2019 UT App 150

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

WAYLON KEITH RIDDLE,

Appellant.

Opinion

No. 20180599-CA

Filed September 12, 2019

Sixth District Court, Kanab Department

The Honorable Wallace A. Lee

No. 161600142

Dale W. Sessions, Attorney for Appellant

Sean D. Reyes and Jonathan S. Bauer, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Waylon Keith Riddle challenges the trial court’s denial of 

his motion to set aside and vacate his convictions on four counts 

of distribution of a controlled substance. We affirm.

BACKGROUND

¶2 Three days after Riddle’s jury trial was completed, his 

trial counsel had lunch with the Kane County Attorney, Robert 

Van Dyke. Van Dyke had not participated in Riddle’s trial, 

which was tried by a deputy county attorney. While they were 

eating, a man approached Van Dyke to talk about some 

paperwork. Riddle’s counsel recognized the man as one of the 
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jurors in Riddle’s trial. Van Dyke informed counsel that the juror 

was his personal accountant and that the paperwork referred to 

was Van Dyke’s tax return. Although the jurors had been asked 

during voir dire about their acquaintance with the lawyers, 

parties, and witnesses in the case, they were never asked about 

their relationship to other individuals in the Kane County 

Attorney’s office.

¶3 Based on the business relationship between Van Dyke 

and the juror, Riddle moved the court to set aside the 

jury’s verdict, vacate his convictions, and order a new 

trial. Riddle acknowledged that there was no evidence that the 

juror was actually biased based on his professional relationship 

with Van Dyke but nevertheless asserted that the juror’s 

relationship with Van Dyke violated his right to a fair and 

impartial jury. The trial court denied Riddle’s motion, and 

Riddle now appeals.

ISSUE AND STANDARD OF REVIEW

¶4 Riddle asserts that the court erred in denying his motion 

to set aside the jury’s verdict and grant him a new trial. So long 

as the trial court has correctly applied the law, we review its 

“ruling on a motion for a new trial under an abuse of discretion 

standard.” State v. De La Rosa, 2019 UT App 110, ¶ 4, 445 P.3d 

955 (quotation simplified).

ANALYSIS

¶5 Riddle urges us to hold that the very existence of an 

undisclosed professional relationship between Van Dyke and the 

juror created an appearance of impropriety that required a new 

trial. While he asserts that this is a matter of first impression, our 

case law is clear that a jury verdict need not be reversed on 

grounds of juror partiality when there is no evidence of bias on 

the part of the juror.
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20180599-CA 3 2019 UT App 150

¶6 Rule 24 of the Utah Rules of Criminal Procedure permits 

trial courts to “grant a new trial in the interest of justice if there 

is any error or impropriety which had a substantial adverse 

effect upon the rights of a party.” Utah R. Crim. P. 24(a). “[T]he 

Fourteenth Amendment Due Process Clause assures each 

defendant the fundamental right to a fair trial.” State v. Arguelles, 

2003 UT 1, ¶ 97, 63 P.3d 731. “One touchstone of a fair trial is an 

impartial trier of fact—a jury capable and willing to decide the 

case solely on the evidence before it.” McDonough Power Equip., 

Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (quotation simplified). 

Thus, one “error or impropriety,” see Utah R. Crim. P. 24(a), that 

may justify granting a new trial to a defendant is the existence of 

juror bias. Nevertheless, “due process does not require a new 

trial every time a juror has been placed in a potentially 

compromising situation.” Smith v. Phillips, 455 U.S. 209, 217 

(1982). Likewise, a new trial under rule 24 is appropriate only 

where the alleged “error or impropriety . . . had a substantial 

adverse effect upon the rights of a party.” Utah R. Crim. P. 24(a).

Thus, to obtain a new trial on grounds of juror partiality, the 

defendant must “prove actual bias” on the part of the juror. See 

Smith, 455 U.S. at 215.

