Opinion
No. 05-06-01378-CR
Opinion filed January 9, 2008. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 59th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 049638.
Before Justices MOSELEY, LANG, and MAZZANT.
OPINION
Brian Edward Millson appeals his conviction by a jury for sexual assault of a child younger than seventeen years of age. The trial judge assessed punishment at eight years' confinement. In three issues on appeal, appellant contends the trial court erred by: (1) not declaring a mistrial based on the State's commenting on appellant's silence in violation of appellant's rights under the Texas and United States constitutions; (2) failing to grant a motion for new trial for juror misconduct; and (3) failing to grant a motion for new trial based on newly discovered evidence. For the reasons below, we resolve appellant's three issues against him. The judgment of the trial court is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
The complainant, S.G., testified at trial that at the time of the events giving rise to this action, she and her family resided in Whitesboro, Texas. At that time, appellant, who was twenty-five years old, had been dating S.G.'s best friend, Ashley, for about six months. According to S.G., during April or May 2002, prior to S.G.'s seventeenth birthday, appellant phoned her late at night and requested her to "sneak out of the window and meet him." S.G. stated, "He was going to teach me, by showing with Ashley, how to perform oral sex." S.G. testified she left her house and walked to a nearby church parking lot, where appellant picked her up in a red Corvette sports car. Appellant drove S.G. to his house, which was approximately ten minutes away. Appellant then informed S.G. that Ashley would not be joining them. S.G. testified she accompanied appellant to his bedroom, where appellant took off his pants and lay down on his bed. S.G. testified she put her mouth on appellant's penis. After she removed her pants and panties, S.G. testified, appellant put his mouth on her vagina. Then, S.G. testified, "He climbed up to my face and that's when I felt penetration from him on me. . . . I felt his penis coming into my vagina." S.G. testified she began crying and repeatedly asked appellant to stop "penetrating," but he did not stop until he ejaculated. Immediately afterward, appellant told S.G. to get dressed and drove her back to her house. S.G. stated, "He told me that this is going to stay between him and myself, and if I ever told anybody about what happened that it would be bad for me and it would be bad for my family." S.G. climbed back through her window and went to sleep. S.G. testified that on June 1, 2002, she received a threatening phone call from appellant respecting the incident at his house. As a result of that phone call, S.G. stated, on June 1, 2002, she attempted to kill herself by taking a bottle of Tylenol. She was taken to a hospital and received medical treatment. Christy Pope, who ran a tanning and hair salon frequented by S.G., testified that on an evening in May 2002, "a couple of weeks before prom," she had a conversation with S.G. regarding appellant. Pope testified S.G. was "in hysterics, she was crying." Pope stated she told S.G. "to go home and tell her parents, because she was a minor, and let them handle it." Pope testified she did not know S.G.'s date of birth. Vickie Grounds, S.G.'s mother, testified that S.G. began attending group counseling immediately after her suicide attempt on June 1, 2002. Mrs. Grounds testified that, on the night of June 30, 2002, S.G. came home hysterical and crying. S.G. provided information to Mrs. Grounds and her husband, Benjamin Grounds, regarding "something that had happened to her" involving appellant. Mrs. Grounds reported the information provided by S.G. to the Collinsville Police Department on July 11, 2002. Benjamin Grounds, S.G.'s father, testified that on June 30, 2002, after S.G. provided information about an incident involving appellant, he spoke on the phone to appellant. Mr. Grounds testified appellant became "agitated and hostile" during the conversation. Carolyn Ridling, a sexual assault nurse examiner, testified that evidence of sexual assault generally can be obtained only within hours of the assault. She testified such evidence would not exist a month later. Carrie Kennedy Rider, a licensed professional counselor, testified she treated S.G. from June 10, 2002, until September 2002. Rider testified S.G. told her she had been forced into intercourse with "someone named Brian, and it was one-it was actually her best friend's boyfriend at the time." Rider said S.G. was "very overwhelmed, nervous, scared." Rider stated she did not report what S.G. told her to law enforcement because she did not realize "Brian" was an adult. Jennifer Ragsdale, a police officer with the Collinsville Police Department, testified that on July 11, 2002, Mr. and Mrs. Grounds visited her office and reported a sexual assault involving S.G. Ragsdale testified that during her investigation of that alleged sexual assault, she contacted appellant "to attempt a statement," but appellant did not provide a statement. Ragsdale obtained a search warrant for appellant's house on October 31, 2002. Two days later, Ragsdale and several other officers conducted a "thorough search of the entire residence." A comforter from appellant's bed was sent to a crime lab to be examined for forensic