[Cite as State v. Blankenburg, 2014-Ohio-4621.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2013-11-197
: OPINION - vs - 10/20/2014 :
MARK E. BLANKENBURG, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2009-03-0368
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
Repper, Pagan, Cook, Ltd., Christopher J. Pagan, 1501 First Avenue, Middletown, Ohio 45044, for defendant-appellant
S. POWELL, J.
{¶ 1} Defendant-appellant, Mark E. Blankenburg, appeals the decision of the Butler
County Court of Common Pleas denying his petition for postconviction relief ("PCR"). For the
reasons that follow, we affirm the judgment of the trial court.
{¶ 2} In October 2009, appellant, a pediatrician, was convicted of various sexual
offenses involving his minor patients. This court affirmed the convictions in March 2012. Butler CA2013-11-197
State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289 (12th Dist.) (Blankenburg I).
While his direct appeal was pending, appellant filed a PCR petition in the trial court in
November 2010, asserting that his Sixth Amendment right to a jury trial had been violated
due to the bias of one of the jurors in his case, T.M. The state moved for summary
judgment, arguing that the claim of juror bias was not tenable under the "aliunde rule" in
Evid.R. 606(B). Appellant filed a memorandum in opposition to the state's motion, attaching
affidavits from two of T.M.'s coworkers at Kroger where T.M. was employed as a pharmacist.
{¶ 3} One of the affidavits was from D.M., who was a pharmacy technician at Kroger.
D.M. stated in his affidavit that T.M. had told him that her son was one of appellant's patients,
and that while T.M. never said that her son had been abused by appellant, "she expressed a
great interest in being a juror in the case. She was obsessed with it. She talked about it
every day, and frequently stated that she was 'determined to be on that jury.' She also stated
that she wanted to be the foreman of the jury so that she could deliver a guilty verdict to
[appellant]." D.M. also stated in his affidavit that during the time he and T.M. worked at
Kroger, appellant ordered prescriptions through their pharmacy. D.M. opined in his affidavit
that T.M. "was biased towards [appellant] and sought to be on the jury so she could convict
him."
{¶ 4} The other affidavit was from T.B., who was a pharmacist at the same Kroger
where T.M. was employed. T.B. stated in his affidavit that during the time he worked with
T.M., he and T.M. filled prescription requests regularly from appellant; that D.M. told him that
T.M.'s child or children were patients of appellant; that T.M. told D.M. she was determined to
get on the jury in appellant's criminal case and that "she wanted to see [appellant] 'fry' (her
word) for what he had allegedly done to the various victims." T.B. also stated in his affidavit
that T.M. "has a very persuading personality, that she is intelligent, attractive, confident, well
spoken/out spoken and could really lead others to follow her[.]" -2- Butler CA2013-11-197
{¶ 5} Appellant asserted in his memorandum in opposition to the state's motion for
summary judgment that the statements allegedly made by T.M. "wholly contradict[]" those
she made in voir dire. In its reply brief, the state reiterated its argument that this information
was barred by the aliunde rule, and added that the averments in the affidavit were
inadmissible hearsay.
{¶ 6} In April 2012, the trial court granted the state's motion for summary judgment
and issued an order denying appellant's PCR petition, without holding an evidentiary hearing.
The trial court determined that appellant's claim was barred by the doctrine of res judicata,
since he failed "to show that the evidence he presented is more than marginally significant
and that it advances his claim beyond a mere hypotheses that the result would be different if
this evidence had been submitted at trial."
{¶ 7} In December 2012, this court reversed the trial court's decision to dismiss
appellant's PCR petition on the basis of res judicata, stating:
[W]e find that the trial court erred in granting summary judgment in the state's favor without first holding a hearing on the PCR petition. The bias or prejudice of even one juror may cause the violation of one's right to a fair trial. [Citations omitted.] Appellant's evidence demonstrates the potential bias of a juror in a case that resulted in a more than 20-year prison term. * * * Therefore, if true, this outside evidence is more than marginally relevant to support appellant's claim that he did not receive a fair trial. Accordingly, it was error for the trial court to summarily dismiss appellant's petition. As such, further exploration of this issue was warranted and a hearing on appellant's petition should be held.
State v. Blankenburg, 12th Dist. Butler No. CA2012-04-088, 2012-Ohio-6175, ¶ 14
(Blankenburg II).
