BUFORD v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Jamal William Jaquan Buford was charged with two counts of Level 1 felony child molesting after J.B., his girlfriend's younger sister, disclosed to her mother that he had been touching her inappropriately. At trial, the State asked J.B.’s sister if she had spoken with Buford on “jail phone calls,” and she answered affirmatively. Buford subsequently objected and moved for a mistrial, but declined an admonition, and the trial court overruled his motion for mistrial. At the conclusion of trial, a jury found Buford guilty as charged, and the trial court imposed concurrent sentences of thirty-five years of incarceration on each conviction. Buford contends that (1) the trial court abused its discretion when it denied his motion for mistrial and (2) the evidence was insufficient to sustain one of his convictions. Because disagree with both arguments, we affirm.

Facts and Procedural History

[2] When J.B. was between six and eight years old, her sister's boyfriend, Buford, lived with her family in Evansville. Sometime starting in around 2021 or 2022, J.B.’s aunt observed Buford exiting the rooms in which J.B. had been sleeping, on multiple occasions. J.B.’s aunt eventually informed J.B.’s mother what she had observed. J.B.’s mother became suspicious and asked J.B. “if anybody was messing with her.” Tr. Vol. III p. 25. J.B. “broke down and started crying” and disclosed to her mother that Buford had been “touching her in between her legs, in her private area.” Tr. Vol. III p. 25. J.B.’s mother called the police. J.B. was interviewed at an adult and child advocacy center, where she disclosed sexual abuse.

[3] The State charged Buford with three counts of child molesting, and, following the State's dismissal of one of the charges, Buford was tried to a jury on two counts of Level 1 felony child molesting. At trial, J.B.’s sister testified that she had continued to stay in contact with Buford. The State asked if that had included talking “routinely” with Buford “on jail phone calls” “[a]ll the way up to this trial day[,]” and she answered affirmatively, testifying “we spoke every day.” Tr. Vol. III p. 140. Buford objected and requested to approach the bench.

[4] During a hearing outside the presence of the jury, Buford argued that he had been prejudiced by the statement that he was in jail. Specifically, Buford argued that the statement was “extremely prejudicial” and moved for a mistrial. Tr. Vol. III p. 142. Buford also argued that the statement “elicited a reaction” from “three or four of the jurors,” and that an admonition would not remedy the error. Tr. Vol. III p. 142. The State argued that the error was harmless and could be cured with a “limited instruction to the jury.” Tr. Vol. III p. 143. Buford declined an admonition on the ground that no admonition could cure the statement. Tr. Vol. III p. 145. The trial court overruled Buford's motion for a mistrial and accepted the reasoning that an admonition would “mak[e] things worse given the brevity of the statement, how quickly and insignificantly it was inserted in the sentence.” Tr. Vol. III p. 144.

[5] J.B., nine years old at the time of trial, testified that she would “wake up and [Buford] would be watching [her] sleep.” Tr. Vol. II p. 170. She testified that this behavior had progressed to Buford touching her breasts underneath her shirt. She testified that later, Buford had begun touching her vagina with his hand, underneath her clothes. J.B. testified that this touching had occurred more than once, and that his hand would touch “in between the vagina area[.]” Tr. Vol. II p. 182. J.B. also testified that on one occasion, Buford had touched her “lower bikini area” with his penis, specifically her vagina, and that she had felt pain after in her “lower bikini area.” Tr. Vol. II p. 183.

[6] The jury found Buford guilty of both counts of Level 1 felony child molesting. On March 20, 2025, the trial court imposed concurrent sentences of thirty-five years of incarceration for each conviction.

Discussion and Decision

I. Buford's request for mistrial

[7] Buford contends that the trial court abused its discretion when it denied his motion for mistrial. Specifically, he contends that the State had placed him in “grave peril” by referring to his pretrial incarceration when it had asked J.B.’s sister whether she had “routinely” spoken with Buford on “jail phone calls.” Appellant's Br. p. 13. We review the denial of a mistrial motion for an abuse of discretion. Ramirez v. State, 7 N.E.3d 933, 935 (Ind. 2014). “A mistrial is an extreme remedy granted only when no other method can rectify the situation.” Brooks v. State, 934 N.E.2d 1234, 1243 (Ind. Ct. App. 2010) (citation omitted), trans. denied.

[8] In determining whether a mistrial was warranted, we consider whether the defendant was placed in a position of grave peril to which he should not have been subjected. The gravity of the peril is determined by the probable persuasive effect on the jury's decision. When a motion for mistrial has been denied, the defendant has the burden to demonstrate both that he was placed in a position of grave peril to which he should not have been subjected and that no other remedy can cure the perilous situation in which he was placed.

