Warren v. State

1

2022 Ark.App. 236

RYAN WARREN APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-21-462

Court of Appeals of Arkansas, Division I

May 18, 2022

APPEAL FROM THE BOONE COUNTY CIRCUIT COURT [NO. 05CR-20-98] HONORABLE JOHN R. PUTMAN, JUDGE

Hancock Law Firm, by; Sharon Kiel, for appellant.

Leslie Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't Att'y Gen., for appellee.

STEPHANIE POTTER BARRETT, Judge

Ryan Warren was convicted by a Boone County jury of one count of rape; three counts of computer exploitation of a child; two counts of sexual assault in the second degree; and twenty-seven counts of distributing, possessing, or viewing matters depicting child sex. He was sentenced to a total of 405 years' imprisonment. On appeal, Warren argues that the circuit court erred in refusing to grant his request for mistrial after he claims an alternate juror engaged in juror misconduct. We affirm.

Warren does not contest the sufficiency of the evidence to support his convictions. After receiving cyber tips from the National Center for Missing and Exploited Children, law enforcement officers began investigating Warren for possession of child pornography tracked back to a Gmail address belonging to him. During the course of the investigation, law enforcement officers also found a "substantial amount" of child pornography in one of his internet accounts. At trial, Warren's stepdaughter testified he began sexually assaulting her in the fifth grade, and it continued until she was in the seventh grade.

At a bench conference on the first day of testimony at trial during direct examination of the State's first witness the prosecutor advised the circuit court that the Boone County Sheriff had forwarded him a text the sheriff had received from an alternate juror's father. The text stated:

I've got a question for y'all. My oldest daughter was selected as alternate for jury duty. It's on a child pornography case. She told them she could be impartial, but after one day, she's told me she can't do it. They just adopted two kids a couple of years ago. She's physically sick after one day. Is there any way she can get out at this point?

Both the State and defense counsel agreed that the alternate juror should be dismissed. Defense counsel moved for a mistrial on the basis of juror misconduct; the State objected on the basis that there was not a sufficient foundation to establish any wrongdoing or "poisoning" of the jury. Defense counsel requested that the circuit court inquire if any of the jurors had communicated with the alternate juror that morning. The circuit court explained that it intended to remind the jurors they had been instructed not to discuss the case among themselves or with anyone else and would ask if any juror had in any way discussed the case or the issues surrounding it with anyone else. The court asked defense counsel if that was what he wanted to know; defense counsel apprised the court that if he thought he needed more, he would request that the court ask further questions.

The alternate juror was brought into the courtroom, and the circuit court excused her without inquiring whether she could remain impartial or whether she had discussed the case with anyone. When she asked if she had done something wrong, the circuit court told her no, that she was an honest person. When the jurors returned to the courtroom, the court reminded them of the instruction it gave each day to not talk either among themselves about the case until the end of the case when they returned to the jury room to deliberate or to anyone involved in the case until the trial had ended and they had been discharged as jurors. The circuit court then asked the jurors if anyone had approached them to talk about the case or if they had talked about the case to anyone; the jurors all shook their heads no. The circuit court then denied Warren's motion for mistrial. Defense counsel thanked the judge and made no request for further inquiry. The trial continued, and the jurors ultimately found Warren guilty of thirty-three offenses.

Warren's sole point on appeal is that the circuit court erred in denying his motion for mistrial, alleging that the alternate juror engaged in juror misconduct. A mistrial is an extreme and drastic remedy that will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when the fundamental fairness of the trial has been manifestly affected. Sampson v. State, 2018 Ark.App. 160, 544 S.W.3d 580. The decision to grant a mistrial is within the sound discretion of the circuit court and will not be reversed absent a showing of abuse or manifest prejudice to the appellant. Id. Because the presiding circuit court judge is in the best position to evaluate the impact of any alleged errors, such discretion will not be disturbed except where there is an abuse of discretion or manifest prejudice to the movant. Gould v. State, 2016 Ark.App. 124, 484 S.W.3d 678.

Following allegations of juror misconduct, the moving party has the burden of proving both juror misconduct and a reasonable probability of resulting prejudice. Id. This court will not presume prejudice in such situations. Id. Jurors are presumed unbiased and qualified to serve, and it is the appellant's burden to show otherwise. Id. Whether prejudice occurred is also within the sound discretion of the circuit court. Id.

In support of his contention, Warren cites U.S. v Resko, 3 F.3d 684 (3d Cir. 2000), and State v Cherry, 341 Ark. 924, 20 S.W.3d 354 (2000). Both cases are distinguishable from ...