                                                                           Sep 24 2015, 8:41 am




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Timothy P. Broden                                         Gregory F. Zoeller
      Lafayette, Indiana                                        Attorney General of Indiana
                                                                James B. Martin
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Kastin E. Slaybaugh,                                      September 24, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                79A02-1411-CR-798
              v.                                                Appeal from the Tippecanoe Superior
                                                                Court

      State of Indiana,                                         Lower Court Cause No.
                                                                79D02-1401-FB-1
      Appellee-Petitioner.
                                                                The Honorable Thomas H. Busch,
                                                                Judge




      Pyle, Judge.


                                        Statement of the Case
[1]   In this case, we are called to review a novel issue in Indiana—whether a juror,

      who was apparently not asked about her Facebook usage or friendships,

      engaged in juror misconduct when she did not disclose during voir dire that a

      witness’s relative was among her expansive list of Facebook friends.

      Court of Appeals of Indiana | Opinion 79A02-1411-CR-798| September 24, 2015                 Page 1 of 17
[2]   Kastin E. Slaybaugh (“Slaybaugh”) appeals his conviction, following a jury

      trial, for Class B felony rape.1 After trial, but before sentencing, Slaybaugh filed

      a motion for mistrial based on alleged juror misconduct. Specifically,

      Slaybaugh alleged that one of the jurors may have lied during voir dire about

      not knowing the victim, and he based his allegation on the fact that the victim’s

      sister was one of the juror’s Facebook friends. Upon the trial court’s order, the

      parties conducted a deposition of the juror, who testified that she did not

      recognize the victim’s name during voir dire, did not recognize her when she

      testified, and did not know the victim. The juror also testified that she had

      more than 1,000 Facebook friends and that she did not personally know all of

      her Facebook friends. After holding a hearing and considering the juror’s

      deposition as well as Facebook materials and affidavits submitted, the trial

      court determined that the juror was truthful in her assertion that she had no

      knowledge of the victim or her family and denied Slaybaugh’s motion for

      mistrial.


[3]   On appeal, Slaybaugh challenges the trial court’s denial of his post-trial motion

      for mistrial, claiming that the trial court erred by determining that the juror

      truthfully stated that she did not know the victim. Concluding that Slaybaugh

      failed to show that the juror engaged in misconduct (let alone gross misconduct

      that likely harmed him) and that his challenge on appeal is nothing more than a




      1
       IND. CODE § 35-42-4-1(a). We note that, effective July 1, 2014, a new version of the rape statute was
      enacted and that Class B felony rape is now a Level 3 felony. Because Slaybaugh committed his crime in
      January 2014, we will apply the statute in effect at that time.

      Court of Appeals of Indiana | Opinion 79A02-1411-CR-798| September 24, 2015                   Page 2 of 17
      request to reweigh the trial court’s credibility determination, we affirm the trial

      court’s denial of Slaybaugh’s motion for mistrial.


[4]   We affirm.


                                                        Issue
               Whether the trial court abused its discretion by denying
               Slaybaugh’s post-trial motion for mistrial based on alleged juror
               misconduct.

                                                       Facts2
[5]   In January 2014, Slaybaugh was staying in the garage of his friend, Jenelle

      Bader (“Bader”). On January 16, 2014, Slaybaugh and K.W. were hanging out

      in the garage. K.W. had known Slaybaugh for approximately seventeen years

      and had been childhood friends with his younger sister. During that evening,

      Slaybaugh and K.W. “drank vodka” and “smoked some spice.” (Tr. 73).

      Bader later went into the garage and observed that K.W. was “[h]eavily”

      intoxicated. (Tr. 29). K.W. passed out, Bader left the garage, and Slaybaugh

      then had sex with K.W. When Bader returned to the garage approximately

      thirty minutes later, she found Slaybaugh, naked and sitting at the end of a sofa

      with a blanket around him. K.W. was unresponsive on the sofa with her pants

      off and her knees up by her shoulders. Bader then called the police.




      2
       Slaybaugh does not challenge the sufficiency of the evidence supporting his conviction; therefore, we will
      not include a detailed recitation of the facts of his offense.

