[Cite as State v. Clinkscale, 122 Ohio St.3d 351, 2009-Ohio-2746.]




          THE STATE OF OHIO, APPELLEE, v. CLINKSCALE, APPELLANT.
       [Cite as State v. Clinkscale, 122 Ohio St.3d 351, 2009-Ohio-2746.]
Criminal law — Former Crim.R. 24(G)(2) — The proceedings in which a
        deliberating juror is dismissed in a capital case, and an alternate juror is
        seated, must be recorded — Under former Crim.R. 24(G)(2), a juror
        cannot be replaced by an alternate juror during deliberations in a capital
        case.
    (No. 2008-1012 — Submitted March 10, 2009 — Decided June 17, 2009.)
                Appeal from the Court of Appeals for Franklin County,
              No. 06AP-1109, 177 Ohio App.3d 294, 2008-Ohio-1677.
                                  __________________
                                SYLLABUS OF THE COURT
1. The proceedings in which a deliberating juror is dismissed in a capital case,
        and an alternate juror is seated, must be recorded.
2. Under former Crim.R. 24(G)(2), a juror cannot be replaced by an alternate
        juror during deliberations in a capital case.
                                  __________________
        LANZINGER, J.
        {¶ 1} The second trial of appellant, David B. Clinkscale, for a capital
offense must be vacated and the case remanded to the trial court because a
deliberating juror was replaced with an alternate juror in violation of former
Crim.R. 24(G)(2) and because the trial court failed to make a record of the
proceedings that resulted in the deliberating juror’s dismissal and replacement.
                                  I. Case Background
        {¶ 2} In September 1997, Clinkscale was indicted on three counts of
aggravated murder, one count of attempted aggravated murder, one count of
                            SUPREME COURT OF OHIO




aggravated burglary, two counts of aggravated robbery, and one count of
kidnapping. Each count was accompanied by specifications. The indictment
alleged that during a robbery that occurred at the residence of Kenneth Coleman
and Todne Williams, Coleman was killed. A jury found Clinkscale guilty of each
count, and the trial judge accepted the jury’s recommended sentence of life
imprisonment without the possibility of parole. State v. Clinkscale (Dec. 23,
1999), Franklin App. No. 98AP-1586, 2000 WL 775607. The court of appeals
affirmed the conviction, id., and we declined review. State v. Clinkscale (2000),
88 Ohio St.3d 1482, 727 N.E.2d 132. In 2004, the United States Court of Appeals
for the Sixth Circuit granted Clinkscale a conditional writ of habeas corpus after
holding that his trial counsel had been ineffective. Clinkscale v. Carter (2004),
375 F.3d 430.
       {¶ 3} Clinkscale was retried in 2006, and the jury began its deliberations
during the afternoon of Friday, September 8. After approximately 30 minutes of
deliberations, the jury sent out a written question asking whether it would receive
copies of transcripts or specific testimony. The court responded that the jury was
to rely upon its collective memory of the testimony. About one hour later, the
jury sent to the court a second question, asking, “What would require declaration
of hung jury?” The court replied, “Many more hours of deliberations.”
       {¶ 4} Ten minutes later, the jury submitted a third question: “We have
one member who is not comfortable making a guilty verdict based on the
testimony of one person (in this case Todne Williams). This inability is not
specific to this witness. The juror does not believe a guilty verdict could ever be
declared without more evidence. This issue appears to not be resolvable with
more time and discussion. Any advice would be appreciated.” Approximately
one hour later, the court excused the jurors to their homes for the weekend
without responding to the third question.




