind. Ct.

App. 2015), trans. denied. This exception to the waiver rule is extremely narrow

2 To the extent Bufkin suggests Christian might have been the source of the DNA, we observe that the evidence indicates Bufkin is not Christian’s biological son. 3 Evid. R. 704(b) precludes witnesses from “testify[ing] to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.” “The jury, not the witness, is responsible for deciding the ultimate issues in a trial, and opinion testimony concerning guilt ‘invaded the province of the jury in determining what weight to place on a witness’ testimony.’” Williams v. State, 43 N.E.3d 578, 582 (Ind. 2015) (quoting Blanchard v. State, 802 N.E.2d 14, 34 (Ind. Ct. App. 2004)).

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and its proponent – here Bufkin – “bears the heavy burden of showing that a

fair trial was impossible.” Harris v. State, 76 N.E.3d 137, 139 (Ind. 2017). To

meet this daunting standard, Bufkin is required to “show that the trial court

should have raised the issue sua sponte due to a blatant violation of basic and

elementary principles, undeniable harm or potential for harm, and prejudice

that makes a fair trial impossible.” Id. at 140. [22] Contrary to his assertions on appeal, Corporal Milovich did not opine during

his testimony that Bufkin raped J.M. Corporal Milovich simply testified that he

responded to a “rape in-progress call.” Transcript Vol. II at 49. He did not

testify that Bufkin raped J.M., he offered no opinion on the veracity of the

information he received at the scene, and he did not testify as to his opinions

regarding guilt in this case. Corporal Milovich’s testimony did not implicate

Evid. R. 704(b). [23] Similarly, K.B. did not express an opinion at trial regarding Bufkin’s guilt or

innocence. Her testimony focused on her observations and actions on the night

in question. In describing her reaction to finding Bufkin and J.M., however,

K.B. testified: “My mind is still going, trying to comprehend what I just seen,

and I screamed and bawled my eyes out and shook my brother and woke him

up and said, ‘I think dad just raped J.M.’” Id. at 116 (emphasis supplied). The

State incorrectly argues, without citation to supporting authority, that this

testimony does not implicate Evid. R. 704(b) because the opinion statement was

not originally made in court. See Smith v. State, 721 N.E.2d 213, 217 (Ind. 1999)

(“The same reasoning underlying Rule 704(b)’s prohibition of opinions of guilt

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during live in-court testimony applies to statements offered at trial that were

made at another time or place.”). [24] Even assuming that this small portion of K.B.’s testimony was inadmissible, we

cannot conclude that its admission made a fair trial impossible. K.B.’s

testimony as a whole made clear that she did not actually witness Bufkin rape

J.M. Further, K.B. simply noted the frantic statement made to her brother,

which was understandable given the situation she had just encountered. K.B.

did not go further and offer an opinion at trial about the ultimate issue of

whether her father had, in fact, raped J.M. Had Bufkin objected, he could have

obtained an admonishment. But he has not established on appeal that this

evidentiary error rose to the level of fundamental error.

3. Sentence

[25] Finally, Bufkin challenges his sentence as inappropriate in light of his character

and the nature of his offenses. Although a trial court may have acted within its

lawful discretion in imposing a sentence, Article 7, Sections 4 and 6 of the

Indiana Constitution authorize independent appellate review and revision of a

sentence imposed by the trial court. Alvies v. State, 905 N.E.2d 57, 64 (Ind. Ct.

App. 2009). This appellate authority is implemented through Indiana Appellate

Rule 7(B), which provides that a court “may revise a sentence authorized by

statute if, after due consideration of the trial court’s decision, the Court finds

that the sentence is inappropriate in light of the nature of the offense and the

character of the offender.” Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007),

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clarified on reh’g, 875 N.E.2d 218. Nevertheless, “we must and should exercise

deference to a trial court’s sentencing decision, both because Rule 7(B) requires

us to give ‘due consideration’ to that decision and because we understand and

recognize the unique perspective a trial court brings to its sentencing decisions.”

Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). The appellant bears

the burden of persuading us that his sentence is inappropriate. Childress v. State,

848 N.E.2d 1073, 1080 (Ind. 2006). [26] The determination of whether we regard a sentence as inappropriate “turns on

our sense of the culpability of the defendant, the severity of the crime, the

damage done to others, and myriad other factors that come to light in a given

case.” Bethea v. State, 983 N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v.

State, 895 N.E.2d 1219, 1224 (Ind. 2008)). “The principal role of such review is

to attempt to leaven the outliers.” Chambers v. State, 989 N.E.2d 1257, 1259

(Ind. 2013). It is not our goal in this endeavor to achieve the perceived

“correct” sentence in each case. Knapp v. State, 9 N.E.3d 1274, 1292 (Ind.

2014). Accordingly, “the question under Appellate Rule 7(B) is not whether

another sentence is more appropriate; rather, the question is whether the

sentence imposed is inappropriate.” King v. State, 894 N.E.2d 265, 268 (Ind. Ct.

App. 2008) (emphasis in original). [27] To assess the appropriateness of a sentence, we look first to the statutory range

established for the classification of the relevant offense. Level 3 felony rape has

a sentencing range of three to sixteen years, with the advisory sentence being

nine years. See Ind. Code § 35-50-2-5(b). Thus, Bufkin received a sentence that

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was two years shy of the maximum, and three years of this sentence was

suspended to probation. [28] The nature of the rape in this case supports a sentence above the advisory.

While having three fourteen-year-old girls in his care for the night, Bufkin – age

forty-one at the time – became intoxicated himself and provided the girls with

their own bottle of vanilla vodka to share. This resulted in J.M. drinking up to

ten shots and becoming extremely intoxicated, all while Bufkin encouraged her

to continue drinking and participate in drinking contests. Later that night, J.M.

vomited and then passed out on a couch. Shortly thereafter, Bufkin sexually

assaulted the young girl, even while Christian slept on another couch in the

same room. Bufkin’s own daughter then walked in on him in the midst of the

rape of her friend. [29] Turning to Bufkin’s character, we observe that he has a significant criminal

history. Between 2003 and 2010, Bufkin was convicted of two felonies and

eight misdemeanors. Of particular note, Bufkin has past convictions for escape,

battery, resisting law enforcement, domestic battery, and possession of cocaine.

He also violated probation twice in 2006 and 2007. Additionally, Bufkin has a

history of drug and alcohol abuse, which the trial court aptly observed has been

“the underlying tone of [Bufkin’s] entire criminal history”. Transcript Vol. IV at

6. Despite receiving lenient sentences and addiction treatment in the past,

Bufkin has continued to abuse substances and has failed to substantially reform

his criminal behavior.

Court of Appeals of Indiana | Memorandum Decision 20A03-1712-CR-2827 | June 4, 2018 Page 13 of 14 [30] After considering the nature of the offense and Bufkin’s character, we conclude

that the fourteen-year, partially-suspended sentence imposed by the trial court is

not inappropriate. [31] Judgment affirmed. [32] Najam, J. and Robb, J., concur.

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