[Cite as State v. DiSabato, 2019-Ohio-3542.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                UNION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                            CASE NO. 14-18-23

        v.

MICHAEL H. DISABATO,                                   OPINION

        DEFENDANT-APPELLANT.




                        Appeal from Marysville Municipal Court
                            Trial Court No. 17 CRB01010

                     Judgment Affirmed in Part, Reversed in Part
                               and Cause Remanded

                          Date of Decision: September 3, 2019




APPEARANCES:

        Jeff Ratliff for Appellant

        Rick Rodger for Appellee
Case No. 14-18-23


PRESTON, J.

       {¶1} Defendant-appellant, Michael H. DiSabato (“DiSabato”), appeals the

October 18, 2018 judgment of sentence of the Marysville Municipal Court. For the

reasons that follow, we affirm in part and reverse in part.

       {¶2} On October 25, 2017, DiSabato’s longtime acquaintance, Bret Adams

(“Adams”), filed a report with the Dublin Police Department alleging that he had

received a series of threatening phone calls and text messages from DiSabato. (See

Defendant’s Exs. A, B). To support his allegations, Adams produced a collection

of screenshots taken from his cell phone purporting to depict some of the unwanted

communications.     (See State’s Ex. 1); (See Defendant’s Exs. E, D).          These

screenshots reflect that a person identified as DiSabato sent various messages in a

group text message thread that included DiSabato, Adams, and another individual.

(See State’s Ex. 1); (See Defendant’s Ex. D). These messages include statements

such as “Winter is Coming” and the phrase “TicToc” followed by two rodent

emojis. (Id.); (Id.). Eventually, Adams requested that DiSabato “not contact [him]

any further” and indicated that he would communicate through DiSabato’s attorney.

(Aug. 27, 2018 Tr. at 81); (State’s Ex. 1); (Defendant’s Ex. E). Adams also

threatened to file a police report if DiSabato continued to contact him. (Id.); (Id.);

(Id.). However, DiSabato sent text messages in response to Adams’s no-contact




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instruction, prompting Adams to issue two more warnings to DiSabato. (State’s Ex.

1); (Defendant’s Ex. E).

         {¶3} A criminal complaint was not filed directly in response to Adams’s

October 25, 2017 report. Instead, DiSabato was warned by law enforcement officers

not to contact Adams further, and the Dublin prosecuting attorney sent a letter to

DiSabato advising him to cease all contact with Adams. (See Defendant’s Exs. A,

C, P).    Nevertheless, according to Adams, he continued to receive harassing

communications from DiSabato. As a result, Adams insisted that charges be

brought against DiSabato. (See Defendant’s Exs. J, L, O, S). However, the

investigating officer assigned to the case concluded that DiSabato had not violated

the directives not to contact Adams and declined to “pursu[e] criminal charges

unless more documentation [was] presented.” (See Defendant’s Exs. S, T). Thus,

despite a series of increasingly acrimonious emails from Adams in which he

expressed frustration that DiSabato was not being charged, the case was initially

placed on inactive status on November 30, 2017. (See Defendant’s Exs. A, O, S,

T).

         {¶4} On December 4, 2017, Adams, pro se, filed a civil complaint in the

Union County Court of Common Pleas alleging that DiSabato had defamed him by

falsely stating that he “was the boyfriend of an adult film star,” “practicing law

without a license,” and “sexually and racially harass[ing] a mutual acquaintance *


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* *.” (See Defendant’s Ex. Y). On December 16, 2017, DiSabato sent a series of

text messages to Adams’s cell phone. (State’s Ex. 2); (See Defendant’s Exs. V, X).

DiSabato acknowledged sending the text messages, but he maintained that the

messages were intended to provide Adams “with information which clearly shows

that his claims in the suit he filed * * * are fabricated and delusional” and that he

had to send this information directly to Adams because Adams was representing

himself in the civil suit. (State’s Ex. 6); (Defendant’s Ex. X). After receiving these

text messages, Adams immediately contacted law enforcement officials and the

Dublin prosecuting attorney to request that they “take action” to stop further

communications from DiSabato. (See Defendant’s Ex. V).

       {¶5} On December 21, 2017, a criminal complaint was filed in the

Marysville    Municipal    Court    charging    DiSabato     with   one    count   of

telecommunications harassment in violation of R.C. 2917.21(A)(5), a first-degree

misdemeanor. (Doc. No. 1). On February 13, 2018, DiSabato entered a written plea

of not guilty. (Doc. No. 9).

       {¶6} A jury trial was held on August 27, 2018. (See Doc. Nos. 21, 40, 41).

At the close of the State’s case, DiSabato made a motion for acquittal under Crim.R.

29(A), which the trial court denied. (Aug. 27, 2018 Tr. at 215-220). At the close

of his own case, DiSabato renewed his Crim.R. 29(A) motion for acquittal, which

the trial court denied again. (Id. at 231-232). After deliberating for approximately


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two hours, the jury returned with its verdict, and the trial court announced that the

jury had found DiSabato guilty of the single count of telecommunications

harassment. (See Doc. No. 40); (Aug. 27, 2018 Tr. at 276-277, 279). At that point,

the following exchange occurred:

           [Trial Court]:             And beneath [the printed information on the

                                      verdict form] are ten signatures because I did not

                                      excuse the two alternates. * * * [D]oes either

                                      party wish to have the jury polled?

           [The State]:               No, Your Honor.

           [Defense Counsel]: No, Your Honor. Based on that, that the actual –

                                      on the Verdict Form, the actual alternates’

                                      signature?

