                                                                        Dec 04 2015, 8:31 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Heather M. Shumaker                                       Gregory F. Zoeller
Lebanon, Indiana                                          Attorney General of Indiana
                                                          George P. Sherman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Jordan Pribie,                                            December 4, 2015
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          12A02-1412-CR-836
        v.                                                Appeal from the Clinton Circuit
                                                          Court
State of Indiana,                                         The Honorable Bradley K. Mohler,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          12C01-1312-FB-1195



Baker, Judge.




Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015                     Page 1 of 20
[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.


                                                       Facts     2




[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




      1
          Ind. Code § 35-42-4-1(a)(1).
      2
        We held oral argument in this case at Indiana University’s School of Public and Environmental Affairs, in
      Bloomington, IN. We thank counsel for their able and engaging oral advocacy. We also thank the School
      for its hospitality and continued interest in legal affairs.

      Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015                      Page 2 of 20
      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, “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,


      Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015   Page 3 of 20
      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.


[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,

      “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.


[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




      Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015   Page 4 of 20
       minutes, Pribie finally said, “I admit it. I knew it was wrong at the time. I

       know I need help.” 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




       3
         Pribie claims this statement was sarcastic, appellant’s br. at 6, but Harshman specifically testified that his
       tone “wasn’t sarcastic.” Tr. 480.

       Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015                            Page 5 of 20
       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.


                                     Discussion and Decision
[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.


                                    I. Exclusion of Evidence
[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


       Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015   Page 6 of 20
       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.


                                A. Whether Rule 412 Applies
[15]   We first note that the exact language of Rule 412 has recently changed.

       Previously, the Rule began, “In a prosecution for a sex crime, evidence of the

       past sexual conduct of a victim or witness may not be admitted,” before listing

       several exceptions. E.g., 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.

       Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015   Page 7 of 20
       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 (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 (1884) (holding that rules regarding what evidence is

       permitted at trial “relate to modes of procedure only, in which no one can be

       said to have a vested right, and which the state, upon grounds of public policy,

       may regulate at pleasure”).


[18]   Applying these principles, we have previously held that the application of the

       Rape Shield Law did not violate the prohibition against ex post facto laws, even

       where there was no such rule of evidence at the time the defendant committed



       4
         The prohibition was drafted with the history of the British Parliament in mind: “By the enactment of such
       statutes, the most faithful subjects of that kingdom have been sacrificed; and in times of internal commotion
       and political persecution, the blood of innocent victims has been made to smoke on the altar, as an oblation
       to the malignant passions of men in power.” Strong v. State, 1 Blackf. 193, 196 (Ind. 1822) (finding valid a
       change in the punishment for perjury from whipping to imprisonment).

       Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015                        Page 8 of 20
       his offense and the rule only became effective the following year. Finney v.

       State, 179 Ind. App. 316, 321, 385 N.E.2d 477, 480-81 (1979). We noted that

       the inquiry turned on whether the new rule of evidence altered a “substantial

       personal right,” or “mere procedure.” Id. at 321, 385 N.E.2d at 480. We found

       that “the rape shield statute affects the use of character evidence to impeach

       witnesses at trial and is therefore procedural in nature.” Id. at 321, 385 N.E.2d

       at 480-81. Clearly, if the application of the entire rule, made effective after the

       offense but before trial, did not violate the prohibition against ex post facto

       laws, neither does the application of slightly altered language in the rule.

       Therefore, we find it appropriate to use the current version of Rule 412. 5


[19]   Turning to the instant case, the evidence of unknown male DNA falls squarely

       into the current language of Rule 412: it is “evidence offered to prove that a

       victim . . . engaged in other sexual behavior.” While Pribie is correct that

       “penal statutes should be construed strictly against the State and ambiguities

       should be resolved in favor of the accused,” Merritt v. State, 829 N.E.2d 472, 475

       (Ind. 2005), even the strictest construction of the rule would encompass the

       evidence he seeks to admit.




       5
        We also note that, while there is no Indiana case law ruling on whether our previous Rule 412 applies to
       subsequent acts, courts in other states have interpreted their analogous rules of evidence to prohibit such
       evidence. See Parish v. State, 163 S.W.3d 843, 850 (Ark. 2004) (interpreting the phrase, “prior sexual
       conduct,” to encompass sexual conduct that occurred prior to trial, not prior to the alleged rape).

       Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015                        Page 9 of 20
[20]   Since the evidence of unknown male DNA falls squarely into the general

       prohibition of Rule 412, we now turn to whether it falls into any of the

       exceptions.


                    B. Source of Physical Evidence Exception
[21]   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.


[22]   We disagree. The rule contemplates that if the State had presented the

       unknown male DNA 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.


[23]   But the State did not present any such evidence in this case. It did not put

       before the jury any lacerations, or bruises, or any other physical evidence and

       claim that they were the result of Pribie’s conduct. If it had done so, then Pribie

       would have the right, under this exception, to posit that C.G.’s encounter with

       Curl produced that evidence.



       Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015   Page 10 of 20
[24]   Instead, the State relied upon C.G.’s account, which was corroborated by

       Harshman and Asher. 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
[25]   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. Oatts v. State, 899 N.E.2d 714,

       722 (Ind. Ct. App. 2009). 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).


