[Cite as State v. Roper,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 29466

Appellant

v. APPEAL FROM JUDGMENT ENTERED IN THE ROBERT ROPER COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CR 12 09 2618

DECISION AND JOURNAL ENTRY

Dated: January 27, 2021

SCHAFER, Judge.

{¶1} Appellant, the State of Ohio, appeals the decision of the Summit County Court of

Common Pleas granting Defendant-Appellee, Robert D. Roper’s, motion for a new trial. For the

reasons that follow, this Court reverses.

I.

{¶2} Mr. Roper had been living with his girlfriend and her three children. In September

2011, the girlfriend’s six-year-old daughter disclosed to her mother that Mr. Roper had sexually

abused her over the course of four days when the daughter was five years old. On September 12,

2012, the Summit County Grand Jury indicted Mr. Roper on one count of rape in violation of R.C.

2907.02(A)(1)(b). A jury trial commenced in June 2013. Following deliberations, the jury found

Mr. Roper guilty. On July 11, 2013, the trial court sentenced him to life in prison without the

possibility of parole. 2

{¶3} Mr. Roper appealed, and this Court affirmed his conviction. State v. Roper, 9th

Dist. Summit No. 27025,

. But see State v. Roper,

, 2015-

Ohio-3379, ¶ 1 (reversing judgment of the court of appeals and vacating the no-contact order).

{¶4} On January 4, 2017, with leave of court, Mr. Roper filed a motion for a new trial

pursuant to Crim.R. 33. Mr. Roper based his motion on certain information prosecutors learned

about Juror No. 4 subsequent to his trial, regarding her role in a 2015 trial in an unrelated criminal

case. Mr. Roper alleged that, during voir dire in his trial, Juror No. 4 had deliberately concealed

her daughter’s report of sexual abuse against Juror No. 4’s husband, and argued that his right to a

fair trial had been violated by juror misconduct. Mr. Roper argued that, had Juror No. 4 truthfully

disclosed information in response to certain questions during voir dire, his trial counsel would have

had the opportunity to pose further questions and to seek her removal from the jury panel for cause.

{¶5} The issues were fully briefed, and the trial court held an evidentiary hearing. The

trial court then issued its ruling, finding that Juror No. 4 may well have been “a fair and impartial

juror, as she testified she believed she was[,]” but concluding that the circumstances created a

“cloud of doubt hanging over the fairness of Mr. Roper’s trial.” The trial court granted Mr. Roper’s

motion and ordered a new trial.

{¶6} The State timely appealed the trial court’s order granting a new trial and raised one

assignment of error for our review.

II.

Assignment of Error

The trial court abused its discretion when it granted [Mr.] Roper’s motion for a new trial, meriting reversal and vacation of the trial court’s order.

{¶7} In its sole assignment of error, the State argues that the trial court abused its

discretion by granting Mr. Roper’s motion for a new trial. The State contends that (1) the trial 3

court did not make a finding that the juror was dishonest when she failed to raise her hand during

voir dire; (2) the trial court failed to apply Crim.R. 24 to find that Mr. Roper would have

successfully challenged the juror for cause; and (3) the trial court erred when it failed to consider

the juror’s testimony that, despite the circumstances, she remained fair and impartial.

{¶8} In Mr. Roper’s motion for leave to file a delayed motion for a new trial and

accompanying motion for a new trial, he argued that he was entitled to a new trial pursuant to

Crim.R. 33(A)(2)/(A)(6)/(B), based on the discovery of new evidence of juror misconduct. This

Court reviews a trial court’s decision to grant or deny a motion for new trial for an abuse of

discretion. State v. Pyle, 9th Dist. Summit No. 28802,

. “The term ‘abuse

of discretion’ connotes more than an error of law or judgment; it implies that the court’s attitude

is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore,

(1983). When applying an abuse of discretion standard, a reviewing court is precluded from

simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd.,

(1993).

{¶9} Crim.R. 33(A)(2) provides that “[a] new trial may be granted on motion of the

defendant for * * * [m]isconduct of the jury * * *.” “[U]nder Crim.R. 33(A)[ and also R.C.