      Court of Appeals of Indiana | Opinion 79A02-1411-CR-798| September 24, 2015                      Page 3 of 17
[6]   The State charged Slaybaugh with Class B felony rape, specifically alleging that

      Slaybaugh had sexual intercourse with K.W. when she was “unaware that the

      sexual intercourse was occurring[.]” (App. 53). The trial court held a jury trial

      on August 26-27, 2014. During the trial, K.W. testified that she remembered

      drinking vodka and smoking spice with Slaybaugh, but she did not remember

      anything else until she woke up in the hospital. The jury found Slaybaugh

      guilty as charged, and the trial court entered judgment of conviction.


[7]   The day after the trial and subsequent days thereafter, Slaybaugh’s mother,

      Katina Slaybaugh (“Katina”), emailed Slaybaugh’s trial counsel, J. Michael

      Trueblood (“Attorney Trueblood”) and his investigator, Bill Lindblom

      (“Lindblom”). In her emails, Katina expressed her concern that one of the

      jurors, Juror #2767 or Juror K.A. (“the Juror”), may have lied during voir dire

      about not knowing the victim, K.W. Katina’s allegation was based on a search

      of Slaybaugh’s Facebook profile and his list of Facebook “friends.”

      Specifically, Katina stated that the Juror was a Facebook friend of one of

      Slaybaugh’s Facebook friends, Zach Anderson (“Zach”), whom she believed to

      be a step-sibling of K.W. Katina also alleged that the Juror was a Facebook

      friend of Stephani Anderson (“Stephani”), who was a step-sibling of K.W.

      Katina also emailed screenshots from the Facebook profiles of the Juror, Zach,

      and Stephani. Lindblom responded to Katina and informed her that Attorney

      Trueblood would look into the information.


[8]   Thereafter, on September 4, 2014, Katina sent a letter to Amy Hutchinson

      (“Attorney Hutchinson”), who was Slaybaugh’s defense counsel from another

      Court of Appeals of Indiana | Opinion 79A02-1411-CR-798| September 24, 2015   Page 4 of 17
       offense. In this letter, Katina complained about Attorney Trueblood’s

       representation of Slaybaugh at trial, and she stated that she thought that the

       Juror was friends with or related to K.W.’s siblings and that the Juror had

       committed “possible perjury[]” by claiming that she did not know K.W. (Supp.

       App. 85). Katina also sent a copy of this letter to the trial judge presiding over

       Slaybaugh’s rape case.


[9]    On September 15, 2014, the trial court entered an order (“September 15

       Order”), directing Attorney Hutchinson and Attorney Trueblood to review

       Katina’s letter and file a response with the court within thirty days. On

       September 17, 2014, Attorney Trueblood responded to the trial court’s

       September 15 Order. In his response, Attorney Trueblood stated that he had

       reviewed the emails and Facebook information that Katina had submitted to

       him and had “determined that there was insufficient credible information to

       raise an allegation of Juror Misconduct” because the Juror “swore no

       knowledge” of K.W. or any individual identified as a potential witness during

       voir dire. (Supp. App. 28). He also pointed out that the Juror “did not indicate

       any knowledge” of K.W. when she took the witness stand and testified at trial.

       (Supp. App. 28). Attached to the response, Attorney Trueblood submitted

       copies of the emails between himself and Katina, the Facebook photographs,

       and information that she had emailed him.


[10]   Thereafter, on September 24, 2014, Slaybaugh, represented by Attorney

       Hutchinson, filed a Motion for a Mistrial Based on Juror Misconduct and to Set

       Aside the Verdict (“motion for mistrial”). In this motion, “Slaybaugh and his

       Court of Appeals of Indiana | Opinion 79A02-1411-CR-798| September 24, 2015   Page 5 of 17
       family . . . respectfully move[d] th[e] Court to review the issue of juror

       misconduct, to conduct a hearing, and to declare a mistrial and set aside the

       verdict and grant the defendant a new trial.” (Supp. App. 17).3 The crux of

       Slaybaugh’s motion for mistrial was that the Juror had committed misconduct

       because she did not reveal during voir dire or at trial that she knew K.W. In

       support of his motion, Slaybaugh attached the following to his motion: (1)

       forty-seven pages of screenshots from the Facebook pages of K.W., the Juror,

       Zach, and Stephani; (2) affidavits from Slaybaugh,4 his mother, his sister, and a

       fellow inmate; and (3) a copy of Attorney Trueblood’s response to the trial

       court’s September 15 Order and the attachments to that response.