                                            2
                                  January Term, 2009




       {¶ 5} On Monday, September 11, a substitute judge replaced the original
trial judge. Before the jury was seated, the judge and counsel for each party
discussed the court’s forthcoming response to the third jury question. The judge
called the jury into the courtroom and then stated, “We have had a juror that has a
medical issue who has been excused. So, at this time we are going to swear in the
first alternate * * * .” There was no discussion on the record between the court
and the parties regarding the need to dismiss the juror. Neither party’s counsel
objected to the dismissal of one juror or the swearing in of the alternate before the
jury resumed its deliberations.
       {¶ 6} After the alternate juror was sworn in, the court responded to the
third jury question and the jury returned to deliberate. Later that day, the jury
found Clinkscale guilty of each count.
       {¶ 7} On October 2, the parties returned to the court for the sentencing
phase of the capital proceedings, with the original trial judge resuming his role for
the duration of the proceedings. Before the jury was called into the courtroom,
Clinkscale’s counsel stated that he wanted to address the dismissal of the
deliberating juror, with the intention of putting the events of that morning on the
record. According to Clinkscale’s counsel, on the morning that the juror was
replaced, the substitute judge met privately with the juror, who believed she was
having heart problems. The judge then dismissed the juror before conferring with
the parties’ attorneys. Clinkscale’s counsel stated that he had wanted to object to
the dismissal but did not because the court’s attention was focused on the
forthcoming response to the third jury question.
       {¶ 8} The state’s counsel remembered the dismissal differently and
claimed that the parties’ counsel met with the visiting judge and discussed how to
proceed with the juror. Clinkscale’s counsel stressed that the defense did not
agree to dismiss the juror. After listening to the parties, the trial judge stated,
“Well, the record is what it is. I mean, we have a record, I assume, what




                                          3
                             SUPREME COURT OF OHIO




happened on September the 11th; and that record is not going to be changed. So,
that’s the way it is.”
        {¶ 9} Following this discussion, the jury was brought into the courtroom
for the sentencing phase. After deliberating, the jury returned and recommended
a sentence of life imprisonment with parole eligibility after 30 years for the
murder charges. The court added time for the additional charges and sentenced
Clinkscale to prison for 53 years to life. The court of appeals affirmed the
judgment.     State v. Clinkscale, 177 Ohio App.3d 294, 2008-Ohio-1677, 894
N.E.2d 700.
        {¶ 10} We accepted jurisdiction over only two of the propositions of law
set forth in Clinkscale’s discretionary appeal. State v. Clinkscale, 119 Ohio St.3d
1444, 2008-Ohio-4487, 893 N.E.2d 515. The first proposition of law states, “It is
improper for a substitute trial judge to privately meet with and dismiss a
deliberating juror without notifying the parties and providing them an opportunity
to question the juror, suggest alternatives to dismissal, or otherwise object,
particularly when the dismissed juror is the sole dissenter at the time of her
dismissal.” The second proposition of law states, “It is improper for a substitute
trial judge to dismiss a deliberating juror and then replace her with an alternate in
direct contravention of Crim.R. 24(G)(2) which prohibits the substitution of
alternate jurors during deliberation, particularly when the dismissed juror is the
sole dissenter at the time of her dismissal.”
                                 II. Legal Analysis
                             A. This Is a Capital Case
        {¶ 11} Our analysis of this case is guided by the fact that Clinkscale was
charged with a capital offense under R.C. 2901.02(B) (“Aggravated murder when
the indictment or the count in the indictment charging aggravated murder contains
one or more specifications of aggravating circumstances listed in division (A) of
section 2929.04 of Revised Code, and any other offense for which death may be