           [Trial Court]:             The alternates did sign the Verdict Form.

           [Defense Counsel]: Okay, so then the alternates deliberated, Your

                                      Honor. I think that is a violation and we do not

                                      have a good verdict of eight jurors1 and the

                                      alternates were to not participate, so we are

                                      unaware of the ability that the alternates might

                                      have had in deliberation in affecting the group,



1
    “In misdemeanor cases juries shall consist of eight.” Crim.R. 23(B).

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                             as a whole, so I think that the Court has to declare

                             a mistrial.

       ***

       [The State]:          I’m going to leave it up to the Court, Your

                             Honor. There’s still eight jurors who made a

                             decision that it was guilty. They can raise the

                             issue on appeal, if they wish to, but there are still

                             eight jurors that found him guilty.

       [Trial Court]:        Correct. I’m going to overrule the Motion for

                             Mistrial this afternoon.

(Aug. 27, 2018 Tr. at 276-278). Later, the trial court remarked that its “oversight”

resulted in the alternate jurors’ presence during jury deliberations. (Id. at 279). The

trial court then stated that it “should have excused [the alternate jurors] prior to

letting [the jury] begin [its] deliberations” but “failed to do that.” (Id.). Finally, the

trial court discharged the jury and adjourned. (Id. at 279-280). The judgment entry

of conviction was filed on September 5, 2018. (Doc. No. 41).

       {¶7} On September 7, 2018, DiSabato filed a motion for a judgment of

acquittal after verdict under Crim.R. 29(C) or, alternatively, for a new trial under

R.C. 2945.79. (Doc. No. 43). In his motion, DiSabato argued that he was entitled

to a judgment of acquittal because the State failed to present sufficient evidence as


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to each of the elements of telecommunications harassment under R.C.

2917.21(A)(5). (Id.). In the alternative, he argued that he was entitled to a new trial

because the alternate jurors’ presence during jury deliberations was an

“[i]rregularity in the proceedings of the * * * jury * * * by which [he] was prevented

from having a fair trial.” (Id.). On October 2, 2018, the State filed its memorandum

in opposition to DiSabato’s motion for acquittal or for a new trial. (Doc. No. 44).

On October 18, 2018, the trial court denied DiSabato’s motion. (Doc. No. 46).

       {¶8} On October 18, 2018, the trial court sentenced DiSabato to 180 days in

jail. (Doc. No. 45). However, the trial court suspended the entire 180-day jail

sentence on condition that DiSabato successfully complete three years of probation

and refrain from contacting Adams. (Id.). In addition, the trial court ordered

DiSabato to pay a $1,000 fine. (Id.).

       {¶9} On November 13, 2018, DiSabato filed a notice of appeal. (Doc. No.

52). He raises five assignments of error for our review. We consider DiSabato’s

assignments of error out of order.       We begin by addressing DiSabato’s fifth

assignment of error. Then, we will address his second assignment of error. Finally,

we will consider his first, third, and fourth assignments of error.

                            Assignment of Error No. V

       The trial court erred when it failed to grant appellant’s motion
       for acquittal after verdict.



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       {¶10} In his fifth assignment of error, DiSabato argues that the trial court

erred by denying his Crim.R. 29(C) motion for acquittal after the verdict.

Specifically, DiSabato argues that R.C. 2917.21(A)(5) requires proof that the caller

transmitted a telecommunication to specific premises after having been told not to

send telecommunications to those particular premises. (Appellant’s Brief at 19).

He notes that “[t]he only argument made in opposition by the State to [his Crim.R.

29(C)] motion was that there was evidence that this alleged crime happened in

Union County[,] Ohio.” (Id.). According to DiSabato, “[a]lthough the [State’s]

argument clarifies venue, this argument does not meet the definition of ‘premises’

and there is nothing on the record that could suffice.” (Id.).

       {¶11} “Crim.R. 29(C) permits a trial court, upon motion, to set aside a guilty

verdict and enter a judgment of acquittal.” State v. Willis, 12th Dist. Butler No.

CA2009-10-270, 2010-Ohio-4404, ¶ 8. Crim.R. 29(C) provides:

       If a jury returns a verdict of guilty * * *, a motion for judgment of

       acquittal may be made or renewed within fourteen days after the jury

       is discharged or within such further time as the court may fix during

       the fourteen day period. If a verdict of guilty is returned, the court

       may on such motion set aside the verdict and enter judgment of

       acquittal. * * * It shall not be a prerequisite to the making of such




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       motion that a similar motion has been made prior to the submission of

       the case to the jury.

“The purpose of a motion for acquittal is to test the sufficiency of the evidence

presented at trial.” Willis at ¶ 9, citing State v. Terry, 12th Dist. Fayette No.

CA2001-07-012, 2002-Ohio-4378, ¶ 9, citing State v. Williams, 74 Ohio St.3d 569,

576 (1996). Accordingly, “we review a trial court’s decision on a Crim.R. 29(C)

motion for acquittal using the same standard as is used to review a sufficiency of

the evidence claim.” State v. Moore, 3d Dist. Union No. 14-08-43, 2009-Ohio-

2106, ¶ 20, citing State v. Lightner, 3d Dist. Hardin No. 6-08-11, 2009-Ohio-544, ¶

11, citing State v. Carter, 72 Ohio St.3d 545, 553 (1995).

       {¶12} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional

amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly,

“[t]he relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the

evidence was sufficient, we neither resolve evidentiary conflicts nor assess the


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credibility of witnesses, as both are functions reserved for the trier of fact.” State v.

Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, ¶ 33,

citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, ¶ 25 (1st Dist.).

See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, ¶ 19

(“Sufficiency of the evidence is a test of adequacy rather than credibility or weight

of the evidence.”), citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).

       {¶13} DiSabato was found guilty of telecommunications harassment in

violation of R.C. 2917.21(A)(5). R.C. 2917.21(A)(5) provides:

       (A) No person shall knowingly make or cause to be made a

       telecommunication, or knowingly permit a telecommunication to be

       made from a telecommunications device under the person’s control,

       to another, if the caller * * *:

       (5) Knowingly makes the telecommunication to the recipient of the

       telecommunication, to another person at the premises to which the

       telecommunication is made, or to those premises, and the recipient or

       another person at those premises previously has told the caller not to

       make a telecommunication to those premises or to any persons at

       those premises[.]

 “‘Telecommunication’        means        the     origination,   emission,   dissemination,

 transmission, or reception of data, images, signals, sounds, or other intelligence or


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 equivalence of intelligence of any nature over any communications system by any

 method, including, but not limited to, a fiber optic, electronic, magnetic, optical,

 digital, or analog method.” R.C. 2913.01(X). “‘Telecommunications device’

 means any instrument, equipment, machine, or other device that facilitates

 telecommunication, including, but not limited to, a * * * cellular telephone * * *.”

 R.C. 2913.01(Y). “‘Caller’ means the person * * * who makes or causes to be

 made a telecommunication or who permits a telecommunication to be made from

 a telecommunications device under that person’s control.” R.C. 2917.21(G)(2).

 “A person acts knowingly, regardless of purpose, when the person is aware that

 the person’s conduct will probably cause a certain result or will probably be of a

 certain nature.” R.C. 2901.22(B). “A person has knowledge of circumstances

 when the person is aware that such circumstances probably exist.             When

 knowledge of the existence of a particular fact is an element of an offense, such

 knowledge is established if a person subjectively believes that there is a high

 probability of its existence and fails to make inquiry or acts with a conscious

 purpose to avoid learning the fact.” Id.

      {¶14} DiSabato does not argue that the State failed to present sufficient

evidence that he knowingly made a telecommunication to Adams with knowledge

that Adams had previously instructed him not to make further telecommunications.

Instead, DiSabato argues that R.C. 2917.21(A)(5) requires proof that a


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telecommunication was received at particular “premises” and that the caller was

warned not to transmit telecommunications to those “premises” or to anyone at

those “premises.” According to DiSabato, because the State did not present any

evidence indicating that Adams received the text messages at a “premises” that

DiSabato was warned not to contact, the trial court erred by denying his Crim.R.

29(C) motion for acquittal.

      {¶15} In response, the State observes that there “is no case law which

supports [DiSabato’s] argument.” (Appellee’s Brief at 14). Indeed, DiSabato has

failed to point to any case that directly supports his argument, and our own search

has failed to uncover any case that directly supports or undermines his argument.

However, we have found some cases that bear on DiSabato’s argument, if only

indirectly, and these cases suggest that when a telecommunication is made to a

mobile telecommunications device or through a service accessible from any number

of telecommunications devices, such as an email service or a messaging application,

the State need not prove that the telecommunication was received at a specific

“premises” to obtain a conviction under R.C. 2917.21(A)(5).

      {¶16} The most relevant of these cases is Delaware v. Boggs, 5th Dist.

Delaware No. 18 CAC 030027, 2018-Ohio-4677. In Boggs, the defendant was

convicted of one count of telecommunications harassment in violation of R.C.

2917.21(A)(5) after he sent numerous messages to his “ex-paramour” through the


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Facebook Messenger application despite her repeated warnings not to contact her

through the application. Id. at ¶ 2-6. The defendant contested his conviction,

arguing that “R.C. 2917.21(A)(5) is vague and unconstitutional because the term

‘premises’ is not defined by the statute.” Id. at ¶ 20. He contended that the “statute

does not define ‘premises’ and therefore does not include the internet and/or the

Facebook Messenger application as ‘premises.’” Id.

       {¶17} In rejecting the defendant’s argument, the court first noted that the

defendant had not “provided [the] Court with any authority to support his position

that the lack of definition for ‘premises’ renders R.C. 2917.21(A)(5)”

unconstitutionally vague. Id. The court described R.C. 2917.21(A)(5) broadly as

“prohibit[ing] a person from continuing to make telecommunications after the

recipient has told the caller to stop.” Id. at ¶ 23. To the court, the critical issue was

whether R.C. 2917.21(A)(5) “affords a reasonable person of ordinary intelligence

fair notice and sufficient definition and guidance that a person is prohibited from

continuing to telecommunicate with a recipient after the recipient tells the person to

stop the telecommunications.” Id. at ¶ 24. The court concluded that because the

defendant failed to demonstrate that the lack of a definition of “premises” rendered

him incapable of conforming his conduct to the law, his void-for-vagueness

challenge failed. See id.




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       {¶18} The court also rejected the defendant’s claim that his conviction was

not supported by sufficient evidence. The defendant’s conviction rested on a

stipulation of facts that provided that the defendant “sent messages to [the victim]

via the Facebook Messenger application,” as evidenced by “printouts of screen

captures of the messages on [the victim’s] smartphone,” with knowledge that the

victim “had told him to stop messaging her.” Id. at ¶ 5. However, the stipulation

of facts was silent regarding where the victim was when she received the messages.

