concurring. I concur in the well-reasoned opinion and judgment of the majority. While the majority’s discussion of cases from other jurisdictions is both interesting and useful, I would answer the primary question before us by referring to Civ.R. 47(C). Civ.R. 47(C) states, in part, that “[a]n alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.” (Emphasis added.) The “juror” in question herein was, having been discharged, no longer a juror. Thus, attendance in the room where the jury was deliberating was improper, and even without proof of anything else, the mere presence of a nonjuror was cause to grant a mistrial. The trial judge was clearly correct and, I would submit, under a duty to act, given the clear violation of the rule.
Moyer, C.J., concurs in the foregoing concurring opinion.