State v. Searles, 2020 Ohio 5608

Michael Searles was tried on four misdemeanor counts (two public indecency, two voyeurism) arising from two separate incidents; county prosecuted two counts (Kenney counsel), city prosecuted two counts (Lucas counsel).
The four cases were tried together; Kenney handled voir dire for all cases but counsel were told to lodge objections only in the cases they represented.
During deliberations a juror (Juror 7) said she had to attend an out-of-town funeral and could not continue; the court located the alternate juror, who had been waiting in the courthouse hallway reading.
Attorney Kenney (present) told the court he had no objection to substituting the alternate; Attorney Lucas (city cases) was not present and later moved for a mistrial, asserting she had not been notified of the substitution and had briefly conversed with the alternate.
The trial court replaced Juror 7 with the alternate, instructed the jury to restart deliberations, and the jury convicted Searles on all charges; the court later classified him as a Tier I sex offender.
On appeal the court held the juror-substitution claim was waived as to some counts and, on the merits, that substitution complied with Crim.R. 24(G)(1); it vacated the Tier I classifications that had been attached to the public indecency convictions but left intact the Tier I designation based on the voyeurism convictions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether replacing a juror mid-deliberation with an alternate—while one defense counsel was absent and the alternate had brief non-substantive conversation with defense counsel—violated defendant's rights	Substitution was proper under Crim.R. 24(G)(1); no objection was lodged by present counsel (Kenney), so waiver; no prejudice shown	Substitution occurred without notice to one counsel (Lucas); possible taint from alternate's contacts; mistrial warranted	Waiver: Kenney’s on-the-record lack of objection waived the claim as to county and, under the case’s circumstances, as to city counts. On the merits substitution was proper: juror was unable to continue, alternate had no substantive contacts and stated she could be impartial, and jury was ordered to restart deliberations; no prejudicial error.
Whether public indecency convictions should carry Tier I sex-offender classifications	State treated classifications as appropriate given overall convictions (including voyeurism)	Public indecency convictions without minor victims do not qualify for Tier I classification	Tier I classifications appended to the public indecency sentences were vacated; Searles remains a Tier I registrant due to voyeurism convictions.

State v. Payne, 114 Ohio St.3d 502 (2007) (waiver is intentional relinquishment of a known right)
United States v. Olano, 507 U.S. 725 (1993) (distinguishes waiver from forfeiture in criminal procedure)
State v. McKee, 91 Ohio St.3d 292 (2001) (waiver cannot form the basis for plain-error Crim.R.52(B) review)
State v. Miley, 77 Ohio App.3d 786 (1991) (replacing a juror after partial verdict without questioning alternate or restarting deliberations is error)