UPON DENIAL OF PETITION FOR REHEARING
PER CURIAM.In a petition for rehearing, Seiber has argued again that he should have received a new trial in light of juror misconduct and that he should have been placed on probation after the period of retained jurisdiction. The probation issue requires no further discussion here. We deem it appropriate, however, to add a comment regarding the juror misconduct issue.
As noted in our lead opinion, the district judge ruled from the bench that Seiber had failed, even under a preponderance of the evidence standard, to show that he had been denied a fair trial. The judge’s choice of words arguably confuses two distinct questions. The first question is whether juror misconduct actually occurred. On this question, the party alleging misconduct has the burden of proof, which must be satisfied with clear and convincing evidence. State v. Foster, 110 Idaho 848, 718 P.2d 1286 (Ct.App.1986) (review denied); State v. Marren, 17 Idaho 766, 107 P. 993 (1910). The second question, to be addressed if juror misconduct exists, is “whether prejudice reasonably could have occurred.” Roll v. City of Middleton, 115 Idaho 833, 837, 771 P.2d 54, 58 (Ct.App.1989). In this case the district judge, who did not have the benefit of Roll, apparently employed an actual prejudice standard rather than determining whether prejudice reasonably could have occurred.
Ordinarily, when a judge makes a discretionary ruling by reference to an incorrect standard, the proper appellate remedy is to vacate the ruling and to remand the case for further consideration in light of the clarified standard. E.g., Kunzler v. Kunzler, 109 Idaho 350, 707 P.2d 461 (Ct.App.1985). However, such a remand is unnecessary if it is plain from the judge’s own expressed reasoning that the result would not change. Dyer v. State, 115 Idaho 773, 769 P.2d 1145 (Ct.App.1989). This is such a case. The judge said he believed the juror’s statement that her acquaintance with Seiber’s brother produced no bias against Seiber himself. The judge further noted that the jury unanimously had acquitted Seiber on one of the two charges against him. In light of this explanation, we deem it clear that the outcome of the prejudice issue would have been the same, whether addressed in an actual prejudice context or upon a determination of whether prejudice reasonably could have occurred.
Accordingly, we continue to uphold the judge’s denial of Seiber’s motion for a new trial. The petition for rehearing is denied.