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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 [a] rape kit [collected three days after the rape], 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 [her friend] 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.
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I. Exclusion of Evidence
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B. Source of Physical Evidence Exception
Indiana Evidence Rule 412(b)(1)(A) provides that a court may admit “evidence of specific instances of a victim’s . . . sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence.” Pribie argues, “the rule contemplates the admissibility of DNA evidence and then affords parties the opportunity to explain the DNA results.” Appellant’s Br. at 13.
We disagree. The rule contemplates that if the State had presented the unknown male DNA [from a rape kit performed three days later] to the jury, Pribie then would have been allowed to present evidence showing that the DNA came from someone else. The same is true if the State had presented evidence of injuries to C.G. or any other physical evidence of the rape; the exception ensures a defendant’s ability to rebut any inference that he was connected to such evidence.
But the State did not present any such evidence in this case. … Instead, the State relied upon C.G.’s account, which was corroborated by [two other witnesses]. An exception that allows a defendant to rebut physical evidence presupposes the admission of that evidence; since the State did not rely on physical evidence to convict Pribie, the exception does not apply.
C. Constitutional Rights Exception
Indiana Evidence Rule 412(b)(1)(C) provides that a court may admit “evidence whose exclusion would violate the defendant’s constitutional rights.” The trial court’s exclusion of evidence must not prevent the defendant from conducting a full, adequate, and effective cross-examination. [Citation omitted.] Admission of evidence to prove that a victim engaged in other sexual behavior “may . . . be required when the trial court restricts a defendant from giving his own account of the events at issue.” Williams v. State, 681 N.E.2d 195, 201 (Ind. 1997).
Pribie cites to this language to argue that he has a Sixth Amendment right to “present[] his own account of that evening,” but instead he was forced to “merely respond to the State’s evidence.” [Record citations omitted throughout.]
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… Pribie had every right and opportunity to describe and cross-examine the incident that led to the rape charge, but was only prevented from presenting to the jury a sexual encounter the victim had with a third person, which took place hours later.
In sum, because Pribie had every opportunity to describe and cross-examine the events that he was involved in, he was not “restrict[ed] . . . from giving his own account of the events at issue,” Williams, 681 N.E.2d at 201, and therefore the evidence he seeks to admit does not fall into the exception described in 412(b)(1)(C). …
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In sum, whatever probative value the evidence of C.G.’s subsequent sexual activity holds is substantially outweighed by the danger of unfair prejudice; that evidence could have been excluded on Rule 403 grounds alone, rendering any error in the trial court’s Rule 412 analysis harmless.
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II. Juror Misconduct
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A. Juror/Bailiff Conversation
The first alleged instance of juror misconduct involves an ex parte conversation between a juror and the bailiff. During a break in the trial, a juror told the bailiff that she “knew people on both sides” of the case. The bailiff responded that they lived in a small, close community and asked whether the people the juror recognized were close friends. The juror said no. The bailiff then asked whether it would prejudice her decision. The juror said no. The bailiff then dropped the issue, but never reported the conversation to the court or the defense during trial.
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We find that, although the bailiff’s actions were inappropriate, they constitute harmless error. … [I]f the proper procedure had been followed, the trial judge, rather than the bailiff, would have asked substantially the same questions as the bailiff. Once the juror told the judge that she was not close to any of the witnesses and that she would not let her knowledge affect her decision, the trial court would have acted within its discretion to keep the juror. As in Farris [v. State], “[t]he bailiff’s response . . . was similar to instructions the court would have provided. The bailiff did not talk about the facts of the case, further instruct the jury, or discuss substantive legal matters with the jury.” 732 N.E.2d [230,] 235 [(Ind. Ct. App. 2000)].
We cannot see how the correct procedure would have yielded a different result for Pribie. Therefore, while the bailiff’s actions were clearly in error, they were also harmless. The trial court did not abuse its discretion to deny Pribie’s motion to correct error on these grounds.6
[Footnote 6: We would like to take this opportunity to repeat what we said in Farris, 732 N.E.2d at 235: “While we find that the error in this case was harmless, we do not mean to say that communication between a bailiff and the jury is appropriate. On the contrary, it is important that trial courts instruct bailiffs to refrain from communicating about the case with jurors. Further, when jurors ask questions of the bailiff, the bailiff’s response should be limited to an indication that he will forward the question to the judge.…”]
B. Juror Deliberations
The second alleged instance of juror misconduct regards a conversation held between jury members. The jury foreman, Juror Ploughe, was a corrections officer. Juror Reed said that she did not want to convict Pribie if that entailed his being listed on a sex offender registry. Knowing that Ploughe was a corrections officer, she asked him whether a guilty verdict would have such a result.
Reed testified that Ploughe told her that Pribie would not end up on the registry because C.G. was over eighteen. Another member of the jury, Juror Webster, confirmed that Reed “did not wanna find Mr. Pribie guilty if he was gonna have to register,” but Webster could not remember Ploughe’s answer. Ploughe confirmed that he was asked the question, but “at that time I said I had no knowledge [] if he would be or not.”
Prejudicial extraneous information may be grounds for impeaching a verdict whether there is a substantial possibility that such extrinsic material prejudiced the verdict. Palilonis v. State, 970 N.E.2d 713, 724 (Ind. Ct. App. 2012). The trial court was faced with conflicting accounts, however, regarding whether any extraneous information reached the jury; Reed said that it had, Ploughe said that it had not. The trial court heard the testimony of both and deemed Ploughe’s more credible. As our standard of review makes clear, we will not reweigh the credibility of these two conflicting accounts to displace that finding. …
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The judgment of the trial court is affirmed.
Najam, J., and Pyle, J. concur.