State v. Ostermeyer, 2021 Ohio 3781

Infant D.O. (born Jan. 2020) presented May 8, 2020 with multiple fractures: 11 rib fractures, spiral right humerus fracture, and tibial fracture; medical experts concluded injuries were nonaccidental and inconsistent with brittle bone disease.
Appellant Devin Ostermeyer lived with the child and mother; he admitted to police he had been "too rough" at times, thought he may have broken the arm, and was the only person who had contact with the child during the relevant timeframe.
Parents had a March 12, 2020 domestic altercation during which appellant grabbed the infant around the mid‑section and tried to pull him from the mother's arms.
Grand jury indicted appellant for felonious assault and endangering children; jury acquitted felonious assault but convicted appellant of third‑degree felony child endangering (R.C. 2919.22(A)/(E)(2)(c)).
After the initial verdict, the court discovered two alternate jurors had been mistakenly seated for deliberations; the court recalled jurors, re‑impaneled 12 jurors (one original absent due to COVID), instructed them to "begin deliberations anew," and the re‑seated jury again convicted appellant.
Appellant appealed raising (1) juror misconduct/due process from alternates participating, (2) insufficiency of the evidence/Crim.R. 29, and (3) manifest weight of the evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Juror misconduct: alternates participated in initial deliberations	State: court cured the error by recalling jurors, questioning them, and instructing to re‑deliberate anew	Ostermeyer: alternate participation was an outside influence that tainted the second verdict	Court: error was cured by juror inquiry and explicit instruction to start deliberations anew; presumes jurors followed instruction; no reversible misconduct shown
Sufficiency / identity (Crim.R. 29)	State: circumstantial and direct evidence (medical testimony, admissions, timeline) sufficiently identify appellant as perpetrator	Ostermeyer: state failed to prove he committed the offense; alternative caretakers existed	Court: viewing evidence in light most favorable to prosecution, a rational trier of fact could find elements proven beyond reasonable doubt; Crim.R. 29 denial affirmed
Manifest weight (credibility and identity)	State: medical evidence, defendant’s admissions, and elimination of other caregivers support verdict	Ostermeyer: jury lost its way; evidence favors acquittal	Court: credibility and inferences favor conviction; weight of evidence does not warrant reversal; conviction affirmed

State v. Downour, 126 Ohio St.3d 508 (2010) (alternate jurors present during deliberations is error)
State v. Murphy, 91 Ohio St.3d 516 (2001) (error to permit alternates to sit in on jury deliberations)
State v. Gross, 97 Ohio St.3d 121 (2002) (reversible error when an alternate participates unless the state shows harmlessness or court cures the error)
State v. Phillips, 74 Ohio St.3d 72 (1995) (trial court must hold hearing when improper outside communication occurs to determine bias)
State v. Herring, 94 Ohio St.3d 246 (2002) (court may rely on juror testimony that impartiality was not affected)
State v. DePew, 38 Ohio St.3d 275 (1988) (presumption that juries follow curative instructions)
State v. Durr, 58 Ohio St.3d 86 (1991) (jurors are presumed to follow their oaths)
State v. Thompkins, 78 Ohio St.3d 380 (1997) (distinguishes sufficiency and weight standards)
In re Winship, 397 U.S. 358 (1970) (Due Process requires proof beyond a reasonable doubt of every fact necessary to constitute the crime)
State v. Tate, 140 Ohio St.3d 442 (2014) (state must prove the accused committed the offense)
State v. Martin, 151 Ohio St.3d 470 (2017) (circumstantial and direct evidence have equal probative value)
State v. Nucklos, 121 Ohio St.3d 332 (2009) (reaffirming Winship standard)