State of Tennessee v. Lam Hoang Nguyen

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs May 15, 2013

STATE OF TENNESSEE v. LAM HOANG NGUYEN

Direct Appeal from the Criminal Court for Davidson County

No. 2010-C-1973 Steve Dozier, Judge

No. M2012-00654-CCA-R3-CD - Filed August 13, 2013

A Davidson County Grand Jury convicted the Defendant-Appellant, Lam Hoang Nguyen, of

sexual battery, for which he was sentenced to 18 months probation after service of 10 days

in confinement. In this appeal, Nguyen argues (1) the evidence was insufficient to sustain

his conviction for sexual battery; and (2) he was denied a fair and impartial trial due to jury

bias. Upon review, we affirm the judgment of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which R OBERT W.

W EDEMEYER and R OGER A. P AGE, JJ., joined.

Thomas A. Overton, Nashville, Tennessee, for the Defendant-Appellant, Lam Hoang

Nguyen.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel,

Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and

Pam Anderson, Assistant District Attorney General, for the Appellee, State of Tennessee.

OPINION

On January 17, 2010, M.N.,1 the victim in this case, spent the evening dancing and

drinking with friends, including Nguyen, at a local club in Davidson County, Tennessee.

Around 7 a.m. the next morning, the victim awoke at a friend’s home with her leggings

pulled down and her skirt above her waist. She felt Nguyen penetrating her vagina and anus

with his penis and hands. She also felt his hands on her buttocks, legs, and arms. Based on

these events, Nguyen was later indicted on four counts of rape. Counts 1 and 3 were based

1

This court refers to victims of sexual violence by their initials only.

on anal penetration and Counts 2 and 4 were based on vaginal penetration. The following

proof was adduced at trial.

Sometime in 2008, two years prior to the offense, the victim met Nguyen while she

was a waitress at a local bar and grill. Nguyen was a weekly patron who normally sat in the

victim’s section. The victim and Nguyen became friends and continued to meet once or

twice a week for drinks. Although the victim was not interested in a romantic relationship

with Nguyen, she acknowledged that she kissed him once when he gave her a ride to work.

She explained, “I felt obligated, so I did kiss him . . . He asked me to, as a thank you.” The

victim additionally testified that she believed Nguyen was interested in dating her because

he would pay for her drinks and engage in casual flirting.

The victim testified that on January 17, 2010, Nguyen called the victim and asked if

he could “tag along” with her and her friends to a local club. Nguyen offered to be the

designated driver and the victim agreed. Prior to going to the club, the victim, Nguyen, and

the victim’s friends smoked marijuana. The victim also had one or two shots of Jagermeister.

Once at the club, the victim consumed “about five [or] six” JagerBombs, which consisted of

one ounce of Jagermeister and two ounces of Red Bull. She said Nguyen paid for all of her

drinks.

The victim said that her next memory was awaking at about 7 a.m. the next morning

at her friend’s home. She was “face down in the couch” with Nguyen on top of her. She

described what occurred as follows:

I was being penetrated vaginally and anally, one of my arms was

underneath me, my other arm was pinned underneath him, and I was able to

roll off the couch because I was on the end. So I got up and went in the other

room right after yelling, what the f--- is happening.

The victim said she felt Nguyen’s penis and hands inside her vagina and anus. The victim

stated that was menstruating at the time and saw her bloody tampon on the floor next to the

couch.

After asking Nguyen, “[W]hat the f- - -?,” the victim ran to her friend’s room and

asked her to make Nguyen leave. Initially, the victim did not call the police or go to the

hospital. She explained that she needed to go to work and went home to take a shower. She

did not go to the hospital because she did not have insurance and was not aware that hospitals

performed rape kits for free. Once at work, her boss convinced her to call the police. The

victim called the police and later met with Detective Joe Bardill of the Goodlettsville Police

Department.

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The victim told Detective Bardill that she had smoked marijuana and drank

Jagermeister on previous occasions but had never experienced a “black[] out.” She denied

flirting with Nguyen, leading him on, or being sexually attracted to him. Finally, the victim

denied engaging in consensual sex with Nguyen on the date of the offense.

