[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