Id. (citations and quotations omitted). “Moreover, a reviewing court accords great deference to the trial court's ruling on a mistrial motion.” Id.

[9] Here, the witness acknowledged that she had routinely spoken with Buford on “jail phone calls.” Tr. Vol. III p. 140. In agreeing that an admonition would “mak[e] things worse” the trial court noted the “brevity of the statement, how quickly and insignificantly it was inserted in the sentence.” Tr. Vol. III p. 144. While Buford compares the statement to situations in which a defendant was forced to wear jail clothing throughout trial, the Indiana Supreme Court has rejected that comparison. See Didio v. State, 471 N.E.2d 1117, 1121 (Ind. 1984) (concluding that, despite a prospective juror's statement that she had seen the defendant in jail every day, defendant was not placed “in a position of grave peril [․] which was the U.S. Supreme Court's concern regarding a person who is seen constantly throughout the trial in jail clothing.”); see also Kelley v. State, 460 N.E.2d 137 (Ind. 1984) (finding “no merit” in appellant's contention that a photograph of him which included a “barred jail wall” was similar to defendants appearing in court wearing jail clothes”).

[10] Considering, as the trial court did, the brevity and insignificance of the statement at Buford's trial that his girlfriend had spoken to him every day on “jail phone calls,” we cannot say that Buford was placed in “grave peril” by the remark. Nothing in the record indicates that there was any constant and continuing reminder that Buford had been in jail before trial, and furthermore, Buford declined an admonition to the jury. While Buford was certainly free to decline an admonition, a timely and accurate admonition would have been a proper remedy in this case. See Lewis v. State, 726 N.E.2d 836, 846 (Ind. Ct. App. 2000) (providing that, where defendant was seen by jurors with a deputy near a holding cell, defendant was not entitled to a mistrial because an admonition, which defendant declined, “would have been sufficient to cure any possible harm that occurred as a result of th[e] incident”), trans. denied.

[11] In any event, we conclude that any error in the State's questioning regarding “jail phone calls” was harmless. The evidence presented was more than sufficient to sustain Buford's convictions. Not only did J.B. testify about Buford's molestations, but her aunt also testified to Buford's suspicious behavior, going in and out of the rooms in which J.B. had been sleeping, and J.B.’s mother testified regarding J.B.’s disclosures to her. The brief and insignificant reference to the “jail phone calls” was not likely to have had a prejudicial impact on the average juror such that it contributed to the verdict. See Craun v. State, 762 N.E.2d 230, 239 (Ind. Ct. App. 2002) (brackets and citation omitted) (“Reversal is required if the record reveals that the improper evidence was likely to have had a prejudicial impact on the average juror such that it contributed to the verdict.”), trans. denied.

II. Sufficiency of the Evidence

[12] Buford contends that the evidence was insufficient to support his conviction for Count III, renumbered as Count II for purposes of trial. Under the renumbered count, Buford was charged with Level 1 felony child molesting for performing sexual intercourse on J.B.

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (brackets, citations, and quotations omitted). Stated differently, in reviewing the sufficiency of the evidence, “we consider only the evidence and reasonable inferences most favorable to the convictions, neither reweighing evidence nor reassessing witness credibility” and “affirm the judgment unless no reasonable factfinder could find the defendant guilty.” Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016).

[13] To prove that Buford had committed Level 1 felony child molesting as charged in Count II, the State was required to prove that Buford, who had been at least twenty-one years of age at the time, had knowingly or intentionally performed sexual intercourse with J.B., who had been under fourteen years of age. Ind. Code § 35-42-4-3(a)(1). Buford argues only that “there is a failure of proof on element 3: performance of sexual intercourse.” Appellant's Br. p. 22. Buford specifically takes issue with J.B.’s use of the term “vagina” in her testimony, and “urge[s] this Court not to base a conviction on how a lay witness may understand a term that has various meanings,” contending that there “should be some evidence in the record to support the witness's understanding of a term.” Appellant's Br. p. 26.

[14] Initially, we note that the Indiana Supreme Court has previously provided that

a detailed anatomical description of penetration is unnecessary and undesirable for two reasons. First, many people are not able to articulate the precise anatomical features that were or were not penetrated. Second, to require such detailed descriptions would subject victims to unwarranted questioning and cross-examination regarding the details and extent of penetration.

