MAY, J.
Stokes asked for a mistrial after the jury foreperson reported “I witnessed dialogue transpiring by the alternate [juror].” . . . The jury had been instructed the alternate could participate only if the court excused a regular juror and directed the alternate to serve. The trial court did not abuse its discretion in denying the motion.
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The trial court did not inquire as to what the alternate said, but did ask each juror whether his or her decision was influenced by the alternate. Each said it was not. Despite the jurors’ statements their decisions were not influenced by the alternate, Stokes argues a court cannot determine whether jurors were influenced by an alternate’s impermissible participation, or whether a “reasonable juror” would have been, unless it knows what was said. Because the trial court did not “conduct a proper inquiry,” (Br. of Appellant at 13), Stokes asserts a new trial is required.
Juror misconduct involving an out-of-court communication with an unauthorized person [footnote omitted] creates a rebuttable presumption of prejudice. Griffin v. State, 754 N.E.2d 899, 901 (Ind. 2001), on reh’g 763 N.E.2d 450 (Ind. 2002). A defendant seeking a new trial because of juror misconduct must show the misconduct (1) was gross and (2) probably harmed him. Id. We review the trial judge’s determination on these points only for abuse of discretion, and the burden is on the appellant to show the misconduct meets the prerequisites for a new trial. Id.
Stokes cannot meet his burden to show the misconduct requires a new trial, as the record is silent on the nature of the alternate’s participation, if any, and the jurors all stated they were not influenced by the alternate. Stokes notes the Griffin statement that “the fact that one juror says the alternate’s input affected her decision is not part of the analysis governing the request for a new trial. Rather, the trial court must consider the alternate’s conduct in the overall trial context.” Id. (emphasis supplied). Because Stokes’ trial court did not do so, Stokes asserts, he did not have a fair trial and the verdict must be reversed.
In Griffin our Supreme Court determined an alternate juror’s participation, in the form of an opinion about Griffin’s guilt, did not amount to gross misconduct that probably harmed Griffin. “It is difficult to believe that if eleven other jurors favored conviction, the twelfth only acceded because the alternate also favored conviction when the majority solicited one more view.” Id. at 903. Such “[i]ntrajury influence is not sufficient to overturn a verdict.” Id. The State argues that is even more true in this case, where there is no evidence as to whether or how the alternate participated in the deliberations. We believe the trial court’s inquiry whether the jurors were influenced by the alternate amounts to adequate “consider[ation of] the alternate’s conduct in the overall trial context,” id. at 901, to satisfy the Griffin standard.
BAILEY, J., and BARNES, J., concur.