Opinion

Finnell v. Warden, Lebanon Correctional Institution

Court: District Court, S.D. Ohio
Filed: Aug 6, 2024
Cited by: 0 cases
Authority: More cited than 31.8%

“The remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.”

How later courts described this case

“The remedy for allegations of juror partiality is a hearing in which the defendant has the opportunity to prove actual bias.”
“In cases of improper outside juror communication, the defense must establish that the communication biased the juror.”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

KYLE FINNELL,

Petitioner, : Case No. 1:17-cv-268

- vs - District Judge Douglas R. Cole

Magistrate Judge Michael R. Merz

TIM SCHWEITZER, Warden,

Lebanon Correctional Institution,

Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Kyle Finnell pursuant to 28 U.S.C.

§ 2254 to obtain relief from his July 1, 2014, convictions in the Hamilton County Court of

Common Pleas in cases B-1305265-B and B-1306715 (Petition, ECF No. 7, PageID 46).

Litigation History

On September 13, 2013, the Hamilton County grand jury indicted Finnell and his co-defendant

Shawn Johnson for a home invasion occurring in June 2012. The grand jury charged them with one

count of aggravated burglary in violation of Ohio Rev. Code § 2911.12(A)(1) (count 1), one count of

burglary in violation of Ohio Rev. Code § 2911.12(A)(2) (count 2), one count of aggravated robbery

in violation of Ohio Rev. Code § 2911.01(A)(1) (count 3), one count of robbery in violation of Ohio

Rev. Code § 2911.02(A)(2) (count 4) and one count of kidnapping in violation of Ohio Rev. Code §

2905.01(A)(2) (count 5). Counts 1 and 3 each carried two firearm specifications. In count eleven,

Finnell alone was charged with one count of having weapons while under disability in violation of

Ohio Rev. Code § 2923.13(A)(2) (count 11). Counts 6-10 related exclusively to Johnson and involved

drug and tampering with evidence offenses occurring in August 2013. (Indictment in Case No. B-

1305265 State Court Record, ECF No. 11, Ex.1).

The grand jury subsequently indicted Finnell for one count of intimidation of a crime witness

in violation of Ohio Rev. Code § 2921.04(B)(1) with two firearm specifications (count 1), one count

of having weapons while under disability in violation of Ohio Rev. Code § 2923.13(A)(2) (count 2)

and one count of receiving stolen property in violation of Ohio Rev. Code § 2913.51(A) (count 3).

(Indictment in Case No. B-1306715, State Court Record, ECF No. 11, Ex. 2). These charges arose

from Finnell’s attempt to intimidate the state’s main witness in the robbery/burglary case after his

arrest. A trial jury found Finnell guilty of all charges and specifications. He was sentenced to an

aggregate term of imprisonment of thirty-four years.

Finnell appealed to the Ohio First District Court of Appeals which affirmed the

convictions, remanded for incorporation of the required consecutive sentencing findings into the

sentencing entries, and vacated the denial of Finnell’s new trial motion because it had been ruled

on by a judge who had recused himself. State v. Finnell, 2015-Ohio-4842, ¶ 77 (1st Dist. Nov. 25,

2015)(“Finnell I”), appellate jurisdiction declined, 145 Ohio St. 3d 1445 (2016).

As to the new trial motion, the trial court denied release of juror information and Finnell

appealed. After he filed his habeas corpus petition in this Court, the First District reversed the trial

court’s denial of the release of juror information on ineffective assistance of trial counsel grounds.

State v. Finnell, 2018-Ohio-564 (1st Dist. Feb. 14, 2018)(“Finnell II”).

The habeas corpus Petition was filed in this Court on June 22, 2017. Id. On Order of

Magistrate Judge Karen Litkovitz (ECF No. 6), Respondent filed the State Court Record (ECF No.

11) and a Return of Writ (ECF No. 12). On June 12, 2018, the Magistrate Judge reference in the

case was transferred to the undersigned who, on January 25, 2021, filed a Report and

Recommendations recommending that the Petition as it then stood be dismissed with prejudice

(ECF No. 58). Petitioner objected (ECF No. 65); Judge Cole recommitted the case (ECF No. 67)

and the undersigned filed a Supplemental Report reiterating the recommendation that the Petition

as it then stood be dismissed with prejudice (ECF No. 68). Although those Reports were

withdrawn for a time, they have been reinstated and are pending for decision before Judge Cole

upon his consideration of Petitioner’s Objections.