{¶ 8} This court also rejected the state's argument that the trial court's decision
denying appellant's PCR petition should be upheld on the ground that the trial court properly
denied the petition on its merits since the affidavits attached to it contained inadmissible
-3- Butler CA2013-11-197
hearsay and thus lacked credibility. Id. at ¶ 15-18. This court determined that the trial court
did not find that the affiants were not credible but merely that the affidavits were comprised of
inadmissible hearsay, and that "[c]onsideration of only one factor, without explanation, is not
a sufficient basis for denying a PCR petition." Id. at ¶ 18.
{¶ 9} This court also rejected the state's argument that the trial court's decision
denying appellant's PCR petition should be upheld on the ground that the trial court properly
applied the aliunde rule in Evid.R. 606(B) to bar use of the affidavits attached to the PCR
petition. This court determined that while the trial court alluded to the aliunde rule by
generally citing Evid.R. 606(B), the trial court's decision "focused primarily on the application
of res judicata." Id. at ¶ 22. This court further noted that "appellant did not raise the aliunde
rule on appeal and, therefore, the issue is not before this court. Consequently, we decline to
address the application of the aliunde rule to this case." Id. As a result, we reversed the trial
court's decision denying appellant's PCR petition and remanded the matter to the trial court
for further proceedings consistent with our opinion. Id.
{¶ 10} On remand, the state resubmitted its motion for summary judgment, and
appellant filed a supplemental memorandum contra to the state's motion. In October 2013,
the trial court again granted summary judgment to the state and denied appellant's PCR
petition without holding an evidentiary hearing, finding once more that appellant had "failed to
meet his burden to show that the evidence is more than marginally significant and that it
advances his claim beyond a mere hypotheses that the result would be different if this
evidence had been submitted at trial."
{¶ 11} Appellant now appeals, and assigns the following as error:
{¶ 12} Assignment of Error No. 1:
{¶ 13} THE TRIAL COURT VIOLATED R.C. 2505.39 AND THE LAW-OF-THE-CASE
WHEN IT REFUSED TO CONDUCT AN EVIDENTIARY HEARING ON THE ISSUE OF -4- Butler CA2013-11-197
JUROR BIAS.
{¶ 14} Assignment of Error No. 2:
{¶ 15} THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE
STATE.
{¶ 16} Assignment of Error No. 3:
{¶ 17} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHEN IT
INVOKED THE ALIUNDE RULE TO PREVENT CONSIDERATION OF JUROR BIAS.
{¶ 18} In his first assignment of error, appellant argues the trial court erred by failing to
follow this court's mandate in Blankenburg II, which, appellant contends, required the trial
court "to conduct an evidentiary hearing and to consider the evidentiary rules for aliunde and
hearsay in the context of that hearing." (Emphasis sic.)
{¶ 19} In Blankenburg II, this court stated that "the trial court erred in granting
summary judgment in the state's favor without first holding a hearing on the PCR petition."
Id. at ¶ 14. However, we concluded that same paragraph by stating that "[a]ccordingly, it was
error for the trial court to summarily dismiss appellant's petition. As such, further exploration
of this issue was warranted and a hearing on appellant's petition should be held." (Emphasis
added.) Id. Because this court stated that a hearing on appellant's PCR petition "should" be
held rather than "shall" be held, this court's earlier statement in the same paragraph that "the
trial court erred in granting summary judgment in the state's favor without first holding a
hearing on the PCR petition[,]" cannot be deemed to have been a mandate requiring the trial
court to hold an evidentiary hearing on appellant's PCR petition.
{¶ 20} Additionally, in denying the state's application for clarification of our decision in
Blankenburg II, this court stated, "[o]n remand the trial court was instructed to address
appellant's petition for postconviction relief, discussing all arguments raised by the parties,
including the hearsay and aliunde/Evid.R. 606(B) issues. The nature and type of further -5- Butler CA2013-11-197
proceedings is left to the sound discretion of the trial court." (Emphasis added.) State v.
Blankenburg, 12th Dist. Butler Case No. CA2012-04-088 (Mar. 19, 2013) (entry denying
application for clarification). This statement provides additional proof that our opinion in
Blankenburg II did not mandate that the trial court hold an evidentiary hearing on appellant's
PCR petition on remand.