evidence, but no useful forensic evidence was found. Ragsdale testified that after meeting with S.G., she wrote in a report that S.G. stated she was assaulted between May 5 and May 10, 2002. Following Ragsdale's investigation, appellant was arrested and charged with three counts of sexual assault of a child under seventeen years of age. Appellant's trial commenced August 7, 2006. At the outset of the trial, appellant pleaded not guilty. He did not testify. During closing argument, the State alluded to Ragsdale's testimony respecting her attempt to obtain a statement from appellant prior to his arrest, stating, "[Ragsdale] took witness statements. She attempted to talk to [appellant], but as you heard her say, he wouldn't give her a statement." At that time, appellant moved for a mistrial outside the presence of the jury. Appellant asserted that the State's comment attempted "to place a burden on [appellant] to make a statement contrary to his Fifth Amendment right to remain silent." The trial court denied appellant's motion for mistrial. The jury found appellant guilty of "sexual assault of a child as charged in the indictment," and punishment was assessed by the trial court. Appellant filed a timely motion for new trial pursuant to rule 21.3 of the Texas Rules of Appellate Procedure, contending in relevant part that the verdict was "contrary to the law and evidence." In addition, a timely notice of appeal was filed by appellant. At the hearing on appellant's motion for new trial, Don Stone, who served as a member of the jury that convicted appellant in this case, testified he has been a resident of Whitesboro, which has a population of 4000 or less, for about thirty years. Stone testified he began attending the First Baptist Church in Whitesboro in about 2002 and served as a youth chaperone at the church about a year and a half ago. He estimated the church has 300 to 400 members. On Sundays, he attends the early service, which starts at 8:30 a.m. Stone testified that at the time of trial, he did not know S.G. and did not know Mr. Grounds was a deacon in the First Baptist Church in Whitesboro. Stone said he does not attend Sunday school with Mr. Grounds and does not attend the same worship service Mr. Grounds attends. Stone could not recall anyone at the church requesting a prayer for the Grounds family the week before the trial commenced. Stone stated that prior to July 2002, he owned a barbecue restaurant in Whitesboro, and he still works at that restaurant occasionally. He testified that at the time of the trial, he had seen Mr. and Mrs. Grounds in his restaurant "on more than one occasion." However, Stone testified he did not "know" them, stating, "I don't know all my customers. I know them as customers, faces." According to Stone's testimony, he had never spoken to Mr. Grounds prior to the trial. Stone testified that during voir dire, when the State asked if anyone in the room knew Mr. Grounds, he did not respond. Stone testified, "I didn't know him. I mean I know him by sight." Stone testified that during trial he recognized Mr. Grounds "by face." Stone testified he remained silent at that time because he "did not know him." Stone stated, "I was asked if I knew him. Recognizing and knowing him is two different things." Stone testified he answered truthfully during the jury selection process and did not withhold information. Mr. Grounds testified that at the time of the trial, he did not know Stone. Mr. Grounds stated, "I might have seen him, but I did not recognize him from the church. I recognized him from the barbecue place." According to Mr. Grounds, Stone "[a]bsolutely was not present" at a Sunday school prayer session Mr. Grounds attended at the First Baptist Church in Whitesboro a week before the trial. Mr. Grounds testified all three of his children, including S.G., have participated in youth group activities at the church, but he did not know Stone had worked with the youth group. Larry Millson, appellant's father, testified that neither he nor appellant owned a red Corvette prior to August 2002. Millson said he owned a white Corvette from 2000 until the time he purchased a red Corvette on August 7, 2002. Millson testified he was aware of the dates of ownership respecting the red Corvette prior to appellant's trial. In addition, Millson testified that on July 30, 2006, a week before the trial began, he attended a Sunday school class at the First Baptist Church in Whitesboro. According to Millson, Mr. Grounds was not a member of that Sunday school class. Millson testified Stone and Stone's wife, Carol Stone, were present at the class. Millson stated that at the end of the class, Mrs. Stone made a request "to remember the Ben Grounds family in prayer." Barrett Keith Brown, appellant's trial counsel, testified he did not feel it necessary to pursue follow-up questions to Stone on voir dire after Stone remained silent when the State asked whether he knew the Grounds family. Brown testified that if Stone had "responded in any way about the questions regarding the Grounds family" on voir dire, he would have addressed follow-up questions to Stone and, "in all probability," would have struck Stone. Brown stated he felt Stone's "failure and refusal to answer those questions denied [appellant] the opportunity to intelligently exercise his peremptory challenges." Further, Brown testified that "the first time a red Corvette ever came up" in this case was during S.G.'s