Spurlock v. State, 675 N.E.2d 312, 315 (Ind. 1996). “ ‘Sexual intercourse’ means an act that includes any penetration of the female sex organ by the male sex organ.” Ind. Code § 35-31.5-2-302. Proof of the slightest penetration of the sex Court of Appeals of Indiana | Memorandum Decision 25A-CR-894 | December 30, 2025 Page 8 of 12 organ, including penetration of the external genitalia, is sufficient to demonstrate a person engaged in sexual intercourse with a child. See Boggs v. State, 104 N.E.3d 1287 (Ind. 2018) (holding that “proof of the slightest penetration of the sex organ, including penetration of the external genitalia, is sufficient to demonstrate a person performed other sexual misconduct with a child” where “other sexual misconduct” was defined as “an act involving ․ the penetration of the sex organ or anus of a person by an object”). “Indiana law does not require that the vagina be penetrated, only that the female sex organ be penetrated.” Winters v. State, 727 N.E.2d 758, 760 (Ind. Ct. App. 2000) (citation omitted), trans. denied. Furthermore, “[w]hether or not penetration has occurred is a question of fact to be determined by the jury.” Omans v. State, 412 N.E.2d 305, 307 (Ind. Ct. App. 1980).

[15] J.B. testified that Buford had touched her “lower bikini area[,]” specifically her vagina, with his penis, and that she had felt pain afterwards in her “lower bikini area.” Tr. Vol. II p. 183. This testimony was sufficient for the jury to conclude that Buford had, at the very least, penetrated J.B.’s external genitalia enough to cause pain. See Winters, 727 N.E.2d at 760 (holding that victim's definition of intercourse as “when the male penis touches the vagina” was sufficient to establish penetration, “as it is necessary for the penis to first penetrate the vulva or labia before touching the vagina”); see also Hale v. State, 128 N.E.3d 456, 463 (Ind. Ct. App. 2019) (reasoning that, while the victim did not know whether Hale had penetrated her vagina, “[t]he State need only have proven penetration of [the victim's] external genitalia. And it would have been physically impossible for Hale to touch any part of [the victim's] vagina without having first penetrated her vulva, or external genitalia” and concluding that a “reasonable fact-finder could have determined from the evidence that Hale penetrated [the victim's] external genitalia”), trans. denied.

[16] Buford argues “[t]here can be no assurance that a lay person, much less a child, will know” the “very specific medical definition” of “vagina.” Appellant's Br. p. 25. In challenging the reasoning of Winters and Hale, Buford relies on Austin v. State, 201 N.E.3d 1184 (Ind. Ct. App. 2022), which we find readily distinguishable. In Austin, a panel of this court reversed Austin's Level 1 felony child molesting convictions where the only evidence in support of the convictions was the victim's testimony “that Austin used his ‘whole hand’ to rub ‘up and down’ on the ‘outside’ of her ‘private part’ and that it made her feel ‘tingly.’ ” 201 N.E.3d at 1185. The Austin court specifically reasoned

While “the slightest penetration of the sex organ, including penetration of the external genitalia, is sufficient” to prove “other sexual conduct,” Boggs[,104 N.E.3d at 1289,] the evidence here doesn't establish even “slight” penetration.

The State relies heavily on Hale v. State, 128 N.E.3d 456 (Ind. Ct. App. 2019), trans. denied, but that case is distinguishable. In Hale, we affirmed Level 1 felony child-molesting convictions where the victim said the defendant touched her vagina not just with his hand but with individual fingers, that it was like he was “trying to find something,” that he was “pressing down really hard,” and that it “hurt.” Id. at 461-63. There is no such evidence in this case.

Id.

[17] The evidence in this case, like in Hale, is sufficient to support the jury's determination that Buford penetrated J.B.’s sex organ. J.B. testified that Buford's penis touched her “lower bikini area[,]” specifically her vagina, which was painful for her. Tr. Vol. II p. 183. Again, “[p]roof of the slightest penetration of the sex organ,” including penetration of the external genitalia, is sufficient to demonstrate a person engaged in sexual intercourse with a child. See Boggs, 104 N.E.3d at 1289. All things considered, J.B. was not required to provide a detailed explanation of the penetration, and her testimony that Buford's penis had touched her lower bikini area, i.e., her vagina, which resulted in pain, was sufficient evidence from which the jury could conclude that he had performed sexual intercourse on her within the meaning of Indiana law. Buford's claim to the contrary effectively amounts to an invitation to reweigh the evidence, which we will not do. Griffith, 59 N.E.3d at 958.

[18] We affirm the judgment of the trial court.

Bradford, Judge.

Weissmann, J., and DeBoer, J., concur.