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Date: 10-16-2019

Case Style:

STATE OF OHIO -vs- MICHAEL SHANE SHUSTER

Case Number: 18AP0007

Judge: W. Scott Gwin

Court: COURT OF APPEALS MORGAN COUNTY, OHIO FIFTH APPELLATE DISTRICT

Plaintiff's Attorney: CINDY O'NEIL

Defendant's Attorney:

Description:

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In 2013, a jury convicted Shuster of four counts of gross sexual imposition,
in violation of Ohio Revised Code § 2907.05(A)(4); seven counts of sexual battery, in
violation of Ohio Revised Code § 2907.03(A)(5); three counts of rape, in violation of Ohio
Revised Code § 2907.02(A)(1)(b); four counts of gross sexual imposition, in violation of
Ohio Revised Code § 2907.05(A)(1); and three counts of rape, in violation of Ohio
Revised Code § 2907.02(A)(2). For the underlying facts and lengthy procedural history
of this case see State v. Shuster, 5th Dist. Morgan No. 18 AP 003, 2018-Ohio-2901;
Shuster v. Warden, 6th Cir. No. 19-3184, 2019 WL 4267748 (June 10, 2019).
{¶3} Shuster filed a Motion for a new trial on February 16, 2018 [Docket Number
210].1 In his motion, Shuster alleged prosecutorial misconduct for eliciting victim impact
testimony during trial and that the jurors were influenced by a non-existent confession by
Shuster. The trial court overruled the motion without a hearing by Judgment Entry filed
June 13, 2018. [Docket Number 231].
Assignment of Error
{¶4} Shuster raises two Assignments of Error,
{¶5} “I. THE TRIAL COURT ABUSED IT'S [sic.] DISCRETION IN OVERRULING
THE APPELLANT’S MOTION FOR NEW TRIAL.
1 We note that the affidavit filed in support of the motion is not properly notarized because the notary failed to record the year that Shuster signed the document. [Docket Number 211].


{¶6} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN NOT HOLDING AN
EVIDENTIARY HEARING2.
Law and Analysis
{¶7} In his assignments of error, Shuster maintains that the trial court erred in
overruling his most recent motion for a new trial without conducting an evidentiary
hearing.
Standard of Appellate Review.
{¶8} Crim.R. 33(B) provides that if a defendant fails to file a motion for a new trial
within 120 days of the jury’s verdict, he or she must seek leave from the trial court to file
a delayed motion. To obtain leave, the defendant must show by clear and convincing
proof that he or she was unavoidably prevented from discovering the evidence within the
120 days. State v. Lordi, 149 Ohio App.3d 627, 2002–Ohio–5517, 778 N.E.2d 605, ¶ 26–
27. Clear and convincing proof is that which will produce in the mind of the trier of fact a
firm belief or conviction as to the facts sought to be established. In re Adoption of
Holcomb, 18 Ohio St .3d 361, 368, 481 N.E.2d 613(1985); Lordi, supra, at ¶ 26.
{¶9} “The question of whether to decide a motion on the supporting evidence
filed with the motion or to hold an evidentiary hearing is within the discretion of the trial
court.” United States v. O'Dell, 805 F.2d 637, 643 (6th Cir.1986); State v. Sutton, 2016
Ohio-7612, 73 N.E.3d 981, ¶ 13 (8th Dist.).
ISSUE FOR APPEAL
A. Whether the trial court abused its discretion in denying Shuster’s motion for a
new trial without a hearing.
2 Appellant’s Brief, filed Apr. 22, 2109 at 1. We note that Shuster does not separately argue the two assignments of error in his brief. See, App.R. 16(A)(7).


{¶10} This was not Shuster’s first motion for a new trial. He has filed previous
motions in 2013 and 2016. See, State v. Shuster, 5th Dist. Morgan No. 18 AP 003, 2018
Ohio-2901, ¶4; ¶5. The motion was not filed within 120 days of the 2013 jury verdict in
the case at bar. Shuster did not request leave to file a motion for a new trial in accordance
with Crim.R. 33(B).
{¶11} Trial courts should subject Crim.R. 33(A)(6) new trial motions to the closest
scrutiny:
Applications for new trials on the ground of newly discovered
evidence are not, however, favored by the courts, for the reason that the
moving party has generally had ample opportunity to prepare his case
carefully and to secure all of the evidence before the trial. Such
applications, whether in a court of law or in a court of equity, are entertained
with reluctance and granted with caution, not only because of the danger of
perjury, but also because of the manifest injustice in allowing a party to
allege that which may be the consequence of his own neglect in order to
defeat an adverse verdict. In order to prevent, as far as possible, the fraud
and imposition which defeated parties may be tempted to practice as a last
resort to escape the consequence of an adverse verdict, an application
setting up the discovery of new evidence should always be subjected to the
closest scrutiny by the court. The applicant is required to rebut the
presumption that the verdict is correct and that there has been a lack of due
diligence and to establish other facts essential to warrant the granting of a
new trial upon the ground of newly discovered evidence. The rule to be


