State v. DiSabato, 2019 Ohio 3542

Background

Defendant Michael DiSabato and complainant Bret Adams exchanged group text messages; Adams repeatedly told DiSabato to stop contacting him. Adams later filed a civil defamation suit and then a criminal complaint alleging telecommunications harassment under R.C. 2917.21(A)(5).
Criminal complaint charged one count of telecommunications harassment based on texts sent December 16, 2017. DiSabato pleaded not guilty and went to jury trial.
After deliberations the jury returned a guilty verdict; the trial judge discovered that two alternate jurors had not been excused and had signed the verdict form.
DiSabato moved for mistrial immediately after the verdict, and later filed a Crim.R. 29(C) motion for acquittal (sufficiency) and a motion for a new trial based on jury irregularity; both were denied and DiSabato was sentenced to probation and a fine.
On appeal, the Third District: (1) rejected DiSabato’s sufficiency challenge under R.C. 2917.21(A)(5) (no requirement to prove receipt at a specific “premises” where recipient has a mobile device), and (2) reversed for reversible error because alternate jurors participated in deliberations and the State failed to show absence of prejudice after DiSabato timely objected.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency under R.C. 2917.21(A)(5): whether State must prove telecommunication was to a particular “premises” after recipient was told not to contact those premises	State: conviction valid; statute forbids continued communications after recipient tells caller to stop; no need to prove a fixed premises for mobile devices	DiSabato: statute requires proof that caller was told not to contact particular "premises" where messages were received; State did not prove premises	Held: sufficiency upheld. When messages target a mobile device, no separate proof of a specific premises is required; evidence could support conviction.
Presence of alternate jurors during deliberations	State: error not reversible because defense did not object before deliberations concluded; review for plain error and no prejudice shown	DiSabato: timely objected immediately after verdict; prejudice presumed when alternates actually deliberated and signed verdict form	Held: reversible error. Court treated objection as timely; burden shifted to State to prove lack of prejudice; record showed indicia of alternate participation and State did not rebut.
Whether trial court should have granted new trial for jury irregularity	State: no showing of prejudice; plain-error review applies	DiSabato: alternate jurors’ presence tainted deliberations; new trial warranted	Held: new trial required (case reversed and remanded) because prejudice was presumed and not disproved.
Whether alternate jurors’ mere presence requires presumed prejudice absent inquiry	State: mere presence does not automatically presume prejudice; defendant must show participation or chilling effect unless timely objected	DiSabato: signatures and jury instructions showed alternates participated; presumption applies	Held: where defendant objected once informed and record shows indicia of participation (signatures, instructions encouraging participation), prejudice presumed and State must rebut; it did not.

Key Cases Cited

State v. Jenks, 61 Ohio St.3d 259 (establishes appellate sufficiency review standard)
State v. Murphy, 91 Ohio St.3d 516 (plain-error review when defense did not timely object to alternates present during deliberations)
State v. Jackson, 92 Ohio St.3d 436 (refusal to presume prejudice where alternates were present but no objection was made)
State v. Gross, 97 Ohio St.3d 121 (alternate jurors’ participation over objection can create presumption of prejudice; reversible error if State does not show harmlessness)
State v. Downour, 126 Ohio St.3d 508 (where defendant objected to alternates’ presence, burden shifts to State to show absence of prejudice)
Olano v. United States, 507 U.S. 725 (federal precedent on plain-error analysis and when prejudice/presumption arises)