trial testimony. According to Brown, Millson was not in the courtroom at that time. Brown testified appellant was present in the courtroom during S.G.'s testimony regarding the red Corvette, but appellant did not bring the timing of ownership of the red Corvette to his attention during trial. Charles Lively, who lived with appellant for two years beginning in March 2002, testified appellant or appellant's father purchased a red Corvette in August 2002. According to Lively, appellant drove the red Corvette starting in August 2002 and kept it parked in the garage of the house they shared. Lively testified he did not see appellant drive a red Corvette prior to August 2002. Daniel Kacy Jones, an inmate in the Grayson County jail, testified he shared a cell with appellant for about three weeks. Jones testified appellant admitted to "having sex" with S.G. and told Jones "he wishes he wouldn't have done it." Appellant's motion for new trial was denied by the trial court.II. DENIAL OF APPELLANT'S MOTION FOR MISTRIAL
In his first issue, appellant asserts, "The trial court erred in not declaring a mistrial based on State's counsel commenting on defendant's silence in violation of his Texas and United States constitutional rights." Appellant contends that during closing argument, the State commented on appellant's failure to provide a statement to police. Appellant asserts, "[T]rial counsel made an appropriate and timely objection. He specifically moved outside the presence of the jury for a mistrial." Appellant argues that because he did not testify in this proceeding, the State's comments "were not directed at impeaching his credibility or challenging his version of events; rather, these statements were made in direct violation of [his] constitutional rights." Further, appellant contends, because the State's comments violated his "state and constitutional rights," this point of error is "not subject to a harmless error review." Appellant argues that under rule 44.2(a) of the Texas Rules of Appellate Procedure, this Court must reverse in this instance unless it is determined beyond a reasonable doubt that the error did not contribute to appellant's conviction or punishment. The State asserts the trial court properly refused to grant a mistrial regarding the State's closing argument. The State argues Ragsdale's testimony established appellant was given a chance to make a statement prior to arrest, and that testimony was not objected to by appellant. Further, the State argues, "Pre-arrest silence does not carry with it the Fifth Amendment implications that post arrest silence does." The State asserts the prosecutor properly summarized the evidence presented at trial and properly referred only to prearrest silence.A. Standard of Review and Applicable Law
Mistrial is a device used to halt trial proceedings when the error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Dooley v. State, 65 S.W.3d 840, 841-42 (Tex.App.-Dallas 2002, pet. ref'd) (citing Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999)). We review a trial court's denial of a mistrial under an abuse of discretion standard. Id. An appellate court must uphold the trial court's ruling if it was within the zone of reasonable disagreement. Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App. 2007) (trial court's denial of mistrial based on State's comment on defendant's failure to testify was not abuse of discretion). "Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required." Id. (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App. 2004)). "[W]hether a mistrial should have been granted involves most, if not all, of the same considerations that attend a harm analysis." Id. at 700. Thus, the appropriate test for evaluating whether the trial court abused its discretion in overruling a motion for mistrial is a tailored version of the test originally set out in Mosley v. State, 983 S.W.2d 249, 259-60 (Tex.Crim.App. 1998), a harm analysis case. Id. In accordance with Mosley, the factors to be considered in determining whether the trial court abused its discretion in denying a mistrial are: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Id.B. Application of Law to Facts
The record shows appellant made no objection when Ragsdale testified at trial that during her investigation, she contacted appellant "to attempt a statement," but appellant did not provide a statement. The court charged the jury in relevant part as follows: Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a privilege accorded a defendant, and in the event he elects not to testify, that fact cannot be taken as a circumstance against him. In this case, the defendant has elected not to testify, and you are instructed that you cannot and must not refer to or allude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever as a circumstance against the defendant. Then, during closing argument, the following ensued:[STATE]:
Just because [Ragsdale] lacked the experience to handle these investigations, maybe you feel like she should have done more, don't take that out on S.G., because that's not S.G.'s fault. Victims can't pick and choose who investigates their allegations. But [Ragsdale] did do a lot. She took witness statements. She attempted to talk to [appellant], but as you heard her say, he wouldn't give her a statement. She took-
[APPELLANT'S COUNSEL]:
Your Honor, I'm going to make a motion outside the presence of the jury, Your Honor.