¶7 Riddle concedes that there is no evidence of actual bias in 

this case but nevertheless asserts that we should employ the 

doctrine of implied bias to determine that “due to the financial 

and or emotional relationship between the juror and [Van Dyke] 

. . . there may indeed have been implied bias.” In theory, implied 

bias may be found “where the relationship between a 

prospective juror and some aspect of the litigation is such that it 

is highly unlikely that the average person could remain impartial 

in his deliberations under the circumstances.”1 Johnson v. Luoma, 

 

1. This is essentially the same test used to examine for-cause 

challenges to jurors based on “[t]he existence of any social, legal, 

business, fiduciary or other relationship,” which examines 

whether the “relationship when viewed objectively, would 

suggest to reasonable minds that the prospective juror would be 

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425 F.3d 318, 326 (6th Cir. 2005) (quotation simplified). However, 

the continued viability of this doctrine has been in question since 

the United States Supreme Court adopted the actual bias 

requirement in Smith v. Phillips, 455 U.S. 209 (1982), and the 

Supreme Court has never explicitly endorsed the concept of 

implied bias. See English v. Berghuis, 900 F.3d 804, 816 (6th Cir. 

2018).

¶8 But even assuming, without deciding, that the doctrine

remains viable, Riddle has presented no evidence from which 

the trial court could have determined that the relationship 

between the juror and Van Dyke implied that the juror was 

biased. Implied bias applies only to “extreme situations” such as 

where it is revealed “that the juror is an actual employee of the 

prosecuting agency, that the juror is a close relative of one of the 

participants in the trial or the criminal transaction, or that the 

juror was a witness or somehow involved in the criminal 

transaction.” Smith, 455 U.S. at 222 (O’Connor, J., concurring); see 

also Johnson, 425 F.3d at 326. This is not such a situation.

¶9 The trial court stated that had it known that the juror was 

Van Dyke’s accountant, it “would not have found that to be a 

valid basis for a challenge for cause,” especially given the “small 

community” in which the trial took place. The court found that 

the “relationship would not suggest to reasonable minds that 

that juror would be, simply by virtue of that relationship, unable 

or unwilling to return a verdict which would be free of 

favoritism.” See Utah R. Crim. P. 18(e)(4). We see no error in the 

trial court’s findings.

¶10 Riddle presented the court with no information regarding 

the relationship between the juror and Van Dyke apart from the 

fact that the juror was Van Dyke’s accountant. Nothing in the 

 

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unable or unwilling to return a verdict which would be free of 

favoritism.” Utah R. Crim. P. 18(e)(4).
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20180599-CA 5 2019 UT App 150

nature of this professional relationship, by itself, calls into 

question the juror’s ability to remain indifferent and impartial. 

Compare United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977) 

(holding that it could be inferred that employees who worked at 

a different branch of the bank the defendant was accused of 

robbing would be biased due to their “potential for substantial 

emotional involvement”), and State v. Brooks, 563 P.2d 799, 800–

02 (Utah 1977) (determining that a juror who was a “neighbor 

and personal friend of the prosecution’s witness” and another 

juror who was “good friends” with the arresting officer and a 

coworker of his wife could not be “deemed indifferent or 

impartial” and that the trial court had committed prejudicial 

error in declining to dismiss them for cause), with United States v. 

Bradshaw, 787 F.2d 1385, 1390–91 (10th Cir. 1986) (holding that 

the fact “that a juror had prior business dealings with key 

government witnesses,” without more, was insufficient to 

establish juror impartiality), and State v. Evans, 2001 UT 22, ¶ 28, 

20 P.3d 888 (holding that “the existence of a familial relationship 

between a juror and a member of the District Attorney’s office, in 

and of itself, is not necessarily the basis for a challenge for cause”

(quotation simplified)). Moreover, Van Dyke did not even 

participate in the case. Riddle himself asserts only that the 

relationship “may” have resulted in implied bias. But a mere 

possibility of bias is insufficient to demonstrate implied bias, let 

alone actual bias.

¶11 It is axiomatic that, with rare exceptions, “all errors are 

reviewed for harmlessness.” State v. Collins, 2014 UT 61, ¶ 28, 342 

P.3d 789; see also Utah R. Crim. P. 24(a) (stating that a new trial 

may be granted only “if there is any error or impropriety which 

had a substantial adverse effect upon the rights of a party”); id.