{¶ 21} Therefore, appellant's first assignment of error is overruled.
{¶ 22} In his second assignment of error, appellant argues the trial court erred by
granting summary judgment to the state on his PCR petition, since the affidavits he
presented in opposition to the state's motion for summary judgment established the existence
of a genuine issue of material fact that should have precluded summary judgment. He
asserts that the trial court erred by not accepting as true the allegations in the affidavits he
presented in opposition to the states' motion for summary judgment when it ruled on that
motion.
{¶ 23} R.C. 2953.21 provides three methods for adjudicating a PCR petition: (1)
"summary dismissal" under R.C. 2953.21(C) and State v. Calhoun, 86 Ohio St.3d 279
(1999), paragraph two of the syllabus; (2) "summary judgment" under R.C. 2953.21(D); and
(3) an "evidentiary hearing" under R.C. 2953.21(E). State v. Francis, 12th Dist. Butler No.
CA2013-05-078, 2014-Ohio-443, ¶11-13.
{¶ 24} Here, the trial court granted summary judgment to the state under R.C.
2953.21(D). However, in ruling on a summary judgment motion in the context of a PCR
petition, a trial court is obligated to use the standards set forth in Civ.R. 56(C) and grant
summary judgment to the moving party only if there is no genuine issue of material fact
remaining to be litigated, and only if reasonable minds can come to but one conclusion and
that conclusion is adverse to the nonmoving party who is entitled to have the evidence
construed in his or her favor. Id. at ¶ 11. -6- Butler CA2013-11-197
{¶ 25} In this case, the trial court did not view the affidavits in the light most favorable
to the appellant, nor did it construe the conflicts in the evidence arising from the affidavits in
appellant's favor as it was required to do, in order to grant summary judgment to the state
under R.C. 2953.21(D). Id. As a result, we will treat the trial court's decision granting
summary judgment to the state on appellant's PCR petition as being one that "summarily
dismissed" appellant's petition without holding an evidentiary hearing under R.C. 2953.21(C)
and Calhoun. See Francis at ¶ 12.
{¶ 26} In Calhoun, the Ohio Supreme Court stated that "in reviewing a petition for
postconviction relief filed pursuant to R.C. 2953.21, a trial court should give due deference to
affidavits sworn to under oath and filed in support of the petition," id. at 284, since "[a]n
affidavit, being by definition a statement that the affiant has sworn to be truthful, and made
under penalty of perjury, should not lightly be deemed false." Id. However, the court stated
that a trial court "may, in the sound exercise of discretion," judge the credibility of the affidavit
testimony "in determining whether to accept the affidavits as true statements of fact." Id.
The court determined that "[t]o hold otherwise would require a hearing for every
postconviction relief petition[,]" and that because R.C. 2953.21 "clearly calls for discretion in
determining whether to grant a hearing, accepting all supporting affidavits as true is certainly
not what the statute intended." Id. Therefore, the court held that "[t]he trial court may, under
appropriate circumstances in postconviction relief proceedings, deem affidavit testimony to
lack credibility without first observing or examining the affiant." (Emphasis added.) Id. "That
conclusion is supported by common sense, the interests of eliminating delay and
unnecessary expense, and furthering the expeditious administration of justice." Id.
{¶ 27} The court in Calhoun also discussed the factors a trial court should consider in
determining the credibility of supporting affidavits in PCR proceedings. Id. at 284-285.
Calhoun states that a trial court should consider "all relevant factors" in determining the -7- Butler CA2013-11-197
credibility, or lack thereof, of supporting affidavits submitted in PCR proceedings, including:
(1) whether the judge reviewing the postconviction relief petition also presided at the trial, (2) whether multiple affidavits contain nearly identical language, or otherwise appear to have been drafted by the same person, (3) whether the affidavits contain or rely on hearsay, (4) whether the affiants are relatives of the petitioner, or otherwise interested in the success of the petitioner's efforts, and (5) whether the affidavits contradict evidence proffered by the defense at trial.
Id. at 285, citing State v. Moore, 99 Ohio App.3d 748 (1st Dist.1994).
