[Cite as State v. Downour, 126 Ohio St.3d 508, 2010-Ohio-4503.]

T HE S TATE OF O HIO , A PPELLEE , v . D OWNOUR , A PPELLANT . [Cite as State v. Downour, 126 Ohio St.3d 508, 2010-Ohio-4503.] Criminal law — Jury deliberation — The state has the burden to show that the presence of an alternate juror in th e room during deliberation has not prejudiced a defendant. (No. 2009-0886 — Submitted February 16, 2010

— Decided September 29, 2010.)
A PPEAL from the Court of Appeals for Lucas County, No. L-08-1029, 182 Ohio App.3d 12, 2009-Ohio-1812.

__________________ S YLLABUS OF THE C OURT The state has the burden to show that the presence of an alternate juror in the room during jury deliberations ha s not prejudiced a defendant. ( State v.
Gross , 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, clarified.)

__________________ P FEIFER , J. Factual and Procedural Background {¶ 1} James R. Downour was charged with operating a motor vehicle while under the influence of alcohol, in violation of Oregon Municipal Code 333.01(a)(1)(A). At the conclusion of a jury trial, Downour objected to the proposed jury instructions because the inst ructions permitted an alternate juror to be present in the jury room during deliberations. The judge overruled the objection. {¶ 2} The jurors deliberated in the pr esence of the alternate juror and found Downour guilty as charged. Downour then verbally renewed his objectionS UPREME C OURT OF O HIO

2 to the presence of the alternate juror during deliberations and moved for a mistrial.
The court denied the motion. Downour late r filed a written motion for a new trial, arguing that allowing the alternate juror to be present during deliberations violated Crim.R. 24(G)(1). The court denied the motion. The court sentenced Downour to 180 days of incarceration, suspending a ll but 20 days pending completion of
certain conditions. {¶ 3} Downour appealed, arguing that the trial court had committed error when it instructed the alternate juror to retire with the jury while it considered the guilt phase of the trial, in violation of R.C. 2313.37(C) and Crim.R. 24(G)(1). The court of appeals conclude d that although the trial c ourt had erred in allowing the alternate juror to be present during jury deliberations, the error was harmless, and the court affirmed the judgment of the trial court. State v. Downour , 182 Ohio App.3d 12, 2009-Ohio-1812, 911 N.E.2d 336. {¶ 4} We accepted Downour’s discretionary appeal. Analysis {¶ 5} R.C. 2313.37(C) states that alternat e jurors, “except as provided in this section[,] shall be discharged upon the final submission of the case to the jury.” The exceptions of R.C. 2313.37(D) are not applicable to this case. {¶ 6} Crim.R. 24(G)(1) states that in noncapital cases, "[t]he court may retain alternate jurors after the jury retires to deliberate. The court must ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged. If an alternate replaces a juror after deliberations have begun, the court must instruct the jury to begin its deliberations anew.” {¶ 7} This court has consistently stated that allowing alternate jurors to be present during jury deliberations is error. In State v. Murphy (2001), 91 Ohio St.3d 516, 531, 747 N.E.2d 765, we stated that "[i]t is generally regarded as erroneous to permit alternates to sit in on jury deliberations." In State v. JacksonJanuary Term, 2010

3 (2001), 92 Ohio St.3d 436, 439, 751 N.E.2d 946, we stated that "[t]he trial court clearly erred * * * in allowing the alternate jurors to remain present during
deliberations." In Murphy and Jackson , the defendants did not object to the presence of the alternate juror, and this court analyzed the error under a plain-error
standard that does not presume prejudice. State v. Gross , 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 133. {¶ 8} In Gross , the defendant objected to the presence of the alternate jurors during jury deliberations. Id. at ¶ 122-134. We stated that because the defendant "objected to the presence of the alternates in jury deliberations, the
burden shifted to the state to demonstrate an absence of prejudice." Id. at ¶ 136.
We also stated that "rev ersible error occurs where, over objection, an alternate juror participates in jury deliberations resulting in an outcome adverse to a defendant and either (1) the state has not s hown the error to be harmless, or (2) the
trial court has not cured the error." Id. at ¶ 137. {¶ 9} Because the first sentence in Gross refers to an alternate juror's "presence" during jury deliberations and th e second sentence refers to an alternate juror's "participation," we now clarify that it is the presence of the alternate jurors that shifts the burden to the state to show that any error is harmless. As we
discussed in Gross , "the United States Supreme C ourt has explained that ‘[i]n theory, the presence of alternate jurors during jury deliberations might prejudice a defendant in two different ways: either b ecause the alternates actually participated in the deliberations, verbally or thr ough “body language”; or because the alternates' presence exerted a “chilling” effect on the regular jurors.’ " Id. at ¶ 135, quoting United States v. Olano (1993), 507 U.S. 725, 739, 113 S.Ct. 1770,
123 L.Ed.2d 508. See State v. Bindyke (1975), 288 N.C. 608, 627-628, 220 S.E.2d 521 ("any time an alternate is in the jury room during deliberations he participates by his presence and, whethe r he says little or nothing, his presenceS UPREME C OURT OF O HIO

4 will void the trial"); Commonwealth v. Smith (1988), 403 Mass. 489, 494, 531 N.E.2d 556 (alternate jurors "really are not jurors. When they attend jury deliberations they do so as mere strangers"). {¶ 10} We conclude that the trial court erred in allowing an alternate juror to be present during jury deliberations. We also conclude that because Downour "objected to the presence of the alternates in jury deliberations, the burden shifted to the state to demonstrate an absence of prejudice." Gross , 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, at ¶ 136. See Bindyke, 288 N.C. at 623, 220 S.E.2d 521 ("The rule formulated by th e overwhelming majority of the decided cases is that the presence of an altern ate, either during the entire period of deliberation preceding the verdict, or his presence at any time during the
deliberations of the twelve regular jurors, is a fundamental irregularity of constitutional proportions whic h requires a mistrial or v itiates the verdict, if
rendered. And this is the result notw ithstanding the defendant's counsel consented, or failed to object, to the presence of the alternate"). Nothing in the record indicates that the state established the absence of prejudice. We conclude, therefore, that the court of appeals erred when it affirmed the decision of the trial

court. Conclusion {¶ 11} Because the state has the burden to show that the presence of an alternate juror in the room during ju ry deliberations has not prejudiced a defendant, we reverse the j udgment of the court of a ppeals, and we remand for a
new trial. Judgment reversed
and cause remanded.
L UNDBERG S TRATTON , O’C ONNOR , L ANZINGER , and C UPP , JJ., concur.
O’D ONNELL , J., concurs in judgment only.January Term, 2010

5 B ROWN , C.J., not participating.

__________________ Tim A. Dugan, for appellee. Dan Nathan and Jeff Goldstein, for appellant. Timothy Young, Ohio Public Defende r, and Claire R. Cahoon, Assistant Public Defender, urging reversal for amicus curiae, Ohio Public Defender.

______________________