Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and 

Agee, JJ., and Lacy, S.J. 

COMMONWEALTH OF VIRGINIA 

v. Record No. 070479 OPINION BY SENIOR JUSTICE 

 ELIZABETH B. LACY 

 November 2, 2007 

ADHAN MALDONADO JUARES1

FROM THE COURT OF APPEALS OF VIRGINIA 

 Adhan Maldonado Juares was convicted of aggravated sexual 

battery, a violation of Code § 18.2-67.3, in the Circuit Court 

of Loudoun County. In this appeal we consider whether an ex 

parte contact between court personnel and the jury during jury 

deliberations required the trial court to declare a mistrial 

or set aside the jury verdict. 

The following facts are relevant to the issue presented 

in this appeal. After his arrest, Juares was interviewed by 

Investigator Howard Craig and Deputy Jose A. Giron. Juares, a 

Mexican national, had a limited command of the English 

language and Deputy Giron, who spoke Spanish fluently, acted 

as an interpreter during the interview. With Juares’ 

permission, a portion of the interview was tape-recorded. 

The Commonwealth played the tape-recording during Deputy 

Giron’s testimony at trial. Deputy Giron testified that his 

 1

 Although this case came to this Court captioned 

“Commonwealth of Virginia v. Adhan Maldonado,” the record 

reflects that the defendant’s full name is Adhan Maldonado 

Juares. We use this name in the disposition of this case. 
2

translation recited on the tape was “90, 95 percent word for 

word.” Juares, however, contended that the translation was 

not entirely complete or accurate. Juares asked the court to 

have a court-certified interpreter listen to the tape and 

translate the Spanish portions for the jury. The trial court 

agreed and a certified court interpreter provided an oral 

translation of the Spanish-language portions of the tape to 

the jury.

During its deliberations, the jury asked court personnel2

if it could have an interpreter. The court personnel did not 

bring the jury’s inquiry to the attention of the trial judge 

or the parties, but told the jury that an interpreter “[w]ould 

not be provided.” The jury returned a guilty verdict. 

Juares learned of the jury’s inquiry prior to sentencing 

and moved to have the verdict set aside and for a mistrial 

based on the ex parte contact between the jury and court 

personnel. The trial court, after hearing arguments from the 

parties, denied Juares’ motion. Examining the content of the 

communication, the trial court held that the denial of a 

request for an interpreter did not interject any substantive 

information into the jury’s determinations. The trial court 

observed that there was no objection to the introduction of 

 2

 The identity of the specific employee who responded to 

the jury’s inquiry was not established at trial. 
3

the tape-recording into evidence or providing it to the jury, 

and the jurors were told they could take notes during the 

testimony but that no written transcript would be available 

during their deliberations nor would any testimony be read 

back to them during their deliberations. The trial court 

stated that the response by court personnel “simply stated and 

reaffirmed the Court’s prior instruction that they would not 

have testimony read back to them.” Observing that the jury 

could not have a new interpretation or an interpretation 

different than that produced during the trial, the trial court 

stated that “under no circumstances would there ever be an 

interpreter, . . . where we would send an interpreter back.” 

Thus the trial court concluded that the ex parte contact did 

not prejudice Juares. 

 On appeal, the Court of Appeals, applying Remmer v. 

United States, 347 U.S. 227 (1954), held that the ex parte 

contact was presumptively prejudicial and that the 

Commonwealth did not carry its burden to show that the ex 

parte contact was harmless. The Court of Appeals reversed the 

conviction and remanded the case for a new trial. We awarded 

the Commonwealth an appeal. 

DISCUSSION 

 Generally, a party seeking a mistrial carries the burden 

of establishing that he suffered prejudice by the complained 
4

of acts, Riner v. Commonwealth, 268 Va. 296, 318, 601 S.E.2d 

555, 567 (2004); however, 

any private communication, contact, or tampering, 

directly or indirectly, with a juror during a trial 

about the matter pending before the jury is, for 

obvious reasons, deemed presumptively prejudicial, 

if not made in pursuance of known rules of the court 

and the instructions and directions of the court 

made during the trial, with full knowledge of the 

parties. 

Remmer, 347 U.S. at 229. The presumption of prejudice can be 

rebutted if, after notice and hearing, the government 

establishes that the “contact with the juror was harmless to 

the defendant.” Id. 

 In this case the substance of the response of the court 

personnel was a private communication with a juror made 

without the full knowledge of the parties. Nevertheless, the 

presumption of prejudice arises only if the private 

communication is “about the matter pending before the jury.” 

Id. The issue before us in this case is whether the court 

personnel’s response concerned a matter pending before the 

jury. This is an issue of law which we review de novo. See

Bristol v. Commonwealth, 272 Va. 568, 573, 636 S.E.2d 460, 463 

(2006). 

 We have previously held that ex parte contacts between a 

juror and a judge regarding a juror’s attention to the 

proceeding was “administrative in nature.” Ellis v. 
5

Commonwealth, 227 Va. 419, 423, 317 S.E.2d 479, 481 (1984). 

Similarly, the United States Supreme Court determined that a 

communication between the judge and a juror regarding a 

question raised in voir dire did not relate to any “fact in 

controversy or any law applicable to the case.” Rushen v. 

Spain, 464 U.S. 114, 121 (1983). 

 The statement at issue in this case, like those in Ellis

and Rushen, did not convey any additional facts or opinions 

regarding the guilt or innocence of Juares nor did it contain 

any comment on the law, the evidence or the testimony 

presented during the trial. As noted by the trial court, the 

communication to the jury was only a response to a question 

regarding a procedural aspect of jury deliberation. To be 

sure, a proper translation of Juares’ taped interview was a 

crucial part of the evidence in determining the issue of guilt 

or innocence. But the issue before us is not whether there 

was error in failing to provide such an interpreter but 

whether the response itself related to the issue of guilt or 

innocence.3

 Accordingly, we hold that the response of court 

personnel, that no interpreter would be provided to the jury, 

 3

 Juares asserts that the trial court erred in concluding 

that the jury would not have been permitted the interpreter. 

However, Juares did not assign error to this holding when 

appealing the denial of his motion to set aside the verdict or 

for a mistrial and that issue is not before us in this appeal. 
6

did not address any matter pending before the jury, and 

therefore the presumption of prejudice did not arise. 

 In the absence of a presumption of prejudice, the burden 

remained on Juares to establish that he was prejudiced by the 

ex parte communication. He has failed to show that the 

response of the court personnel affected the jury’s 

deliberations in a manner that was prejudicial to him.4

 In summary, the trial court did not err in denying 

Juares’ motions for a mistrial and to set aside the verdict 

based on the ex parte communication between the jury and court 

personnel. The ex parte communication was not presumptively 

prejudicial as a matter of law because it did not concern 

matters pending before the jury and Juares failed to establish 

that he was prejudiced by the communication. Accordingly, we 

will reverse the judgment of the Court of Appeals and 

reinstate the conviction. 

Reversed and final judgment. 

 4

 Juares’ assertions that the response could be 

interpreted as “a comment that the tape’s English translation 

was sufficiently accurate to satisfy the Court” is without 

merit.