State v. Searles , 2020 Ohio 5608 ( 2020 )

[Cite as State v. Searles, 2020-Ohio-5608.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-190389
C-190395
Plaintiff-Appellee, : C-190414
C-190415
vs. : TRIAL NOS. C-19CRB-2854
C-19CRB-2898
MICHAEL SEARLES, : 19CRB-3995A
19CRB-3995B
Defendant-Appellant. :
O P I N I O N.
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed From Are: Affirmed in Part and Affirmed in Part as Modified
Date of Judgment Entry on Appeal: December 9, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger,
Assistant Prosecuting Attorney, for Plaintiff-Appellee State of Ohio, Hamilton
County,
Paula Boggs Muething, City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Megan D. Woodall, Assistant Prosecuting Attorney, for Plaintiff-
Appellee State of Ohio, City of Cincinnati,
Jon R. Sinclair, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MOCK, Presiding Judge.
{¶1} On February 5, 2019, defendant-appellant Michael Searles was
charged with public indecency in the case numbered C-19CRB-2854, and voyeurism
in the case numbered C-19CRB-2898. The victim in those cases woke up to find
Searles masturbating on her patio outside her sliding glass door. The Hamilton
County Prosecuting Attorney’s Office prosecuted Searles on those charges, and he
was represented by attorney James Kenney in those cases.
{¶2} On February 17, 2019, Searles was charged with public indecency and
voyeurism in the cases numbered 19CRB-3995A and 19CRB-3995B. The victim in
those cases was in the bedroom of her basement apartment when she heard a knock
on her window. She saw Searles outside her window exposing his penis. The city of
Cincinnati prosecuted Searles on those charges, and he was represented by attorney
Ronna Lucas in those cases.
{¶3} The cases were tried together. While Kenney handled the voir dire for
all cases, the city and county cases were treated separately for trial; and the trial
court told defense counsel that they could object only in their respective cases and
not in the other cases.
{¶4} After the jury instructions were read, the trial court excused the
alternate juror. The court told the alternate juror that she could stay until a verdict
was reached or she could leave. The court instructed the alternate juror not to talk
about what her verdict would have been until after the verdict had been announced.
The alternate juror chose to stay in the courthouse hallway reading a book.
{¶5} About two hours after the jury began deliberations, the trial court
brought the jury back into the courtroom. Attorney Kenney was present but attorney
Lucas was not. The trial court informed counsel that there was an issue with Juror 7.
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OHIO FIRST DISTRICT COURT OF APPEALS
The court asked if there was any objection to replacing Juror 7 with the alternate
juror. There were no objections. The court questioned the alternate juror about
whether she could be fair and impartial, and she said that she could. The court
replaced Juror 7 with the alternate juror and then instructed the jury that it must
begin its deliberations anew. The jury ultimately found Searles guilty of all charges.
{¶6} Prior to sentencing, attorney Lucas asked the court to declare a
mistrial because she had not been present when Juror 7 had been replaced with the
alternate juror. The court denied the motion for a mistrial, stating that even if Lucas
had been present and objected, the court would still have made the decision to
replace Juror 7 with the alternate. The court then sentenced Searles and classified
him as a Tier I sex offender under Ohio’s version of the Adam Walsh Act. Searles has
appealed.
{¶7} Searles’s first assignment of error states, “The trial court erred to the
prejudice of appellant by placing the alternate juror on the jury without notice to
defense counsel, and when the alternate juror had been previously discharged by the
court and then conversed with three of the trial attorneys.”
{¶8} After the jury had been deliberating about two hours, the trial court
was made aware of a potential problem with Juror 7. The prosecutors and attorney
Kenney were present. Attorney Lucas was not present, but the record shows that
Kenney had indicated to the court’s bailiff, and the bailiff informed the trial court,
that Kenney was comfortable with “covering.” Kenney did not state this on the
record, but he did not object to Lucas’s absence. Pursuant to questioning by the
court, Juror 7 stated that she had to attend an out-of-town funeral the next day and
would be unable to deliberate. The court questioned Juror 7 about how long she
would be gone, but she was unsure. The court was concerned about extending the
deliberations indefinitely because of the potential of “losing more jurors.” The court
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OHIO FIRST DISTRICT COURT OF APPEALS
asked if there were any objections to replacing Juror 7 with the alternate juror, who
had been sitting in the courthouse hallway reading a book. There were no objections
from the prosecution. Kenney specifically stated that there were no objections. The
court was then made aware of conversations the alternate juror had with defense
counsel, which consisted of the exchange of pleasantries and the questioning of
Kenney about his leg. There was no discussion about anything relating to the
substance of the cases. The court questioned the alternate juror about whether she
could be fair and impartial, and she said that she could. The court replaced Juror 7
with the alternate juror and then instructed the jury that it must begin its
deliberations anew. The court then again asked if there were any objections to the
substitution, and Kenney again stated that he had no objections.
{¶9} Prior to sentencing, attorney Lucas requested that the court declare a
mistrial because she had not been present when Juror 7 was replaced with the
alternate juror. Lucas stated that she had been unaware of the substitution until
after the verdicts had been returned. In making her request for a mistrial, Lucas
said, “I honestly I don’t know what I would have done in the – given the situation
and asked.” She also informed the court that she had had a conversation with the
alternate juror, but it was nothing of substance relating to the cases. Lucas argued
that she and Kenney were not cocounsel and that they were representing Searles on
different cases. She also stated that she was not aware of any conversations the
alternate juror may have had with anyone so her “comfort level is not very high.” She
did not argue that Searles suffered any actual prejudice from the substitution.
