[Cite as State v. Shuster, 2016-Ohio-5030.]
COURT OF APPEALS
MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. W. Scott Gwin, J.
: Hon. William B. Hoffman, J.
-vs- :
:
MICHAEL SHANE SHUSTER : Case No. 15AP0017
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2012-CR-0008
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 18, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MARK J. HOWDYSHELL ERIC J. ALLEN
19 East Main Street 713 South Front Street
McConnelsville, OH 43756 Columbus, OH 43206
Morgan County, Case No. 15AP0017 2
Farmer, P.J.
{¶1} On April 13, 2012, the Morgan County Grand Jury indicted appellant,
Michael Shane Shuster, on thirty counts of various sexual criminal acts involving his
minor stepdaughter. A jury trial commenced on April 1, 2013. The jury found appellant
guilty of six counts of rape in violation of R.C. 2907.02, seven counts of sexual battery in
violation of R.C. 2907.03, and eight counts of gross sexual imposition in violation of
R.C. 2907.05. By sentencing entry filed May 22, 2013, the trial court sentenced
appellant to an aggregate term of one hundred-five years to life. Appellant's conviction
and sentence were affirmed on appeal. See State v. Shuster, 5th Dist. Morgan Nos.
13AP0001 and 13AP0002, 2014-Ohio-3486. A subsequent denial of a petition for
postconviction relief was also affirmed by this court. See State v. Shuster, 5th Dist.
Morgan No. 14AP0003, 2014-Ohio-4144.
{¶2} On June 5, 2013, appellant filed a motion for new trial, alleging juror
misconduct. Attached to the motion was an unsworn statement of a juror, Richard
Cooper. A hearing was held on July 5, 2013. By journal entry filed July 10, 2013, the
trial court denied the motion, finding it was divested of jurisdiction because the case was
pending on appeal. In addition, the trial court determined an affidavit was not filed with
the motion which was a fatal flaw under Crim.R. 33(C).
{¶3} Following the appellate decisions, appellant filed in the trial court a sworn
affidavit of Richard Cooper on November 17, 2014, claiming it to be a substitute for the
previously filed handwritten statement. On June 22, September 4, and October 5, 2015,
appellant filed motions to amend and supplement his motion for new trial. By journal
entry filed October 30, 2015, the trial court denied appellant's motion for new trial.
Morgan County, Case No. 15AP0017 3
{¶4} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶5} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT OVERRULED
THE APPELLANT'S MOTION FOR A NEW TRIAL."
II
{¶6} "THE TRIAL COURT ERRED WHEN IT FOUND THAT THE
STATEMENTS MADE BY THE JUROR VIOLATED EVIDENCE RULE 606."
III
{¶7} "APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
WHEN COUNSEL FAILED TO ATTACH AN AFFIDAVIT TO HIS MOTION FOR A NEW
TRIAL."
I, II
{¶8} Appellant claims the trial court abused its discretion in denying his motion
for new trial based on juror misconduct. Appellant also claims the trial court erred in
finding the statements of juror Richard Cooper violated Evid.R. 606. We disagree.
{¶9} Whether to grant or deny a motion for new trial pursuant to Crim.R. 33 is
within a trial court's sound discretion. State v. Schiebel, 55 Ohio St.3d 71 (1990). In
order to find an abuse of discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).
{¶10} Crim.R. 33 governs new trial. Subsection (A)(2) states: "A new trial may
be granted on motion of the defendant for any of the following causes affecting
Morgan County, Case No. 15AP0017 4
materially his substantial rights: Misconduct of the jury, prosecuting attorney, or the
witnesses for the state." Pursuant to subsection (C), "[t]he causes enumerated in
subsection (A)(2) and (3) must be sustained by affidavit showing their truth, and may be
controverted by affidavit."
{¶11} Pursuant to Crim.R. 33(B), appellant filed a motion for new trial within one
hundred and twenty days of his conviction. The motion filed on June 5, 2013, alleged
juror misconduct, and included an unsworn handwritten statement by juror Richard
Cooper. A hearing was held on July 5, 2013. By journal entry filed July 10, 2013, the
trial court denied the motion, finding it was divested of jurisdiction because the case was
pending on appeal. In addition, the trial court determined an affidavit was not filed with
the motion which was a fatal flaw under Crim.R. 33(C).
{¶12} On November 17, 2014, appellant filed a sworn affidavit of Richard
Cooper. Accompanying the affidavit was a letter from appellant, directing the Clerk of
Courts to file the affidavit and attach it to the June 5, 2013 motion for new trial.
Appellant indicated the "Affidavit is to substitute for the handwritten statement of
Richard Cooper previously filed with and attached to the Motion for a New Trial." The
sworn affidavit averred the following:
I, the undersigned, RICHARD COOPER, hereinafter referred to as
"AFFIANT", being first duly sworn according to law, depose and state the
following based upon personal knowledge and/or information:
1. That I am a resident of Morgan County, Ohio.
Morgan County, Case No. 15AP0017 5
2. That I am an adult and this Affidavit is the result of an act of my
own free will and accord.
3. That I was selected and sworn as a juror and I served on the
jury, in the trial of the case State of Ohio v. Michael Shane Shuster, that
ultimately convicted him on April 4, 2013 for certain offenses for which he
was charged.
4. That we jurors had heard, prior to trial and since the time of the
arrest of Michael Shane Shuster, that he had confessed to the charges
filed against him and for those charges which were the subject of the trial.
5. That the Prosecuting Attorney, during his closing argument, told
the jury that Michael Shane Shuster had confessed to the charges.