Id. Nevertheless, the trial court concluded that based on the stipulation of facts,

“there was sufficient evidence to support the criminal conviction under R.C.

2917.21(A)(5).” Id. at ¶ 18. According to the court, R.C. 2917.21(A)(5) “prohibits

a person from continuing to make telecommunications after the recipient has told

the caller to stop” and the defendant “was aware that [the victim] told him to stop

messaging her, but he continued to message her after she told him to stop.” Id.

Thus, although the stipulation of facts contained no information concerning the

“premises” where the messages were received and the court was aware of the

defendant’s argument regarding the lack of definition for “premises,” the court still

concluded that the defendant’s conviction was supported by sufficient evidence. Id.

at ¶ 18-19. See State v. Erker, 8th Dist. Cuyahoga No. 107790, 2019-Ohio-3185, ¶

86-91; State v. Pariscoff, 9th Dist. Wayne No. 17AP0023, 2019-Ohio-172, ¶ 2, 5-

14 (conviction for violation of R.C. 2917.21(A)(1), which prohibits the making of


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a telecommunication with the purpose to harass any person at the premises to which

it is made, not against the weight of the evidence despite no discussion in the court’s

opinion of the premises where more than 28 harassing cell-phone calls were

received); State v. Ham, 1st Dist. Hamilton No. C-170043, 2017-Ohio-9189, ¶ 5-

10, 18-21 (R.C. 2917.21(A)(5) conviction supported by sufficient evidence in the

absence of any discussion in the opinion of the premises where the victim received

unwanted voice calls, text messages, and Facebook Messenger messages via her cell

phone).

       {¶19} Although these cases do not explicitly hold that the State is not

required to prove that an unwanted telecommunication was received at particular

“premises” when the telecommunication in question was received via a mobile

telecommunications device or through a service accessible from multiple

telecommunications devices, wherever situated, each of these cases, especially

Boggs, appears to rest on the assumption that no such showing is required. We find

merit in this assumption. We believe that implicit in every blanket demand that a

caller not send a telecommunication to a mobile telecommunications device is an

instruction that the caller refrain from sending telecommunications to the mobile

device at any “premises” where the mobile device is located. Thus, we conclude

that   when    a   recipient   receives    a     telecommunication   via   a   mobile

telecommunications device and has previously told the caller not to send additional


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telecommunications to the recipient’s mobile telecommunications device, the State

does not need to prove that the telecommunication was received by the recipient at

any specific “premises” to sustain a conviction under R.C. 2917.21(A)(5).

        {¶20} A contrary conclusion would likely prove unmanageable and could

create confusion regarding what conduct is proscribed by R.C. 2917.21(A)(5).

DiSabato’s preferred reading of R.C. 2917.21(A)(5) would place the onus on the

recipient to clearly articulate each and every “premises” at which they might be in

possession of their mobile telecommunications device. Although a recipient might

have the foresight to instruct the caller not to send telecommunications to the

recipient’s mobile device while the recipient is with their device at home, at the

office, at the gym, or at their favorite restaurant, it would be unreasonable, if not

impossible, to expect the recipient to provide the caller with an exhaustive list of the

“premises” at which they might be in possession of their mobile device. To remain

maximally protected by R.C. 2917.21(A)(5), the recipient would be required to

remain in frequent contact with the caller, updating the caller on newly forbidden

“premises” and perhaps eliciting the very telecommunications the recipient is

seeking to avoid. However, even the most diligent of recipients would likely neglect

to revise the list of off-limits “premises” on occasion and some unwanted

telecommunications may be received before the recipient has had a chance to update

their list.


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       {¶21} Furthermore, in many cases, a caller could not be certain whether a

planned telecommunication to a mobile telecommunications device would run afoul

of R.C. 2917.21(A)(5). Unless the caller is certain of the intended recipient’s

whereabouts at all times, the caller would often be required to guess whether the

telecommunication was received at an off-limits “premises” or somewhere else. As

a result, DiSabato’s understanding of R.C. 2917.21(A)(5) would actually impair a

person’s ability to conform their conduct to the law.

       {¶22} Here, viewing the evidence in a light most favorable to the State, we

conclude that any rational trier of fact could have found the elements of

telecommunications harassment under R.C. 2917.21(A)(5) proven beyond a

reasonable doubt. Viewing the evidence in this light, the record supports that

DiSabato knowingly sent a telecommunication to Adams’s cell phone with

knowledge that Adams had previously warned DiSabato not to send further

telecommunications to Adams’s cell phone.          As we have concluded, R.C.

2917.21(A)(5) requires nothing more. Therefore, the trial court did not err by

denying DiSabato’s Crim.R. 29(C) motion for acquittal after the verdict.

       {¶23} DiSabato’s fifth assignment of error is overruled.

                           Assignment of Error No. II

       The trial court committed reversible error when it violated Ohio
       Criminal Rule 24, Ohio Criminal Rule 31, and R.C. §2945.171.



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       {¶24} In his second assignment of error, DiSabato argues that the trial court

committed reversible error when it failed to ensure that the two alternate jurors were

not present during jury deliberations.