[STATE]:
Your Honor, that was the testimony.
[THE COURT]: Hold on a second. Ladies and gentlemen, step into the jury room, please.
(The jury exits the courtroom)
[THE COURT]: Your motion?
[APPELLANT'S COUNSEL]: Your Honor, Cause Number 49638, styled The State of Texas versus Brian Millson, I'm going to move respectfully for this Court to declare a mistrial in that the statement made-
[THE COURT]: Hold your voice down a little bit, please.
[APPELLANT'S COUNSEL]: I'm sorry-the statement made by Jodi Brown, the prosecutor for the State of Texas, was made directly-it attempts to place a burden on [appellant] to make a statement contrary to his Fifth Amendment right to remain silent. It's basically a comment by the State that he has failed to testify by telling the jury that he failed to give a statement at the request of [Ragsdale]. He has a —
[STATE]:
May I-
[APPELLANT'S COUNSEL]: — Fifth Amendment right-I'm not finished. He has a Fifth Amendment right not to testify. The Court has instructed the jury of that, and then, she gets up here knowing better, I think, and tells the jury that he would not give a statement. That is in violation of every professional code that I think we operate under. It also violates [appellant's] right to remain silent, Your Honor, and I'm asking the Court, as a result of her comment and conduct to this jury, to grant a mistrial, Your Honor. There is, I believe, no instruction that can get the smell out of the henhouse, if the Court knows what I'm talking about. Nothing can cure this. Thank you.
[THE COURT]:
Ms. Brown.
[STATE]:
May I respond?
[THE COURT]:
Briefly.
[STATE]:
I was simply reciting the testimony, as [appellant's counsel] knows it is. Because when I questioned [Ragsdale] on direct as to whether she contacted or attempted to contact [appellant], she said, Yes. I said, Did he agree to give you a statement. She said, No. That testimony was not objected to by [appellant's counsel], and I was simply repeating the testimony that was stated in here yesterday.
[THE COURT]: Motion is denied. Bring the jury in.
[APPELLANT'S COUNSEL]:
Note our exception, Your Honor.