On cross-examination, the victim agreed that the offense location was a small, two

bedroom home where three other people were present on the morning of the offense. She

further agreed that she had been to Nguyen’s home twice prior to the offense and failed to

include the second occasion in her statement to the police. She explained that it was “a while

ago,” and she did not consider it to be relevant. She also agreed that a few days prior to the

offense, she went to a strip club with Nguyen to visit one of her friends and get lap dances.

The victim further agreed that she did not tell the detective how much she drank

before she went to the club or that she used drugs that night. She said she was not asked

those questions. She agreed that she could not explain her memory loss on the night of the

offense. She acknowledged that a few days later Nguyen apologized to her but agreed that

Nguyen never confessed to the offense. She said it felt like Nguyen was inside of her for “no

longer than a minute.”

The offense occurred in Davidson County, Tennessee at the home of Joseph and

Lyndsey Peach. At trial, Mr. Peach confirmed that on the morning of the offense, his wife,

Ryan Elliott, a friend named Patrick , the victim, and Nguyen were present at his home. Mr.

Peach had to be at work at 5:30 a.m. and observed the victim asleep on the love-seat around

4:10 a.m. Mr. Peach testified that Nguyen was seated on a larger couch watching television.

He said that Elliott was “quite intoxicated” and located in the kitchen with his wife. Mr.

Peach left the house at around 4:30 a.m.

Lyndsey Peach testified, in large part, consistently with the testimony of her husband

and the victim, with whom she had been friends for over two years. Mrs. Peach did not go

to the club the night before the offense but recalled that the group returned between 3:45 and

4:00 a.m. She recalled that Elliott and the victim were “drunk.” She said that the victim was

not “as bad off” as Elliott, but she appeared tired and groggy. She said that Nguyen appeared

sober and “talk[ed] perfectly fine.” She confirmed that the victim fell asleep on the love-

seat, while Nguyen was watching television on the long couch. She agreed that the victim

later walked into her room and asked her to tell Nguyen to leave. Mrs. Peach confirmed that

the victim was upset and that her clothes were “disheveled.” After Nguyen left, the victim

told Mrs. Peach what happened, and Mrs. Peach tried to console her. She said she later gave

the couch cushions, which were bloody, to the police. On cross-examination, Mrs. Peach

testified that she smoked a bowl of marijuana with Elliot, Nguyen, and the victim, when they

returned from the club.

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Ryan Elliott, a friend and former co-worker of the victim’s, testified that he met

Nguyen through the victim and considered him a “drinking buddy.” He confirmed that on the

night of the offense Nguyen came to the Peaches’ home and drove the group to the club.

Elliott testified that before they went to the club, he and the victim shared a marijuana joint,

and the victim had two or three shots of Jagermeister. At the club, Elliott consumed two beers

and observed Nguyen purchase one or two shots of alcohol for the victim. They left the club

at 1:00 or 2:00 a.m. Elliott recalled that the victim was quiet and appeared intoxicated. The

victim sat in the front passenger seat, gave Nguyen directions back to the Peaches’ home, and

did not flirt with Nguyen.

Elliott said Nguyen swerved on the drive home but otherwise operated the car

“somewhat” successfully. Once at the Peaches’ house, Elliott, Mrs. Peach, and the victim

smoked more marijuana. Elliott initially sat on the couch and watched television. The victim

took off her shoes, lay down on a love-seat, and closed her eyes. Nguyen sat on the love-seat,

next to the victim’s feet. Elliot testified that when he left the room Nguyen was lying on the

love-seat, directly behind the victim. Elliott said that Nguyen was awake and the victim was

asleep.

Elliott testified that the next thing he recalled was the victim entering the other room

with tears in her eyes, asking Elliott “to get Nguyen the hell out.” The victim looked

distraught, and her clothes and hair were messed up. Elliott went into the other room and

found Nguyen pulling up his pants, which were at his thighs. He repeatedly asked Nguyen

“what the hell he was doing?” Nguyen pulled up his pants, buckled his belt, and did not

respond. As Nguyen walked out the door, Elliott thought Nguyen said, “F- - - you.”