deduced from the cases is that where newly discovered evidence is of such
conclusive nature, or of such decisive or preponderating character, that it
would with reasonable certainty have changed the verdict or materially
reduced the recovery, a new trial should be granted if it is satisfactorily
shown why the evidence was not discovered and produced at the time of
the trial.
Taylor v. Ross, 150 Ohio St. 448, 450–51, 83 N.E.2d 222, 224 (1948), quoting 39
American Jurisprudence, 163, Section 156; accord Domanski v. Woda, 132 Ohio St. 208,
6 N.E.2d 601 (1937).
{¶12} Shuster raises two grounds in support of his motion for a new trial. First,
Shuster contends that the prosecutor committed misconduct by placing victim impact
evidence before the jury. Second, Shuster argues that his rights to due process and a
fair trial were infringed when the trial court denied his motion for a new trial after he had
learned that some of the jurors had wrongly believed that he had confessed to the crime.
Victim Impact Testimony.
{¶13} In the case at bar, the so-called victim impact alluded to by Shuster is readily
apparent from the record. His only argument on appeal is that the minor victim in this
case, Shuster’s stepdaughter, “broke down on the stand.” [Appellant’s Brief filed Apr. 22,
2019 at 4]. Shuster’s trial attorneys and Shuster himself was aware of this, as they were
present at the jury trial in 2013.
{¶14} Accordingly, Shuster has not demonstrated he was unavoidably prevented
from discovering the alleged newly discovered evidence.



Confession Testimony.
{¶15} The second ground alleged by Shuster in his motion for a new trial was
contention that the jurors believed that Shuster had confessed and this belief influenced
the jury’s decision to convict Shuster. [Appellant’s Brief, filed Apr. 22, 2019 at 5].
{¶16} Shuster previously raised the argument that the prosecutor committed
misconduct by referencing a “non-existent confession” in closing arguments. Shuster v.
Warden, 6th Cir. No. 19-3184, 2019 WL 4267748 (June 10, 2019); State v. Shuster, 5th
Dist. Morgan No. 15AP0017, 2016-Ohio-5030, ¶16. The United States Court of Appeals
for the Sixth Circuit noted,
Although Shuster claims to have raised this claim in his motion for a
new trial, Shuster did not raise a claim of prosecutorial misconduct based
on the prosecutor’s reference to a confession in closing argument until his
memorandum in support of jurisdiction to the Ohio Supreme Court in the
appeal of that motion.
Shuster v. Warden, 6th Cir. No. 19-3184, 2019 WL 4267748 (June 10, 2019) at *2.
Under the doctrine of res judicata, a final judgment of conviction bars a convicted
defendant who was represented by counsel from raising and litigating in any proceeding,
except an appeal from that judgment, any defense or any claimed lack of due process
that was raised or could have been raised by the defendant at the trial, which resulted in
that judgment of conviction, or on an appeal from that judgment. State v. Szefcyk, 77
Ohio St.3d 93, 671 N.E.2d 233(1996), syllabus, approving and following State v. Perry,
10 Ohio St.2d 175, 226 N.E.2d 104(1967), paragraph nine of the syllabus. It is well settled
that, "pursuant to res judicata, a defendant cannot raise an issue in a [petition] for post