2945.79(B)], juror misconduct justifies a new trial only if it materially affected an accused’s

substantial rights.” State v. Adams,

,

, ¶ 45. The trial court’s

consideration of a motion for a new trial based on juror misconduct involves two steps: (1) a

“determination [of] whether misconduct actually occurred,” and (2) “whether that misconduct

materially prejudiced the defendant’s substantial rights.” State v. Jalowiec, 9th Dist. Lorain No.

14CA010548,

. 4

{¶10} Defendants in criminal prosecutions are guaranteed the right to a trial by an

impartial jury through the Due Process Clause of the Fourteenth Amendment and Sixth

Amendment to the United States Constitution, as well as the Ohio Constitution, Article I, Section

10. See State v. Roberts, 9th Dist. Wayne No. 14AP0035,

; Duncan v.

Louisiana,

(1968). Due process requires “an impartial trier of fact—‘a jury capable

and willing to decide the case solely on the evidence before it.’” McDonough Power Equip., Inc.

v. Greenwood,

, (1984) quoting Smith v. Phillips,

, (1982).

“Voir dire examination serves to protect that right by exposing possible biases, both known and

unknown, on the part of potential jurors.”

To establish a constitutional violation where a claim

of jury misconduct is based on a juror’s concealment of information or failure to disclose potential

bias, the defendant has the burden to establish that a seated juror was not impartial. State v.

Williams,

(1997).

{¶11} The parties agree that the Supreme Court of Ohio’s decision in Grundy v. Dhillon,

,

, provides the relevant analytical structure for examining a

juror’s alleged misrepresentations during voir dire.1 In Grundy, the Court held

[t]o obtain a new trial in a case in which a juror has not disclosed information during voir dire, the moving party must first demonstrate that a juror failed to answer honestly a material question on voir dire and that the moving party was prejudiced by the presence on the trial jury of a juror who failed to disclose material information.

Grundy at paragraph one of the syllabus (following the approach of the United States Supreme

Court in McDonough Power Equip. Inc.,

). Further, “[t]o demonstrate prejudice,

1 Although Grundy was decided based on a motion for a new trial in a civil case, some of our sister districts have recognized its applicability in the criminal context. See State v. Balka, 5th Dist. Licking No. 2008 CA 00119,

, ¶ 29; State v. Necessary, 11th Dist. Ashtabula No. 2013-A-0001,

. 5

the moving party must show that an accurate response from the juror would have provided a valid

basis for a for-cause challenge.”

citing Pearson v. Gardner Cartage Co.,

(1947), paragraph two of the syllabus. A court may infer bias only if it finds that the juror

deliberately concealed or failed to disclose information but, “if the concealment was unintentional,

the appellant must show that the juror was actually biased.”

.

Mr. Roper’s Motion for a New Trial

{¶12} Mr. Roper based his Crim.R. 33 motion for a new trial on the information

prosecutors learned about Juror No. 4 (hereinafter “S.P.”) nearly two years after Mr. Roper’s trial,

during a 2015 trial in an unrelated criminal case. In his motion, Mr. Roper argued that his “right

to a fair trial was violated by a juror’s deliberate concealment of her daughter’s sexual-abuse

reports against the juror’s husband.” This 2015 trial involved the State’s case against James

Pistawka. Mr. Pistawka faced charges “on five counts of rape, nine counts of gross sexual

imposition, and one count of sexual battery. The charges arose out of incidents reported by Mr.

Pistawka’s two daughters and his stepdaughter, [C.G.] State v. Pistawka, 9th Dist. Summit No.

27828,

.

{¶13} S.P. is the mother of C.G. Mr. Pistawka married S.P. in 2001 when C.G. was nine

years old. Id. ¶ 3. In August 2007, when she was fifteen years old, C.G. ran away from home. Id.

At that point, C.G. reported to police that Mr. Pistawka sexually abused her when she was ten

years old. Id. C.G.’s mother did not believe C.G.’s allegations against Mr. Pistawka.

