His lawyers called for a mistrial and new trial in a motion that prompted Tuesday’s hearing during which a woman who indicated she was communicating with a juror during the deliberations is to be questioned under oath.
“Without this questioning, there can be no determination of jury misconduct and bias in the trial at hand,” father and son legal team David A. Chicarelli said in their motion.
Due to the crowd expected and other concerns related to avoiding COVID-19 exposure, Judge Robert Peeler delayed the sentencing, now scheduled on Wednesday, June 3.
RELATED: Ex-Springboro gym teacher guilty on 34 charges of gross sexual imposition with first-grade girls
In the motion for a mistrial-new trial, Hopkins’ lawyers also called for questioning of the jury under oath about whether they communicated with the woman who the Dayton Daily News is not naming.
“Her involvement with the trial has been extensive on the community page posting updates about the trial,” according to the defense motion.
The woman indicated she was communicating with members of the jury in a post on a Facebbook page for Springboro residents.
The post was removed during deliberations and an investigation completed by Warren County Sheriff’s Office detective, although the woman has not been questioned, according to Hopkins’ lawyers.
“I don’t know if she was making all this stuff or not. We’ll see,” the elder Chicarelli said.
The sheriff’s office investigation was unable to locate the woman who posted the claim about communicating with a juror, but concluded it was “extremely unlikely” there had been communications with the jury in part because the jurors had given their cellphones to the bailiff during deliberations, according to the report.
After talking with the woman who removed the Facebook post and the mother of one of the victims about whether a juror had been contacted during deliberations and if the post was removed at the prosecutor’s office request, Detective Brandon Abshear said there was no evidence that claims a juror had been contacted were “factual, let alone believable.”
Hopkins turned 26 on May 12, after his sentencing was delayed, initially for an investigation to help Peeler decide how to sentence him.
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The sentencing was delayed again in April due to coronavirus crowding concerns.
Warren County Prosecutor David Fornshell said he expected Peeler to deny the defense motion and sentence Hopkins Wednesday.
“We will be seeking a substantial prison sentence given the number of victims and the extent of the abuse,” he said in an email response.
On March 13, more than 30 Springboro parents rejoiced as a jury found Hopkins guilty on 34 of 36 counts of gross sexual imposition after almost 11 hours of deliberation.
Hopkins was accused of sexually touching 28 girls during his first-grade gym class at Clearcreek Elementary School from December 2018 to March 2019.
The investigation into Hopkins behavior began in March 2019 after a first-grade girl at the time came home and told her parents how happy she was to have finally gotten to sit on the teacher’s lap.
Hopkins was a substitute teacher for the district before become a teacher. His mother is a veteran teacher in Springboro and recommendations for the job included then-Superintendent Dan Schroer.
RELATED: Ex-Springboro teacher’s sex imposition sentencing delayed
He turned over his laptop to a detective as the jury began deliberations.
The issue over indications of jury misconduct was not brought into court, but the bailiff asked the jury about it.
Cellphones had been collected, but other “means of communication,” according to the motion. “A simple request of the jurors is not sufficient.”
“The entire situation poisoned the deliberations and led to a conviction which clearly denied the Defendant his due process rights to a fair trial,” the defense lawyers added.
The hearing is set for 3 p.m., Tuesday.
Unless Peeler decides to delay it or decided a mistrial should be declared, Hopkins’ sentencing is scheduled for 1:30 p.m. Wednesday, in Peeler’s court in Lebanon.
In anticipation of the sentencing, his lawyers filed a memorandum pointing out Hopkins’ graduation from Springboro High with honors and recognition as a swimmer.
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Hopkins was also head coach, as well as pool manager of the Woodhaven Swim Team and Tennis Club in Montgomery County, lifeguard and swim coach at the Coffman YMCA in Springboro in Warren County and an activity assistant at the Knolls of Oxford Nursing Home in Butler County.
“John Austin Hopkins is, and always has been, an upstanding member of society,” the defense lawyers said.
As was testified to during the trial, Hopkins has been diagnosed with high-functioning autism and “doesn’t have a sexual identity,” the memo continues.
Rather than prison, Hopkins needs treatment and counseling, according to his lawyers.
“A lengthy prison sentence would make it nearly impossible for Austin to receive the treatment he needs to thrive as a member of society with autism”.
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