{¶ 28} Calhoun also states that "[d]epending on the entire record, one or more of
these or other factors may be sufficient to justify the conclusion that an affidavit asserting
information outside the record lacks credibility[,]" and that "[s]uch a decision should be within
the discretion of the trial court." Id. In addition, Calhoun states that a trial court may find
affidavit testimony "to be contradicted by evidence in the record by the same witness, or to
be internally inconsistent, thereby weakening the credibility of that testimony." Id.
{¶ 29} In determining that appellant's affidavits were not credible under the factors
listed in Calhoun, the trial court found that during voir dire, T.M. "indicated a willingness to
disregard what she had heard about this case in the media, and the intent to rely instead on
evidence and law presented in court during the trial." The trial court also found T.M. to be a
competent juror that was "honest and forthright." The trial court came to this conclusion after
having the "opportunity to observe the demeanor of T.M. and evaluate firsthand the sincerity
of her responses to questions about fairness and impartiality." It is a well-established
principle that this court should not substitute its own judgment regarding credibility for that of
the trial court.
{¶ 30} In reaching this decision, we note that the trial court quoted Crim.R. 24(C)(9),
which states, "no person summoned as a juror shall be disqualified by reason of a previously
formed or expressed opinion with reference to the guilt or innocence of the accused, if the
-8- Butler CA2013-11-197
court is satisfied, from the examination of the juror or from the evidence, that the juror will
render an impartial verdict." In turn, by citing to Crim.R. 24(C)(9), it is readily apparent that
the trial court was satisfied that T.M. would serve as an impartial and unbiased juror
irrespective of any alleged biases whether or not disclosed to the trial court. Simply stated,
based on the trial court's credibility determination, what T.M. may have told her former co-
workers prior to her selection as a juror in no way impacts her oath to remain impartial. As a
reviewing court, we must accept the trial court's findings as true.
{¶ 31} Just as the Ohio Supreme Court stated in Calhoun, the trial court is entrusted,
based on the sound exercise of discretion, to judge an affiant's credibility in determining
whether to accept an affidavit submitted in support of a PCR petition as true. The Ohio
Supreme Court has also determined that an evidentiary hearing is not required for every PCR
petition as the statute clearly calls for discretion in determining whether an evidentiary
hearing should be held. The trial court has already determined that T.M. was credible and
exhibited no actual bias. It should not be required to do so again.
{¶ 32} In light of the foregoing, the trial court did not err in dismissing appellant's PCR
petition without first holding an evidentiary hearing. Similarly, the trial court did not abuse its
discretion in judging the credibility of the affidavit testimony from T.M.'s former co-workers in
determining whether to accept the affidavits submitted in support of appellant's PCR petition
as true. This court must not substitute its judgment for that of the trial court. Therefore,
appellant's second assignment of error is overruled.
{¶ 33} In his third assignment of error, appellant argues the trial court erred by
invoking the aliunde rule in Evid.R. 606(B) to prevent consideration of the affidavits he filed in
support of his juror-bias claim. He asserts that Evid.R. 606(B) does not prevent an inquiry
into jury bias as a result of the answers given by juror T.M. during voir dire.
{¶ 34} Both appellant and the state contend in their respective briefs that the trial court -9- Butler CA2013-11-197
ruled that the affidavits were inadmissible under the aliunde rule in Evid.R. 606(B).1 However,
a careful review of the trial court's decision shows that the trial court did not determine that
the affidavits were inadmissible under the aliunde rule contained in Evid.R. 606(B), and
contrary to what appellant suggests, there is nothing in the trial court's decision to show that
the trial court's consideration of the affidavits was "attenuated and discounted due to the
aliunde rule." See fn. 2.
{¶ 35} In its decision, the trial court noted that "[t]he State argues that the affidavits are
improper under Evid.R. 606(B) and the 'aliunde' rule." The trial court quoted Evid.R. 606(B)
in its decision and discussed the requirements, purposes, and basic principles of that
evidence rule. The trial court then stated:
In this matter, the affidavits are concerning statements allegedly made by a juror prior to the trial even beginning. [Appellant] basis [sic] his post conviction relief requests on juror, T.M.'s, personal bias not on allegations of juror misconduct. Further, [appellant] has not provided or presented any evidence on how juror, T.M.'s, personal bias had any influence on the deliberations.
