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State v. Kovacic

Court of Appeals of Ohio, Eleventh District, Lake

December 18, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
DANIEL EDWARD KOVACIC, Defendant-Appellant.

         Criminal Appeal from the Lake County Court of Common Pleas, Case No. 09 CR 000819.

          Charles E. Coulson, Lake County Prosecutor, and Anna C. Kelley, Karen A. Sheppert, and Patrick J. Condon, Assistant Prosecutors, Lake County Administration Building, (For Plaintiff-Appellee).

          L Bryan Carr, Carr, Feneli & Carbone Co., L.P.A. (For Defendant-Appellant).

          OPINION

          THOMAS R. WRIGHT, J.

         {¶1} Appellant, Daniel Edward Kovacic, appeals the denial of his motion for a new criminal trial based upon alleged juror misconduct. He contends that his motion should have been granted due to credible evidence showing that a juror failed to disclose her prior relationship with the victim. We affirm.

         {¶2} In January 2010, appellant was indicted on two counts of felonious assault and one count of tampering with evidence. Following a jury trial in April 2010, he was convicted on all three counts. After merging the two felonious assault counts for purposes of sentencing, the trial court sentenced him to an aggregate prison term of ten years.

         {¶3} This court affirmed appellant's conviction in all respects. State v. Kovacic, 11th Dist. Lake No. 2010-L-065, 2012-Ohio-219, 969 N.E.2d 322. His appeal to the Ohio Supreme Court was not accepted. State v. Kovacic, 131 Ohio St.3d 1555, 2012-Ohio-2263, 967 N.E.2d 765.

         {¶4} Brenna Brunnet was one of the twelve jurors. Her son, Nathan Cooper, attended Willoughby North High School graduating in 2008. During high school, Cooper was an acquaintance/friend of Anthony "Bobby" Kepes, the victim of the felonious assaults. Cooper and Kepes occasionally ate lunch together in the school cafeteria and were baseball teammates for a number of years.

         {¶5} During voir dire, the prosecutor asked prospective jurors if they knew Kepes. Brunnet did not respond, and was ultimately seated on the jury.

         {¶6} Michael Corrao lived across the street from Brunnet during Cooper's high school years. Corrao and Cooper are the same age, knew each other and both attended Willoughby North. Corrao was a close friend of Kepes. Eighteen months after appellant's trial, Corrao tried to contact appellant's sister to talk to her about Brunnet serving on the jury. Initially, appellant's sister refused to talk to him because she knew that he and Kepes had been friends. When Corrao made several more attempts to speak with her, however, she relented, and he told her that Cooper's mother was a juror in her brother's case. After investigating further with her mother, appellant's sister made the connection between Brunnet and Cooper.

         {¶7} Subsequently, Corrao was placed in contact with appellant's attorney and he executed an affidavit concerning the connection between Brunnet and Kepes averring: (1) from sixth grade through high school, he, Cooper, and Kepes were close friends; (2) besides playing sports together, they would regularly sleep over at each other's homes and attend birthday parties; (3) the week of appellant's trial in April 2010, he was walking down the street near his house when he saw Brunnet and stopped to speak with her; (4) as part of the conversation, Brunnet told him that she was a juror in appellant's case; (5) when he asked Brunnet how that was possible when she knew Kepes, Brunnet responded that she kept quiet on the point; and (6) Brunnet further told him that she visited the crime scene and saw "blood all over the place."

         {¶8} Based upon Corrao's affidavit, appellant moved for leave to file a motion for a new trial. In addition to arguing that Brunnet engaged in juror misconduct, he asserted that he was denied a fair trial due to Brunnet's failure to disclose that she knew Kepes. After the state responded, the trial court issued a judgment granting appellant leave to file, finding that he was unavoidably prevented from discovering the operative facts within fourteen days of the guilty verdict.

         {¶9} In January 2016, appellant submitted his motion for new trial. In addition to Corrao's prior affidavit, appellant attached the affidavits of Kepes and two others who knew Cooper during high school. Kepes averred that he and Cooper were close friends at that time, and that he could recall seeing Cooper's mother, Brunnet, at baseball games and practices. He further stated that he did not look at the jury when he testified at appellant's trial. In opposing the motion, the state submitted Brunnet's affidavit, in which she averred: (1) she did not know Kepes prior to appellant's trial; (2) she did not have a conversation with Michael Corrao about the trial; and (3) she answered all questions during voir dire completely and honestly.

         {¶10} The trial court conducted an evidentiary hearing. Besides calling Brunnet on cross-examination, appellant presented the testimony of four of Cooper's high school friends, including Kepes and Corrao. Brunnet's and Corrao's testimony was entirely consistent with their statements in their respective affidavits. However, Kepes contradicted his affidavit ...


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