On cross-examination, Elliott said that he did not recall a baby or a baby crib in the

room with Nguyen and the victim on the night of the offense. He said he never went to sleep

that night and denied that he was intoxicated. He did not recall a person named “Patrick”

being present at the house. He clarified that the victim smoked marijuana before she fell

asleep on the love-seat that night. He said that there was “about an hour” between when he

entered the home to when he left Nguyen and the victim alone in the living room area.

Danie Marie Bohannon, the store manager at the victim’s place of employment,

testified that the victim appeared “very distraught, disturbed and emotional” when she

reported to work on the day of the offense. The victim told her that she had been raped, and

Bohannon encouraged her to call the police. Bohannon was not present when the police

arrived.

Officer Russell Freeman, a patrolman with the Hermitage Precinct of the Metropolitan

Police Department, responded to the victim’s call at her place of employment. He spoke with

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the victim and determined that the offense occurred outside his jurisdiction. He then directed

her to another police agency. On cross-examination, Officer Freeman agreed that he failed

to record an exact time for when he spoke with the victim and failed to request the names of

potential witnesses to the offense. He explained that this information was not obtained

because no report was taken.

Detective Joe Bardill of the Goodlettsville Police Department testified that he

interviewed the victim regarding the offense. He explained that he did not request a rape

analysis kit because twenty-four hours had passed and the victim had bathed. Detective

Bardill conducted a controlled phone call between the victim and Nguyen. The phone

conversation was played for the jury and provided, in pertinent part, as follows:

Nguyen: Hey I just want to say I’m sorry now.

Victim: For what?

Nguyen: For what happened . . . I was pretty messed up too. I hope we’re still

good, but . . . you know what . . .

Victim: Why did you do it? I didn’t even, you were drinking beer all night and

you even said you weren’t going to drink that much because you had to drive.

Why? Hello?

Nguyen: Yeah I’m listening. I don’t know what to tell you [the victim]. I feel

really bad. I’m sorry and I hope you forgive me. I guess the only thing I guess

I can say is I’m sorry. But on the other hand if you still hate me, then that’s

cool. I understand.

Victim: No, I just want to understand like why you did that, why? Why are you

sorry?

Nguyen: Oh, cause I didn’t expect you to freak out on me.

Victim: Why did you do it while I was asleep?

Nguyen: Oh, I don’t know. I was just-

Victim: How was I not supposed to freak out? I was asleep.

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Nguyen: I know, well, shit happened that night and it was my fault. It was

totally my fault and I’m very sorry and if you wish not to be my friend anymore

it’s cool. I understand. I just want you to know that I’m very sorry and I really

feel bad about it.

Victim: What if I get pregnant?

Nguyen: Well if it’s my kid then I will take full responsibility for it.

Victim: Did you cum in me?

Nguyen: Nope. I can guarantee that . . .

Following the phone call, Detective Bardill obtained a warrant for Nguyen’s arrest.

The victim’s clothing was analyzed and tested negative for the presence of semen. Detective

Bardill explained that the absence of semen does not mean that a rape did not occur.

Nguyen testified that he had known the victim for two years prior to the offense. He

said that they were friends and saw each other once or twice a week to drink and smoke

marijuana. Two days before the offense, on January 15, 2010, Nguyen and the victim went

to a strip club and received lap dances from the victim’s friend. After leaving the strip club,

Nguyen and the victim went to a friend’s house, drank Jagermeister, and smoked marijuana.

According to Nguyen, they spent the night together and “cuddled” the next morning. The

victim then invited him to join her and her friends the following Sunday night.

On Sunday, Nguyen picked up the victim and brought her to the Peaches’ house. He

testified that he and the victim smoked marijuana before they left for the club. He confirmed

that he purchased two or three shots of alcohol for the victim while at the club. He testified

that when they left the club the victim was drunk, but she did not complain about any other

symptoms. The victim gave him directions back to the house. When they returned to the

Peaches’ house Nguyen, the victim, and Elliott smoked marijuana and Nguyen lay down

behind the victim on the couch. Nguyen testified that he had a “vague memory of a little bit

of foreplay. [The victim] moved my hand to her breast and after that we were just too tired

and just pass[ed] out.” On cross-examination, Nguyen added that the victim placed her hand

in his pants. He said that his next memory was of the victim tapping him on the shoulder at

7:00 a.m. He testified that at this point the victim “freaked out”and went into the other

bedroom. He confirmed that someone came out of the bedroom and asked him to leave. He

clarified that he said, “Gotcha” as he left.

