THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State,        Respondent,

v.

Adrian Acosta a/k/a
Evaristo Castana,        Appellant.

Appeal From Berkeley County
R. Markley Dennis, Jr., Circuit Court Judge

Unpublished Opinion No. 2003-UP-379
Submitted April 7, 2003 – Filed June 3, 2003

AFFIRMED

W. Tracy Brown, of Charleston, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, and Assistant Deputy Attorney General Charles H. Richardson, all of Columbia; and Solicitor Ralph Hoisington, of Charleston, for Respondent.

PER CURIAM:  Adrian Acosta appeals his convictions for committing a lewd act on a minor and contributing to the delinquency of a minor, arguing the circuit court erred in refusing to grant a motion for new trial based on allegations of improper racial comments during jury deliberations.  We affirm.

FACTS

A grand jury indicted Acosta for second-degree criminal sexual conduct with a minor (“CSC”), committing or attempting to commit a lewd act on a child under sixteen years of age, and contributing to the delinquency of a minor.  A jury acquitted Acosta of the CSC charge, but convicted him of lewd act on a child and contributing to the delinquency of a minor.  Acosta was sentenced to twelve years in prison for lewd act on a child and three years in prison for contributing to the delinquency of a minor with the later sentence being suspended on successful completion of four years probation.  The sentences were to run consecutively.

Subsequently, Juror Edgard P. (“Edgard”), saw Acosta’s wife at a convenience store and learned about the length of Acosta’s sentence.  Believing the sentence to be excessive, Edgard wrote a letter to Acosta’s family, later reproduced as an affidavit, indicating the jury’s verdicts were the result of racial discrimination. Specifically, he claimed some jurors made the following remarks:  “I’m missing my tee time”; “Who cares, he’s just a dumb Mexican!”; “I’m losing money for some dumb Mexican.”  Furthermore, he stated he believed “the accused was innocent of all the charges brought before . . . [him] on that day.”

Based on Edgard’s letter, Acosta moved for a new trial in accordance with South Carolina Rules of Criminal Procedure, Rule 29(b).  Pursuant to State v. Hunter, 320 S.C. 85, 463 S.E.2d 314 (1995), the circuit court held a hearing to determine the validity of Edgard’s allegations and whether the allegations would require a new trial.

At the hearing, Edgard testified the jury quickly voted to acquit Acosta of CSC, finding no evidence to support the charge.  The jury also quickly convicted Acosta of contributing to the delinquency of a minor.  However, the jury could not reach a consensus on the lewd act charge.  Thus, the circuit court delivered an Allen charge. [1]

Following the Allen charge, the jury continued deliberations.  Edgard testified one juror then began making racial remarks.  Additionally, another juror began making remarks indicating impatience.  However, Edgard testified his decisions were based on the facts presented and the law as charged by the circuit court.  Furthermore, he testified the jury’s decisions as a whole were based on the facts presented and the law as charged by the circuit court.

The circuit court denied Acosta’s motion for a new trial, finding the jury based all three verdicts on the facts presented during the trial, and the improper juror remarks did not violate Acosta’s due process rights.  Acosta appeals.

STANDARD OF REVIEW

The circuit court has broad discretion in assessing allegations of juror misconduct.  State v. Kelly, 331 S.C. 132, 142, 502 S.E.2d 99, 104 (1998).   Where a new trial motion is based on allegations of juror misconduct, the denial of the motion for a new trial will be reviewed for an abuse of discretion.  State v. Covington, 343 S.C. 157, 163, 539 S.E.2d 67, 69-70 (Ct. App. 2000). 

DISCUSSION

Acosta argues the circuit court erred in refusing to grant a new trial because the evidence demonstrated the jury’s verdicts were based on racial prejudice.  We disagree.

“As a general rule, juror testimony may not be the basis for impeaching a jury verdict.  Normally, courts should not intrude into the privacy of the jury room to scrutinize how jurors reached their verdict.” Hunter, 320 S.C. at 88, 463 S.E.2d at 316.  “[J]uror testimony involving internal misconduct is competent only when necessary to ensure due process, i.e. fundamental fairness.”  Id.  “[A]llegations of racial prejudice involve principles of fundamental fairness.”  Id.  Thus, “[i]f a juror claims prejudice played a role in determining the guilt or innocence of a defendant, investigation into the matter is necessary.”  Id.  However, where the defendant seeks a new trial on the ground of impropriety involving the jury, he bears the burden of proving both the alleged misconduct and the resulting prejudice.  State v. Grovenstein, 335 S.C. 347, 350-51, 517 S.E.2d 216, 217-18 (1999).

The circuit court found that although improper racial remarks were made, the jury’s verdicts were not the result of racial discrimination.  We agree Acosta has failed to prove prejudice.  Thus, we find no abuse of discretion.

Initially, we note the entire jury list was available to Acosta.  However, Acosta only presented the testimony of Edgard.  No other jurors were called, and no other evidence was presented to support Acosta’s claim.  Consequently, Acosta’s claim necessarily must rise or fall with Edgard’s allegations.

According to Edgard, the jury quickly acquitted Acosta of CSC and quickly convicted Acosta of contributing to the delinquency of a minor.  No improper remarks were made during these deliberations.  However, the jury could not come to a consensus on the lewd act charge.  Therefore, the jury informed the circuit court it was “hung,” and the circuit court delivered an Allen charge.

Following the Allen charge, Edgard testified the jury believed the circuit court, by delivering the Allen charge, was instructing them to “compromise” on the lewd act charge.  Thus, as deliberations continued, Edgard testified the jury was becoming impatient with the deliberations, and two jurors made improper comments regarding Acosta’s race and the length of the process.  According to Edgard, he and one other juror were the only two jurors holding out for acquittal on the lewd act charge.

However, Edgard also testified he based his decision to convict Acosta on the facts presented and the law as charged by the court.  Furthermore, Edgard discounted any inference the comments had any influence on him or the jury and testified the jury’s decisions were based only on the facts presented and the law as charged by the court.  Moreover, Edgard testified he had been “comfortable” with the verdict until he learned of the length of Acosta’s sentence.

The only evidence presented by Acosta to demonstrate prejudice was Edgard’s inconsistent statement in his affidavit indicating, “the accused was innocent of all the charges brought before . . . [him] on that day.”  However, the remainder of Edgard’s testimony supports the circuit court’s conclusion that Acosta failed to prove prejudice resulting from the improper comments.  Thus, the evidence supports the circuit court’s factual findings, and we agree with its application of the law to those facts.

CONCLUSION

Based on the foregoing, the decision of the trial court is

AFFIRMED.

STILWELL, HOWARD, JJ., and STROM, Acting Judge, concur.