from the Clinton Circuit Court. The Honorable Bradley K.
Mohler, Judge. Trial Court Cause No. 12C01-1312-FB-1195.
[Copyrighted Material Omitted]
FOR APPELLANT: Heather M. Shumaker, Lebanon, Indiana.
FOR APPELLEE: Gregory F. Zoeller, Attorney General of
Indiana; George P. Sherman, Deputy Attorney General,
Judge. Najam, J., and Pyle, J., concur.
Jordan Pribie appeals his conviction of Class B Felony
Rape. 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.
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.
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.
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.
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.
C.G. noticed that her shirt had been removed, but did not
know how. She told Pribie, " Stop. I wanna go to
bed," 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,
" Stop fighting. We're going to have sex if you like
it or not. Stop fighting." 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, " Stop that. Don't touch her."
Id. at 322. Pribie stopped, put some shorts on, and
left the room.
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, " Get off of me. No. Stop. I don't
want to." Id. at 426. She told Asher to listen.
Asher heard C.G. say, " Stop it. No. Quit,"
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.
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, " I admit it.
I knew it was wrong at the time. I know I need help."
Id. at 481.
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.
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
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.
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
Exclusion of Evidence
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 ...