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Highler v. State9/15/2005
Case Summary
Appellant-Defendant Marshall Highler ("Highler") appeals his conviction for Rape as a Class B felony. We affirm.
Issues
On appeal, Highler raises three issues, which we reorder and restate as:
I. Whether the jury selection system in Allen County deprived Highler of the right to a trial by a jury of his peers in violation of the Sixth and Fourteenth Amendments;
II. Whether the trial court improperly upheld the State's peremptory challenge to the only African-American venire person merely because the State offered a race-neutral, but religious discriminatory, reason for the strike; and
III. Whether the trial court abused its discretion by admitting certain evidence at trial.
Facts and Procedural History
On October 10, 2003, S.B. was invited to a party by her co-worker, and Highler's girlfriend, Maria. S.B. invited Shane Merrill ("Merrill") to accompany her to the party. Upon her arrival at the party, S.B. had half of " beer and a shot of Hennessey." Tr. at 153. S.B. then left the party and walked to a nearby liquor store to buy some vodka. When S.B. returned to the party, she drank approximately five or six shots of vodka and took four or five puffs from a marijuana cigarette. At some point during the early morning hours of October 11, 2003, S.B. started feeling " izzy, nauseous, and wobbly." Id. at 159. After vomiting in the bathroom, S.B. went to one of the bedrooms and lay down on the bed. S.B. does not remember going to bed but she does remember waking up, fully clothed, with Highler in the room with her. Highler talked to S.B., but she was too groggy to understand what he was saying. He also gave S.B. some water to drink, which she spilled on herself.
Apparently, S.B. fell back to sleep. She awoke a couple of times and discovered that she was alone in the bedroom. However, one time when she awoke, "she looked up and there was somebody standing over the bed. . . . Then felt . . . it felt like belt buckle was being undone and pants sliding down." Id. at 162. S.B. thought that she was dreaming until Highler climbed into bed with her, put his knees between her legs, and spread her legs apart. In response, S.B. "kept saying stop, stop, and he wouldn't stop." Id. at 163. Highler put all of his weight on S.B. and said, "you feel so good, you feel so good." Id. S.B. tried to move and push him off, but Highler "just put more weight on [her.]" Id. at 164. Highler placed his penis inside S.B.'s vagina and kept "pushing back and forth." Id. at 166. Highler also forced his tongue into S.B.'s mouth. When Highler finished having sexual intercourse with S.B., he removed his penis from her vagina and ejaculated onto her stomach. Highler then left the bedroom and S.B. started to cry.
In a videotaped interview, Merrill testified that, before S.B. became ill, she was "pretty well gone," i.e., "extremely intoxicated." State's Ex. 12. Indeed, Merrill, Highler, and some other individuals had to physically help S.B. to the bathroom, where she vomited. Subsequently, Merrill had to carry S.B. to the bedroom and put her into bed. Merrill also testified that, while S.B. was sleeping, Highler asked Merrill, i.e., S.B.'s date, if Highler and "Nacho"-the host of the party-could have sex with S.B. Merrill responded that, because of S.B.'s intoxicated condition, having sex with her would be against the law. Nacho retorted that he and Highler could slit Merrill's throat. Highler gave Merrill three options: (1) join them in having sexual intercourse with S.B.; (2) leave; or (3) fight. Merrill left, called S.B.'s father for help, and waited approximately ten minutes for her father's f
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