Petitioner’s first four grounds for relief are:

Ground One: Whether the trial court erred as a matter of law by

allowing hearsay and other-acts evidence in violation of his right to

a fair and impartial trial. Pursuant to Sixth Amendment and Due

Process Clause of the Fourteenth Amendment.

Ground Two: Whether the evidence was insufficient as a matter of

law and/or against the manifest weight of the evidence to sustain a

conviction. The Due Process Clause of the Fourteenth Amendment

protected a criminal defendant.

Ground Three: Whether appellant was denied effective assistance

of counsel in violations of his constitutional rights thus prejudicing

his right to a fair trial. Pursuant to the Sixth Amendment and Due

Process clause of the Fourteenth Amendment.

Ground Four: whether the trial court erred as a matter of Law in

sentencing petitioner. In violation of Due Process Clause of the

Fourteenth Amendment.

(Petition, ECF No. 7, PageID 60, 63, 66, and 69). This Report offers no further analysis of these

grounds for relief; they are included here to complete the context.

Pending now for a recommended decision is Petitioner’s Fifth Ground for Relief for “juror

misconduct.” That claim reads:

Ground Five: Finnell was deprived of his Sixth and Fourteenth

Amendment right to trial by a fair and impartial jury by participation

in deciding the case of three jurors who had contact with Finnell

outside the courtroom.

Supporting Facts: The alleged “contact” consisted of (1) Jurors

A.L. and B.C. overhearing Finnell on the telephone describing both

of them or some courthouse personnel in unflattering language (2)

Jurors A.L. and B.C. perceiving that Finnell was following them,

and (3) Juror M.B.’s complaint to a bailiff that Finnell was staring

at her and her inquiring why he was not incarcerated during the trial.

(ECF No. 197, Page ID 5146 & n. 1).

This claim was litigated in the Ohio courts by way of Petitioner’s motion for new trial. On

August 18, 2022, the Hamilton County Court of Common Pleas denied that motion, concluding:

Pursuant to Crim.R.33(A)(2), a new trial may be granted based on

misconduct of the jury that materially affected the defendant's

substantial rights. Defendant fails to identify any misconduct of any

party to the proceedings. Additionally, Defendant fails to identify

any irregularity in the proceedings or abuse of discretion by the

court. The trial transcript sets forth a full and fair trial whereby

Defendant presented a full defense. Any alleged outside incidents

did not influence the juror's decisions. The juror's made their

findings and decision only on the evidence presented at Defendant's

trial.

Therefore, Defendant's Motion for a new trial is OVERRULED.

(Entry, State Court Record, ECF No. 226, Ex. 77, PageID 6202).

Petitioner appealed and the Ohio First District Court of Appeals affirmed. State v. Finnell,

2023 WL 4751764 (Ohio App. 1st Dist. Jul. 26, 2023)(unpublished, copy at ECF No. 226, Ex. 84,

PageID 6260, et seq.)(“Finnell III.”) Critically, it held

¶18 Based on the record before us, Finnell has not demonstrated

that the incidents involving Juror A.L., or any other alleged

misconduct, biased the jurors such that they were unable to base

their decisions to find him guilty of the charged offenses on anything

other than the evidence presented at trial. Juror A.L. testified that

she had not told the other jurors about the two incidents involving

Finnell and that those incidents had not influenced her decision to

find Finnell guilty of the charged offenses. The two jurors who

claimed to know during deliberations about Finnell following Juror

A.L. testified that learning of that incident did not influence their

verdicts, and specifically testified that they had based their decisions

to find Finnell guilty of the charged offenses only on the evidence

presented at trial. Finally, the remaining jurors who had testified

confirmed that they were unaware of any incidents involving other

jurors and Finnell until after the verdict had been announced.

¶19 “A trial court may rely upon a juror's testimony as a basis for

finding that her impartiality was not affected.” See Herring, 94 Ohio

St.3d at 259, 762 N.E.2d 940. Here, the trial court relied on the

testimony of the jurors in finding that they had based their guilty

findings solely on the evidence presented at trial, and thus, that each

juror's impartiality had not been affected by any outside contact with

or observation of Finnell. Because the court's determination is

supported by competent, credible evidence in the record, we cannot

say that the trial court's denial of Finnell's new-trial motions was

unreasonable.