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Nguyen explained that he repeatedly apologized to the victim on the phone because he

was in shock about getting kicked out of the house. He testified that he was “just trying to

calm her down.” He denied raping the victim and insisted that he would never do such a

thing. He said that he had never previously had sex with the victim and denied that he

penetrated her on the morning of the offense. Asked why he told the victim that he would

take responsibility if she got pregnant, he explained that he was reassuring her despite his

certainty that he did not penetrate her.

Based on the above proof, the jury convicted Nguyen of the lesser included offense of

sexual battery in Count 3. The remaining counts were dismissed. Nguyen was later sentenced

to a eighteen months, which was suspended after service of 10 days confinement. This appeal

followed.

ANALYSIS

I. Sufficiency of the Evidence. In challenging the sufficiency of the evidence,

Nguyen concedes that “some form of sexual contact occurred between the victim and the

defendant [however,] it is unclear as to how and by whom it was initiated.” He argues that

the victim’s testimony “changed markedly” during cross-examination which “call[ed] into

question her credibility.” In response, the State contends the evidence was sufficient to

support the conviction of sexual battery. We agree with the State.

The State, on appeal, is entitled to the strongest legitimate view of the evidence and

all reasonable inferences which may be drawn from that evidence. State v. Bland, 958 S.W.2d

651, 659 (Tenn. 1997). When a defendant challenges the sufficiency of the evidence, the

standard of review applied by this court is “whether, after reviewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319,

99 S. Ct. 2781, 2789 (1979). Similarly, Rule 13(e) of the Tennessee Rules of Appellate

Procedure states, “Findings of guilt in criminal actions whether by the trial court or jury shall

be set aside if the evidence is insufficient to support a finding by the trier of fact of guilt

beyond a reasonable doubt.” Guilt may be found beyond a reasonable doubt in a case where

there is direct evidence, circumstantial evidence, or a combination of the two. State v.

Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990) (citing State v. Brown, 551 S.W.2d

329, 331 (Tenn. 1977); Farmer v. State, 343 S.W.2d 895, 897 (Tenn. 1961)).

The trier of fact must evaluate the credibility of the witnesses, determine the weight

given to witnesses’ testimony, and reconcile all conflicts in the evidence. State v. Odom, 928

S.W.2d 18, 23 (Tenn. 1996). When reviewing issues regarding the sufficiency of the

evidence, this court shall not “reweigh or reevaluate the evidence.” Henley v. State, 960

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S.W.2d 572, 578-79 (Tenn. 1997). This court has often stated that “[a] guilty verdict by the

jury, approved by the trial court, accredits the testimony of the witnesses for the State and

resolves all conflicts in favor of the prosecution’s theory.” Bland, 958 S.W.2d at 659. A

guilty verdict also “removes the presumption of innocence and replaces it with a presumption

of guilt, and the defendant has the burden of illustrating why the evidence is insufficient to

support the jury’s verdict.” Id. (citing State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982)).

Where a defendant is convicted of a lesser-included offense, this Court must review

the evidence to support the crime for which the defendant was convicted. State v. Parker, 350

S.W.3d 883, 907 (Tenn. 2011). Here, the jury convicted Nguyen of the lesser-included

offense of sexual battery. T.C.A. § 40-18-110(g)(4) (2012) (codifying sexual battery as a

lesser-included offense of rape). In order to sustain a conviction of sexual battery, the State

must prove “unlawful sexual contact with a victim by the defendant . . . . [and] the sexual

contact is accomplished without the consent of the victim and the defendant knows or has

reason to know at the time of the contact that the victim did not consent.” T.C.A. § 39-13-

505(a)(2) (2010). Sexual contact includes “the intentional touching of [the victim’s or the

defendant’s] . . . intimate parts . . . if that intentional touching can be reasonably construed as

being for the purpose of sexual arousal or gratification[.]” T.C.A. § 39-13-501(6) (2010).

“‘Intimate parts’ includes the primary genital area, groin, inner thigh, buttock or breast of a

human being.” T.C.A. § 39-13-501(2) (2010).