[11]   On September 25, 2014, the trial court held a hearing on Slaybaugh’s motion

       for mistrial. Thereafter, the trial court ordered the parties to conduct a

       deposition of the Juror. After the hearing, the trial court, on its own motion,

       found that Slaybaugh’s motion for mistrial contained confidential information

       and sealed the relevant information. The trial court, however, did not seal the




       3 Slaybaugh’s Supplemental Appendix contains documents that were subject to a trial court order excluding
       them from public access. As such, this Supplemental Appendix was filed on green paper and marked as
       “Not for Public Access.” See Ind. Admin. Rule 9. We have attempted to exclude such matters from this
       opinion. However, to the extent such matters are included in this opinion, we deem such information to be
       “essential to the resolution of [the] litigation” or “appropriate to further the establishment of precedent or the
       development of the law.” See Admin. R. 9(G)(3); 9(G)(7)(a)(ii)(c),(d).
       4
        In his affidavit, Slaybaugh averred that the Juror was Facebook friends with K.W.’s siblings; that he and the
       Juror had 116 mutual Facebook friends; and that he believed the Juror was “biased” because she was
       Facebook friends with K.W.’s sister, Stephani, who he stated had posted about the trial. (Supp. App. 26).

       Court of Appeals of Indiana | Opinion 79A02-1411-CR-798| September 24, 2015                          Page 6 of 17
       actual motion; submitted legal authority; affidavits from Slaybaugh’s sister,

       mother, and fellow jail inmate; and Attorney Trueblood’s response. 5


[12]   On October 8, 2014, Katina sent a letter to the trial court, stating that she was

       concerned because the Juror was in both Slaybaugh’s “circle of friends” and

       K.W.’s “circle of friends” on Facebook. (Supp. App. 6). Katina also wrote that

       she was concerned because her oldest daughter went to school with the Juror

       from kindergarten to 6th grade.6


[13]   On October 9, 2014, the parties conducted a deposition of the Juror. During

       the deposition, the Juror testified that she had over 1,000 Facebook friends but

       that she did not personally know all of these people. She testified that she was a

       realtor and that she had “friended” most of her 1,000 plus Facebook friends for

       “networking” purposes. (Supp. App. 12). The Juror also testified that she did

       not know Stephani or Zach, but she acknowledged that she “could be” friends

       with Stephani on Facebook. (Supp. App. 13). Additionally, the Juror testified

       that she did not read all of the posts from her more than 1,000 Facebook friends

       and that she used Facebook to post on her own profile and to “network” and

       “post on [her] business page[.]” (Supp. App. 13). The Juror testified that she

       did not know K.W. before or during trial. She confirmed that she had told the



       5
        We note that, on appeal, Slaybaugh has submitted his motion and these non-sealed materials on green
       paper in his Supplemental Appendix.
       6
        The State filed a motion to strike this letter. The trial court ruled that the letter would be sealed until
       Slaybaugh decided if he was going to rely on this letter in support of his motion for mistrial. If he did not rely
       upon it, the trial court stated that it would strike it; however, if Slaybaugh did rely upon it, it would remain
       under seal.

       Court of Appeals of Indiana | Opinion 79A02-1411-CR-798| September 24, 2015                          Page 7 of 17
       trial court during voir dire that she did not know K.W. 7 She also testified that

       she did not know K.W. or recognize her when she testified at trial. Finally, the

       Juror, who went to Lafayette Jefferson High School, stated that she did not

       know Slaybaugh, who apparently was in a younger class at the high school, and

       that she had not heard about him.