¶20 In reaching our holding, we keep in mind the Ohio Supreme

Court's admonition that “ ‘ * * * [t]he determination of juror bias

necessarily involves a judgment on credibility, the basis of which

often will not be apparent from an appellate record. Wainwright v.

Witt, 469 U.S. 412, 421, [105 S.Ct. 844, 83 L.Ed.2d 841] (1985).

For this reason, ‘* * * deference must be paid to the trial judge who

sees and hears the juror. Id. at 426.’ ” State v. Huertas, 51 Ohio St.3d

22, 29, 553 N.E.2d 1058 (1990), quoting State v. DePew, 38 Ohio

St.3d 275, 280, 528 N.E.2d 542 (1988).

Finnell III at ¶¶ 18-20.

Judge Kinsley dissented and would have granted Finnell a new trial. Id. at ¶¶ 23-43. The

Ohio Supreme Court declined jurisdiction over a further appeal. State v. Finnell, 171 Ohio St. 3d

1511 (2023).

This Court then vacated the stay of these proceedings and afforded Petitioner multiple

opportunities to move to amend. When he had failed to do so in the form requested and customary

in this Court, the Magistrate Judge found this Court was limited to considering the claim exhausted

by Finnell in his new trial proceedings in the Ohio courts (Decision and Order, ECF No. 197,

PageID 5145). The Magistrate Judge construed that claim to be that Finnell was deprived of his

Sixth and Fourteenth Amendment right to trial by a fair impartial jury by participation in deciding

the case of three jurors who had “contact” with Finnell outside the courtroom and deemed the

Petition amended to include that claim as Ground Five. Id. at PageID 5145-46. In the same

Decision, Respondent was ordered to file an amended Return of Writ, and the Court set a deadline

of twenty-one days after the amended return was filed for Petitioner to file his reply. Id. at PageID

5147.

The Warden’s Amended Return was filed April 12, 2024 (ECF No. 227), but the State

Court Record was not completed until the Court accepted redacted copies of the transcript of the

Remmer hearing held in the Hamilton County Court of Common Pleas (ECF No. 253). Once those

transcripts were filed on June 14, 2024, the Court notified Petitioner that his reply was due by July

14, 2024 (ECF No. 259).

Despite that Notice and a later warning to Petitioner that the Magistrate Judge considered

the case ripe for decision without his reply (ECF No. 267), Petitioner has steadfastly failed and

refused to file a reply. This is surprising behavior since he has filed, since April 25, 2024, the

following documents arguing one point or another in the case:

04/25/2024 ECF No. 234 Prayer for All of the Investigative

Material and Objections to Respondents Motion Before the

Common Pleas Court Petitioner Move For All Pertinent Document

(6 pp.)

04/25/2024 ECF No. 232 Petition Objection Concerning Non

Compliance of this Court Order Objection to Respondent's

Supplemental Return of Writ Doc. No. 227 and Answering this

Court Question (15 pp.)

04/30/2024 ECF No. 233 Petitioner Objection Concerning Non

Compliance Of This Court Order Re 227 Objection To Respondents

Seal Order And Failure To Answering This court Question (16 pp.)

05/11/2024 ECF No. 238 OBJECTION to Respondent's

Supplemental Return of Writ (115 pp.) Doc. No. 227

05/14/2024 ECF No. 239 Opposes/Objection to Respondent's

MOTION for Extension of Time Doc. No. 236, the Sixth

Amendment to the United States Constitution and Article I, Section

10 of Ohio's Constitution Guarantee a Criminal Defendant the Right

to a Speedy Trial (34 pp.)

05/22/2024 ECF No. 242 NOTICE by Petitioner Kyle Finnell

for Implied Bias Standard (22 pp.)

05/28/2024 ECF No. 243 Objection to Respondent's

Enlargement of Time After this Court Grant Petitioner a Speedy

Adjudication pursuant to the Sixth Amendment to the United States

Constitution and Article I, Section 10 of Ohio's Constitution

guarantee a criminal defendant the right to a speedy trial (30 pp.)

06/05/2024 ECF No. 250 Petition Addressing 241 Order, and It

Objection, the Show Cause Order (18 pp.) Doc. No. 442, and Doc.