The trial court then turned to discussing whether the affidavits presented by appellant in
support of his PCR petition were credible and entitled to deference under Calhoun. The trial
court determined that the affidavits were not credible, and therefore, that the state was
entitled to summary judgment on appellant's PCR petition—a determination that this court
has upheld for the reasons set forth in our response to appellant's second assignment of
1. Appellant acknowledges at one point in his brief that "it is not entirely clear whether the trial court in this case relied on the aliunde rule and [Evid.R.] 606(B) to prevent consideration of the two affidavits[,]" since the trial court stated in its decision "that it had 'carefully reviewed the evidence, the issues raised by the affidavits, and [appellant's] arguments with regard to this evidence.'" However, appellant argues that "even though the [trial] court purported to consider the merits of the affidavits, it appears that any such reliance on those affidavits had to have been attenuated and discounted due to the aliunde rule." The state, on the other hand, has maintained in its response brief and during oral argument that the trial court determined that appellant's affidavits were inadmissible under the aliunde rule in Evid.R. 606(B). However, the state has failed to cite any language in the trial court's decision in which the trial court, either expressly or implicitly, determined that the affidavits were inadmissible under Evid.R. 606(B).
- 10 - Butler CA2013-11-197
error. However, contrary to what both appellant and the state contend, the trial court did not
determine, either expressly or implicitly, that it was barred under the aliunde rule in Evid.R.
606(B) from considering the affidavits presented by appellant in support of his PCR petition.
Instead, the trial court implicitly found that the aliunde rule in Evid.R. 606(B) was inapposite
to this case.
{¶ 36} In light of the foregoing, appellant's third assignment of error is overruled.
{¶ 37} Judgment affirmed.
HENDRICKSON, J., concurs.
RINGLAND, P.J., dissents.
RINGLAND, P.J., dissenting.
{¶ 38} I concur with the majority in regards to appellant's first assignment of error. In
my personal opinion, we unfortunately did not make it clear enough in our instructions on
remand in Blankenburg II that the trial court was required to conduct a hearing to resolve the
conflict between the juror and the affiants, and took it for granted that the trial court would
conduct such a hearing. I also concur with the majority in regards to appellant's third
assignment of error. However, I respectfully dissent from the majority's ruling on appellant's
second assignment of error, because I believe the trial court abused its discretion under
Calhoun by not giving "due deference" to the affidavits filed by appellant in support of his
PCR petition.
{¶ 39} Crim.R. 24(C)(9) provides that "no person summoned as a juror shall be
disqualified by reason of a previously formed or expressed opinion with reference to the guilt
or innocence of the accused, if the court is satisfied, from the examination of the juror or from
the evidence, that the juror will render an impartial verdict." The majority is correct that the
- 11 - Butler CA2013-11-197
trial court had the best opportunity to observe T.M.'s demeanor and to evaluate, firsthand, the
sincerity of her response to questions about fairness and impartiality; that the trial court found
that during voir dire, T.M. indicated a willingness to disregard what she had heard about this
case in the media and to rely, instead, on the evidence and law presented in court during the
trial; and that the trial court found T.M. to be a competent juror who is "honest and forthright."
{¶ 40} Nevertheless, by refusing to hold an evidentiary hearing, the trial court did not
have the opportunity to observe T.M.'s co-workers' demeanor and evaluate, firsthand, the
sincerity of their testimony regarding what T.M. had told them. Nor did the trial court have the
opportunity to observe T.M.'s demeanor or evaluate, firsthand, the sincerity of her response
when confronted with her co-workers' testimony that she had told one of them that she was
determined to be on appellant's jury and even wanted to be the foreman of that jury so that
she could deliver a guilty verdict to appellant. Additionally, there is no evidence in the record
that T.M.'s co-workers had any motive to lie about what T.M. told them regarding her desire
to be the foreman on appellant's jury so she could deliver a guilty verdict to him. The trial
court could not simply accept T.M.'s responses during voir dire as true without considering
the validity of her co-workers' affidavit testimony. An evidentiary hearing is needed to
determine whether either T.M. or her co-workers were telling the truth or lying about this
matter. The statements that T.M. allegedly made to her co-workers, if true, coupled with
T.M.'s responses during voir dire, if false, amount to an outright fraud on the court. When a
trial court learns of such allegations, it is obligated to investigate them and to act accordingly
if it finds them to be true.