[14]   On October 14, 2014, the State filed a response to Slaybaugh’s motion for

       mistrial and attached a copy of the Juror’s deposition. In its response, the State

       asserted that “the juror has adamantly stated that she did not know the victim

       prior to the trial[] and does not know of any connection to her whatsoever[,]”

       and “the juror has now sworn twice under oath that she has no knowledge of

       the victim in this case.” (Supp. App. 9). The State also argued that the trial

       court should deny Slaybaugh’s motion because he had failed to meet his

       “burden of proving that jury misconduct occurred, that it was a gross violation,

       and that it probably harmed” him. (Supp. App. 9).


[15]   On October 16, 2014, the trial court held a second hearing on Slaybaugh’s

       motion for mistrial. That same day, Slaybaugh filed a motion, requesting the

       trial court to consider Katina’s October 8 letter and a deposition from Amanda

       Jasper (Ritchie) (“Amanda”), who went to school with Slaybaugh and who was

       a Facebook friend of Slaybaugh, K.W., K.W.’s siblings, and the Juror. In this

       deposition, Amanda testified that, before trial, she saw that K.W. and her




       7
         The record on appeal does not contain a transcript from voir dire; however, the Juror’s deposition
       testimony provides information about some of the questioning that occurred during voir dire.

       Court of Appeals of Indiana | Opinion 79A02-1411-CR-798| September 24, 2015                       Page 8 of 17
       siblings made “very vague” comments with “no detail about anything” that “it

       was going to be a long road” and that “they were going to make sure that what

       happened to her was taken care of.” (Supp. App. 3). Amanda also testified

       that she read Facebook posts about a warrant for Slaybaugh when he was a

       fugitive and that he was going to trial. However, she did not see whether the

       Juror had ever commented on the posts.


[16]   Thereafter, the trial court denied Slaybaugh’s motion for mistrial, finding that

       “the juror in question truthfully stated that she had no knowledge of the

       defendant, the victim or the family of either.” (App. 20). Thereafter, the trial

       court sentenced Slaybaugh to fifteen (15) years in the Department of

       Correction. Slaybaugh now appeals.


                                                    Decision
[17]   On appeal, Slaybaugh does not challenge the sufficiency of the evidence

       supporting his conviction or the propriety of his sentence. Slaybaugh’s sole

       issue is that the trial court abused its discretion by denying his post-trial motion

       for mistrial based on alleged juror misconduct. Slaybaugh does not cite a

       standard of review for this issue. Instead, he merely challenges the trial court’s

       finding that the Juror truthfully stated that she had no knowledge of the victim,

       K.W., and he asserts that the “Facebook pages negate [the Juror’s] assertions

       that she was not familiar with K.W.” (Slaybaugh’s Br. 5). Relying on

       Brinkman v. Hovermale, 106 Ind. App. 70, 13 N.E.2d 885 (1938), Slaybaugh

       contends that the Juror’s failure to reveal this relationship during voir dire


       Court of Appeals of Indiana | Opinion 79A02-1411-CR-798| September 24, 2015   Page 9 of 17
       equates to misconduct that will automatically be regarded as prejudicial and

       entitle him to a new trial.


[18]   We agree that, under “certain circumstances, ‘[t]he failure of a juror to disclose

       a relationship to one of the parties may entitle the prejudiced party to a new

       trial.’” Stephenson v. State, 864 N.E.2d 1022, 1055 (Ind. 2007) (quoting Godby v.

       State, 736 N.E.2d 252, 256 (Ind. 2000), reh’g denied) (other citations omitted)

       (alteration in original), cert. denied. See also Lopez v. State, 527 N.E.2d 1119, 1130

       (Ind. 1988) (“Generally, proof that a juror was biased against the defendant or

       lied on voir dire entitles the defendant to a new trial.”). However, “[t]o obtain a

       new trial based on a claim of juror misconduct, the defendant must demonstrate

       that the misconduct was gross and likely harmed the defendant.” Stephenson,

       864 N.E.2d at 1055. See also Ramirez v. State, 7 N.E.3d 933, 938, 939 (Ind.

       2014) (referring to the standard of review for juror misconduct as the “probable

       harm standard” and explaining that a defendant must show that the misconduct

       was “‘gross and probably harmed’ the defendant”) (quoting Henri v. Curto, 908

       N.E.2d 196, 202 (Ind. 2009)).8 We review a trial court’s ruling on juror

       misconduct and the denial of a motion for a mistrial for an abuse of discretion.