       {¶25} 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.” Crim.R. 24(G)(1). The Supreme Court of

Ohio “has consistently stated that allowing alternate jurors to be present during jury

deliberations is error.” State v. Downour, 126 Ohio St.3d 508, 2010-Ohio-4503, ¶

7, citing State v. Murphy, 91 Ohio St.3d 516, 531 (2001) (stating “[i]t is generally

regarded as erroneous to permit alternates to sit in on jury deliberations”) and State

v. Jackson, 92 Ohio St.3d 436, 439 (2001) (stating “[t]he trial court clearly erred *

* * in allowing the alternate jurors to remain present during deliberations”). “‘[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.’” State v. Gross, 97 Ohio

St.3d 121, 2002-Ohio-5524, ¶ 135, quoting United States v. Olano, 507 U.S. 725,

739, 113 S.Ct. 1770 (1993).


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       {¶26} In this case, it is undisputed that an oversight on the part of the trial

court resulted in the two alternate jurors being present during jury deliberations.

(See Aug. 27, 2018 Tr. at 277, 279); (See Doc. No. 40). We conclude that the trial

court erred by failing to ensure that the alternate jurors did not attend jury

deliberations. Downour at ¶ 7, 10; State v. Teitelbaum, 10th Dist. Franklin No.

14AP-310, 2016-Ohio-3524, ¶ 71.

       {¶27} DiSabato and the State both acknowledge that the trial court erred

when it failed to exclude the alternate jurors from jury deliberations.            (See

Appellant’s Brief at 8-11); (See Appellee’s Brief at 8). However, they dispute

whether the trial court’s error constitutes reversible error. DiSabato contends that,

in this case, the State had the burden to prove that the alternate jurors’ presence in

the room during jury deliberations did not prejudice him. (Appellant’s Brief at 8).

He concludes that the State did not carry its burden because “prejudice must be

presumed when the [alternate] jurors actually deliberated and signed the verdict

form.” (Id.). In contrast, the State argues that because DiSabato did not raise an

objection to the alternate jurors’ presence during deliberations until after the verdict

was announced, the trial court’s error may only be reviewed for plain error, which

requires DiSabato to establish that he was prejudiced. (Appellee’s Brief at 5-6, 8-

9). According to the State, because the mere presence of the alternate jurors during

deliberations does not raise a presumption of prejudice and DiSabato has otherwise


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failed to demonstrate actual prejudice, the trial court’s error does not amount to plain

error. (See id. at 4-6, 8-9).

         {¶28} To resolve the parties’ disagreement, we must first determine the

appropriate standard of review. We begin by examining some of the cases in which

the Supreme Court of Ohio applied a plain-error standard of review to a trial court’s

failure to exclude alternate jurors from jury deliberations. In State v. Murphy, “the

trial court sent the alternate jurors into the jury room to listen to the jury’s

deliberations” with instructions “not ‘to participate in the deliberations in any

fashion,’ even by ‘gestures’ or ‘facial movements.’”                          91 Ohio St.3d at 531.

Although the court recognized that the trial court erred by allowing the alternate

jurors to be present during jury deliberations,2 because “no defense objection

appear[ed] in the trial court record to the presence of the alternate jurors,” the court

concluded that the error was subject only to plain-error review. Id. at 532-533. The

court emphasized that under plain-error analysis, an alleged error “‘“does not

constitute a plain error or defect under Crim.R. 52(B) unless, but for the error, the

outcome of the trial clearly would have been otherwise.”’” Id. at 532, quoting State

v. Campbell, 69 Ohio St.3d 38, 41 (1994), quoting State v. Long, 53 Ohio St.2d 91


2
  Murphy and all of the following cases with the exception of Downour were decided under a former version
of Crim.R. 24, which provided: “[A]n alternate juror who does not replace a regular juror shall be discharged
after the jury retires to consider its verdict.” Crim.R. 24(F) (July 1, 1975) (current version at Crim.R. 24(G)
(July 1, 2009)). Although the rule has since been amended to allow trial courts to retain alternate jurors even
after the jury has retired to deliberate, cases applying the new Crim.R. 24(G)(1) have continued to hold that
a trial court errs by allowing alternate jurors to be present during jury deliberations. See Downour, 126 Ohio
St.3d 508, 2010-Ohio-4503, at ¶ 6-7, 10; Teitelbaum, 2016-Ohio-3524, at ¶ 67-68, 71.

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(1978), paragraph two of the syllabus. The court explained that under plain-error

review, prejudice cannot be presumed simply from an alternate juror’s presence

during jury deliberations. Id. at 533. See Olano, 507 U.S. at 741 (“Nor do we think

that the mere presence of alternate jurors entailed a sufficient risk of ‘chill’ to justify

a presumption of prejudice * * *.”). Rather, “the party complaining of the error has

the burden of showing that the alternates disobeyed the court’s instructions by

participating in the deliberations, either verbally or through body language, or that

their presence chilled the deliberative process.” Murphy at 533, citing Olano at 739-

741. Because the defense made no showing that the alternate jurors disobeyed the

trial court’s instructions not to participate in deliberations or that the alternates

chilled the deliberative process, the court concluded that the trial court’s error was

not prejudicial and therefore not plain error. See id. at 533-534.

       {¶29} The court was presented with a similar situation in State v. Jackson.

In Jackson, as in Murphy, the defense was put on notice that alternate jurors would

be present during jury deliberations when the trial court advised the alternate jurors

to listen to the deliberations but not to participate in any fashion. 92 Ohio St.3d at

439. Nevertheless, “[d]efense counsel did not object, and in fact expressly stated

that he had no objection to [the alternate jurors’] presence.” Id. at 438. As a result,

the court concluded that it was limited to reviewing the alleged error for plain error.