conviction relief if he or she could have raised the issue on direct appeal.” State v.
Reynolds, 79 Ohio St.3d 158, 161, 679 N.E.2d 1131(1997). Accordingly, "[t]o survive
preclusion by res judicata, a petitioner must produce new evidence that would render the
judgment void or voidable and must also show that he could not have appealed the claim
based upon information contained in the original record.” State v. Nemchik, 9th Dist.
Lorain No. 98CA007279, 2000 WL 254908, *1 (Mar. 8, 2000); State v. Elmore, 5th Dist.
Licking No. 2005-CA-32, 2005-Ohio-5940, ¶18.
{¶17} Thus, to the extent that the Courts have already addressed this issue the
doctrine of res judicata bars any further consideration. See State v. Szefcyk, 77 Ohio
St.3d 93, 671 N.E.2d 233, 1996-Ohio-337; State v. Perry (1967), 10 Ohio St.2d 175, 226
N.E.2d 104.
{¶18} Shuster’s claim that he could not discover this evidence until his investigator
interviewed several of the jurors is unpersuasive. [Appellant’s Brief filed Apr. 22, 2019 at
5].
a. Evid. R. 606, the Aliunde Rule.
{¶19} Evid.R. 606(B) governs the competency of a juror to testify,
(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 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. 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 his or any other juror’s mind or emotions as
influencing him to assent to or dissent from the verdict * * * or concerning
his mental processes in connection therewith. * * * His affidavit or evidence
of any statement by him concerning a matter about which he would be
precluded from testifying will not be received for these purposes.
{¶20} Evid.R. 606(B) is subject to the exception embodied in the aliunde rule,
which permits a juror to offer testimony impeaching his verdict upon the presentation of
impeachment evidence from a competent source other than a juror. See State v. Kehn,
50 Ohio St.2d 11, 18, 361 N.E.2d 1330(1977), certiorari denied, 434 U.S. 858, 98 S.Ct.
180, 54 L.Ed.2d 130(1977).
{¶21} The purpose of the aliunde rule is to maintain the sanctity of the jury room
and the deliberations therein. State v. Rudge, 89 Ohio App.3d 429, 438–439, 624 N.E.2d
1069, 1075–1076(1993). The rule is designed to ensure the finality of jury verdicts and


to protect jurors from being harassed by defeated parties. The rule requires a foundation
from non-juror sources. Thus, the Ohio Supreme Court has held that “the information
[alleging misconduct] 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.” State v. Schiebel, 55 Ohio
St.3d 71, 75, 564 N.E.2d 54, 61 (1990).
{¶22} The only exception that the Supreme Court has made to Rule 606(b)(1)’s
prohibitions is “when, after the jury is discharged, a juror comes forward with compelling
evidence that another juror made clear and explicit statements indicating that racial
animus was a significant motivating factor in his or her vote to convict.” Pena-Rodriguez
v. Colorado, __ U.S. __, 137 S.Ct. 855, 869, 197 L.Ed.2d 107 (Mar. 6, 2017).
{¶23} The affidavit of Shuster and any affidavit of the investigator or a juror would
merely relay the jurors’ statements. This evidence is also barred by Evid.R. 606. “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, 150 Ohio St. 434, 38 O.O.
299, 83 N.E.2d 56(1948), and the information must be from a source which possesses
firsthand knowledge of the improper conduct ... 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. (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”. State v. Schiebel, 55 Ohio St.3d 71, 75-76, 564 N.E.2d 54, 61(1990).


{¶24} As this Court has already stated,
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).
State v. Shuster, 5th Dist. Morgan No. 15AP0017, 2016-Ohio-5030, ¶16. In that case,
Shuster had filed a motion for a new trial on June 5, 2013, arguing juror misconduct3. In
support of his motion, Shuster filed an affidavit from Richard Cooper, a juror from his trial,
stating, in part,
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.
Shuster, ¶12.
3 Shuster filed in the trial court a sworn affidavit of Richard Cooper on November 17, 2014, claiming it to be a substitute for a previously filed handwritten statement. On June 22, September 4, and October 5, 2015, Shuster 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. Shuster, ¶3.



{¶25} Accordingly, Shuster has not demonstrated he was unavoidably prevented
from discovering the alleged newly discovered evidence. In addition, because we have
already addressed this issue, the doctrine of res judicata bars any further consideration.
See State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233, 1996-Ohio-337; State v. Perry
(1967), 10 Ohio St.2d 175, 226 N.E.2d 104.
{¶26} The trial court did not abuse its discretion by overruling Shuster’s motion for
a new trial without conducting an evidentiary hearing.
{¶27} Shuster First and Second Assignments of Error are overruled.

Outcome: The judgment of the Morgan County Court of Common Pleas is affirmed.

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