[THE COURT]: Yes, sir.The cases cited by the parties respecting the propriety of the State's comment on appellant's prearrest silence in this case are not on point. Although it is clear from the record the State's comment during closing argument referred to appellant's prearrest silence, appellant cites only cases involving postarrest silence of a defendant. See Griffin v. California, 380 U.S. 609 (1965); Badall v. State, 216 S.W.3d 865 (Tex.App.-Beaumont 2007, pet. ref'd); Bustamante v. State, 48 S.W.3d 761 (Tex.Crim.App. 2001); Dinkins v. State, 894 S.W.2d 330 (Tex.Crim.App. 1995). The cases cited by the State involve the use of prearrest silence to impeach the credibility of defendants who, unlike appellant, testified at trial. See Jenkins v. Anderson, 447 U.S. 231, 238 (1980) (testifying defendant can be impeached on cross-examination by pointing out prearrest silence); West v. State, 666 S.W.2d 545, 547 (Tex.App.-Dallas 1983, no pet.) (prosecutor's comments during argument respecting defendant's prearrest silence were not improper where alibi asserted by defendant on cross-examination was not mentioned to police prior to arrest). Neither the Texas Court of Criminal Appeals nor the United States Supreme Court has addressed the admissibility of a defendant's prearrest silence where the defendant does not testify at trial. See State v. Lee, 15 S.W.3d 921, 924 (Tex.Crim.App. 2000) (recognizing split among federal courts of appeals on this issue); see also Jenkins, 447 U.S. at 236 n. 2 ("In this case, the petitioner remained silent before arrest, but chose to testify at his trial. Our decision today does not consider whether or under what circumstances prearrest silence may be protected by the Fifth Amendment."). However, we need not decide that issue here. The record shows appellant made no objection to the State's comment separate from his motion for mistrial. Therefore, the trial court did not sustain or overrule such an objection. "The only adverse ruling-and thus the only occasion for making a mistake-was the trial court's denial of the motion for mistrial." Archie, 221 S.W.3d at 699 (where proper issue was whether refusal to grant mistrial based on State's comment on defendant's failure to testify was abuse of discretion, court of appeals erred in analyzing error under rule 44.2(a) of Texas Rules of Appellate Procedure). Regardless of whether the State's comment was improper, we conclude appellant has not shown the trial court abused its discretion in denying appellant's motion for mistrial. Applying the Mosley factors set out above, we look first at the severity of the State's misconduct. See id. at 700. The State's allegedly improper comment was brief and was not repeated. Id.; Perez v. State, 187 S.W.3d 110, 112 (Tex.App.-Waco 2006, no pet.) (trial court's denial of defendant's request for mistrial following evidence of his postarrest silence was not abuse of discretion). Further, the State was merely summarizing testimony that had been admitted without objection. See Ramon v. State, 159 S.W.3d 927, 931 (Tex.Crim.App. 2004) (admission of improper evidence is not reversible error if same facts are proven by other evidence not objected to). Thus, the State's comment did not demonstrate any "willful or calculated effort" on the part of the State to deprive appellant of a fair and impartial trial. See Biagas v. State, 177 S.W.3d 161, 176 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd) (although prosecutor improperly commented on defendant's failure to testify, trial court did not abuse discretion in denying motion for mistrial). With respect to curative measures, the jury charge specifically instructed the jury not to consider the defendant's failure to testify. See id. Further, in response to an objection by appellant regarding other allegedly improper argument by the State, prior to the comment at issue, the trial court stated to the jury, "You are bound to follow the instructions that are in the charge, not necessarily what the attorney says the law is. The law that you are bound by is contained in the charge." Moreover, appellant elected not to request an instruction to the jury to disregard the comment at issue. "The denial of a mistrial is not improper if a lesser remedy would have cured any harm and was not requested." Id.; see also Young v. State, 137 S.W.3d 65, 70 (Tex.Crim.App. 2004). Except in the most "blatant" instances, harm from comment on a defendant's failure to testify is cured by an instruction to disregard. Moore v. State, 999 S.W.2d 385, 405-06 (Tex.Crim.App. 1999). In light of the brevity of the comment at issue and the context in which it was made, nothing in the record shows the comment was so "blatant" that it would have rendered an instruction to disregard ineffective. Id. Finally, considering all the evidence, the certainty of appellant's conviction absent the allegedly improper comment was great. See Perez, 187 S.W.3d at 113. S.G. gave consistent, detailed testimony respecting the assault. Within two months of the incident, S.G. told her parents, Pope, and Rider, all of whom testified S.G. was upset when she related an incident involving appellant. See Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005) (conviction for sexual assault is supportable on uncorroborated testimony of victim if victim informed any person other than defendant within one year). Accordingly, we conclude it is likely appellant would have been convicted regardless of the allegedly improper comment. Balancing the three Mosley factors, we conclude the trial court did not err in denying appellant's motion for mistrial. We decide appellant's first issue against him.