{¶ 41} The trial court also found that the affidavits presented by appellant were not
credible because they contain hearsay. However, while the affidavit testimony of Pharmacist
T.B. arguably contains hearsay, the affidavit testimony of pharmacy technician D.M. is
admissible under the "state of mind" hearsay exception in Evid.R. 803(3).
- 12 - Butler CA2013-11-197
{¶ 42} Pharmacist T.B. stated in his affidavit that he was told by pharmacy technician
D.M. that T.M.'s child or children were patients of appellant. T.B. also stated that T.M. told
D.M. that she was determined to become a member of appellant's jury and that "she wanted
to see appellant 'fry' (her word) for what he had allegedly done to the various victims." T.B.'s
affidavit is not clear as to whether T.B. overheard T.M. telling D.B. that she was determined
to be on appellant's jury and that she wanted to see him "fry" for what he allegedly did, or
whether T.B. learned of T.M.'s alleged remarks through D.B. or some other person.
{¶ 43} Nevertheless, the information in T.B.'s affidavit is very similar to the information
contained in D.M.'s affidavit, and D.M.'s affidavit testimony concerns only what T.M. said to
D.M., and not to some other person. Specifically, D.M. states in his affidavit that T.M. told
him that her son was one of appellant's patients; that while T.M. never said that her son had
been abused by appellant, T.M. "expressed a great interest in being a juror in the case"; that
T.M. was "obsessed" with the case and "talked about it every day, and frequently stated that
she was 'determined to be on that jury'"; and that T.M. "also stated that she wanted to be the
foreman of the jury so that she could deliver a guilty verdict to [appellant]."
{¶ 44} Evid.R. 803 states in pertinent part:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
***
(3) Then existing, mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
{¶ 45} As noted in Weissenberger's Ohio Evidence Treatise (2013 Ed.), Section
803.33, at 92-94 (2013 Ed.):
- 13 - Butler CA2013-11-197
Rule 803(3) not only admits a declarant's statement where his state of mind is relevant; it also operates to admit statements concerning mental or emotional conditions where such mental states are probative of subsequent conduct. [Footnote omitted.] To put it another way, as one Ohio court has stated: "the testimony must point forward in time rather than to the past." [Footnote omitted.]
Accordingly, statements of plan or intent are admissible to show that the planned or intended act was undertaken. [Footnote omitted.] For example, the declarant's statement, "I plan to go to work tomorrow" is admissible as relevant evidence of the proposition that the declarant went to work on the day subsequent to the out-of-court statement. Likewise, statements such as "I plan to murder X," and "I don't intend to fulfill my obligations under the contract," are admissible under Rule 803(3) as probative evidence of the occurrence of the subsequent relevant conduct. In sum, a plan or intent is a mental state comprehended by Rule 803(3). [Footnote omitted.]
* * * [O]ut-of-court statements of a declarant's plan, design, or intention are admissible to prove that the plan, design, or intention was executed by the declarant. Such statements are in regard to then existing mental states, and as such, they do not suffer from possible defects in memory. Moreover, as relating to purely internal conditions, statements of intent, plan, or design are free of risks of defects in perception. Finally, while not conclusive proof of subsequent actions, statements of intent, plan, or design unquestionably alter the probabilities of subsequent conduct and are, consequently, relevant under Rule 401 to whether the subsequent conduct occurred.
{¶ 46} D.M.'s affidavit testimony regarding what T.M. told him was admissible under
the "state of mind" hearsay exception in Evid.R. 803(3), since T.M.'s statements that she
wanted to be on appellant's jury and wanted to be the foreman of that jury so that she could
deliver a guilty verdict to him are "probative evidence" of her "subsequent conduct," and
therefore are admissible to show that T.M's "planned or intended act was undertaken" and
"executed." Id. at 93. While T.B.'s affidavit testimony may have been hearsay, T.B.'s
affidavit testimony is very similar to D.M.'s, and thus T.B.'s affidavit testimony is merely
- 14 - Butler CA2013-11-197
cumulative to D.M.'s.2 Therefore, the trial court abused its discretion by finding that
appellant's affidavit testimony constituted inadmissible hearsay and by using that finding as
part of its justification for not holding an evidentiary hearing on appellant's PCR petition.
