Rush, J.
Under Indiana’s “exhaustion rule,” parties may seek appellate review of for-cause challenges to prospective jurors only if they have exhausted their peremptory challenges. But what if they use their last peremptory challenge for its traditional purpose of striking a candidate they consider undesirable, instead of using it to cure the trial court’s refusal to strike an allegedly incompetent one for cause? The State argues that doing so violates the exhaustion rule, thus waiving appellate review. We disagree and hold as a matter of first impression that parties satisfy the exhaustion rule the moment they use their final peremptory challenge—regardless of whom they strike. We also hold that if parties fully comply with the exhaustion rule and demonstrate they were unable to remove any prospective juror for lack of peremptories, appellate courts may review denial of any motion to strike for cause, regardless of whether a challenged juror actually served on the jury. Our holding preserves the fundamental policy of the exhaustion rule while recognizing the cherished status of peremptory challenges. Here, Defendant preserved appellate review of three for-cause challenges, but because the trial court was within its discretion to deny all of them, we affirm his conviction.
Defendant Gary Wayne Oswalt was tried by a jury on multiple counts of child molesting, child solicitation, and possession of child pornography. During voir dire, Oswalt moved to strike several prospective jurors for cause, including Jurors 7 and 13. The trial court denied his motions for both jurors, and in response, Oswalt used two of his peremptory challenges to remove them.
As voir dire continued, the parties reviewed a third panel of prospective jurors. Oswalt wished to strike Juror 28 for cause and use his final peremptory challenge to remove Juror 25 because he was the brother-in-law of another prospective juror, which was not grounds to remove him for cause. When it came time to submit motions to strike, Oswalt simultaneously presented his for-cause and peremptory challenges—an unusual deviation from the standard procedure of making for-cause challenges first, followed by peremptories. The trial court denied Oswalt’s motion to remove Juror 28 for cause. But because Oswalt had presented his for-cause and peremptory challenges at the same time, the trial court gave Oswalt the opportunity to switch his final peremptory challenge to Juror 28 instead of Juror 25. Oswalt vacillated on the decision but eventually decided to leave his final peremptory challenge for Juror 25 as he originally intended after stating “I’ve got a record that says . . . I’m out of preempts and I’m not getting who I want.” Juror 25 was removed, and Juror 28 sat on the jury. The jury convicted Oswalt on all counts, and the trial court entered an eighty-four-year aggregate sentence.
. . . .
The exhaustion rule requires parties to peremptorily remove jurors whom the trial court refuses to strike for cause or show that they “had already exhausted [their] allotment of peremptories” at the time they request for-cause removal. Id. at 30. And “even where a defendant preserves a claim by striking the challenged juror peremptorily,” an appellate court will find reversible error “only where the defendant eventually exhausts all peremptories and is forced to accept either an incompetent or an objectionable juror.” Id. The rule promotes judicial economy: parties should use the tools at their disposal to cure error and avoid significant costs that will accrue to the judiciary, the parties, and the citizen jurors. Id. (citing Merritt, 765 N.E.2d at 1236–37). Failure to comply with the exhaustion rule results in procedural default.
We have also historically recognized that parties are “prejudiced and injured” when they are compelled to use peremptory challenges to cure “the erroneous rulings of the court on [their] challenges for cause.” Fletcher v. Crist, 139 Ind. 121, 126–27, 38 N.E. 472, 474 (1894). Parties who spend their peremptories to remedy alleged trial court error lose their discretion to peremptorily strike additional jurors. Whether the exhaustion rule also limits parties’ discretion to apply their final peremptory as they wish is a question of first impression. And does peremptorily striking a juror after an unsuccessful challenge for cause, as the exhaustion rule requires, forfeit review of that for-cause challenge? After all, we have said that “the issue of whether the defendant had an impartial jury must focus on one or more of the jurors who actually sat and rendered the decision.” Ward v. State, 903 N.E.2d 946, 954–55 (Ind. 2009). Both issues require us to consider the trial-level costs of appellate review.