Id. While the court held that the trial court “clearly erred” by allowing the alternate


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jurors to remain present during deliberations, the court was “unwilling to presume

prejudice” under the facts of the case. Id. at 439. Ultimately, because the defendant

did not demonstrate that the alternate jurors disregarded the instructions not to

participate in deliberations or that they chilled the deliberative process, he failed to

show that he was actually prejudiced by the presence of the alternate jurors. Id. at

439-440.

       {¶30} Furthermore, in State v. Braden, the trial court instructed the alternate

jurors to listen to the jury deliberations but “‘not participate under any

circumstances in the deliberation unless and until, if ever, they are called upon to

serve as a regular juror.’” 98 Ohio St.3d 354, 2003-Ohio-1325, ¶ 45-46. Yet again,

“the defense did not object to the alternates’ presence during * * * the jury’s

deliberations and thus waived all but plain error.” Id. at ¶ 49, citing Olano at 741.

In conducting its plain-error analysis, the court reiterated that it had “previously

refused to presume prejudice when alternates have been allowed to remain present

during jury deliberations * * *.” Id. at ¶ 47, citing Jackson at 439. The court

ultimately concluded that the defendant failed to demonstrate specific prejudice:

       Neither the conviction nor the death penalty resulted from the

       presence of the alternates. Nothing in the record suggests that the

       alternate jurors said anything or participated in any form during the

       jury’s deliberations. Moreover, there is no indication from the record


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Case No. 14-18-23


       that the alternates in any way disobeyed the judge’s instructions or

       that their presence chilled the deliberative process.

Id. at ¶ 50. Therefore, “although it was improper for the trial court to allow the

alternate jurors to remain present during deliberations, plain error [was] absent.” Id.

The court has reached similar conclusions in at least two other cases applying the

plain-error standard to violations of Crim.R. 24. State v. Yarbrough, 104 Ohio St.3d

1, 2004-Ohio-6087, ¶ 91-95 (no plain error where there was no evidence that

alternates disobeyed the trial court’s instructions not to participate in deliberations

or that they chilled the deliberative process); State v. Ahmed, 103 Ohio St.3d 27,

2004-Ohio-4190, ¶ 116-118 (defendant unable to demonstrate prejudice where there

was no evidence that alternates participated in deliberations or exerted a chilling

effect on the regular jurors).

       {¶31} The foregoing cases can be contrasted with those cases in which the

Supreme Court of Ohio reviewed a trial court’s violation of Crim.R. 24 to which the

defendant objected at trial. In State v. Gross, five alternate jurors were permitted to

be present with the jury during sentencing deliberations. 97 Ohio St.3d 121, 2002-

Ohio-5524, at ¶ 122-125. Before retiring with the jury to the jury room, the alternate

jurors were instructed to “‘listen and watch the deliberations’” but not to participate

in the deliberations in any way. Id. at ¶ 123-124. However, it was soon discovered

that at least one of the alternate jurors ignored the trial court’s instructions. Id. at ¶


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Case No. 14-18-23


125. The trial court received two notes from the jury foreman, the second of which

related that one of the alternates was “‘expressing his feelings about the other jurors

in a manner that he thinks isn’t right’” and “‘feel[ing] things are going wrong and

think[ing] some people are getting pressured in making decisions.’” Id. at ¶ 127-

128. In response to the second note, the trial court took sworn testimony from the

two bailiffs responsible for the jury. Id. at ¶ 129. Both of the bailiffs testified that

during deliberations, the jury foreman knocked on the door of the jury room and

told the bailiffs, “‘It’s getting out of hand in here, the alternates are throwing pens

and thing[s].’” Id. They testified that one of the bailiffs suggested that the jury

foreman put his concerns in writing, which resulted in the second note received by

the trial court. Id. At that point, defense counsel unsuccessfully moved for a

mistrial. Id. The trial court then decided to bring the jury and the alternate jurors

back into the courtroom and repeat the jury instructions. Id. However, before it

could do so, the jury informed the trial court that it had come to a decision. Id. at ¶

129-131. Without reinstructing the jury and alternate jurors as planned, the jury and

the alternates were then brought back into the courtroom where the trial court

received the recommendation that the defendant be sentenced to death. Id. at ¶ 132.

        {¶32} The court determined that the alternate jurors’ presence during

sentencing deliberations constituted reversible error.3 Id. at ¶ 137-138, 140. First,


3
  Although a majority of the court agreed that Gross’s death sentence should be vacated because of the
alternate jurors’ presence during sentencing deliberations, the decision was fractured. Justice Cook’s lead

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Case No. 14-18-23


Justice Cook’s lead opinion distinguished Murphy and Jackson on the basis that

“Gross’s trial counsel did object to the presence of the alternate jurors in the

sentencing deliberations.” (Emphasis sic.) Id. at ¶ 134. Once Gross objected to the

presence of the alternate jurors, “the burden shifted to the state to demonstrate an

absence of prejudice.” Id. at ¶ 136, citing Olano, 507 U.S. at 734 and Crim.R.

52(A). Furthermore, the lead opinion concluded that once the trial court became

aware of the alternate jurors’ involvement in deliberations and of their disruptive

behavior, the trial court “needed to inquire about the extent and effect of the

alternates’ participation.” Id., citing State v. Hessler, 90 Ohio St.3d 108 (2000).

The lead opinion summarized its holding thusly: “[R]eversible 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.

        {¶33} In Justice Cook’s view, the record was not silent regarding the

prejudice Gross suffered; instead, the “record contain[ed] indicia of participation by

alternate jurors that create[d] a presumption of prejudice * * *.” Id. at ¶ 134. Gross

“pointed to specific evidence that at least one alternate inserted himself into the

actual deliberations through intrusive verbal participation, while more than one



opinion was not joined by any other member of the court. Justice Douglas wrote a short opinion concurring
in judgment only, which was joined by Chief Justice Moyer. Finally, Justice Pfeifer wrote an opinion
concurring in part and dissenting in part.

