[Cite as State v. Downour, 126 Ohio St.3d 508, 2010-Ohio-4503.]




             THE STATE OF OHIO, APPELLEE, v. DOWNOUR, APPELLANT.
        [Cite as State v. Downour, 126 Ohio St.3d 508, 2010-Ohio-4503.]
Criminal law — Jury deliberation — The state has the burden to show that the
        presence of an alternate juror in the room during deliberation has not
        prejudiced a defendant.
             (No. 2009-0886 — Submitted February 16, 2010 — Decided
                                  September 29, 2010.)
       APPEAL from the Court of Appeals for Lucas County, No. L-08-1029,
                        182 Ohio App.3d 12, 2009-Ohio-1812.
                                 __________________
                               SYLLABUS OF THE COURT
The state has the burden to show that the presence of an alternate juror in the
        room during jury deliberations has not prejudiced a defendant. (State v.
        Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, clarified.)
                                 __________________
        PFEIFER, J.
                        Factual and Procedural Background
        {¶ 1} James R. Downour was charged with operating a motor vehicle
while under the influence of alcohol, in violation of Oregon Municipal Code
333.01(a)(1)(A). At the conclusion of a jury trial, Downour objected to the
proposed jury instructions because the instructions permitted an alternate juror to
be present in the jury room during deliberations.             The judge overruled the
objection.
        {¶ 2} The jurors deliberated in the presence of the alternate juror and
found Downour guilty as charged. Downour then verbally renewed his objection
                             SUPREME COURT OF OHIO




to the presence of the alternate juror during deliberations and moved for a mistrial.
The court denied the motion. Downour later filed a written motion for a new trial,
arguing that allowing the alternate juror to be present during deliberations violated
Crim.R. 24(G)(1). The court denied the motion. The court sentenced Downour to
180 days of incarceration, suspending all but 20 days pending completion of
certain conditions.
       {¶ 3} Downour appealed, arguing that the trial court had committed error
when it instructed the alternate juror to retire with the jury while it considered the
guilt phase of the trial, in violation of R.C. 2313.37(C) and Crim.R. 24(G)(1).
The court of appeals concluded that although the trial court had erred in allowing
the alternate juror to be present during jury deliberations, the error was harmless,
and the court affirmed the judgment of the trial court. State v. Downour, 182
Ohio App.3d 12, 2009-Ohio-1812, 911 N.E.2d 336.
       {¶ 4} We accepted Downour’s discretionary appeal.
                                      Analysis
       {¶ 5} R.C. 2313.37(C) states that alternate jurors, “except as provided in
this section[,] shall be discharged upon the final submission of the case to the
jury.” The exceptions of R.C. 2313.37(D) are not applicable to this case.
       {¶ 6} Crim.R. 24(G)(1) states that in noncapital cases, "[t]he court may
retain alternate jurors after the jury retires to deliberate. The court must ensure
that a retained alternate does not discuss the case with anyone until that alternate
replaces a juror or is discharged. If an alternate replaces a juror after deliberations
have begun, the court must instruct the jury to begin its deliberations anew.”
       {¶ 7} This court has consistently stated that allowing alternate jurors to
be present during jury deliberations is error. In State v. Murphy (2001), 91 Ohio
St.3d 516, 531, 747 N.E.2d 765, we stated that "[i]t is generally regarded as
erroneous to permit alternates to sit in on jury deliberations." In State v. Jackson




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(2001), 92 Ohio St.3d 436, 439, 751 N.E.2d 946, we stated that "[t]he trial court
clearly erred * * * in allowing the alternate jurors to remain present during
deliberations." In Murphy and Jackson, the defendants did not object to the
presence of the alternate juror, and this court analyzed the error under a plain-error
standard that does not presume prejudice. State v. Gross, 97 Ohio St.3d 121,
2002-Ohio-5524, 776 N.E.2d 1061, ¶ 133.
        {¶ 8} In Gross, the defendant objected to the presence of the alternate
jurors during jury deliberations. Id. at ¶ 122-134. We stated that because the
defendant "objected to the presence of the alternates in jury deliberations, the
burden shifted to the state to demonstrate an absence of prejudice." Id. at ¶ 136.
We also stated that "reversible error occurs where, over objection, an alternate
juror participates in jury deliberations resulting in an outcome adverse to a
defendant and either (1) the state has not shown the error to be harmless, or (2) the
trial court has not cured the error." Id. at ¶ 137.
        {¶ 9} Because the first sentence in Gross refers to an alternate juror's
"presence" during jury deliberations and the second sentence refers to an alternate
juror's "participation," we now clarify that it is the presence of the alternate jurors
that shifts the burden to the state to show that any error is harmless. As we
discussed in Gross, "the United States Supreme Court has explained that ‘[i]n
theory, the presence of alternate jurors during jury deliberations might prejudice a
defendant in two different ways: either because the alternates actually participated
in the deliberations, verbally or through “body language”; or because the
alternates' presence exerted a “chilling” effect on the regular jurors.’ " Id. at ¶
135, quoting United States v. Olano (1993), 507 U.S. 725, 739, 113 S.Ct. 1770,
123 L.Ed.2d 508. See State v. Bindyke (1975), 288 N.C. 608, 627-628, 220
S.E.2d 521 ("any time an alternate is in the jury room during deliberations he
participates by his presence and, whether he says little or nothing, his presence




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will void the trial"); Commonwealth v. Smith (1988), 403 Mass. 489, 494, 531
N.E.2d 556 (alternate jurors "really are not jurors.        When they attend jury
deliberations they do so as mere strangers").
         {¶ 10} We conclude that the trial court erred in allowing an alternate juror
to be present during jury deliberations. We also conclude that because Downour
"objected to the presence of the alternates in jury deliberations, the burden shifted
to the state to demonstrate an absence of prejudice." Gross, 97 Ohio St.3d 121,
2002-Ohio-5524, 776 N.E.2d 1061, at ¶ 136. See Bindyke, 288 N.C. at 623, 220
S.E.2d 521 ("The rule formulated by the overwhelming majority of the decided
cases is that the presence of an alternate, either during the entire period of
deliberation preceding the verdict, or his presence at any time during the
deliberations of the twelve regular jurors, is a fundamental irregularity of
constitutional proportions which requires a mistrial or vitiates the verdict, if
rendered.     And this is the result notwithstanding the defendant's counsel
consented, or failed to object, to the presence of the alternate"). Nothing in the
record indicates that the state established the absence of prejudice. We conclude,
therefore, that the court of appeals erred when it affirmed the decision of the trial
court.
                                     Conclusion
         {¶ 11} Because the state has the burden to show that the presence of an
alternate juror in the room during jury deliberations has not prejudiced a
defendant, we reverse the judgment of the court of appeals, and we remand for a
new trial.
                                                                 Judgment reversed
                                                               and cause remanded.
         LUNDBERG STRATTON, O’CONNOR, LANZINGER, and CUPP, JJ., concur.
         O’DONNELL, J., concurs in judgment only.




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       BROWN, C.J., not participating.
                             __________________
       Tim A. Dugan, for appellee.
       Dan Nathan and Jeff Goldstein, for appellant.
       Timothy Young, Ohio Public Defender, and Claire R. Cahoon, Assistant
Public Defender, urging reversal for amicus curiae, Ohio Public Defender.
                           ______________________




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