{¶14} C.G. was removed from her home and temporarily placed in foster care before

going to live with her biological father. C.G. desired to return home to live with her mother and,

after she recanted her accusations against Mr. Pistawka, “the investigation into them was dropped

* * *.” Id. C.G. returned to her mother’s home where she continued to live with her mother and 6

Mr. Pistawka. However, in late 2013, C.G.’s two stepsisters—Mr. Pistawka’s biological

daughters—made their own allegations of sexual abuse against Mr. Pistawka. C.G. then

reaffirmed her prior accusations against Mr. Pistawka.

{¶15} During Mr. Pistawka’s trial, certain information came to light when S.P.—Mr.

Pistawka’s estranged wife and mother of C.G.—was set to testify on Mr. Pistawka’s behalf. Based

on S.P.’s responses to a defense investigator’s questions, prosecutors in the case learned that she

previously served on a jury in a Summit County criminal case involving a child rape. Upon further

inquiry, the prosecutors learned that she had served as Juror No. 4 in Mr. Roper’s 2013 trial. The

prosecutors then obtained a transcript of the voir dire portion of Mr. Roper’s trial to learn how S.P.

had responded to questions posed during the jury selection process.

{¶16} Prior to allowing her to take the stand as a witness in Mr. Pistawka’s trial, the court

conducted an examination of S.P. on the record. The trial court explained that, during their review

of the transcript from Mr. Roper’s trial, prosecutors became concerned that S.P. had not raised her

hand in response to questions posed to members of the jury panel regarding their prior dealings

with children services and familial incidents of sexual conduct. The trial court stated to S.P., “You

never brought to light in the trial of that case that you personally had a child removed from your

home at a time when there were at least allegations of sexual misconduct by somebody in the

home.” The trial court advised S.P. that “an argument could be made that by not providing relevant

factual information in response to the questions,” she may have committed perjury. The trial court

advised S.P. that, if she were to take the stand and testify in Mr. Pistawka’s case, she might be

subjected to cross-examination on that topic and might potentially be exposed to charges of

perjury. After consulting with legal counsel, S.P. ultimately testified in Mr. Pistawka’s case. 7

{¶17} “A jury found Mr. Pistawka guilty of two counts of rape and four counts of gross

sexual imposition as to C.G., one count of rape, four counts of gross sexual imposition,” and one

count of sexual battery as to each of his biological daughters. Pistawka,

.

In May 2015, the trial court entered its judgment of conviction against Mr. Pistawka. This Court

affirmed his conviction on appeal. Id. at ¶ 22.

{¶18} Mr. Roper asserted in his motion for a new trial that, as a potential juror during voir

dire, S.P. “concealed information about her marriage to [Mr.] Pistawka” and concealed

information about Mr. Pistawka and about her “son’s criminal history.” Further, Mr. Roper argued

that S.P. “concealed the fact that her husband[, Mr. Pistawka,] had been accused of the very same

kind of conduct that Mr. Roper was being accused of” when she failed to “reveal the fact that her

daughter had been removed by [Summit County Children Services “CSB”] in 2007 because of

reports that Mr. Pistawka sexually abused her when she was a child.” Specifically, Mr. Roper

asserted that S.P. offered no response to the questions posed by his trial counsel as to whether any

members of the jury panel had dealings with children services and whether any potential jurors “or

their immediate family had ‘been the victim of any type of child abuse, sexual or otherwise[.]’”

{¶19} Mr. Roper asserted that, as a consequence of her failure to disclose this information,

his trial counsel could not ask S.P. about the accusations her daughter made, claiming that she had

been sexually abused by her stepfather, S.P.’s husband. Mr. Roper alleged that S.P.’s explanation

for her failure to disclose that information was “simply not credible” and, therefore, presumed the

“only credible explanation [was] that she actively concealed honest answers to material questions

during Mr. Roper’s voir dire.” Mr. Roper contends he was prejudiced by this non-disclosure

because, had S.P. truthfully divulged such information, his trial counsel would have sought to

remove her as a juror for cause. Mr. Roper argued that S.P.’s allegedly “deliberate concealment” 8

of material information should be viewed as “presumptive evidence that she was a biased juror

who could have been excused for cause.”