No. 248

06/06/2024 ECF No. 252 NOTICE to the Court that Petitioner

is not in Receipt of Thus [sic] Remmer Hearing (8 pp.)

06/22/2024 ECF No. 260 Motion for the Remmer Hearing

Transcript (10 pp.)

07/03/2024 ECF No 264 Objection to Magistrate Judge Order re

263 & Notice To Petitioner (10 pp.)

07/06/2024 ECF No. 265 Objection to the Record (7 pp.)

These filings comprise 275 pages of legal argument with literally hundreds of legal

citations. And yet Finnell has refused to organize his arguments into a reply, the document

contemplated by the Rules Governing § 2254 cases. Having defaulted the opportunity to file a

reply, Finnell has forfeited any arguments he could have made in such a filing.

Analysis

Respondent construes Ground Five as follows:

GROUND Five: Finnell was deprived of his Sixth and Fourteenth

Amendment right to trial by a fair and impartial jury by participation

in deciding the case of three jurors who had contact with Finnell outside

the courtroom.

Supporting Facts: The alleged “contact” consisted of (1) Jurors A.L.

and B.C. overhearing Finnell on the telephone describing both of them

or some courthouse personnel in unflattering language (2) Jurors A.L.

and B.C. perceiving that Finnell was following them, and (3) Juror

M.B.’s complaint to a bailiff that Finnell was staring at her and her

inquiring why he was not incarcerated during the trial.

(ECF No. 107, Page ID 5146 & n. 1). Petitioner has not objected to this phrasing.

Respondent raises no affirmative defenses to Ground Five, but defends the convictions on the

merits. Specifically, Respondent relies on 28 U.S.C. § 2254(d) which provides:

(d) An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the merits

in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding.

When a state court decides on the merits a federal constitutional claim later presented to a

federal habeas court, the federal court must defer to the state court decision unless that decision is

contrary to or an objectively unreasonable application of clearly established precedent of the

United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86 (2011);

Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002); Williams

(Terry) v. Taylor, 529 U.S. 362, 379 (2000) Hendrix v. Palmer, 893 F.3d 906, 917 (6th Cir. 2018).

Deference is also due under 28 U.S.C. § 2254(d)(2) unless the state court decision was based on

an unreasonable determination of the facts in light of the evidence presented in the State court

proceedings.

To determine whether the state courts decided an issue on the merits, the district court looks

to the opinion of “the last state court to issue a reasoned opinion on the issue.” McKnight v. Bobby,

2024 WL 2186494 (S.D. Ohio May 15, 2024), quoting Hoffner v. Bradshaw, 622 F.3d 487, 505

(6th Cir. 2010) (quoting Payne v. Bell, 418 F.3d 644, 660 (6th Cir. 2005)). In this case, the relevant

opinion is that of the First District Court of Appeals in Finnell III.

The Sixth Amendment guarantees a criminal defendant a trial by an “impartial jury.”

Through the Due Process Clause, that requirement is binding on the States. McDonald v. Chicago,

561 U.S. 742 (2010), citing Duncan v. Louisiana, 391 U.S. 145 (1968). As Petitioner reminds us,

jurors must be “indifferent as (they stand) unsworne.” Ristaino v. Ross, 424 U.S. 589, 596 (1976),

citing Coke on Littleton 155b (19th ed. 1832).

To achieve a panel of impartial jurors, our criminal justice system employs the voir dire

process which, through questioning by the court and counsel, is intended to expose any likely

sources of bias in prospective jurors. If the likelihood of actual bias is evidenced by the

examination, prospective jurors are excused for cause. If answers in voir dire raise questions of

implicit bias in the examining attorney’s mind, she can exercise one of a number of peremptory

excuses without explanation.1

Petitioner makes no claim in this case that the panel of twelve jurors who tried his case was

not impartial as they were sworn in. Instead he asserts they became biased by contact they had

with him outside the courtroom2 but before the jury reached its verdict. This was the sole issue

before the First District Court of Appeals on Finnell’s appeal from denial of his motion for new

trial. The First District decided that issue as follows:

1 Unless of course the circumstances give rise to an inference that the peremptory challenge is racially discriminatory.

Batson v. Kentucky, 476 U.S. 79 (1986).