Viewed in the light most favorable to the state, we conclude that the evidence is

sufficient to support the sexual battery conviction. The victim testified that she could feel

Nguyen penetrating her anally. She also testified that she felt Nguyen’s hands on her buttocks

and legs. She did not consent to any touching by Nguyen on the night of the offense. Several

witnesses corroborated the victim’s testimony that she was asleep at the time of the offense.

They also confirmed that she was visibly upset and asked that Nguyen be removed from the

house. When the victim later asked Nguyen why he did it while she was asleep, Nguyen

responded, “Oh, I don’t know.” Rather than challenging the sufficiency of the evidence,

Nguyen merely attacks the credibility of the victim. This court has repeatedly held that it is

within the province of the jury to evaluate the credibility of the witnesses, to determine the

weight given to their testimony, and to resolve all conflicts of evidence. See Odom, 928

S.W.2d. at 23. As evidenced by their verdict, the jury resolved any inconsistencies in the

evidence in favor of the victim, as was their prerogative. Accordingly, we conclude that the

evidence is sufficient to sustain Nguyen’s conviction for sexual battery. He is not entitled to

relief on this issue.

II. Fair and Impartial Trial. Nguyen contends that he was denied a fair and

impartial trial, contrary to the provisions of the Sixth Amendment to the United States

Constitution, and Article I, Section 9 of the Constitution of the State of Tennessee.

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Specifically, he argues that Juror K.W. failed to disclose in voir dire or during trial that he was

acquainted with the victim. In response, the State contends that Nguyen received a fair and

impartial trial. We agree with the State.

The Sixth Amendment to the Constitution of the United States of America and Article

I, Section 9 of the Tennessee Constitution guarantees a criminal defendant the right to trial

“by an impartial jury.” Moreover, the Tennessee Constitution guarantees every accused “a

trial by a jury free of . . . disqualification on account of some bias or impartiality toward one

side or the other of the litigation.” State v. Akins, 867 S.W.2d 350, 354 (Tenn. Crim. App.

1993) (quoting Toombs v. State, 197 Tenn. 229, 270 S.W.2d 649-50 (Tenn. 1954)). “Since

full knowledge of facts which might bear upon a juror’s qualifications is essential to the

intelligent exercise of peremptory and cause challenges, jurors are obligated to make ‘full and

truthful answers . . . neither falsely stating any fact nor concealing any material matter.’”

Akins, 867 S.W.2d at 355 (quoting 47 AM.JUR.2D Jury § 208 (1969)).

The common law rules governing challenges to juror qualifications typically fall into

two categories: propter defectum or propter affectum. Propter defectum, meaning “on

account of defect,” encompasses objections based on general disqualifications, such as

alienage, family relationship, or statutory mandate. Id. Such objections must be made before

the return of a jury verdict. Id. Proper affectum, on the other hand, means “on account of

prejudice,” and encompasses objections based upon the existence of bias, prejudice, or

partiality towards one party in the litigation actually shown to exist or presumed to exist from

circumstances. Id. These objections may made after the return of the jury verdict. Id. This

court has described “[b]ias in a juror [as] a leaning of the mind, propensity or prepossession

towards an object or view, not leaving the mind indifferent; a bent; for inclination.” Id. at 354

(citation omitted). Thus, when a juror conceals or misrepresents information tending to

indicate a lack of impartiality, a challenge may properly be made in motion for a new trial. Id.

at 355.

When a juror willfully conceals (or fails to disclose) information on voir dire which

reflects on the juror’s lack of impartiality, a presumption of prejudice arises. Id. (citing

Durham v. State, 182 Tenn. 577, 188 S.W.2d. 555, 559 (Tenn. 1945)). The presumption of

bias, however, may be dispelled by an absence of actual favor or partiality by the juror. See

State v. Taylor, 669, S.W.2d 694, 700 (Tenn. Crim. App. 1983), perm. app. denied, (Tenn

1984). The defendant bears the burden of proving a prima facie case of bias or partiality.

Akins, 867 S.W.2d at 355 (citing Taylor, 669 S.W.2d at 700). Finally, “Tennessee courts

have routinely refused relief in post-verdict propter affectum challenges in cases where there

was a casual relationship not disclosed during voir dire or the record failed to reveal an

inherently prejudicial relationship or a false answer.” State v. Joseph Angel Silva, III, No.