{¶20} The State opposed Mr. Roper’s motion and, after the parties briefed the issues, the

trial court held a hearing. During the hearing, the trial court heard testimony from S.P. as well as

Mr. Roper’s trial counsel. At the outset of the hearing, the parties stipulated that S.P. had not

raised her hand in response to any questions that were posed during voir dire regarding

involvement with children services, nor to the “question regarding whether anyone in the family

had been the victim of child abuse * * *.” At the conclusion of the hearing, the trial court instructed

the parties to file post-hearing briefs. Mr. Roper filed a post-hearing brief and the trial court

granted the State leave to file its post-hearing brief under seal. Although the trial court references

the State’s brief in its order, it is not part of the record before this Court.

{¶21} The trial court subsequently issued a journal entry granting Mr. Roper’s motion for

a new trial. In its decision, the trial court rejected two of Mr. Roper’s arguments: that S.P. did not

truthfully answer questions regarding her marital status, and that she was untruthful regarding “her

awareness of the criminal record of her son and her then-husband * * *.” The trial court found

that, while those issues “tangentially involve alleged untruthfulness,” S.P. “adequately explained

her reasoning for the answers she gave” to those questions. Therefore, the trial court declined to

consider those issues and turned its focus to Mr. Roper’s remaining arguments “of the core issue

of prejudice to [his] substantial right to a fair trial.”

{¶22} The trial court, after a review of the briefs, the testimony at the hearing, and “a

complete review of the CSB records on file under seal,” and upon consideration of “the applicable

law,” concluded that it had “no alternative but to order a new trial.” The trial court noted that S.P.

“indicated that she had no bias either way[,]” but found that “there exist too many discrepancies 9

in the testimony she provided during the trial of her then-husband concerning his alleged sexual

abuse of her daughter, and in the evidence and testimony presently before the court.” The trial

court impliedly rejected S.P.’s explanation for these unspecified “discrepancies” and concluded

that, “regardless of her reasoning and her explanation for non[]disclosure, [S.P.] did not fully

participate in the voir dire process * * *.” The trial court reasoned that, had S.P. “disclosed her

family situation, it would have, at a minimum, provided a logical basis for a ‘for cause’ challenge.”

{¶23} The trial court also considered the testimony of Mr. Roper’s trial counsel and

concluded that S.P.’s failure to “fully participate in the process of jury selection” deprived trial

counsel of the opportunity to seek to remove her from the panel for cause, to ask her specific

questions about abuse allegations in the family and the family’s involvement with children

services, and to exercise one of his peremptory challenges if his challenge for cause had been

denied. The trial court concluded that S.P.’s “lack of complete disclosure resulted in unfair

prejudice to Mr. Roper’s right to a fair trial.”

{¶24} In reaching its decision, the trial court noted that S.P. may well have been “a fair

and impartial juror, as she testified she believed she was.” Still, the trial court concluded that a

new trial must be granted because the issues created a “cloud of doubt hanging over the fairness

of Mr. Roper’s trial.”

Juror’s failure to answer honestly a material question on voir dire

{¶25} The State first argues that the trial court did not find that S.P. was “dishonest” when

she failed to raise her hand during voir dire. The State asserts that, rather than finding that S.P.

was dishonest, the trial court found that she failed to fully participate in the jury selection process

when she failed to raise her hand. It is the State’s contention that a trial court must make a finding

of dishonesty before it can grant a new trial, because the first prong of the rule in Grundy requires 10

that a defendant “must first demonstrate that a juror failed to answer honestly a material question

on voir dire * * *.” (Emphasis added.) Grundy,

,

, at

paragraph one of the syllabus.

{¶26} The trial court’s decision does not reflect an explicit finding of dishonesty. In its

decision, the trial court, without further elaboration, found S.P.’s recollection of her involvement

with CSB “arguably absurd” and found “discrepancies” in S.P.’s testimony on the matter. On this

basis the trial court concluded that, “regardless of her reasoning and her explanation for non-

disclosure,” S.P. “did not fully participate in the voir dire process,” but made no determination of

dishonesty.

{¶27} However, a finding of juror misconduct does not necessarily require an explicit

finding of dishonesty when a juror fails to answer a material question. This Court has previously

stated, “[i]f a juror remains mute when [s]he should answer, the effect of h[er] silence is the same

as a false answer.” Guhl v. G. W. Murphy Industries, Inc., 9th Dist. Wayne No. 1365,

, *3 (Nov. 6, 1974). Thus, a finding that a juror failed to respond to a material question,

whether deliberately or through inadvertence, may have the same effect as a finding that a juror

failed to answer honestly.