2 In the Remmer hearing, Finnell testified that none of the alleged contacts actually occurred.

{¶2} In 2014, following a jury trial on the charges set forth in the

indictments under the cases numbered B-1305265B and B-1306715,

a jury found Finnell guilty of aggravated burglary with an

accompanying gun specification, kidnapping, two counts of having

a weapon while under a disability, intimidation of a witness, and

receiving stolen property. Prior to being sentenced for these

offenses, Finnell filed Crim.R. 33 motions for a new trial under each

case number. In support, Finnell alleged that two jurors had

committed misconduct by failing to immediately report to the court

that they believed Finnell had followed them after the first day of

deliberations to intimidate them. He argued that because the jurors

did not report this incident until after the verdict had been read and

accepted in open court by the trial judge, the court was unable to

conduct the required hearing and determine whether this perceived

threat had biased the jurors.

{¶3} The trial judge recused himself from considering the new-trial

motions. But despite that recusal, the court denied Finnell's motions

at the sentencing hearing. On direct appeal, this court affirmed

Finnell's convictions but vacated the order denying the new-trial

motions and remanded the matter to the presiding judge of the trial

court. State v. Finnell, 1st Dist. Hamilton Nos. C-140547 and C-

140548, 2015-Ohio-4842, appeal not accepted, 145 Ohio St.3d

1445, 2016-Ohio-1596, 48 N.E.3d 583.

{¶4} On remand, Finnell moved to release juror information under

seal. The trial court denied that motion but held an evidentiary

hearing on the new-trial motions. At the hearing, Finnell testified

that as he was leaving the courthouse after the first day of

deliberations, he had been standing in the small area by the side door

waiting for someone with a security badge to allow him to exit. At

the time, he was talking on the phone. When the door was opened,

he walked to the front of the courthouse, and waited for his ride. He

did not remember seeing any jurors while he was talking on the

phone or waiting for his ride home. He further testified that he did

not attempt to intimidate, influence, or threaten any of the jurors

during the trial. The trial court denied the new-trial motions, and

Finnell appealed.

{¶5} We reversed the denial of Finnell's motion to release juror

information under seal because his trial counsel had been ineffective

in presenting that motion to the court, and we vacated the denial of

the new-trial motions and remanded the cause to the trial court. See

State v. Finnell, 2018-Ohio-564, 106 N.E.3d 285 (1st Dist.). On

remand, the juror information was released under seal to counsel

only, and eventually, two hearings were held on Finnell's new-trial

motions at which 11 of the 12 jurors testified. Finnell was unable to

attend these hearings due to health reasons, and defense counsel

waived his presence.

{¶6} The first hearing occurred January 19, 2022, where nine jurors

testified. Juror A.L. testified about two incidents with Finnell. In the

first incident, she and Juror B.C.,1 had been waiting to pass through

courthouse security one morning during trial when Juror A.L. heard

someone talking on a cell phone and loudly say, “these F'n bitches.”

Juror A.L. testified that it made her uncomfortable when she had

turned around and realized it was Finnell talking on the phone. She

testified that Finnell seemed upset about having to attend court and

believed that Finnell could have either been referring to her and the

other juror or court personnel when he had said “these F'n bitches.”

Juror A.L. testified that she reported this incident to the bailiff, and

that she began to arrive at the courthouse earlier in the day to avoid

Finnell.

{¶7} Next, Juror A.L. testified that she and Juror B.C. had been

waiting outside the front of the courthouse after the first day of

deliberations for their respective rides home. Juror A.L. was waiting

for her daughter and Juror B.C. was waiting for the bus. At that time,

Juror A.L. became nervous when she saw Finnell staring at them.

Juror A.L. then recalled that Juror B.C. had said that she did not

want to return to court for jury duty, but Juror A.L. had encouraged

her to do so. Juror A.L. then testified that she called her daughter

and instructed her to keep driving and not stop in front of the

courthouse. Juror A.L. then began to walk towards the public

library, and she testified that Finnell followed her. She recalled

entering the library and waiting until Finnell had left the area before

instructing her daughter to meet her at the library.

{¶8} Juror A.L. testified that she reported the incident the next day

and was instructed not to discuss it with the other jurors until after

the verdict. Juror A.L. testified that she followed that instruction.

Finally, when asked whether these two incidents influenced her

decision to find Finnell guilty, she testified “No,” and explained that

if the incidents had influenced her in any way, it was only to the

extent that she felt she must continue to report for jury duty.