We hold that complying with the exhaustion rule neither comes at the cost of a party’s final peremptory challenge, nor precludes review of earlier for-cause challenges. Instead, parties satisfy the exhaustion rule the moment they use their final challenge, regardless of whom they strike. We also hold that the parties who satisfy the exhaustion rule should not lose appellate review for doing so. Instead, appellate courts may review jurors whom parties were forced to remove peremptorily when they show that (1) they satisfied the exhaustion rule, and that (2) an incompetent or an objectionable juror served on the jury. These conclusions fulfill the purpose of the exhaustion rule, while honoring parties’ time-honored discretion to use their peremptories as they see fit.
. . . .
The State also argues that we need not review whether there was good cause to strike Jurors 7 and 13 because Oswalt peremptorily struck them from serving on the jury. The State relies on Ward, where we said “the issue of whether the defendant had an impartial jury must focus on one or more of the jurors who actually sat and rendered the decision.” 903 N.E.2d at 954–55. But the State’s interpretation of Ward would penalize parties who fully comply with the exhaustion rule, and it deviates from the trajectory of our prior case law. Thus, review of Jurors 7 and 13 is warranted because Oswalt peremptorily removed both of them, and Juror 28 was an objectionable juror who actually served on the jury.
First, when parties exhaust their peremptory challenges, they must show that one of those challenges was used on the prospective juror for whom they seek appellate review. As we said in Whiting, parties preserve appellate review of error for denial of a challenge for cause when they “used a peremptory challenge to remove the challenged juror or had already exhausted [their] allotment of peremptories.” 969 N.E.2d at 30 (emphasis added). It is counterintuitive to suggest that the exhaustion rule requires a party to use a peremptory challenge to preserve appellate review of a for-cause motion and then deny review precisely because the party complied. But using a peremptory challenge is only the first step: “[E]ven where a defendant preserves a claim by striking the challenged juror peremptorily, reversible error occurs only where the defendant eventually exhausts all peremptories and is forced to accept either an incompetent or an objectionable juror.” Id. This latter prong applies our well-established standard of review to the voir dire context: “Reversible error occurs only when the error has prejudiced defendant.” Woolston v. State, 453 N.E.2d 965, 968 (Ind. 1983). Thus, when a party exhausts all peremptories and is forced to accept an objectionable or incompetent juror, any erroneous for-cause motion is prejudicial because it deprives the party of a peremptory that could have been used for its time-honored purpose.
The State argues that only jurors who actually served on the jury can prejudice the trial, so that we should follow our dicta in Ward and not review jurors who were peremptorily removed. But Ward was not so restrictive when read in light of our prior case law. In Merritt, we said reversible error occurs when parties prove both the erroneous denial of a motion to strike for-cause and their inability to strike another objectionable juror because they exhausted their peremptories. 765 N.E.2d at 1237. Our later decision in Ward merely emphasized that at least one incompetent or objectionable juror must actually have served on the jury, 903 N.E.2d at 954–55—because that is how the party is prejudiced.
The State’s argument also assumes that objectionable jurors who serve on the jury are less prejudicial to a fair trial than incompetent jurors. The State even made this assumption explicit during oral argument. But Indiana has always taken the “more lenient approach” of considering objectionable jurors and incompetent jurors to be equally prejudicial:
In Indiana, it is enough to show that an objectionable juror served because a party was forced to use a peremptory strike to cure an erroneous denial of a challenge for cause. The appellant need not prove that the objectionable juror was incompetent, i.e., one who should have been excused for cause.
Merritt, 765 N.E.2d at 1236 & n.6 (citing Woolston, 453 N.E.2d at 968).
Here, we review Jurors 7 and 13 because Oswalt used peremptory challenges to remove them, and Juror 28 was an objectionable juror who served on the jury. Although we hold below that Juror 28 was not an incompetent juror, and the trial court properly refused to remove him for cause, Oswalt has nonetheless shown that Juror 28 was objectionable. Oswalt made such a record and specified that he would have removed Juror 28 with a peremptory challenge if he had one left to use. That is enough to show that Juror 28 was at least objectionable, even if not incompetent. See Whiting, 969 N.E.2d at 30 & n.7. Thus, Oswalt has preserved appellate review of his motions to strike Jurors 7 and 13 for cause.
Dickson, Rucker, and David, JJ., concur.
Massa, J., concurs in result.