R. 30(a) (“Any error, defect, irregularity or variance which does 

not affect the substantial rights of a party shall be disregarded.”).

“To conclude that an error was prejudicial, we must find not a 

mere possibility, but a reasonable likelihood that the error 

affected the result.” State v. Maestas, 2012 UT 46, ¶ 308, 299 P.3d 

892 (quotation simplified). By asserting that the business 

relationship between the juror and Van Dyke was alone 
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sufficient to require the court to find that Riddle did not have a 

fair trial, Riddle is essentially asking us to presume prejudice.2

This we cannot do under the circumstances of this case. Because 

Riddle made no showing of bias on the part of the juror, the trial

court did not err in concluding that empaneling the juror did not 

have “a substantial adverse effect” on Riddle’s rights and 

denying Riddle’s motion to set aside the jury’s verdict.3 See Utah 

R. Crim. P. 24(a).

 

2. Riddle does assert that he was denied the opportunity to 

employ a peremptory challenge. But to the extent that this 

argument can be construed as an allegation of prejudice, it does 

not provide a basis for reversal in the absence of juror bias. See 

State v. Evans, 2001 UT 22, ¶ 29, 20 P.3d 888 (rejecting a 

defendant’s assertion that he was prejudiced by his “inability to 

use a peremptory challenge” because the “defendant had not 

asserted that the jury that sat was partial or biased”); cf. State v. 

Sessions, 2014 UT 44, ¶ 52, 342 P.3d 738 (holding that to 

satisfactorily challenge the loss of peremptory challenges, a 

defendant must establish “that an actually biased juror sat on the 

panel that convicted him”).

3. In addition to analyzing Riddle’s motion pursuant to rule 24, 

the trial court employed the two-part test concerning juror bias 

annunciated in McDonough Power Equipment, Inc. v. Greenwood, 

464 U.S. 548 (1984). In McDonough, a juror failed to respond to a

question regarding whether he or anyone in his family had ever 

“sustained any severe injury . . . that resulted in any disability or 

prolonged pain and suffering.” Id. at 550 (quotation simplified). 

The Court held “that to obtain a new trial in such a situation, a 

party must first demonstrate that a juror failed to answer 

honestly a material question on voir dire, and then further show 

that a correct response would have provided a valid basis for a 

challenge for cause.” Id. at 556. Riddle asserts that the trial 

court’s reliance on McDonough was misplaced because there was 

no allegation in this case that a juror answered a question 

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20180599-CA 7 2019 UT App 150

CONCLUSION

¶12 Because Riddle presented no evidence to suggest that the 

juror’s relationship with Van Dyke resulted in either implied or 

actual bias, he cannot establish that he was denied his right to a 

fair trial due to jury partiality. We therefore affirm the trial

court’s denial of his motion to set aside the jury verdict.

 

(...continued)

untruthfully. While the McDonough test is not directly on point

here, it is not entirely inapplicable. The second prong of the 

McDonough test examines whether “a correct response would 

have provided a valid basis for a challenge for cause.” Id. As 

discussed above, this is the same test used to examine implied 

juror bias. See supra ¶ 7 & note 1. The trial court determined that 

it would not have sustained a for-cause challenge in this case 

even if it had known of the relationship between Van Dyke and 

the juror because the “relationship would not suggest to 

reasonable minds that that juror would be, simply by virtue of 

that relationship, unable or unwilling to return a verdict which 

would be free of favoritism.” This was merely a restatement of 

the court’s rule 24 determination that Riddle did not 

demonstrate an “impropriety which had a substantial adverse 

impact upon” his rights because there was “no evidence that 

th[e] juror was biased against” Riddle. Thus, even accepting 

Riddle’s assertion that the McDonough test was not applicable in

this case, any error by the court in employing McDonough was 

harmless because the outcome is the same under either a rule 24 

or a McDonough analysis.