{¶9} The other eight jurors each testified that they did not know

about the incidents involving Juror A.L. until after the guilty verdict

had been announced in court. Two of these eight jurors also testified

as to their own observations of Finnell outside the courtroom: One

juror recalled observing Finnell standing in a restaurant near the

courthouse “watch[ing]” out the window and another juror testified

that he had remembered seeing Finnell outside the courthouse the

day Juror B.C. had been waiting for the bus. But both of those jurors

testified that they had not shared their observations with others.

{¶10} The second hearing occurred in March 2022, where the

remaining two jurors testified. Juror M.B. and Juror R.F. both

testified that they remembered hearing about the second incident

involving Juror A.L. and Finnell. Juror R.F. stated that he believed

that he learned of the incident during deliberations, and Juror M.B.

was unsure of when she learned about it but testified that, “I don't

think [Juror A.L.] told us after [deliberations].” Juror M.B. also

recalled seeing Finnell outside on a lunch break during the trial and

thought he might have been staring at her. She testified that she was

surprised to see him outside but when she discussed this with the

bailiff, she learned that Finnell had been released on bond. She did

not tell the other jurors about seeing Finnell during the lunch break

and testified that this encounter did not influence her decision to find

him guilty of the charged offenses.

{¶11} Finally, both Juror M.B. and Juror R.F. testified that learning

about Finnell following Juror A.L. had not influenced their

decisions and that each had based his or her decision finding Finnell

guilty of the charged offenses solely on the evidence presented at

trial.

{¶12} After the hearings, the trial court denied Finnell's new-trial

motions, finding that, “The jurors made their findings and decision

only on the evidence presented at Defendant's trial.” Finnell now

appeals.

{¶13} In his single assignment of error, he asserts that the trial court

erred by denying his motions for a new trial. We are unpersuaded.

{¶14} This court reviews a lower court's decision to grant or deny a

motion for a new trial for an abuse of discretion. State v. Schiebel,

55 Ohio St.3d 71, 564 N.E.2d 54 (1990), paragraph one of the

syllabus. To constitute an abuse of discretion, a trial court's decision

must be unreasonable, unconscionable, or arbitrary. State v. Adams,

62 Ohio St.2d 151, 404 N.E.2d 144 (1980). When applying an

abuse-of-discretion standard, “an appellate court is not free to

substitute its judgment for that of the trial judge.” State v. Herring,

94 Ohio St.3d 246, 255, 762 N.E.2d 940 (2002), citing Berk v.

Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).

{¶15} Under Crim.R. 33(A)(2), a new trial may be granted based on

misconduct of the jury that materially affected the defendant's

substantial rights. Finnell argues that the jurors committed

misconduct by failing to inform the trial court, in a timely fashion,

of their experiences with Finnell outside of the courtroom. He

focuses on the two incidents involving Juror A.L. where she had

overheard Finnell complaining about having to be at court and

where she had perceived Finnell was following her after the first day

of deliberations.

{¶16} When reviewing a motion for new trial based on juror

misconduct, an appellate court must conduct a two-tier analysis: (1)

determine whether there was juror misconduct and (2) if juror

misconduct is found, determine whether it materially affected the

defendant's substantial rights. State v. McGail, 2021-Ohio-231, 167

N.E.3d 70, ¶ 27 (2d Dist.). Contrary to Finnell's argument, the

burden is on the party alleging juror misconduct to establish

prejudice. State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845,

817 N.E.2d 29, ¶ 42, citing Smith v. Phillips, 455 U.S. 209, 215, 102

S.Ct. 940, 71 L.Ed.2d 78 (1982) (“The remedy for allegations of

juror partiality is a hearing in which the defendant has the

opportunity to prove actual bias.”).

{¶17} Although Juror A.L. testified that she had reported these

incidents to court personnel, Finnell argues that the trial judge was

unaware of any outside communication until after the jury verdict

had been announced. But even if we presume that there was juror

misconduct with respect to the reporting of these incidents, Finnell

has not demonstrated that the alleged misconduct prejudicially

affected his substantial rights. See id.; see also State v. Phillips, 74

Ohio St.3d 72, 88-89, 656 N.E.2d 643 (1995) (“In cases of improper

outside juror communication, the defense must establish that the

communication biased the juror.”).

{¶18} Based on the record before us, Finnell has not demonstrated