                     In the Missouri Court of Appeals
                             Eastern District
                                         DIVISION FIVE

STATE OF MISSOURI,                                )       No. ED100658
                                                  )
       Respondent,                                )       Appeal from the Circuit Court
                                                  )       of Jefferson County
vs.                                               )
                                                  )
PATRICK K. RUDOLPH,                               )       Honorable Raymond H. Dickhaner
                                                  )
       Appellant.                                 )       Filed: March 10, 2015

                                            OPINION

                                         INTRODUCTION

       Patrick K. Rudolph (“Defendant”) appeals from the judgment of the trial court entered

after a jury convicted him of two counts of the class A misdemeanor of assault of a corrections

officer in the third degree, in violation of section 565.083, RSMo 2000. Specifically, Defendant

contends the trial court plainly erred in not sua sponte ordering a mistrial after an alternate juror

participated in jury deliberations. We affirm.

                    I.     FACTUAL AND PROCEDURAL BACKGROUND

       Viewed in a light most favorable to the judgment, the evidence is as follows: On June 6,

2011, Defendant was brought into the booking area of the Jefferson County Jail. Defendant

appeared intoxicated and created a disturbance.          An officer approached Defendant, and

Defendant pushed him in the chest. Another corrections officer entered the booking area to assist

the first officer, and Defendant grabbed his wrist.

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       Defendant was charged by amended information with two counts of the class A

misdemeanor of assault of a corrections officer in the third degree. He was tried by a jury on

October 3, 2013. Twelve jurors and an alternate juror heard the evidence. The jury was released

to begin deliberations. The alternate juror, however, was not discharged from duty; he

accompanied the other twelve jurors to the jury room.

       Shortly after deliberations started, the court discovered the alternate juror had not been

discharged. At the direction of the court, the alternate was removed from deliberations thirty-

three minutes after they began. The court informed both sides that it intended to question the

alternate juror about the extent of his involvement in deliberations. The State and Defendant

agreed this course of action was acceptable to them.

       The alternate juror was brought into court and asked to explain how he was involved in

deliberations. He stated he participated as follows: he voted to elect a foreperson; he suggested

they obtain reports to clarify whether the correction officers were actually telling the truth when

they testified Defendant was intoxicated; and he questioned the ability of the correction officers

to recall details twenty-eight months after the incident.

       The court confirmed the alternate juror had no additional interactions or communications

with the jury. Counsel from both sides were given the opportunity to question him, but declined.

Both the State and Defendant agreed to send the alternate home and allow deliberations to

continue. Defendant did not object or request a mistrial. The alternate juror was discharged, and

the jury resumed deliberations.

       The jury found Defendant guilty on both counts. Defendant filed a motion for new trial.

In his motion, he argued the court should have sua sponte declared a mistrial when the alternate

juror’s participation in deliberations was discovered. In its order overruling Defendant’s motion,



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the court noted Defendant had not objected “to the manner in which the issue was handled” and

did not request a mistrial. The court further declined to review Defendant’s claim under plain

error as it found no showing the alternate juror affected the jury’s determination. The trial court

sentenced Defendant to serve ninety days in the Jefferson County Jail on each count to be run

concurrently. This appeal followed.

                                         II.     DISCUSSION

          In his sole point relied on, Defendant contends the trial court plainly erred in not sua

sponte ordering a mistrial after the alternate juror participated in jury deliberations for thirty-

three minutes.       In particular, Defendant maintains the alternate juror’s participation in

deliberations constituted improper third-party contact with the jurors and resulted in a manifest

injustice. We disagree.

          Defendant concedes he did not timely request a mistrial and asks this Court to review his

claim for plain error under Rule 30.20.1 Plain error review is used sparingly and is limited to

those cases where there is a clear demonstration of manifest injustice or miscarriage of justice.

See State v. Gaines, 342 S.W.3d 390, 398 (Mo. App. W.D. 2011). “A criminal defendant

seeking plain error review bears the burden of showing that plain error occurred and that it

resulted in a manifest injustice or miscarriage of justice.” State v. Roper, 136 S.W.3d 891, 900

(Mo. App. W.D. 2004) (citing State v. Williams, 9 S.W.3d 3, 12 (Mo. App. E.D. 1993)).

          While an unpreserved error can, in some instances, be reviewed pursuant to Rule 30.20

for plain error, this is not such a case. We find Defendant affirmatively waived appellate review

of his claim. Waiver of plain error review occurs when an appellant affirmatively endorsed the

challenged action of the trial court. See Johnson v. State, 189 S.W.3d 640, 647 (Mo. App. W.D.



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    All references are to the Missouri Court Rules (2014).
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2006) (finding appellant waived plain error review by affirmatively stating at trial he had no

objection to admission of the evidence at issue).