                                                 -25-
Case No. 14-18-23


alternate participated through nonverbal acts.” Id. at ¶ 136. The lead opinion

observed that courts have construed language in Olano as “mean[ing] that ‘evidence

that an alternate juror participated in jury deliberations is sufficient to demonstrate

prejudice.’” Id. at ¶ 135, quoting Manning v. Huffman, 269 F.3d 720, 726 (6th

Cir.2001) and citing United States v. Acevedo, 141 F.3d 1421, 1424 (11th Cir.1998)

and United States v. Ottersburg, 76 F.3d 137, 140 (7th Cir.1996). Therefore, the

lead opinion found “specific evidence of active disruption of the deliberative

process that pose[d] a significant risk of affecting jury functions * * *.” Id. at ¶ 137.

It concluded that because the State failed to counter the presumption of prejudice,

the State did not establish the absence of prejudice. See id. at ¶ 136-137. Finally,

it found that the trial court accepted the jury’s verdict without attempting to cure the

error, and it concluded that “[s]uch unaddressed evidence of disruption carries a

presumption of prejudice.” Id. at ¶ 137.

       {¶34} In State v. Downour, the court, revisiting Gross, concluded that the

trial court committed reversible error by allowing an alternate juror to attend jury

deliberations over objection. In Downour, the defendant unsuccessfully objected to

jury instructions that permitted an alternate juror to be present in the jury room

during deliberations. 126 Ohio St.3d 508, 2010-Ohio-4503, at ¶ 1. The jury then

deliberated with the alternate juror present and found the defendant guilty. Id. at ¶

2. After the verdict was returned, the defendant renewed his objection to the


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Case No. 14-18-23


presence of the alternate juror during deliberations and moved for a mistrial. Id.

The trial court denied the defendant’s motion. Id.

       {¶35} In holding that the trial court committed reversible error, a majority of

the court embraced Justice Cook’s lead opinion in Gross. See id. at ¶ 8-10. The

court clarified that when a defendant objects to the presence of alternate jurors

during jury deliberations, “it is the presence of the alternate jurors that shifts the

burden to the state to show that any error is harmless,” rather than the alternate

jurors’ participation. (Emphasis sic.) Id. at ¶ 9. The court concluded that because

the defendant objected to the alternate juror’s presence, the burden shifted to the

State to demonstrate the absence of prejudice. Id. at ¶ 10. As “[n]othing in the

record indicate[d] that the state established the absence of prejudice,” the court

reversed the decision of the court of appeals affirming the defendant’s conviction

and remanded for a new trial. Id. at ¶ 10-11.

       {¶36} After reviewing the record, we find that the instant case is more akin

to Gross and Downour than it is to Murphy, Jackson, or any of the other plain-error

cases. First, and most importantly, unlike the defendants in the plain-error cases,

DiSabato objected to the presence of the alternate jurors during deliberations when

he moved for a mistrial almost immediately after the jury’s verdict was announced.

(See Aug. 27, 2018 Tr. at 276-277). Yet, the State contends that despite DiSabato’s

motion for a mistrial, this court is restricted to plain-error review because


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Case No. 14-18-23


DiSabato’s objection was not registered “until after the verdict.” (Appellee’s Brief

at 8).

         {¶37} We disagree. The record does not suggest that DiSabato could have

objected to the presence of the alternate jurors during deliberations any earlier than

he did. In contrast to Murphy, Jackson, and the rest of the above-cited cases, the

trial court’s jury instructions in this case did not indicate that the alternate jurors

would be allowed to retire with the jury or caution the alternate jurors specifically

not to participate in the deliberations. (See Aug. 27, 2018 Tr. at 262-275); (See Doc.

No. 39). Furthermore, the record does not contain any discussion between the trial

court, the State, and DiSabato’s trial counsel in which the trial court stated that it

was going to let the alternate jurors sit in on deliberations or in which either party

requested or acquiesced to the presence of the alternates. Finally, the record reflects

that once the jury returned with the verdict, the bailiff passed the verdict form

directly from the jury foreman to the trial judge, who then announced the jury’s

verdict and noted that the alternate jurors had signed the form. (Aug. 27, 2018 Tr.

at 276-277). As a result, DiSabato was unable to discover the irregularities in the

verdict form until after the trial court had announced the verdict. Thus, the record

does not establish that DiSabato had notice of the alternate jurors’ presence in

deliberations at any time before the trial court read the verdict form into the record,

at which point he promptly objected to their presence during deliberations.


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Case No. 14-18-23


Therefore, under the particular facts of this case, we conclude that we are not limited

to plain-error review simply because DiSabato first objected to the alternate jurors’

presence after the jury had deliberated. See Acevedo, 141 F.3d at 1423, fn. 2.

       {¶38} Moreover, like in Gross and Downour, DiSabato objected at a time

when the trial court may have been able to take action to neutralize any prejudice

caused by the alternate jurors’ presence during jury deliberations. The trial court

had not yet accepted the guilty verdict and the jury had not yet been discharged.

Hence, we find that under the facts of this case, DiSabato raised a sufficiently timely

objection to the alternate jurors’ presence during deliberations. Accordingly, the

burden shifted to the State to demonstrate that DiSabato was not prejudiced by the

alternate jurors’ presence during deliberations. Downour, 126 Ohio St.3d 508,

2010-Ohio-4503, at ¶ 10.

