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9th District reverses new trial decision in child rape case
TRACEY BLAIR
Legal News Reporter
Published: February 26, 2021
A Summit County trial court abused its discretion by granting the motion for a new trial for a defendant convicted of sexually abusing a 5-year-old girl, the 9th District Court of Appeals recently ruled.
Robert Roper was found guilty of rape in June 2013 and was sentenced to life in prison without the possibility of parole.
In 2017, he filed a motion for a new trial based on certain information prosecutors learned about Juror No. 4 after his trial regarding her role in a 2015 trial in an unrelated but similar criminal case.
Roper alleged that, during voir dire in his trial, Juror No. 4 had deliberately concealed her daughter’s report of sexual abuse against her husband, arguing his right to a fair trial had been violated by juror misconduct. He alleged if the juror had 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.
After an evidentiary hearing, the trial court found 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 ordered a new trial.
On appeal, the state alleged 1) the trial 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 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.
The juror, 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[.]’”
The state first argued the trial court did not find S.P. was “dishonest” as required in Grundy v. Dhillon (2008-Ohio-6324) when she failed to raise her hand during voir dire.
“On this basis the trial court concluded that, `regardless of her reasoning and her explanation for nondisclosure,’ S.P. `did not fully participate in the voir dire process,’ but made no determination of dishonesty,” Ninth District Judge Julie Schafer said in her opinion. 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).
The appellate court concluded the state’s argument that the trial court was required to make a specific finding of dishonesty lacks merit.
However, the panel agreed with the state’s next argument that the trial court abused its discretion when it granted a new trial without finding a valid basis for a for-cause challenge.
“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,” Judge Schafer added. “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.”
The panel found the record revealed no substantive basis for the trial court to have determined bias.
“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,” Judge Schafer added.
Appellate judges Donna Carr and Jennifer Hensal concurred.
The case is cited State v. Roper, 2021-Ohio-188.