III. DENIAL OF APPELLANT'S MOTION FOR NEW TRIAL
In his second and third issues, appellant contends the trial court erred in failing to grant his motion for new trial (1) for juror misconduct, and (2) based on newly discovered evidence.A. Standard of Review
An appellate court reviews a trial court's ruling on a motion for new trial using an abuse of discretion standard of review. Charles v. State, 146 S.W.3d 204, 208 (Tex.Crim.App. 2004). We view the evidence in the light most favorable to the trial court's ruling and uphold the trial court's ruling if it was within the zone of reasonable disagreement. Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App. 2004). We do not substitute our judgment for that of the trial court, but rather we decide whether the trial court's decision was arbitrary or unreasonable. Charles, 146 S.W.3d at 208. Thus, a trial court abuses its discretion in denying a motion for new trial only when no reasonable view of the record could support the trial court's ruling. Id.B. Juror Misconduct
In his second issue, appellant contends an impartial jury was not seated in this case. Specifically, appellant asserts juror Don Stone "was familiar with and knew the victim and the victim's family," but did not respond during voir dire when the State inquired whether anyone "knew" S.G. or her parents. Appellant contends that although Stone and Mr. Grounds did not admit to being friends or having a close relationship, "this is not only untrue but unbelievable." Appellant states he was "entitled to rely on the responses to the State's voir dire." Had Stone appropriately responded, appellant argues, such response would have "unquestionably prompted [appellant's] counsel to ask follow up questions or strike Mr. Stone outright." Further, during oral argument before this Court, appellant asserted that his motion for new trial should have been granted because post-trial testimony shows that when Stone recognized Mr. Grounds during trial, Stone made no effort to inform the trial court. Appellant claims his fundamental right to a fair and impartial trial, and therefore due process, under the United States and Texas constitutions was denied because of Stone's intentional withholding of material information. Finally, appellant contends that because this error is of constitutional dimension, his point of error must be analyzed under rule 44.2(a) of the Texas Rules of Appellate Procedure. The State responds that appellant has failed to show what material evidence was withheld. The State asserts appellant failed to provide credible evidence to the trial court showing Stone knew Mr. Grounds. Further, the State argues, "Because the trial court, as fact finder, is the exclusive judge of the witness's credibility and is free to accept or reject any or all of a witness's testimony, there was no misconduct by Stone and no abuse of the trial court's discretion in this case." "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." U.S. Const. amend. VI; see also Tex. Const. art. 1 § 10 ("[i]n all criminal prosecutions the accused shall have a speedy public trial by an impartial jury"). The voir dire process is designed to insure that an "intelligent, alert, disinterested, impartial, and truthful jury will perform the duty assigned to it." Armstrong v. State, 897 S.W.2d 361, 363 (Tex.Crim.App. 1995). If a juror withholds material information during the voir dire process, the parties are denied the opportunity to intelligently exercise their peremptory challenges and challenges for cause, hampering the selection of an impartial jury. Id. A defendant must show a juror withheld material information during voir dire, and the information was withheld despite due diligence exercised by the complaining party. Franklin v. State, 138 S.W.3d 351, 355-56 (Tex.Crim.App. 2004). The fact that a juror did not intend to withhold information is largely irrelevant when considering the materiality of information withheld. Id. at 355. Accordingly, in determining whether the trial court erred in this case, we must first address whether Stone withheld "material" information. To be material, "information withheld must be of a type suggesting potential for bias or prejudice." Santacruz v. State, 963 S.W.2d 194, 197 (Tex.App.-Amarillo 1998, pet. ref'd); see also Decker v. State, 717 S.W.2d 903, 907 (Tex.Crim.App. 1983). Decker involved a juror who did not realize he knew the complaining witness until he saw the complaining witness walk into the courtroom immediately before the trial was to commence, but after voir dire and jury selection had been completed. Decker, 717 S.W.2d at 907. Upon recognizing the complaining witness as a fellow worker, the juror immediately informed the trial court. Id. The court stated:[W]e find that the information was not material, in that the record shows that [the juror's] acquaintance with the complaining witness was only that-an acquaintance through employment. There was evidence that the two men had never socialized together or had any type of friendship. They merely worked at the same job site. Thus, we find that there was no showing that such relationship had any potential for prejudice or bias on the part of [the juror].