M2003-03063-CCA-R3-CD, 2005 WL 1252621 (Tenn. Crim. App., May 25, 2005), perm.

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app. denied, (Tenn. Oct. 17, 2005) (internal citations omitted); State v. Sammy D. Childers,

No. W2002-00006-CCA-R3-CD, 2003 WL 214444 (Tenn. Crim. App., at Jackson, Jan. 30,

2003), perm. app. denied, (Tenn., May 27, 2003).

During the August 22, 2011 voir dire, twelve potential jurors, including Juror K. W.,

were seated and questioned in this case. After the court introduced Nguyen, defense counsel,

and the assistant district attorney, it asked the potential jurors if they knew any of the parties.

The record reflects that none of the jurors responded. The court proceeded to explain the

charges, read a list of witnesses, including the name of the victim, and asked the potential

jurors if any of those names were familiar to them. The record does not reflect a response

from the jury panel.

After Nguyen’s sentencing hearing, the victim advised a victim-witness coordinator

that she recognized one of the jurors. The victim-witness coordinator then notified the

assistant district attorney general of the same. In an October 5, 2011 letter, the assistant

district attorney advised the trial court and defense counsel of the following:

[The victim] informed [the coordinator] that she recognized one of the jurors.

She knew his first name to be “Kevin” but did not know his last name. She

said that they worked together about three years ago at [a jewelry store] for

about six months. [The coordinator] asked [the victim] if they had ever been

out socializing or drinking together. [The victim] stated that they had. She said

that he had come to [the local bar and grill] when she worked there and sat in

her section so she could wait on him. She said that she [did not] recognize him

until she got on the stand to testify.

The assistant district attorney further advised defense counsel of the full identity of the juror

based on her juror seating chart.

Hearings on Nguyen’s motion for new trial were conducted on February 10 and 17,

2012. At the first hearing, the juror in question testified and agreed that during voir dire he

denied knowing either of the parties. Asked if he concluded that he knew the victim during

the trial, the juror replied,

That is not correct. I looked at [the victim], and I said to myself, she looks

familiar. But I wasn’t sure because I didn’t know this person’s last name. And

this person looks totally different from five years ago when I knew her.

The juror met the victim, similarly to Nguyen, at a local bar and grill, but he denied a

relationship with the victim outside of patronizing the bar. The juror also confirmed that he

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worked at the same jewelry store with the victim for six months. Asked by the court did he

realize during jury service that the victim was the same person, the juror replied, “No, sir.”

He did not realize the victim was his former co-worker and waitress until after the trial when

he was notified by defense counsel.

On cross-examination, the juror agreed that the victim’s familiarity did not affect his

ability to be fair and impartial. He agreed that his contact with the victim was limited to

work and the local bar and grill and denied any contact with her after the trial.

No additional proof was offered at the second hearing at which both parties argued

their respective position to the trial court. In denying relief on this issue, the trial court

stated, in pertinent part, the following:

There is no evidence of any extraneous prejudicial information being

improperly brought to the jury’s attention nor was there any outside influence

that was improperly brought to bear upon this juror. The juror was clear in his

statements that he was not aware that this victim witness was a person that he

knew, therefore there was no bias or partiality against the defendant.

The record supports the determination of the trial court. During voir dire, the trial

court read the names of the parties and potential witnesses in the case. It asked if the

potential jurors knew any of the listed names. Although Juror K.W. did not respond, he

explained that he did not know the victim’s last name and did not recognize her because she

had changed her appearance. Juror K.W. further testified that he had not seen the victim for

the past five years. He did not have a relationship with the victim other than being a patron

at her place of employment and working with her for a short period of time. The juror

admitted that the victim looked familiar to him; however, he was unaware that he met her

until he was notified by defense counsel. Certainly, as Nguyen argues, the acquaintance

should have been disclosed. However, on this record, we cannot conclude that the failure

to do so violated his right to a fair and impartial jury. Because Nguyen has failed to show

any bias or partiality on the part of the challenged juror, he is not entitled to relief.

CONCLUSION

Upon our review, the judgment of the trial court is affirmed.

________________________________

CAMILLE R. McMULLEN, JUDGE

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