State v. Searles

Citations

• 2020 Ohio 5608

Syllabus

JURY – JUROR SUBSTITUTION – WAIVER – SEX OFFENSES – SENTENCING – PUBLIC INDENCENCY – VOYEURISM: Where defendant was tried in a single jury trial on two counts prosecuted by the city and two counts prosecuted by the county defendant was represented by one counsel on the city cases and separate counsel on the county cases after the jury had begun deliberating the trial court substituted the alternate juror for a juror in the absence of defendant's counsel on the city cases defendant's counsel on the county cases represented that he was comfortable \covering\ for defendant's city counsel who could not be located and defense counsel on the county cases stated that there was no objection to the substitution, the trial court did not err in overruling the motion for a mistrial made by defendant's counsel on the city cases, after the verdicts were returned, on the ground that she was absent during the substitution, because, under the circumstances, defendant waived the issue and, even if issue was not waived, the court correctly substituted the alternate juror where the original juror had to attend an out-of-town funeral, which would have delayed the proceedings for an unknown amount of time, the alternate juror stated she could be fair and impartial, the court instructed the jury that it had to begin its deliberations anew, defendant's counsel on the county cases represented that he was comfortable with \covering\ and he specifically stated that there was no objection, and no argument was made that defendant was prejudiced by the substitution. Where defendant was convicted of two counts of public indecency and two counts of voyeurism, and the trial court classified defendant as a Tier I sex offender under Ohio's version of the Adam Walsh Act, the court erred in imposing the Tier I classifications as part of defendant's sentences for public indecency, and the Tier I classifications in those cases must be vacated but defendant is correctly classified as a Tier I sex offender