6. That we thought our deliberations were just a formality since we
were told that Michael Shane Shuster had confessed.
7. That we didn't examine any evidence during our deliberations
and although we asked to see the transcripts of witnesses' testimony we
were told by the Court that we could not do so because they were not
transcribed.
8. That the entire period of time of our deliberations was used to fill
out verdict forms for the many charges.
{¶13} Thereafter, on June 22, September 4, and October 5, 2015, appellant filed
motions to amend and supplement his motion for new trial. By journal entry filed
October 30, 2015, the trial court denied the motions, finding the following:
Morgan County, Case No. 15AP0017 6
This matter is before the Court upon motion of Defendant for a new
trial and supplements there to, and upon motion contra of the State.
After consideration of all pleadings and documentation, for reasons
set forth in the State's motion contra, it is apparent that Defendant's
motion is fatally defective on its face, and Defendant is not entitled to the
relief requested.
{¶14} The state's motion contra filed on October 20, 2015, relied on the
language of Evid.R. 606(B). Despite the various arguments relative to the presence of
an affidavit or lack thereof, we find Evid.R. 606(B) to be controlling:
(B) Inquiry Into Validity of Verdict or Indictment. Upon an
inquiry into the validity of a verdict or indictment, a juror may not testify as
to any matter or statement occurring during the course of the jury's
deliberations or to the effect of anything upon that or any other juror's mind
or emotions as influencing the juror to assent to or dissent from the verdict
or indictment or concerning the juror's mental processes in connection
therewith. A juror may testify on the question whether extraneous
prejudicial information was improperly brought to the jury's attention or
whether any outside influence was improperly brought to bear on any
juror, only after some outside evidence of that act or event has been
presented. However a juror may testify without the presentation of any
Morgan County, Case No. 15AP0017 7
outside evidence concerning any threat, any bribe, any attempted threat or
bribe, or any improprieties of any officer of the court. A juror's affidavit or
evidence of any statement by the juror concerning a matter about which
the juror would be precluded from testifying will not be received for these
purposes.
{¶15} As the Supreme Court of Ohio stated in Schiebel, 55 Ohio St.3d at 75-76:
In order to permit juror testimony to impeach the verdict, a
foundation of extraneous, independent evidence must first be established.
This foundation must consist of information from sources other than the
jurors themselves, Wicker v. Cleveland (1948), 150 Ohio St. 434, 38 O.O.
299, 83 N.E.2d 56, and the information must be from a source which
possesses firsthand knowledge of the improper conduct. One juror's
affidavit alleging misconduct of another juror may not be considered
without evidence aliunde being introduced first. See Diehl v. Wilmot
Castle Co. (1971), 26 Ohio St.2d 249, 55 O.O.2d 484, 271 N.E.2d 261;
Lund v. Kline (1938), 133 Ohio St. 317, 10 O.O. 411, 13 N.E.2d 575; Kent
v. State (1884), 42 Ohio St. 426, paragraph four of the syllabus. Similarly,
where an attorney is told by a juror about another juror's possible
misconduct, the attorney's testimony is incompetent and may not be
received for the purposes of impeaching the verdict or for laying a
foundation of evidence aliunde. See Tasin v. SIFCO Industries, Inc.
Morgan County, Case No. 15AP0017 8
(1990), 50 Ohio St.3d 102, 553 N.E.2d 257; Dodd v. McCammon (1920),
14 Ohio App. 160, 32 Ohio C.C.(N.S.) 68.
{¶16} As a juror in the case, Mr. Cooper cannot now impeach his own verdict
with his own statement alone. Evid.R. 606 has been consistently upheld as the law
relative to the impeachment of jury verdicts. "The rule is designed to protect the finality
of verdicts and to ensure that jurors are insulated from harassment by defeated parties."
Schiebel, supra, at 75. See also State v. Adams, 141 Ohio St. 423 (1943).
{¶17} Upon review, we find the trial court did not abuse its discretion in denying
the motion for new trial.
{¶18} Assignments of Error I and II are denied.
III
{¶19} Appellant claims his trial counsel was ineffective in not filing a proper
affidavit of Richard Cooper. We disagree.
{¶20} The standard this issue must be measured against is set out in State v.
Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant
must establish the following:
2. Counsel's performance will not be deemed ineffective unless and
until counsel's performance is proved to have fallen below an objective
standard of reasonable representation and, in addition, prejudice arises
from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2
Morgan County, Case No. 15AP0017 9
O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
3. To show that a defendant has been prejudiced by counsel's
deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel's errors, the result of
the trial would have been different.
{¶21} The original June 5, 2013 motion for new trial included an unsworn
handwritten statement purporting to be Richard Cooper. On November 17, 2014,
appellant, pro se, filed the sworn affidavit of Richard Cooper, along with a letter directing
the Clerk of Courts to attach it to his June 5, 2013 motion for new trial. We can only
assume that explains why the sworn affidavit is filed out of order in the record.
However, we find the affidavit to be a non sequitur to the issue presented, jury
impeachment by a fellow juror. Despite any deficiencies argued, the presence of a
Cooper affidavit or the lack thereof does not affect the outcome of the ruling under
Evid.R. 606.
{¶22} Assignment of Error III is denied.
Morgan County, Case No. 15AP0017 10
{¶23} The judgment of the Court of Common Pleas of Morgan County, Ohio is
hereby affirmed.
By Farmer, P.J.
Gwin, J. and
Hoffman, J. concur.
SGF/sg 77
State v. Shuster
Combined Opinion