[26]   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.” Appellant’s Br. at 14.


[27]   We find Pribie’s reliance on the language in Williams, regarding a defendant’s

       right to give an account of the event, to be misplaced. Our Supreme Court cited

       that language from Stephens v. Miller, 13 F.3d 998, 1017 (7th Cir.) (Coffey, J.,

       dissenting). The defendant in Stephens argued that an application of Rule 412

       violated his Sixth Amendment rights where he was unable to repeat statements

       he alleged that he made to the victim during the alleged rape. Id. at 1000. He

       Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015   Page 11 of 20
       wanted to tell the jury that he had made a rude comment regarding the victim’s

       sexual proclivities while the two engaged in consensual sex, and that that

       comment led to the victim falsifying the rape claim. Id. Instead, the trial court

       instructed him to say only that something he had said made her angry. Id.


[28]   And yet even in that case, as shown by the fact that the language came from a

       dissent, the Seventh Circuit held that “Stephens was not deprived of his

       constitutional right to testify.” Id. at 1003. Indeed, our Supreme Court also

       rejected Stephens’s argument that the application of Rule 412 to his

       circumstances violated his rights. Stephens v. State, 544 N.E.2d 137 (Ind. 1989).

       That case is a much closer call than the instant case, where 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.


[29]   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). We now turn to whether the State opened the door to this

       evidence by its conduct at trial.


                     D. Did C.G.’s Testimony Open the Door
[30]   In certain circumstances, a trial court may admit otherwise inadmissible

       evidence for the purpose of rebutting a party’s testimony at trial. See Barker v.

       Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015   Page 12 of 20
       State, 440 N.E.2d 664, 668 (Ind. 1982). Pribie points to a statement made by

       C.G. on direct examination, namely, that Curl did not “stir at all” after she got

       into bed with him. Tr. 330. Pribie argues that he should have been allowed to

       use the subsequent sexual conduct to impeach this statement, and that this

       would have helped his case since the State’s case rested so heavily on C.G.’s

       credibility.


[31]   This argument fails. The use of a prior inconsistent statement to impeach a

       witness’s credibility requires that the statement actually be inconsistent with

       another statement. For example, the defendant in Barker first confessed to a

       burglary, then testified at trial that he did not commit the burglary. 440 N.E.2d

       at 666.


[32]   The question that elicited C.G.’s response was, “At any of these times from the

       time you first went there after the rape happened to the second time you went

       back in there, did Josh ever stir at all . . . when you got back into bed with

       him?” Tr. 330. C.G. responded: “Not that I’m aware of.” Id. C.G. later

       explained, during the offer of proof, that the consensual sex took place several

       hours after she got back into bed with Curl. Both statements are entirely

       consistent with each other—C.G. testified that Curl did not stir “when [she] got

       back into bed with him,” but that several hours later they had consensual sex.

       Id.


[33]   Since there was no inconsistency on this issue, there was nothing to impeach.




       Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015   Page 13 of 20
          E. Did Biologist Keeling’s Testimony Open the Door
[34]   At trial, the State had the following exchange with Nicole Keeling:

               Q:       Assume the evidence and testimony that’s come prar—
                        prior to you testifying today is that this happened early
                        morning hours; the rape happened early morning hours of
                        Sunday; that there was no ejaculation by the defendant;
                        and the samples that you tested were collected noon hour
                        on Tuesday. Are you surprised that you did not find the
                        defendant’s DNA?


               A:       No.


       Tr. 621. Pribie argues that the State was being purposefully misleading—this

       exchange led the jury to believe that no DNA evidence would survive the two

       and a half day interval between the incident and the examination. Pribie argues

       that this is obviously false, given that another man’s DNA survived from

       consensual intercourse taking place only a few hours after the incident. Pribie

       contends that the admission of the unknown male DNA would have clarified

       for the jury that the mere passage of time would not have been sufficient to

       explain the absence of Pribie’s DNA.


[35]   While we agree with Pribie that the State’s question has the potential to confuse

       the jury, this argument ultimately fails. The State was careful to qualify the

       question; the question explicitly limited the inquiry to the situation in which

       “there was no ejaculation.” C.G. had already testified that Pribie had not

       ejaculated. Tr. 320. Whether male DNA would survive two and a half days in

       the situation in which the male did ejaculate is a different inquiry.
       Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015   Page 14 of 20
[36]   While a jury member could have misunderstood the question and answer to

       mean that the mere passage of time explained the lack of Pribie’s DNA, we do

       not conduct an inquiry into the minds of jury members and we must assume

       that jury members understand the plain meaning of questions and answers

       heard at trial. Therefore, we cannot say the trial abused its discretion to

       continue to keep the evidence of unknown male DNA out, and we cannot

       reverse on this issue.