       See Mickens v. State, 742 N.E.2d 927, 929 (Ind. 2001); Lopez, 527 N.E.2d at 1130.


[19]   In this case, we are called upon to review an issue of first impression in

       Indiana—whether a juror, who was apparently not asked about her Facebook


       8
         In Ramirez, our Indiana Supreme Court discussed the presumption of prejudice in juror taint cases and
       clarified the standard of review for that type of case. Because this case involves juror misconduct, we will
       apply the “probable harm” standard.

       Court of Appeals of Indiana | Opinion 79A02-1411-CR-798| September 24, 2015                       Page 10 of 17
       usage or friendships, engaged in juror misconduct when she did not disclose

       during voir dire that the victim’s relative, who had a different last name than

       the victim, was among her expansive list of Facebook friends. Given the

       prevalence of Facebook and the sheer number of people who use it,9 it should

       come as no surprise that a juror’s Facebook use would be at the heart of an

       appeal. While we have numerous cases—both criminal and civil—in which a

       person’s Facebook use (including posts or comments made thereon) has been

       discussed in terms of an evidentiary issue or just comprising part of the

       underlying facts, we have not had the opportunity to review the issue at hand.


[20]   We find guidance, however, from our sister state of Kentucky, which has

       confronted and addressed this issue of alleged juror misconduct based on a

       juror’s list of Facebook friends. In Sluss v. Commonwealth, 381 S.W.3d 215 (Ky.

       2012), the defendant, after smoking marijuana and taking multiple prescription

       drugs, crashed his pickup truck into an SUV, killing an eleven-year-old girl and

       injuring three others. Sluss, 381 S.W.3d at 217. The case was the subject of

       much publicity, both in the news outlets and on social media websites such as

       Facebook. Id. at 218. The trial court, therefore, “conducted individual voir

       dire about the publicity surrounding the case in addition to the usual general

       voir dire.” Id. at 221. During the general voir dire, the trial court asked the

       jurors if they knew the victim or the victim’s family. Id. During the individual




       9
        As of June 30, 2015, Facebook had 1.49 billion monthly active users. See http://newsroom.fb.com/
       company-info/ (last visited August 31, 2015).



       Court of Appeals of Indiana | Opinion 79A02-1411-CR-798| September 24, 2015                Page 11 of 17
       voir dire, the trial court asked the jurors if they were Facebook users or had

       seen anything on Facebook about the case, but it did not directly ask them if

       they were Facebook friends with the victim’s mother. Id. A jury convicted the

       defendant of murder and other offenses, and the trial court sentenced him to life

       in prison. Id.


[21]   After trial, the defendant filed a motion for a new trial, arguing that there was

       juror misconduct based on two of the jurors’ Facebook friend statuses. Id. at

       220-21. He alleged that jury foreperson and another juror may have been

       friends with the victim’s mother, and he presented screenshots of a Facebook

       page to show that two people with the same names as the two jurors were

       among the victim’s mother’s 2,000 Facebook friends. Id. at 221. He also

       presented screenshots of the victim’s mother’s Facebook page, which contained

       information about her child’s death. Id. The record also showed that these

       jurors, when asked during voir dire, stated that they did not know the victim or

       her family or the circumstances of the case. Id. Additionally, one of the jurors

       had acknowledged during voir dire that she had a Facebook account, while the

       other denied that she did. Id. The trial court, without holding a hearing or

       questioning the jurors, denied the defendant’s motion. Id.


[22]   On appeal, the defendant argued that the “mere fact that each of the jurors was

       a ‘Facebook friend’ with [the victim’s mother] create[d] a presumption of juror

       bias[.]” Id. at 222. The Kentucky Supreme Court disagreed and, in doing so,

       discussed the nature of “friendships” on Facebook:



       Court of Appeals of Indiana | Opinion 79A02-1411-CR-798| September 24, 2015   Page 12 of 17
        Websites such as Facebook do require a member to affirmatively
        approve or deny requests to enter into a “friendship.”[]
        Therefore, in order for the jurors to become “friends” with [the
        victim’s mother], either [the victim’s mother] would have been
        required to approve friendship requests from the jurors, or the
        jurors would have been required to approve requests from [the
        victim’s mother]. In either situation, the “friendship” that the
        jurors had with [the victim’s mother] was not happenstance;
        there was an affirmative act to connect the parties.