                                          4
                                January Term, 2009




imposed as a penalty, is a capital offense”). Because the jury in his first trial did
not recommend the death penalty, the state was barred from seeking the death
penalty on retrial. Bullington v. Missouri (1981), 451 U.S. 430, 445-446, 101
S.Ct. 1852, 68 L.Ed.2d 270; Arizona v. Rumsey (1984), 467 U.S. 203, 212, 104
S.Ct. 2305, 81 L.Ed.2d 164. See State v. Hancock, 108 Ohio St.3d 57, 2006-
Ohio-160, 840 N.E.2d 1032, ¶ 147-150. However, Clinkscale’s ineligibility for
the death penalty did not diminish the fact that he was charged with a capital
offense:    “An indictment charging aggravated murder and one or more
specifications of aggravating circumstances listed in R.C. 2929.04(A) charges a
capital offense, irrespective of whether the offender is eligible for the death
penalty.” State v. Harwell, 102 Ohio St.3d 128, 2004-Ohio-2149, 807 N.E.2d
330, syllabus.
                                  B. The Record
       {¶ 12} The conversation between the substitute judge and the dismissed
juror was not put on the record, and the parties offer differing accounts of the
proceedings on that morning. The Rules of Criminal Procedure provide that “[i]n
serious offense cases, all proceedings shall be recorded.” Crim.R. 22. The Rules
of Appellate Procedure offer additional instructions specific to capital trials: “In
all capital cases the trial proceedings shall include a written transcript of the
record made during the trial by stenographic means.”         App.R. 9(A).     When
considered together, the Rules of Criminal Procedure and the Rules of Appellate
Procedure clearly require that a complete and accurate record be created in capital
cases. The reason for this is simple: the unique nature of capital cases demand a
heightened level of care in constructing the record to guarantee regularity of the
proceedings and assist in appellate review.
       {¶ 13} This court has recognized that gaps may occur and that “[t]he
requirement of a complete, full, and unabridged transcript in capital trials does not
mean that the trial record must be perfect for purposes of appellate review.” State




                                         5
                             SUPREME COURT OF OHIO




v. Palmer (1997), 80 Ohio St.3d 543, 687 N.E.2d 685, syllabus. In Palmer, this
court held that the failure to record a jury view and conferences in the judge’s
chambers or at the bench did not warrant reversal when the appellant had not
requested that the view or the conferences be recorded and did not demonstrate
that any prejudice arose from the failure to record those proceedings. Id. at 560.
The court also stated that the “reversal of convictions and sentences on grounds of
some unrecorded bench and chambers conferences, off-the-record discussions, or
other unrecorded proceedings will not occur in situations where the defendant
failed to demonstrate that (1) a request was made at trial that the conferences be
recorded or that objections were made to the failures to record, (2) an effort was
made on appeal to comply with App.R. 9 and to reconstruct what occurred or to
establish its importance, and (3) material prejudice resulted from the failure to
record the proceedings at issue.” Id. at 554.
       {¶ 14} There are legitimate competing arguments as to whether the
application of the test outlined in Palmer to Clinkscale’s case would warrant
reversal. It is important to emphasize, however, that Palmer addresses the failure
to record relatively unimportant portions of a trial. In Palmer, this court noted
that most of the conferences at the bench and in chambers were recorded and that
“all crucial aspects of the case” were recorded. 80 Ohio St.3d at 555, 687 N.E.2d
685. None of the unrecorded conferences concerned a matter as important as the
dismissal of a deliberating juror.
       {¶ 15} In marked contrast to the portions of the Palmer trial that went
unrecorded, the recording of proceedings related to the dismissal and replacement
of a deliberating juror is of critical importance to protecting a defendant’s
constitutional rights. “A fair trial in a fair tribunal is a basic requirement of due
process. * * * [O]ur system of law has always endeavored to prevent even the
probability of unfairness.” In re Murchison (1955), 349 U.S. 133, 136, 75 S.Ct.
623, 99 L.Ed. 942.      Because the composition of the jury in a capital case