{¶28} The relevant questions raised during voir dire in Mr. Roper’s trial inquired as to

juror interactions with children services and experience with instances of sexual abuse. Although

the parties stipulated that S.P. did not raise her hand in response to such a question, it is not clear

to this Court in what way the trial court viewed S.P.’s non-disclosure of sexual abuse allegations

in response to the voir dire inquiry as to whether any of the jurors’ family had been a victim of

abuse. The record reflects that, when that question was posed during voir dire, S.P. did not believe

a member of her family had been abused. Consequently, we find her obligation to affirmatively 11

respond to that question uncertain and the effect of her silence on that issue arguably harmless in

light of the sequence of events. At the time of Mr. Roper’s trial, S.P. was aware that her daughter

had accused and then recanted her claim that Mr. Pistawka sexually abused her—a claim that S.P.

has never believed. It was not until after voir dire and after the conclusion of Mr. Roper’s trial

that Mr. Pistawka’s two daughters came forward with their own accusations against him and that

C.G. reaffirmed the claims of sexual abuse she made as a child. Even at that point, S.P. maintained

she did not believe Mr. Pistawka had sexually abused C.G.

{¶29} Nonetheless, we need not resolve this issue because the trial court correctly

observed that S.P. failed to respond to the question about involvement with CSB. S.P. remained

silent during voir dire where she should have raised her hand to the question regarding CSB

involvement. Although the trial court did not find that S.P. willfully or deliberately failed to give

an honest answer during voir dire, the effect of her failure to raise her hand is sufficient to show

juror misconduct. Whether such juror misconduct was prejudicial is a separate question.

However, we conclude that the State’s argument that the trial court was required to make a specific

finding of dishonesty lacks merit.

Prejudice by juror who failed to disclose material information.

{¶30} The State next argues that the trial court abused its discretion when it granted a new

trial without finding a valid basis for a challenge for cause. The State contends that the trial court

made no finding that Mr. Roper was prejudiced and failed to engage in the analysis to determine

whether there existed grounds for a successful challenge for cause. The State further argues that

the trial court failed to consider whether S.P. maintained an ability to be fair and impartial.

{¶31} Mr. Roper first had the burden to prove juror misconduct by showing that S.P. failed

to answer honestly a material question on voir dire. Jalowiec,

; Grundy, 12

,

, at paragraph one of the syllabus. As we stated above, Mr.

Roper met this initial burden because S.P.’s failure to raise her hand in response to a material

question during voir dire had the same effect as a false answer. However, to establish that he is

entitled to a new trial, Mr. Roper then had the burden show this misconduct materially prejudiced

his substantial rights.

; Grundy at paragraph one of the syllabus. In this instance,

Mr. Roper could demonstrate prejudice by showing that “an accurate response from [S.P.] would

have provided a valid basis for a for-cause challenge.” Grundy at paragraph one of the syllabus.

{¶32} In his motion for a new trial, Mr. Roper asserted that S.P.’s explanation for failing

to respond to questions during voir dire were “simply not credible” and that the “only credible

explanation [was] that she actively concealed honest answers to material questions during Mr.

Roper’s voir dire.” Based on his allegation that S.P. deliberately concealed her family’s experience

with CSB and child sexual abuse, Mr. Roper argued that her failure to disclose should be viewed

as presumptive evidence that she was a biased juror who could have been excused for cause. In

his merit brief, Mr. Roper claims that the trial “court implicitly determined and held that bias by

[S.P.] could be inferred both from the deliberate concealment of material information about her

daughter’s accusations of sexual abuse against her then-husband, and from the extent of her own

involvement with children’s services.” Thus, to support his claim that he was prejudiced by juror

misconduct, Mr. Roper relied on his unsubstantiated presumption that S.P. deliberately concealed

information during voir dire.

