The Supreme Court of Ohio today upheld the conviction of a Warren County man for multiple sexual offenses, rejecting the man’s claim that one of the jurors hearing his case was actually biased against him.

Todd Rogers sought to have his convictions overturned by arguing that his attorney provided ineffective assistance of counsel by failing to challenge the seating of a juror. In a 6-1 decision, the Supreme Court affirmed a Twelfth District Court of Appeals decision upholding Rogers’ 2023 conviction for the rape of his daughter and other offenses.

Writing for the Court majority, Justice R. Patrick DeWine explained that since Rogers’ trial attorney did not object to empaneling the juror that Rogers now contests, the only way for Rogers to prevail in his appeal was to demonstrate the juror was actually biased against him.

“Having reviewed the transcript of the jury voir dire, we conclude that Rogers has failed to meet the difficult burden of establishing actual bias,” Justice DeWine stated.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, Joseph T. Deters, Daniel R. Hawkins, and Megan E. Shanahan joined Justice DeWine’s opinion. Justice Jennifer Brunner dissented without a written opinion.

Jurors Questioned About Ability To Be Impartial
Rogers was charged with rape and sexual abuse of his daughter when she was between 5 and 9 years old. At his trial, his daughter testified that after eating breakfast on Friday mornings, she would go to her father’s bed, get under the blankets with him, and lie on top of him. She said he sexually touched her.

The daughter revealed the encounters to her mother about three and a half years after the abuse occurred. Rogers’ wife confronted him about the allegations, which he denied. She contacted the police, which led to the charges against him. Rogers pleaded not guilty.

Jury selection began in the Warren County Common Pleas Court with the judge telling prospective jurors that they had been called for a criminal case. The judge identified the four people sitting at the two tables as Rogers, his defense attorney, the prosecuting attorney, and a police detective.

The judge instructed the prospective jurors on the presumption of innocence and the requirement that the state must prove the defendant is guilty beyond a reasonable doubt. The judge noted some prospective jurors looked surprised when told that Rogers did not have to prove anything or present any witnesses.

The judge discussed the charges against Rogers and asked the prospective jurors whether any of them would have trouble separating “sympathy” and “prejudice ” from “the truth” in a child witness’ statements.

At that point, a juror, identified as “Juror McCarthy,” stated he “might have a hard time with it.” When asked by the judge if he could put aside any tendency to favor the child and listen to the evidence and be fair, McCarthy responded, “It’s a good question. I don’t have an answer for you.”

The judge did not dismiss McCarthy and said he would leave it to the attorneys to explore the matter further. The prosecutor explained more about the case to the prospective jurors and asked how they thought a victim of sexual assault would react, and whether a child might not immediately report inappropriate sexual conduct. Multiple prospective jurors voiced a belief that a child would be less likely than an adult to report being raped, especially if the child had a close relationship with the abuser or was too young to understand the wrongness of the sexual conduct.

McCarthy pushed back, stating one would not always expect a child to react differently from an adult to being raped. He explained his answer and said he was “not sure the reaction is gonna be any different.”

The prosecutor asked prospective jurors if they would be comfortable basing their decision on a child’s first-hand testimony of sexual abuse. When the prosecutor saw McCarthy shaking his head, McCarthy apologized and stated he was sure all the prospective jurors were uncomfortable with listening to that testimony. The prosecutor responded that it was normal to feel uncomfortable but asked McCarthy to speak up if he could not handle the demands of the case. McCarthy did not respond.

Rogers’ attorney questioned the prospective jurors about their impressions of seeing Rogers seated in the room and if they understood that he would be presumed innocent. McCarthy said it would be hard for him to say Rogers is not guilty. He noted that someone from the police department was present and going to testify.

“So, yeah, people don’t wind up here from not doing anything,” McCarthy stated.

Rogers' attorney explained that Rogers’ defense was that the allegations against him were fabricated by his wife and that she was putting words into their daughter’s mouth. He asked the prospective jurors whether children were impressionable and “want to please their parents.” McCarthy agreed that children were impressionable and want to please their parents.

Rogers’ attorney challenged one other prospective juror for cause and used his three peremptory challenges, excusing four jurors, but not McCarthy. McCarthy was a member of the jury that found Rogers guilty of several sexual offenses, including rape.

Rogers appealed his conviction to the Twelfth District, which affirmed it, and then appealed to the Supreme Court.

Supreme Court Analyzed Ineffective Counsel Standards
Justice DeWine explained the Court has used a standard set by the U.S. Supreme Court's 1984 Strickland v. Washington decision to determine whether a criminal defendant received ineffective assistance of counsel. To prevail, Rogers must prove both that his attorney failed to provide reasonable representation and the outcome of the case would be different had the attorney performed reasonably.

The Court stated it has ruled that when a defendant bases a claim of ineffective assistance of counsel on allowing a biased juror to hear the case, the defendant must show the juror was actually biased. The Court noted that actual bias means “the existence of a state of mind that leads to an inference that the person will not act with entire impartiality.”

A juror is not actually biased for simply having a prior belief about an issue, the opinion noted, or for a juror’s prior belief that a witness might be more believable than others. Rather, there must be an indication that the juror presents “an irrational or unshakable bias that indicate[s] an inability or unwillingness to faithfully and impartially apply the law,” the Court wrote.

Part of Rogers’ claim is that his attorney did not remove McCarthy after he made statements that presumed Rogers was guilty and that he might be sympathetic to the testimony of a child. He also argued that questions directed to the entire group of prospective jurors and answered by McCarthy could not demonstrate that he could be fair and impartial.

The Court stated that to determine whether McCarthy was biased, the Court would examine the entire transcript, including the group responses. The Court rejected the argument that the group answers should not be considered.

Reviewing McCarthy’s answers to the child witness, the opinion noted that taken as a whole, he was open to an important part of the Rogers case – “specifically arguments that a victim’s delay in reporting abuse made it less likely the abuse actually occurred and that the mother was foisting a fabricated tale of abuse on an impressionable child.”

Regarding the presumption of innocence, the opinion noted that McCarthy and other prospective jurors struggled when asked hypothetical questions probing them to apply the concept. The Court wrote such struggles are common and not by themselves evidence of actual bias. And after further explanation of the concept, the prospective jurors collectively agreed to apply it.

Rogers’ attorney explained that his client should be presumed not guilty by all prospective jurors until the state presented evidence of his guilt. None of the jurors spoke up when the attorney asked if “anyone disagrees with that or thinks that’s not the right answer.” The Court noted McCarthy was not hesitant to speak out when he had a question or disagreed with a statement.

“If Juror McCarthy was still confused about applying the presumption of innocence after counsel’s explanation, there is no reason to think that he would not have said so,” the opinion stated.

The Court indicated the full review did not show McCarthy was actually biased against Rogers, and Rogers did not demonstrate that his attorney rendered ineffective assistance by failing to remove McCarthy.

2024-0872. State v. Rogers, Slip Opinion No. 2025-Ohio-4794.

View oral argument video of this case.

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