                                         6
                                 January Term, 2009




implicates important constitutional rights, we decline to extend the holding of
Palmer to encompass a trial court’s failure to record proceedings relating to the
dismissal of a juror in a capital case after the jury has begun its deliberations.
       {¶ 16} In this case, when proceedings resumed for the sentencing phase of
the trial, defense counsel took sufficient measures, as required by Palmer, to give
notice that a deficiency in the record existed and to appropriately remedy the
deficiency. Clinkscale’s counsel initiated a discussion on the record in an attempt
to clarify the record regarding the juror’s dismissal: “[T]here’s one more thing I
think we need to put on the record.” This amounted to an objection to the failure
of the trial court to record the proceedings. While he did not state “I object,” the
attorney’s statement was sufficient to alert the trial court that the record was
inadequate. Furthermore, the attempt to address the deficiency in the record was
sufficient in this context to satisfy the concerns of App.R. 9, which provides, “If
anything material to either party is omitted from the record by error or accident or
is misstated therein, the parties by stipulation, or the trial court, either before or
after the record is transmitted to the court of appeals * * * may direct that
omission or misstatement be corrected, and if necessary that a supplemental
record be certified and transmitted.” App.R. 9(E).
       {¶ 17} Appellee contends that review is precluded because appellant
placed his objection to the dismissal of the juror on the record at the sentencing
hearing instead of using App.R. 9 to supplement the record. However, the timing
of the objection is not as important as appellant’s attempt to address the
deficiency during the sentencing phase of the trial. What is of concern is the trial
court’s failure to make either party’s rendition official, stating, “Well, the record
is what it is. * * * [T]hat record is not going to be changed.”
       {¶ 18} Finally, Clinkscale suffered material prejudice from the trial
court’s failure to make a record of the dismissal of the juror.            We cannot
determine whether the trial court obtained a waiver or consent from either party




                                           7
                              SUPREME COURT OF OHIO




before dismissing the juror. We are also left to speculate about the reason the
juror asked to be removed, the true severity of the juror’s health problem, whether
the trial could have been continued, or whether any alternative measures may
have been taken to address the situation. Most significant, perhaps, is that we are
unable to determine whether the substitute judge’s action affected any of
Clinkscale’s constitutional rights, because we are unable to discern whether the
juror was, as argued, a lone dissenting juror who wished to be dismissed for this
reason.
          {¶ 19} Typically, “[w]hen portions of the transcript necessary for
resolution of assigned errors are omitted from the record, the reviewing court has
nothing to pass upon and thus, as to those assigned errors, the court has no choice
but to presume the validity of the lower court's proceedings, and affirm.” Knapp
v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 15 O.O.3d 218, 400
N.E.2d 384. However, the important constitutional rights at issue here demand
that we not apply that presumption in this case.
          {¶ 20} In light of the prejudice suffered by appellant because of the trial
court’s failure to record the proceedings in question, and given appellant’s
notification to the trial court of the omission in the record, we hold that the failure
to record the proceedings relating to the juror’s dismissal in this capital case
violated appellant’s due process right to a fair trial, and appellant’s conviction
must be reversed.
                               C. Crim.R. 24 Violation
          {¶ 21} The dissent argues that it would apply a plain error analysis to the
trial court’s failure to record the proceedings related to the juror’s dismissal and
would affirm because it concludes that Clinkscale has failed to demonstrate
reversible error; however, in doing so it fails to recognize that the trial court
committed a second error when the juror was dismissed in violation of former
Crim.R. 24(G)(2). In the version of the rule effective at the time of trial, Crim.R.




                                           8
                                       January Term, 2009




24(G)(2) provided, “The procedure designated in division (F)(1) of this rule [for
seating an alternate juror] shall be the same in capital cases, except that any
alternate juror shall continue to serve if more than one deliberation is required. If
an alternate juror replaces a regular juror after a guilty verdict, the court shall
instruct the alternate juror that the juror is bound by that verdict. No alternate
juror shall be substituted during any deliberation. Any alternate juror shall be
discharged after the trial jury retires to consider the penalty.”1 (Emphasis added.)
Despite the clear statement in former Crim.R. 24(G)(2) that no alternate juror is to
be substituted during any deliberation, the judge dismissed a juror and seated an
alternate during the deliberation of guilt. Such a clear violation of the Rules of
Criminal Procedure cannot be countenanced during a capital trial.
         {¶ 22} In the plurality opinion in State v. Hutton (1990), 53 Ohio St.3d 36,
559 N.E.2d 432, Chief Justice Moyer foresaw the facts of the present case while
analyzing a previous version of Crim.R. 24, which did not allow an alternate juror
to be seated after jury deliberations had begun. “If a juror becomes ill or is
otherwise disqualified after the jury has begun its deliberations on guilt or
innocence, a mistrial results; the state, however, may then retry the defendant.”
Id. at 47. A trial judge may not act in direct contravention of the Rules of
Criminal Procedure. Although appellant did not request a mistrial, the violation
of former Crim.R. 24(G)(2) constitutes reversible error.
                                         III. Conclusion
         {¶ 23} Because capital cases are distinct from noncapital cases in the
nature of the statutory requirements and penalties, the court must conduct
proceedings in capital cases with a strict level of care that comports with their