        But “friendships” on Facebook and other similar social
        networking websites do not necessarily carry the same weight as
        true friendships or relationships in the community, which are
        generally the concern during voir dire. The degree of
        relationship between Facebook “friends” varies greatly, from
        passing acquaintanceships and distant relatives to close friends
        and family. The mere status of being a “friend” on Facebook
        does not reflect this nuance and fails to reveal where in the
        spectrum of acquaintanceship the relationship actually falls.
        Facebook allows only one binary choice between two individuals
        where they either are “friends” or are not “friends,” with no
        status in between.


        Indeed, some people have thousands of Facebook “friends,” as
        was the case with [the victim’s mother], which suggests that
        many of those relationships are at most passing
        acquaintanceships. This is further complicated by the fact that a
        person can become “friends” with people to whom the person
        has no actual connection, such as celebrities and politicians. See,
        e.g., Robbie Woliver, Lady Gaga and her 10 million Facebook friends:
        celebrity worship syndrome, Psychology Today (July 3, 2010),
        http://www.psychologytoday.com/blog/alphabet-
        kids/201007/lady–gaga–and–her–10–million–facebook–friends–
        celebrity–worship–syndrome (noting that the singer Lady Gaga
        has “10 million Facebook friends [who] aren't really her

Court of Appeals of Indiana | Opinion 79A02-1411-CR-798| September 24, 2015   Page 13 of 17
               friends”).[] Thus, a Facebook member may be “friends” with
               someone in a strictly artificial sense.

[23]   Id. at 222-23 (footnotes omitted). Based on this reasoning, the Sluss Court held

       that “a juror who is a ‘Facebook friend’ with a family member of a victim,

       standing alone, is arguably not enough evidence to presume juror bias sufficient

       to require a new trial.” Id. at 223. It explained that “[a]s with every other

       instance where a juror knows or is acquainted with someone closely tied to a

       case, it is the extent of the interaction and the scope of the relationship that is

       the relevant inquiry.” Id. The Court, however, remanded the case to the trial

       court “for the limited purpose of conducting a hearing” to determine if the

       jurors’ voir dire answers were false and whether they should have been struck

       for cause. Id. at 229.


[24]   Shortly after Sluss, the Kentucky Supreme Court again addressed the issue of

       whether a juror’s Facebook friend status with a victim’s relative entitled the

       defendant to a new trial. In McGaha v. Commonwealth, 414 S.W.3d 1 (Ky.

       2013), as modified (Sept. 26, 2013), the defendant filed a post-trial motion,

       asserting that a juror’s failure to disclose her Facebook friend status with the

       victim’s wife constituted juror misconduct and entitled him to a new trial. The

       juror had revealed during voir dire that she knew “some” of the victim’s family

       and that her association with them was “casual.” McGaha, 414 S.W.3d at 5.

       Neither party, however, asked the juror about any social media relationships

       she may have had with any potential witnesses. Id. The trial court denied the

       defendant’s motion for a new trial. Id. On appeal, the McGaha Court affirmed

       Court of Appeals of Indiana | Opinion 79A02-1411-CR-798| September 24, 2015   Page 14 of 17
       the trial court’s ruling and explained that “[i]t [wa]s now common knowledge

       that merely being friends on Facebook does not, per se, establish a close

       relationship from which bias or partiality on the part of a juror may reasonably

       be presumed.” Id. at 6 (citing Sluss, 381 S.W.3d at 222-23). The Court pointed

       out that, at the time of trial, the juror at issue had 629 Facebook “friends.” Id.