{¶33} “The motives for concealing information may vary, but only those reasons that

affect a juror’s impartiality can truly be said to affect the fairness of a trial.” McDonough Power

Equip. Inc.,

. Here, however, Mr. Roper has not provided support for his bald

assertion that S.P. actively concealed information or deliberately failed to respond to any question. 13

Moreover, despite his claim to the contrary, there is no indication, explicit or implicit, in the trial

court’s decision that the court found S.P. had deliberately concealed information or that actual bias

could be inferred from her failure to respond. Although a court certainly may infer bias if it finds

that a juror deliberately concealed information, the trial court here made no finding that S.P.

intentionally failed to raise her hand or deliberately concealed information during voir dire. See

Williams,

. In the absence of a finding of intentional or deliberate concealment,

the trial court had to determine whether Mr. Roper was prejudiced by juror misconduct: whether

an accurate response to the questions would have revealed juror bias sufficient to establish a valid

basis to challenge the juror for cause. Grundy at paragraph one of the syllabus.

{¶34} The trial court did not determine whether S.P.’s disclosure of her involvement with

CSB would have provided a valid basis for a challenge for cause. Instead, the trial court found

that “it is only logical to conclude that had she disclosed her family situation, it would have, at a

minimum, provided a logical basis for a ‘for cause’ challenge.” However, finding a logical basis

for a challenge for cause is not the equivalent of finding a valid basis for a challenge for cause.

{¶35} Crim.R. 24(C)(9) provides that a person called as a juror may be challenged for

cause if

the juror is possessed of a state of mind evincing enmity or bias toward the defendant or the state; but no person summoned as a juror shall be disqualified by reason of a previously formed or expressed opinion with reference to the guilt or innocence of the accused, if the court is satisfied, from the examination of the juror or from other evidence, that the juror will render an impartial verdict according to the law and the evidence submitted to the jury at the trial.

R.C. 2945.25(B) states nearly identically grounds to remove a juror for cause. Thus, a valid basis

for a challenge for cause pursuant to Crim.R. 24(C)(9) requires a showing that a juror was unable

to act impartially or was actually biased against the accused. See Necessary,

, at 14

¶ 36. Otherwise stated, a valid basis involves more than a theoretical, plausible, or logical basis

to assert a challenge for cause.

{¶36} Here, the trial court did not make a finding that S.P. was biased toward Mr. Roper

and expressly recognized that S.P. indicated “she had no bias either way.” Instead, the trial court

based its decision on what it described as the “many discrepancies” in S.P.’s testimony at Mr.

Pistawka’s trial and at the hearing on Mr. Roper’s motion for a new trial. Yet, the trial court did

not identify the nature of the discrepancies nor discuss their implied significance. The trial court

concluded that S.P.’s failure to “fully participate in the process of jury selection” deprived Mr.

Roper’s trial counsel of the chance to ask her specific questions about her daughter’s abuse

allegations and her own involvement with CSB, and deprived him of “the opportunity to seek to

remove her from the panel for cause,” or to remove her with a peremptory challenge “were his

challenge for cause to have been denied.” The trial court then summarily concluded that this “lack

of complete disclosure resulted in unfair prejudice” to Mr. Roper and, though S.P. may have been

a fair and impartial juror, her presence as a juror created “a cloud of doubt hanging over the fairness

of Mr. Roper’s trial.”

{¶37} The conclusion that Mr. Roper was prejudiced—because the lack of disclosure

prevented further inquiry on voir dire and the opportunity to challenge the juror for cause—is

based on a presupposition that the absence of such information was, in fact, prejudicial. A finding

of prejudice on this basis circumvents the required analysis entirely. The fact of nondisclosure

does not, in and of itself, establish prejudice. Such an inference is not permitted unless the juror

deliberately or intentionally concealed information. Williams,

. Rather than

assuming prejudice, it was incumbent upon the trial court to consider the substance and materiality

of an accurate response from S.P., to probe for bias, and to determine whether, despite any 15

rehabilitation, a valid basis existed to challenge S.P. for cause. See id.; Grundy,

,

, at paragraph one of the syllabus.

{¶38} Had S.P. disclosed her experience with CSB during voir dire, subsequent

questioning may well have led S.P. to disclose that her daughter accused S.P.’s husband of sexual

abuse. Still, this information on its own does not establish bias sufficient to warrant a valid basis

for a challenge for cause. “Notably, ‘[a] prospective juror is not automatically disqualified by the

fact that a close relative has been the victim of a crime similar to the crime on trial.’” State v.