1. In the current version of Crim.R. 24(G)(2), effective July 1, 2008, the language related to the
substitution of jurors during deliberations has been eliminated. The rule now provides, “The
procedure designated in (G)(1) of this rule shall be the same in capital cases, except that any
alternate juror shall continue to serve if more than one deliberation is required. If an alternate
juror replaces a regular juror after a guilty verdict, the court shall instruct the alternate juror that
the juror is bound by that verdict.”




                                                   9
                              SUPREME COURT OF OHIO




unique status.   While we acknowledge that it is less than desirable to have
Clinkscale tried for the third time in 12 years, we emphasize that all essential
phases of a capital trial must be conducted on the record and in full accordance
with the Rules of Criminal Procedure. Therefore, we hold that the proceedings in
which a juror is dismissed in a capital case, and an alternate juror is seated, must
be recorded. We also hold that under former Crim.R. 24(G)(2), a juror cannot be
replaced by an alternate juror during deliberations in a capital case.
       {¶ 24} We therefore reverse the judgment of the court of appeals and
remand the case for proceedings consistent with this opinion.
                                                                  Judgment reversed
                                                                and cause remanded.
       MOYER, C.J., and PFEIFER and O’CONNOR, JJ., concur.
       LUNDBERG STRATTON, O’DONNELL, and CUPP, JJ., dissent.
                               __________________
       O’DONNELL, J., dissenting.
       {¶ 25} The majority opinion not only charts a new course for this court in
capital cases, it also formulates a new analysis for consideration of issues arising
out of App.R. 9 and relaxes the appellant’s burden to demonstrate error on the
record and to file a timely objection.
       {¶ 26} On September 11, 2006, during jury deliberations in the guilt phase
of Clinkscale’s retrial, after the jury in his first trial had not recommended the
death penalty, the court excused juror number three, who reportedly had heart
problems, and seated an alternate juror. Clinkscale did not object at that time.
Three weeks later, however, on October 2, the record expressly confirms, in
statements made by both defense counsel and the prosecutor, that Clinkscale
raised no timely objection:
       {¶ 27} “MR. SIMMONS [defense counsel]: * * * We wanted to object to
that process [of dismissing the juror], but we were still arguing about the




                                         10
                                January Term, 2009




additional jury instruction. So, we never did actually put an objection on the
record concerning the excusal of Juror Number Three.
       {¶ 28} “* * *
       {¶ 29} “MS. REULBACH [prosecutor]: Then we decided, what are we
going to do? Do we let her go to the doctor and come back? And everybody
agreed as a group that we would let her go and seat the alternate.
       {¶ 30} “There never was an objection.”
       {¶ 31} Our jurisprudence requires that a party raising an objection do so
in a timely manner. See, e.g., State v. Peagler (1996), 76 Ohio St.3d 496, 499,
668 N.E.2d 489 (“Generally, an appellate court will not consider any error that
counsel could have called but did not call to the trial court's attention at a time
when such error could have been avoided or corrected by the trial court”).
Clinkscale did not object at the time the trial court committed the error of which
he complains, and his belated efforts only confirm that his objection came too
late. That the case involves capital offenses does not relieve him of the obligation
to raise a timely objection to preserve error for appeal. See, e.g., State v. Frazier,
115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 155 (holding that a
capital defendant can, by failing to object, waive appellate review, other than
plain-error review, of a claim under Atkins v. Virginia (2002), 536 U.S. 304, 122
S.Ct. 2242, 153 L.Ed.2d 335, that executing a mentally retarded person violates
the Eighth Amendment's proscription against cruel and unusual punishment).
And a party who fails to object forfeits all but plain error. State v. Payne, 114
Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶ 23-24.
       {¶ 32} In State v. Palmer (1997), 80 Ohio St.3d 543, 554, 687 N.E.2d
685, the court expressly declined to recognize a presumption of prejudice from
the existence of unrecorded bench and chambers conferences in capital cases.
Rather, the court emphasized that the appellant bore the burden to “affirmatively
demonstrate any material prejudice resulting from the unrecorded matters.” Id.