       Relying on the Sluss Court’s recognition that friendships on Facebook did “‘not

       necessarily carry the same weight as true friendships[,]’” the McGaha Court

       stated that the juror “could not possibly have had a disqualifying relationship”

       with each of her 629 friends. Id. (quoting Sluss, 381 S.W.3d at 222). The

       McGaha Court held that “no presumption arises about the nature of the

       relationship between a juror and another person with an interest in the litigation

       simply from their status as Facebook friends.” Id. It then mirrored the Sluss

       Court’s directive that the “‘relevant inquiry’” for the issue of whether a juror

       knew or was acquainted with “someone closely tied to a case” was to consider

       the “extent of the interaction and the scope of the relationship[.]” Id. (quoting

       Sluss, 381 S.W.3d at 223


[25]   We now turn back to addressing the issue in this appeal: whether the Juror’s

       failure to disclose during voir dire that the victim’s sibling was among her

       expansive list of Facebook friends constitutes juror misconduct that warrants a

       new trial. Our task of deciding the issue is made slightly more difficult because

       the voir dire questioning was neither transcribed nor included in the record on

       appeal. Nevertheless, the Juror’s deposition reveals that, during voir dire, when

       asked if she knew any of the witnesses, including K.W., she stated that she did

       Court of Appeals of Indiana | Opinion 79A02-1411-CR-798| September 24, 2015   Page 15 of 17
       not. Because the voir dire process was not transcribed, we do not know for

       certain if the parties or the trial court questioned the jurors about their

       Facebook or other social media relationships with any of the potential

       witnesses. It appears that they did not. The trial court’s preliminary

       instructions, however, have been included in the record. 10 These instructions

       reveal that the trial court instructed the jurors that if, at any time during the

       trial, they realized that they knew something about the case or knew a witness

       or the defendant, then they were required to “inform the bailiff privately at [the

       juror’s] earliest opportunity.” (Preliminary Instruction 1.27). In regard to the

       use of social media sites, such as Facebook, the trial court instructed the jurors

       that they were not to talk to anyone about the case, including “posting

       information, text messaging, email, Internet chat rooms, blogs, or social

       websites.” (Preliminary Instruction 1.01).


[26]   Here, Slaybaugh alleged that the Juror had engaged in juror misconduct

       because she did not reveal during voir dire or at trial that she knew the victim.

       Upon receiving Slaybaugh’s motion containing this allegation, the trial court

       scheduled a hearing and ordered the parties to depose the Juror. The trial court

       reviewed all supporting documents attached to Slaybaugh’s motion and the

       State’s response and determined that the Juror “truthfully stated that she had no

       knowledge of the defendant, the victim or the family of either.” (App. 20).




       10
            These preliminary instructions were prudently included in the Exhibit Volume by the trial court.

       Court of Appeals of Indiana | Opinion 79A02-1411-CR-798| September 24, 2015                       Page 16 of 17
[27]   Slaybaugh merely suggests that the evidence reviewed by the trial court—

       specifically, the Facebook pages submitted with his motion—support a decision

       opposite that of the trial court. Slaybaugh’s argument that the trial court

       abused its discretion by finding that the Juror was truthful during voir dire is

       nothing more than an invitation to reweigh the evidence and the court’s

       credibility determination, which we will not do. Slaybaugh has failed to meet

       his burden of showing juror misconduct. Indeed, he has failed to show that

       there was misconduct, let alone gross misconduct. Dickenson v. State, 732

       N.E.2d 238, 241 (Ind. Ct. App. 2000) (explaining that it is “misconduct for a

       juror to make false statements in response to questions on voir dire

       examination”).         Further, he would not be entitled to a new trial because he

       made no showing of likely or probable harm. See, e.g., Stephenson, 864 N.E.2d

       at 1055 (holding that a juror’s failure to disclose that he knew the victim’s sister,

       who was a witness at trial and was the Sunday school teacher of the juror’s

       children, did not entitle the defendant to a new trial because the defendant had

       failed to present “specific evidence” that the juror was biased or that the juror’s

       “nondisclosure of this casual connection” had any effect on the juror’s

       performance). Accordingly, we affirm the trial court’s denial of Slaybaugh’s

       motion for mistrial based on juror misconduct.


[28]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 79A02-1411-CR-798| September 24, 2015   Page 17 of 17
