Pribie v. State
| Decision Date | 04 December 2015 |
| Docket Number | No. 12A02–1412–CR–836.,12A02–1412–CR–836. |
| Citation | 46 N.E.3d 1241 |
| Parties | Jordan PRIBIE, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Heather M. Shumaker, Lebanon, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
BAKER
, Judge.
[1] Jordan Pribie appeals his conviction of Class B Felony Rape.1 He argues that the trial court incorrectly found certain evidence to be barred by Indiana Evidence Rule 412
, and that its exclusion violated his constitutional right to a fair trial. He also alleges two instances of juror misconduct and argues that these also violated his constitutional right to a fair trial. Finding that the trial court properly excluded the evidence and that no juror misconduct violated his rights, we affirm.
[2] On September 14, 2013, high school senior C.G. received a text message from Josh Curl inviting her to his house. C.G. had met Curl when she was a freshman and he a senior—the two had briefly dated but stopped due to her parents' disapproval. Telling her parents that she was going to a friend's bonfire, C.G. got into Curl's car, and the two went to his house around 11:30 p.m.
[3] At the house were defendant Jordan Pribie (Curl's housemate), Levi Asher, Ciara Harshman, and Ramee Collins. C.G. had met Pribie, but not the others, previously. Curl provided Captain Morgan and Bud Light, and the group played drinking games in the living room. Eventually, Curl became intoxicated to the point of illness. He threw up in the kitchen sink and stumbled off to his room to sleep.
[4] C.G. also became ill and threw up on herself. When she went to the bathroom to clean up, Pribie offered her a shirt but told her she could only have it if she had sex with him. Tr. 305. She declined, telling him that she would rather sleep in her own vomit. She grabbed the shirt, changed, and went to the couch to sleep.
[5] Despite throwing up again, C.G. was able to fall asleep, but Pribie woke her up a short time after. C.G. said “No” and tried to go back to sleep, but he kept pestering her. When she continued to ignore him, he grabbed her left wrist and pulled her upright. He then grabbed her other wrist, pulled her to her feet, and pushed her toward his bedroom. Pribie weighed around 265 pounds, C.G. around 140.
[6] C.G. noticed that her shirt had been removed, but did not know how. She told Pribie, to which he responded, “No. We're going to go and have sex.” Tr. 314. He pushed her into his room and onto his bed, where he held her down with his right arm. As he undid her pants with his left hand, he told her, Id. at 316. After a struggle, Pribie managed to force C.G.'s legs open, and he penetrated her. He continued for three minutes—telling her, “I know you like this,” id. at 320—but he did not ejaculate. He then told her that she would not have to have sex with him if she would instead provide oral sex, and tried to force his penis into her mouth. Just then, they heard a voice in the living room yell something like, Id. at 322. Pribie stopped, put some shorts on, and left the room.
[7] After C.G. had lain down on the couch, but before Pribie took C.G. to his bedroom, Harshman and Asher had gone outside to the garage. When they returned to the living room, it was empty. As Harshman sat on the couch, she heard “whimpers” coming from the bedroom, but assumed it was Pribie and Collins having sex. Id. at 425. After the noises grew louder, Harshman realized it was not Collins's voice, but was C.G.'s instead. Harshman heard her say, Id. at 426. She told Asher to listen. Asher heard C.G. say, followed by “I just wanna talk to Josh.” Id. at 494. He then heard Pribie say, “The only way you're gonna see Josh [is] if you [ ] suck my d* *k.” Id. at 495. Asher was walking over toward the room when Pribie emerged.
[8] Harshman entered the bedroom and noticed that C.G. was naked under the covers. Harshman asked her if Pribie had hurt her—C.G. began crying and said, “Yes.” Id. at 431. Harshman offered to call the police, but C.G. was on probation from a previous underage drinking case and did not want to get into trouble. C.G. obtained a t-shirt and sweatpants to wear, went to Curl's bedroom, and got into Curl's bed with him. Harshman and Asher spoke with Pribie and asked him whether he had raped C.G. After denying it for a few minutes, Pribie finally said, Id. at 481.3
[9] The following day, a Sunday, Curl helped C.G. retrieve her clothes from Pribie's room. As he drove her back home, he asked her why her clothes were in there. She told him what had happened the night before. She did not, however, tell her parents, not wanting to get in trouble for lying to them about where she was. On Monday, Asher contacted law enforcement. C.G.'s father is a police officer; he learned of the report and came home early to ask her what happened. She decided to press charges. On Tuesday morning, her father took her to the hospital, where a nurse collected a rape kit. The rape kit did not disclose any DNA consistent with Pribie's, but did reveal sperm from an unknown male.
[10] On December 31, 2013, the State charged Pribie with class B felony rape. Pribie sought to introduce the evidence of the unknown male's DNA revealed by the rape kit, but the State objected. The court decided that this evidence was barred under Indiana Evidence Rule 412
as “evidence offered to prove that a victim or witness engaged in other sexual behavior.” The court issued an Order in Limine excluding the use of this evidence at trial. In an offer of proof outside the presence of the jury, C.G. stated that she had consensual sex with Curl four or five hours after the events in Pribie's bedroom. The jury did hear the evidence that a rape kit was done and that it did not reveal Pribie's DNA.
[11] Following an August 2014 jury trial, the jury found Pribie guilty of Class B Felony Rape, and the trial court sentenced him to ten years imprisonment, with two years suspended to probation. Pribie now appeals.
[12] Pribie has two major arguments regarding his conviction. He argues that the trial court should have admitted the portion of the rape kit disclosing unknown male DNA, and he argues that the trial court should have granted his Motion to Correct Error filed after the trial, wherein he alleged juror misconduct.
[13] Generally, admission of evidence is a matter of discretion for the trial court. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind.2012)
. Such decisions are reviewed for abuse of that discretion and will be reversed only when admission is clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights. Id.
[14] Pribie argues that the trial court improperly excluded the evidence of the unknown male DNA revealed by the rape kit. He has five arguments for why the evidence should be admitted: that (1) Evidence Rule 412
does not apply to this evidence; or, if it applies, (2) the evidence falls into the exception in 412(b)(1)(A); (3) the evidence falls into the exception in 412(b)(1)(C); (4) the State opened the door to the evidence in its direct examination of C.G.; and (5) the State opened the door to the evidence in its direct examination of biologist Nicole Keeling. We will address each of these arguments in turn.
Davis v. State, 749 N.E.2d 552, 554 (Ind.Ct.App.2001). Effective January 1, 2014—after the alleged rape in this case but before the trial—the Rule was amended to generally prohibit “evidence offered to prove that a victim or witness engaged in other sexual behavior.” Ind. Evidence Rule 412.
[16] Pribie argues that he was seeking to admit evidence of subsequent, rather than past, sexual conduct, and therefore that the evidence does not fall within the language of the previous version of the Rule. Although this argument is not fleshed out in the parties' briefs, they disagreed at oral argument over which version of Rule 412
should apply to Pribie's case, and Pribie broached the possibility that the application of the newer version could constitute a violation of the prohibition on ex post facto laws. We disagree, and find that the new version can constitutionally be applied in Pribie's case.
[17] The United States and Indiana Constitutions prohibit the passage and enforcement of ex post facto laws. U.S. Const. art. I, § 9, cl. 3
; Ind. Const. art. I, § 24. The classic statement of what constitutes an ex post facto law is as follows:
1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.
Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798)
.4 Although the fourth category refers to rules of evidence, this only encompasses a change in the quantum of proof required for conviction, if specified by statute. See
Hopt v. People of the Territory of Utah, 110 U.S. 574, 590, 4 S.Ct. 202, 28...
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