                                         11
                             SUPREME COURT OF OHIO




Further, the court stated, “[R]eversal of convictions and sentences on grounds of
some unrecorded bench and chambers conferences, off-the-record discussions, or
other unrecorded proceedings will not occur in situations where the defendant has
failed to demonstrate that (1) a request was made at trial that the conferences be
recorded or that objections were made to the failures to record, (2) an effort was
made on appeal to comply with App.R. 9 and to reconstruct what occurred or to
establish its importance, and (3) material prejudice resulted from the failure to
record the proceedings at issue.” Id., citing State v. Grant (1993), 67 Ohio St.3d
465, 481-482, 620 N.E.2d 50; State v. Davis (1991), 62 Ohio St.3d 326, 347, 581
N.E.2d 1362; State v. Spirko (1991), 59 Ohio St.3d 1, 15-16, 570 N.E.2d 229;
State v. Jells (1990), 53 Ohio St.3d 22, 32, 559 N.E.2d 464; State v. Tyler (1990),
50 Ohio St.3d 24, 41-42, 553 N.E.2d 576; State v. Brewer (1990), 48 Ohio St.3d
50, 60-61, 549 N.E.2d 491.
       {¶ 33} I disagree with the majority’s conclusion that “defense counsel
took sufficient measures, as required by Palmer, to give notice that a deficiency in
the record existed and to appropriately remedy the deficiency.” Clinkscale did
not meet the test established in Palmer.
       {¶ 34} First, he raised no timely objection to the court’s ex parte
communication with the juror, its substitution of that juror with an alternate, or its
failure to record that part of the proceeding. Instead, he waited three weeks to
assert any error, after the trial court had excused the deliberating juror and seated
an alternate and after the jury had returned a guilty verdict.
       {¶ 35} Second, Clinkscale made no effort to comply with App.R. 9(C),
which provides: “If no report of the evidence or proceedings at a hearing or trial
was made, or if a transcript is unavailable, the appellant may prepare a statement
of the evidence or proceedings from the best available means, including the
appellant's recollection. The statement shall be served on the appellee no later
than twenty days prior to the time for transmission of the record pursuant to