       {¶39} Having settled on the proper standard of review, we now determine

whether the State demonstrated that DiSabato was not prejudiced by the alternate

jurors’ presence during jury deliberations. Nothing in the record indicates that the

State established an absence of prejudice to DiSabato. To the contrary, there is

specific evidence in the record suggesting that the alternate jurors participated in the

deliberations, which raises a presumption that DiSabato was prejudiced. See Gross,

97 Ohio St.3d 121, 2002-Ohio-5524, at ¶ 134-137 (evidence that “at least one

alternate inserted himself into the actual deliberations through intrusive verbal


                                         -29-
Case No. 14-18-23


participation, while more than one alternate participated through nonverbal acts”

created “a presumption of prejudice”).

       {¶40} First, the verdict form was signed by all eight jurors and both of the

alternates. (Doc. No. 40). The verdict form includes eight spaces for the jurors to

place their signatures, and each of these eight spaces contains a signature. (Id.).

The remaining two signatures are written in a blank space beneath the column of

signature spaces. (Id.). At least one of the alternate jurors, K.P., signed the verdict

form in one of the eight spaces intended for the actual jurors’ signatures. (Id.).

       {¶41} The trial court’s jury instructions provide further support for a

conclusion that the alternate jurors participated in deliberations.          The jury

instructions provided, in relevant part:

       Your verdict on each charge must be unanimous. Upon reaching a

       unanimous verdict, all jurors—all members of the jury must sign, in

       ink, the Verdict Form that corresponds to your decision for that charge

       * * *. When you’re in agreement, you can circle guilty or not guilty

       and each person is required to sign beneath the verdict in ink.

       ***

       Consult with one another, consider each other’s views and deliberate

       with the objective of reaching an agreement, if you can do so without

       disturbing your individual judgment. Each of you must decide each


                                           -30-
Case No. 14-18-23


       charge for yourself but you should do so only after a discussion and

       consideration of the case with your fellow jurors.

       ***

       The foreman or forelady should see that your discussions are orderly

       and that each juror has the opportunity to discuss the case and to cast

       a vote.

(Aug. 27, 2018 Tr. at 271-273). Thus, the jury instructions given by the trial court

encouraged each juror to participate actively in deliberations and charged the

foreperson with a duty to ensure that each juror was involved. Furthermore, the

instructions did not distinguish the actual jurors from the alternate jurors, and as

noted above, the instructions did not advise the alternate jurors not to participate in

jury deliberations. “The jury is presumed to follow the trial court’s instructions.”

State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, ¶ 103, citing State v. Loza, 71

Ohio St.3d 61, 75 (1994). Therefore, we must presume that the jurors and the

alternate jurors deliberated as a body of ten to deliver a unanimous verdict as

directed by the trial court, and the evidence in the record, specifically the verdict

form, serves only to bolster, rather than contradict, this presumption.            See

Ottersburg, 76 F.3d at 140. To conclude otherwise, this court would be “required

to presume that the alternates did not follow the court’s instructions and * * * sat

mute in the jury room” for roughly two hours of deliberations. Id.


                                         -31-
Case No. 14-18-23


       {¶42} In sum, we conclude that the record contains sufficient “indicia of

participation by [the] alternate jurors” such that prejudice to DiSabato is presumed.

Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, at ¶ 134-137. See Manning, 269 F.3d

at 722, 726 (evidence that an alternate juror actively participated in jury

deliberations, including an instruction to the alternate to “‘take part in the

discussions and deliberations,’” was sufficient to demonstrate prejudice);

Ottersburg at 138-140 (holding that the “substantive participation” of the alternates

established prejudice, in part, because the alternates signed the verdict form and

“were given no special instructions as to their limited role before they retired with

the members of the jury to deliberate”). Moreover, there is no evidence in the record

indicating that the State rebutted or attempted to rebut the presumption of prejudice.

Therefore, the State failed to sustain its burden of proving the absence of prejudice

to DiSabato. Accordingly, the trial court committed reversible error by failing to

exclude the two alternate jurors from jury deliberations.

       {¶43} DiSabato’s second assignment of error is sustained.

                            Assignment of Error No. I

       The trial court committed reversible error when it violated Ohio
       Criminal Rule 23.

                           Assignment of Error No. III

       The trial court erred when it denied Appellant’s motion for a new
       trial.


                                        -32-
Case No. 14-18-23


                           Assignment of Error No. IV

       The trial court erred when it failed to allow evidence to impeach
       the alleged victim and thereby violated several of Appellant’s
       constitutional rights.

       {¶44} Because we determined under DiSabato’s second assignment of error

that the trial court committed reversible error, DiSabato’s first, third, and fourth

assignments of error are rendered moot, and we decline to address them. See App.R.

12(A)(1)(c); State v. Carter, 3d Dist. Seneca No. 13-17-10, 2017-Ohio-7443, ¶ 21.

       {¶45} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued with respect to his fifth assignment of error, we

affirm the judgment of the trial court as to that matter. However, having found error

prejudicial to the appellant herein in the particulars assigned and argued with respect

to his second assignment of error, we reverse the judgment of the trial court and

remand to the trial court for a new trial or for other further proceedings consistent

with this opinion.

                                                         Judgment Affirmed in Part,
                                                              Reversed in Part and
                                                                 Cause Remanded

SHAW and WILLAMOWSKI, J.J., concur.

/jlr




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