{¶10} The trial court overruled the motion for a mistrial. The court stated on
the record that Kenney had “indicated that he was willing to stand in.” The court
also stated that efforts had been made to contact Lucas, but they had been
unsuccessful. The court said that the alternate juror had indicated that she had not
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OHIO FIRST DISTRICT COURT OF APPEALS
had any substantive conversations with anyone and that it was clear that the
alternate juror had not begun “to form or express an opinion.” The court indicated
that it had been concerned about prolonging the deliberations with the potential of
“losing more jurors if we took additional time.”
{¶11} Both the city and the county argue that Searles waived this issue for
appeal. “Waiver is the intentional relinquishment or abandonment of a known right,
and waiver of a right ‘cannot form the basis of any claimed error under Crim.R.
52(B).’ ” State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306,
quoting State v. McKee, 91 Ohio St.3d 292, 299, 744 N.E.2d 737 (2001), fn.3 (Cook,
J., dissenting); see United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123
L.Ed.2d 508 (1993) (waiver is the “intentional relinquishment or abandonment of a
known right”).
{¶12} There is no question that Searles waived this issue as it pertains to the
county cases. Kenney, his counsel on those cases, specifically waived it by stating
that there was no objection to the substitution of the alternate juror for Juror 7. We
hold, based on the unique circumstances of this case, that Kenney’s statement that
defendant had no objections to the substitution constituted a waiver of the issue as to
the city cases. Kenney, who had represented Searles throughout the trial, indicated
to the trial court that he was “willing to stand in” for Lucas, who could not be located.
Searles was represented by competent counsel who was acting in his best interest.
Kenney raised no objection to the substitution of Juror 7 outside of Lucas’s presence,
and specifically stated that Searles had no objection to the substitution. Under these
circumstances, we hold that Searles waived the issue for appellate review.
{¶13} Even if we had not held that Searles waived the issue as to the city
cases, we would not find prejudicial error in the substitution of the alternate juror for
Juror 7. Crim.R. 24(G)(1) allows the substitution of an alternate juror for a juror if
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OHIO FIRST DISTRICT COURT OF APPEALS
the juror is “unable” to perform his or her duties. In this case, the alternate juror had
remained in the courthouse hallway reading a book. Lucas did not argue that Searles
actually suffered any prejudice from the substitution. In fact, she stated to the trial
court that she was “honestly” not sure what she would have done, i.e., whether she
would have objected, had she been there when the substitution had occurred.
{¶14} The trial court made a complete record in this case. The court
questioned Juror 7 and determined that she would be unable to continue
deliberating for an unknown period of time. The substitution was made to ensure
that there would not be a substantial delay in the proceedings. The court questioned
the alternate and ensured that she had had no substantive conversations about the
cases and that she could be fair and impartial. The court also correctly instructed the
jury, pursuant to Crim.R. 24(G)(1), that it was required to begin its deliberations
anew after the alternate had been seated.
{¶15} We hold that the trial court did not err in substituting the alternate
juror for Juror 7. See State v. Felder, 8th Dist. Cuyahoga No. 87453, 2006-Ohio-
5332 (no error in, over defendant’s objection, discharging juror and replacing her
with an alternate juror after deliberations had begun where the juror said she could
not be fair, the jury had not been deliberating long, the alternate juror said she could
be fair and that she had not discussed the case with anyone, and the court instructed
the jury to begin its deliberations anew); compare State v. Bowling, 10th Dist.
Franklin No. 95APA05-599, 1996 WL 52892 (Feb. 8, 1996) (error to replace juror
with alternate after deliberations had begun where there was no notice to counsel,
the court failed to ask whether the alternate could be fair, and the court failed to
instruct the jury that it must begin its deliberations anew); State v. Miley, 77 Ohio
App.3d 786, 603 N.E.2d 1070 (12th Dist.1991) (error to replace juror with alternate
where partial verdict had been returned and the alternate was seated for the purpose
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OHIO FIRST DISTRICT COURT OF APPEALS
of continuing deliberations in order to reach a final verdict, the court did not
ascertain whether the alternate could be fair, and the court did not instruct the jury
to begin its deliberations anew). The first assignment of error is overruled.
{¶16} Searles’s second assignment of error states, “The court erred as a
matter of law by designating appellant a sex offender as part of his conviction for
public indecency.” Both sentences for public indecency contain Tier I sex offender
classifications. Searles argues that he should not have been classified as a Tier I sex
offender for either of his public indecency convictions because they did not involve
minor victims. The court noted that Searles did not qualify as a Tier I sex offender
for his public indecency convictions, but that he was a Tier I offender due to his
convictions for voyeurism. Therefore, the Tier I sex offender classifications imposed
as part of Searles’s sentences for public indecency in the cases numbered 19CRB-
3995B and C-19CRB-2854 must be vacated. The second assignment of error is
sustained. We point out that Searles is correctly classified as a Tier I sex offender
due to his convictions for voyeurism.
{¶17} The Tier I sex offender classifications imposed as part of the sentences
for public indecency in the cases numbered 19CRB-3995B and C-19CRB-2854 are
hereby vacated. The trial court’s judgments are modified to reflect the vacation of
the Tier I classifications from the sentences for public indecency in the cases
numbered 19CRB-3995B and C-19CRB-2854, and those judgments are affirmed as
modified. The judgments of the trial court are affirmed in all other respects. Searles
is required to register as a Tier I sex offender due to his convictions for voyeurism.
Judgment accordingly.
ZAYAS and BERGERON, JJ., concur.
Please note:
The court has recorded its own entry this date.
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