Stevens, 5th Dist. Morgan No. 14 AP 0005,

, quoting State v. Murphy,

(2001). At the time of Mr. Roper’s trial, S.P.’s daughter had recanted her

allegations of sexual abuse and S.P.’s testimony on the topic would have likely reflected her belief

that her daughter had lied, falsely accusing the stepfather of sexual abuse. Although S.P.’s

personal experience may be germane in light of the charges against Mr. Roper, there is nothing

inherent in her experience to suggest bias toward Mr. Roper. Moreover, S.P.’s personal experience

could have been viewed as indicative of her capacity to believe that a person may be falsely

accused of committing sexual abuse.

{¶39} Furthermore, as the trial court observed regarding the testimony at the hearing, Mr.

Roper’s trial counsel indicated that he “would have wanted to inquire further” of S.P. Trial counsel

testified that, due to the nature of the allegations against Mr. Roper, if a juror had a child that had

been abused, he would have “almost certainly” made a challenge for cause and that he “would

have great concern of their ability to separate those experiences from what was going in Mr.

Roper’s trial.” However, trial counsel qualified that statement by stating he would make such a

challenge “absent that juror being able to rehabilitate themselves * * *.” Additionally, in

discussing whether he would have sought to remove S.P. for cause, trial counsel emphasized his 16

concern regarding a juror who had lied to the court under oath. However, any subsequent issues

as to whether S.P. lied under oath or, regarding any motive or inadvertence behind S.P.’s failure

to disclosure information, are not relevant to the present analysis. The focus here is not on the fact

that S.P. failed to disclose information, but whether the information she failed to disclose would

have revealed bias sufficient to establish a valid basis to challenge her for cause if she had

responded accurately.

{¶40} Although it is generally well within the trial court’s discretion to determine the

existence of juror bias sufficient to create the need to declare a mistrial, “[m]ere supposition,

surmise, and possibility of prejudice are not sufficient” and the record here reveals no substantive

basis for the trial court to have determined bias. State v. Gunnell,

, 2012-Ohio-

3236, ¶ 31. Without thoroughly discussing her credibility or examining grounds for actual bias,

and notwithstanding S.P.’s claim of impartiality, the trial court decided that the “cloud of doubt”

must be cleared away and granted Mr. Roper a new trial. Regardless of any theoretical or

hypothetical basis for a challenge for cause, Grundy requires a valid basis and Crim.R. 33 requires

a prejudicial effect resulting from juror misconduct to warrant a new trial; the finding of a valid

basis is absent from the trial court’s analysis.

{¶41} This Court concludes that the trial court did not properly apply the law to analyze

whether information that S.P. failed to disclose during voir dire would have revealed a potential

bias or prejudice to provide a valid basis for a challenge for cause pursuant to Crim.R. 24(C)(9).

See Grundy,

,

, at paragraph one of the syllabus; Williams,

. Without first finding a valid basis to challenge S.P. for cause, the trial court erred

by finding that Mr. Roper’s substantial rights were prejudiced and a new trial required. Crim.R.

33(A); R.C. 2945.79(B); Adams,

,

, at ¶ 45; Jalowiec, 2015- 17

Ohio-5042, at ¶ 48. Further, the trial court’s analysis did not adequately take into account S.P.’s

testimony to determine whether or not the court was satisfied she could “render an impartial verdict

according to the law and the evidence submitted to the jury at the trial.” Crim.R. 24(C)(9).

Consequently, we conclude the trial court abused its discretion by granting the motion for a new

trial.

{¶42} The State’s assignment of error is sustained.

III.

{¶43} The State’s assignment of error is sustained. The judgment of the Summit County

Court of Common Pleas granting Mr. Roper a new trial is reversed, and this matter is remanded

for further proceedings.

Judgment reversed, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30. 18

Costs taxed to Appellee.

JULIE A. SCHAFER FOR THE COURT

CARR, P. J. HENSAL, J. CONCUR.

APPEARANCES:

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellant.

PETER GALYARDT, Assistant Ohio Public Defender, for Appellee.