                                           12
                                 January Term, 2009




App.R. 10, who may serve objections or propose amendments to the statement
within ten days after service. The statement and any objections or proposed
amendments shall be forthwith submitted to the trial court for settlement and
approval. The trial court shall act prior to the time for transmission of the record
pursuant to App.R. 10, and, as settled and approved, the statement shall be
included by the clerk of the trial court in the record on appeal.” Clinkscale did
not attempt to prepare an App.R. 9(C) statement to settle any disputed facts in the
record.
          {¶ 36} Third, Clinkscale has failed to affirmatively demonstrate any
material prejudice. Rather, he presents this court with mere speculation that the
substitution of juror number three broke a jury deadlock and resulted in his
conviction.     However, the record does not demonstrate the prejudice that
Clinkscale alleges; rather, it is unclear whether the trial court dismissed the lone
dissenting juror. Thus, Clinkscale “ ‘has not contradicted the presumption of
regularity accorded all judicial proceedings.’ ” State v. Robb (2000), 88 Ohio
St.3d 59, 87, 723 N.E.2d 1019, quoting State v. Hawkins (1996), 74 Ohio St.3d
530, 531, 660 N.E.2d 454.
          {¶ 37} Therefore, Clinkscale has failed to demonstrate reversible error
regarding the trial court’s failure to record its communications with the dismissed
juror.
          {¶ 38} Similarly, Clinkscale has failed to demonstrate plain error relating
to the substitution of the deliberating juror. The Ohio and Federal Rules of
Criminal Procedure both formerly prohibited the substitution of a juror once
deliberations had commenced. However, Ohio and federal appellate courts have
recognized that plain-error review applies to violations of the former versions of
Crim.R. 24(G)(2) and Fed.R.Crim.P. 24(c)(3).          See, e.g., Claudio v. Snyder
(C.A.3, 1995), 68 F.3d 1573, 1575; United States v. McFarland (C.A.9, 1994), 34
F.3d 1508, 1514; United States v. Quiroz-Cortez (C.A.5, 1992), 960 F.2d 418,




                                          13
                             SUPREME COURT OF OHIO




420 ; United States v. Hillard (C.A.2, 1983), 701 F.2d 1052, 1058-1060; State v.
Felder, Cuyahoga App. No. 87453, 2006-Ohio-5332, ¶ 41; State v. Fisher (Mar.
12, 1996), Franklin App. No. 95APA04-437, 1996 WL 112670; State v. Miley
(1991), 77 Ohio App.3d 786, 790, 603 N.E.2d 1070; see also 2 Wright, Federal
Practice and Procedure (3d Ed.2000) 579, Section 388 (explaining that plain-error
analysis applied to violations of former Fed.R.Crim.P. 24(c)).
       {¶ 39} “Plain error does not exist unless ‘but for the error, the outcome of
the trial clearly would have been otherwise.’ ” State v. Davis, 121 Ohio St.3d 239,
2008-Ohio-4537, 903 N.E.2d 609, ¶ 11, quoting State v. Long (1978), 53 Ohio
St.2d 91, 97, 7 O.O.3d 178, 372 N.E.2d 804. Speculation does not suffice to
demonstrate plain error. See State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-
5048, 873 N.E.2d 1263, ¶ 108 (finding no plain error when the accused’s claim
“is totally speculative”). The record does not show that juror number three alone
held out against a guilty verdict, that she sought to be dismissed because she felt
pressured to reach a guilty verdict, or that the jury did not begin deliberations
anew with the seating of the alternative juror. The trial court instructed the jury to
start its deliberations over, and we presume that juries follow such instructions.
State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 147.
       {¶ 40} Trial judges must conduct all trial matters on the record, in open
court, and with counsel participating when it communicates with a deliberating
jury. That did not occur in this instance, but Clinkscale’s failure to object and to
ensure the completeness of the record precludes all but plain-error review. As the
Supreme Court of the United States has recently explained in the context of the
excusal of a juror for cause following voir dire in a capital case, “We nevertheless
take into account voluntary acquiescence to, or confirmation of, a juror's removal.
By failing to object, the defense did not just deny the conscientious trial judge an
opportunity to explain his judgment or correct any error.           It also deprived
reviewing courts of further factual findings that would have helped to explain the




                                         14
                               January Term, 2009




trial court's decision.” Uttecht v. Brown (2007), 551 U.S. 1, 127 S.Ct. 2218,
2229, 167 L.Ed.2d 1014. Clinkscale has failed to perfect the record for appeal
and has not demonstrated reversible error, plain or otherwise. For these reasons, I
respectfully dissent.
       LUNDBERG STRATTON and CUPP, JJ., concur in the foregoing opinion.
                              __________________
       Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L.
Taylor, Assistant Prosecuting Attorney, for appellee.
       William S. Lazarow, for appellant.
                           ______________________




                                        15
