Jury and jurors: Juror was improperly seated in criminal trial

Where a juror affirmatively stated that “[i]t would be very hard” for her to fairly and impartially decide the case based on all the evidence and would be inclined to convict based on defendant’s prior convictions alone, and the voir dire in its entirety did not establish that she could set aside her fixed opinion, the trial court erred by seating her on the jury.

Background

Juan Bautista Rodriguez appeals his convictions for object sexual penetration of a victim under 13 years old, child endangerment, indecent liberties by a custodian and aggravated sexual battery of a victim under 13 years old.

Prior convictions

Rodriguez argues that the trial court erred by admitting evidence of his 2010 convictions. He contends that the court abused its discretion when balancing the probative value of the 2010 sentencing order against the danger of unfair prejudice. And he contends that admitting the evidence violated his constitutional due process rights.

Rodriguez’s argument that the evidence was irrelevant and highly prejudicial because it was admitted solely to establish propensity and did not establish any of the other facts listed in Rule 2:404(b) misses the mark because Rule 2:404 does not control the analysis. The trial court admitted the evidence under Code § 18.2-67.7:1 and Rule 2:413, which require only that the evidence be relevant to any matter at issue, not the specific matters listed in Rule 2:404.

An evidentiary rule violates the Due Process Clause only if the rule “violates those ‘fundamental conceptions of justice which lie at the base of our civil and political institutions’ and which define ‘the community’s sense of fair play and decency.’” Virginia courts have not expressly addressed a constitutional challenge to the admission of evidence solely to establish propensity.

Several federal courts of appeal have held that admitting evidence under Federal Rule of Evidence 414 does not violate constitutional due process. And many other courts have reached the same conclusion regarding Federal Rule of Evidence 413, which similarly allows for the admission of past-crimes evidence solely to prove propensity in sexual assault cases.

Rodriguez does not identify any case where the admission of past-crimes evidence was found to violate the United States Constitution. Instead, he points to two cases in which state courts have found that such evidence violates a state constitution. Neither of Rodriguez’s state cases overcomes the persuasive authority from the federal courts.

Finally, and keeping in mind the importance of the balancing test to the constitutional analysis, the trial court did not abuse its discretion in balancing the probative value of the evidence against the danger of unfair prejudice to Rodriguez. Accordingly, the trial court neither abused its discretion nor violated Rodriguez’s constitutional rights by admitting the 2010 sentencing order.

Jurors

Rodriguez argues that the trial court erred by denying his motion to strike a juror. This court agrees. Juror 12 expressed her belief “that a person is more likely to be guilty of an offense if he has been convicted of similar offenses before.” As explained above, this is the atypical case where evidence of the defendant’s prior convictions was admissible as substantive evidence of the defendant’s guilt. Accordingly, in this particular case, the broad view that evidence of prior crimes was probative of guilt would not necessarily have required juror’s removal.

But the juror went further. The juror affirmatively stated that “[i]t would be very hard” for her to fairly and impartially decide the case based on all the evidence and would be inclined to convict based on Rodriguez’s prior convictions alone. That statement cast her partiality into question. Nor did the voir dire in its entirety establish that she could set aside her fixed opinion.

Sufficiency

If the evidence was insufficient, “remand for retrial would violate the Constitution’s prohibition against double jeopardy.” Here, however, apart from arguing that the victims’ testimony was inherently incredible, Rodriguez does not challenge the sufficiency of the evidence on any other ground. Therefore, sufficient evidence supports his convictions, and the Commonwealth may retry him if so advised.

Reversed and remanded.

Concurring opinion

Petty, J., concurring:

Because I believe that the error in juror selection amounted to two instances of the same error, I would also address the trial court’s ruling concerning a second juror.

Commonwealth v. Rodriguez, Record No. 0480-24-1, Sept. 9, 2025. CAV (Malveaux). From the Circuit Court of the City of Norfolk (Lindsey). Roger A. Whitus (Slipow & Robusto P.C., on brief), for appellant. Brooke I. Hettig, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 025-7-240. 27 pp.