       The record reflects that when the court discovered the alternate juror had participated in

deliberations, it informed the State and Defendant that it intended to question the juror about “the

extent of his involvement in any deliberations and discussions concerning the case . . . .” The

court inquired as to whether that course of action was acceptable to both sides. They both

agreed, and the court questioned the alternate juror. Both the State and Defendant were given the

opportunity to examine the alternate juror, but they declined. Then, the following exchange

occurred between the court, the State, and Defendant’s counsel:

       The court: Okay. Given the comments from [the alternate juror], is there any relief that’s
       being requested by the State, or how do you wish to proceed?
       The State: We wish to proceed as normally, Judge. I think we can send him home and
       allow the deliberations to continue.
       The court: [Defense counsel]?
       Defense counsel: I agree, Your Honor.
       The Court: Okay. All right. Any other discussions?
       Defense counsel: No, sir.

       Here, Defendant’s counsel approved the court’s decision to question the alternate juror

about his participation, and after he described his involvement, agreed to send him home and

allow deliberations to continue. Because Defendant acquiesced in the trial court’s conduct, he

affirmatively waived appellate review of his claim of error. See State v. Anderson, 294 S.W.3d

96, 100 (Mo. App. E.D. 2009) (concluding an announcement of “no objection” by the defendant

amounted to an affirmative waiver of appellate review and stating the general rule of waiver

applies not only to admissibility of evidence but also when a court’s conduct or ruling regarding

a jury is challenged as erroneous).

       Even assuming arguendo that Defendant did not affirmatively waive this issue, he,

nonetheless, has failed to meet his burden to clearly demonstrate he suffered a manifest injustice

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from the alternate juror’s participation in deliberations. ‘“[T]he primary if not exclusive purpose

of jury privacy and secrecy is to protect the jury's deliberations from improper influence.’” State

v. Herndon, 224 S.W.3d 97, 101 (Mo. App. W.D. 2007) (quoting U.S. v. Olano, 507 U.S. 725,

737–38 (1993)). ‘“Private communications, possibly prejudicial, between jurors and third

persons . . . are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness

is made to appear.’” Id. (quoting State v. Quinn, 405 S.W.2d 895, 896 (Mo. banc 1966)).

       The courts presume prejudice when a non-juror has an unauthorized communication with

jurors. Id. “When the improper communication intrudes on the jury's deliberations, the state can

avoid a new trial only by establishing that the defendant was not prejudiced by the

communication.” Id.; State v. Hayes, 637 S.W.2d 33, 38 (Mo. App. E.D. 1982). When an

alternate juror is involved in deliberations, it is presumptively prejudicial and the state must

prove the juror’s participation was harmless. See Hayes, 637 S.W.2d at 38; State v. Morris, 662

S.W.2d 884, 889 (Mo. App. S.D. 1983); Herndon, 224 S.W.3d at 101-02.

       Defendant argues the State failed to present evidence showing the alternate juror’s

participation in deliberations was harmless.          After being removed from deliberations, the

alternate juror explained to the court that his participation consisted of voting to elect a

foreperson and discussing certain testimony. He claimed his communications to the other twelve

jurors were limited to the following statements: he remarked that they “needed to see some

reports . . . [to] clarify if [the] correction officers were actually telling the truth about

[Defendant] being intoxicated or not”; and he questioned the ability of the officers to recall

details twenty-eight months after the incident. The alternate juror then confirmed he had no

additional interaction with the jury.




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       We find Defendant was not prejudiced by the alternate juror’s limited participation in

deliberations. His comments to the jury challenged the credibility and accuracy of the correction

officers’ testimony. As such, they were unfavorable to the State and harmless to Defendant.

Moreover, there is no evidence the alternate juror’s communications improperly influenced the

jury’s verdict. Had the alternate juror’s doubts about the reliability of the officers’ testimony

influenced the jury, we can reasonably assume they would not have entered a guilty verdict. See

Herndon, 224 S.W.3d at 103 (finding that although the alternate juror told another juror during

deliberations that she thought the defendant was innocent and the victim appeared to be lying,

the unanimous guilty verdict refuted any contention that she had influenced the jury).

        Accordingly, the record establishes the alternate juror’s participation in deliberations was

harmless. Defendant does not clearly demonstrate he suffered a manifest injustice. The trial

court did not plainly err in failing to sua sponte declare a mistrial. Point denied.

                                       III.    CONCLUSION

       We affirm the judgment of the trial court.



                                              ____________________________________
                                              ANGELA T. QUIGLESS, CHIEF JUDGE
Lawrence E. Mooney, J., and
Sherri B. Sullivan, J., Concurs.




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