The opinion
Stewart, Presiding Judge,
dissenting.
{¶ 36} I respectfully dissent from the decision reached by the majority. While I agree that juror sleeping is a form of jury misconduct, the trial court is vested with discretion in determining how to handle such a matter. Additionally, the appellant did not request a mistrial or that the juror be removed from service. Therefore, he has demonstrated no prejudice.
{¶ 37} The prosecutor first brought to the attention of the trial court the fact that a juror was sleeping. Appellant did not object to the trial court’s handling of the matter, nor did he request that the juror be removed. In the absence of any action on his part, appellant cannot be heard to complain that the court should have removed the juror. To the contrary, appellant’s silence in the face of the state’s notice to the court actually suggests that appellant may have had a desire to keep the juror.
*736 {¶ 38} Furthermore, the Supreme Court of Ohio in State v. McKnight, 107 Ohio St.3d 101 , 2005-Ohio-6046 , 837 N.E.2d 315 , noted that it is not plain error for the court to fail to remove a sleeping juror. In McKnight, at ¶ 184, the state twice told the court about sleeping jurors without objection from the defendant. Addressing a claim of error, the court stated:
(¶ 39} “It is well established that ‘ “[t]he trial judge is in the best position to determine the nature of the alleged jury misconduct” and “the appropriate remedies for any demonstrated misconduct.” ’ United States v. Sherrill (C.A.6, 2004), 388 F.3d 535, 537 , quoting United States v. Copeland (C.A.6, 1995), 51 F.3d 611, 613 . Moreover, a trial court has ‘ “considerable discretion in deciding how to handle a sleeping juror.” ’ State v. Sanders (2001), 92 Ohio St.3d 245, 253 , 750 N.E.2d 90 , quoting United States v. Freitag (C.A.7, 2000), 230 F.3d 1019, 1023 .”
(¶ 40} For the reasons stated above and based on the record in this case, I would overrule this assigned error regarding the sleeping juror and address appellant’s remaining 15 assignments of error.