{¶ 47} Additionally, the trial court, after noting that D.M. had testified in his affidavit that
T.M. was determined to be on appellant's jury and wanted to be the jury's foreman so that
she could deliver a guilty verdict to appellant, found that appellant "has not cited to any
evidence of juror tampering or any evidence as to how juror, T.M. could have manipulated
the juror pool to make sure 'she got on that jury.'" However, while it is clear that T.M. had no
capability to make sure that she got on appellant's jury, there is no question that T.M. did, in
fact, become a member of the jury that convicted appellant. Therefore she became obligated
to reveal any biases that she may have had against appellant, particularly, where T.M.
reportedly became "obsessed" with appellant's case, expressed to one of her co-workers her
strong desire to be on appellant's jury and to even become the foreman of that jury so that
she could deliver a guilty verdict to him.
{¶ 48} The trial court also found that at one point during voir dire, T.M. "even
requested to be excused from the jury." However, this finding is inaccurate. The transcript of
the voir dire proceedings shows that during the voir dire proceedings, T.M. informed the trial
court that she remembered something that might preclude her from serving on the jury,
namely, that she and her husband were going to be receiving a child to adopt either that
week or the next. However, after being questioned by the trial court about whether she would
be able to make arrangements with her husband to care for any child that they might soon
receive, T.M. indicated to the trial court that she could handle the matter, stating, "Well, I
2. It is true that T.B.'s affidavit testimony included an averment that T.M. told D.M. that she wanted to see appellant "fry" for what he allegedly had done to the various victims; however, D.M.'s affidavit also stated that T.M. "was biased towards [appellant] and sought to be on the jury so she could convict him."
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know a man's life would be on [sic] the balance so I would be able to focus on the trial."
Additionally, while T.M. disclosed this potential issue during voir dire, which she soon agreed
would not prevent her from serving on the jury, she failed to disclose two facts set forth in
appellant's affidavits, namely, that T.M. filled prescriptions for appellant in her role as a
pharmacist at Kroger, and more importantly, that T.M.'s son had been one of appellant's
patients.
{¶ 49} It is apparent from its decision denying appellant's PCR petition that the trial
court failed to give the affidavits presented by appellant the proper amount of deference to
which they were entitled, as required under Calhoun, 86 Ohio St. at 284. If the testimony in
these affidavits is true, it would "rise to the level of demonstrating a constitutional violation[.]"
Id. As this court stated in Blankenburg II, 2012-Ohio-6175 at ¶ 14, "[t]he bias or prejudice of
even one juror may cause the violation of one's right to a fair trial."
{¶ 50} This is not simply a case where a prospective juror failed to disclose information
during voir dire, and we are not simply finding that T.M. may have failed to disclose
information she should have revealed during voir dire. Instead, the affidavit testimony, if true,
shows that T.M. very much wanted to be a juror in appellant's case, and even wanted to be
the foreman of that jury so that she could deliver a guilty verdict to him. The remarks that
Juror T.M. made to her co-worker D.M. reveal troubling evidence of a strong bias against
appellant. If the information in D.M.'s affidavit is true, T.M. was obligated to reveal this
information to the trial court, which she failed to do, despite having several opportunities to
reveal it.
{¶ 51} I am mindful of the possibility that prior to her selection on the jury, T.M. was
merely "blowing off steam," and that T.M. realized the solemnity of her civic responsibility
once she was selected to serve as a juror. However, I also realize the possibility that T.M.
was determined, if selected as one of the jurors in appellant's case, to do whatever was - 16 - Butler CA2013-11-197
necessary and whatever she could to convict appellant. The truth of what actually happened
can be sorted out only through a complete and thorough weighing of the evidence, including
an informed determination of the affiants' credibility vis-à-vis T.M.'s credibility. These matters
are for the trial court to determine, and the trial court can only make these determinations
after holding an evidentiary hearing.
{¶ 52} The affidavits presented by appellant provided sufficient evidence to require the
trial court to hold an evidentiary hearing on appellant's claims that T.M. was biased against
him and that she provided dishonest and incomplete answers during voir dire. The trial court
clearly abused its discretion by refusing to hold such a hearing. Therefore, I would sustain
appellant's second assignment of error and remand this case with instructions that the trial
court hold an evidentiary hearing on the claims raised by appellant in his PCR petition. Since
the majority refuses to do so, I respectfully dissent from their decision.
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