                                       F. Rule 403 Generally
[37]   Finally, we note that even in the absence of Rule 412, the trial court would not

       have abused its discretion to keep the evidence of unknown male DNA out of

       evidence. As our Supreme Court has explained, “even when evidence does not

       fall within one of Rule 412’s exceptions and is admissible, it is still subject to

       Evidence Rules 401 and 403.” Williams, 681 N.E.2d at 200-01. In that case,

       the Court affirmed a trial court’s exclusion of “evidence [that] would shift the

       jury’s attention away from the defendant’s actions to the past acts of the

       victim.” Id.


[38]   We find that to be the case here. Even if C.G.’s activities with Curl had

       relevance to the claims against Pribie—perhaps that C.G.’s relationship with

       Curl increased marginally her willingness to misrepresent the events of that

       night—the evidence of that activity is “substantially outweighed by the danger

       of unfair prejudice.” Ind. Evidence Rule 403. The admission of that evidence

       creates the risk of impermissibly tarnishing C.G.’s character and of shifting the


       Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015   Page 15 of 20
       jury’s attention from the events taking place in Pribie’s room, which are at issue

       in this case, to the events taking place in Curl’s room, which are not.


[39]   Furthermore, the jury did hear that C.G. and Curl had previously dated; that

       she was at his house at his invitation; that he picked her up and drove her there;

       that she slept in his bed; and that she was “under the covers with Josh.” Tr.

       330. All of these facts decrease the probative value of the evidence Pribie seeks

       to admit: he had enough facts to argue that C.G. was biased.


[40]   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.


                                        II. Juror Misconduct
[41]   Pribie alleges that there were two instances of juror misconduct, both of which

       should have compelled the trial court to grant his motion to correct error. We

       review a trial court’s denial of a motion to correct error for an abuse of

       discretion. Booher v. State, 773 N.E.2d 814, 817 (Ind. 2002). An abuse of

       discretion occurs when the trial court’s decision is against the logic and effect of

       the facts and circumstances before it or when it has misinterpreted the law.

       James v. State, 872 N.E.2d 669, 671 (Ind. Ct. App. 2007). We do not reweigh

       evidence nor reassess the credibility of witnesses. Petersen v. Burton, 871 N.E.2d

       1025, 1028 (Ind. Ct. App. 2007).



       Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015   Page 16 of 20
                                A. Juror/Bailiff Conversation
[42]   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. Tr. 729. 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.


[43]   Indiana Jury Rule 24 provides the following: “If the court receives information

       that a juror has personal knowledge about the case, the court shall examine the

       juror under oath in the presence of the parties and outside the presence of the

       other jurors concerning that knowledge.”


[44]   The parties do not dispute that the procedure prescribed in this rule was not

       followed, as the bailiff did not bring the fact to the judge’s attention, nor was

       Pribie present when the bailiff conducted his investigation. When

       communication between a bailiff and a jury occurs outside of the defendant’s

       presence, there is a presumption of harm to the defendant that the State must

       rebut to avoid reversal. Azania v. State, 730 N.E.2d 646, 654 (Ind. 2000). The

       State may, however, avoid reversal if no harm or prejudice resulted from the

       communication. Farris v. State, 732 N.E.2d 230, 234 (Ind. Ct. App. 2000).




       Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015   Page 17 of 20
[45]   We find that, although the bailiff’s actions were inappropriate, they constitute

       harmless error. Pribie argues that by “conduct[ing] his own examination and

       dismiss[ing] Juror Deford’s concerns . . . the Bailiff tainted Juror Deford by

       communicating—explicitly or implicitly—that whatever knowledge she had or

       whatever relationship she had was not important.” Appellant’s Br. 23. We fail

       to see the “taint”: if 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,

       “[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 at 235.


[46]   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




       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. We recognize that
       bailiffs have numerous opportunities to influence juries. Therefore, courts must be ever cautious to minimize
       those opportunities consistent with practicality. It is important that juries reach their decisions fairly and
       impartially. Likewise, it is of equal importance to maintain the integrity of the judicial system and avoid the

       Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015                        Page 18 of 20
                                       B. Juror Deliberations
[47]   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.


[48]   Reed testified that Ploughe told her that Pribie would not end up on the registry

       because C.G. was over eighteen. Tr. 691. Another member of the jury, Juror

       Webster, confirmed that Reed “did not wanna find Mr. Pribie guilty if he was

       gonna have to register,” id. at 711, 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.” Id. at 714.


[49]   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




       appearance of partiality in the decision-making process. Consequently, while we find no prejudice here, we
       will continue to examine closely communication between bailiffs and juries.”

       Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015                     Page 19 of 20
       Ploughe’s more credible. Appellant’s Amended App. p. 263. As our standard

       of review makes clear, we will not reweigh the credibility of these two

       conflicting accounts to displace that finding. The trial court’s factual finding

       that the jury did not hear any extraneous information stands and, accordingly,

       the trial court did not abuse its discretion to deny Pribie’s motion to correct

       errors on these grounds.


[50]   In sum, the trial court did not abuse its discretion when it excluded the evidence

       of unknown male DNA, nor did it abuse its discretion to deny the motion to

       correct errors where the bailiff’s improper communication was harmless and the

       trial court found that the jury did not hear extraneous information.


[51]   The judgment of the trial court is affirmed.


       Najam, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 12A02-1412-CR-836 | December 4, 2015   Page 20 of 20
