IN THE
Court of Appeals of Indiana FILED Andre D. Johnson, Dec 31 2025, 10:25 am Appellant-Defendant CLERK Indiana Supreme Court Court of Appeals and Tax Court v.
State of Indiana, Appellee-Plaintiff
December 31, 2025 Court of Appeals Case No. 24A-CR-2903 Appeal from the Boone Circuit Court The Honorable Lori N. Schein, Judge Trial Court Cause No. 06C01-2109-F1-1739
Opinion by Judge Vaidik Judges Tavitas and Felix concur.
Court of Appeals of Indiana | Opinion 24A-CR-2903 | December 31, 2025 Page 1 of 15 Vaidik, Judge.
Case Summary [1] The State charged Andre D. Johnson with Level 1 felony dealing in a
controlled substance resulting in death. A doctor had performed an autopsy on
the decedent and determined that he died from a fentanyl overdose. The doctor
moved to Mexico before trial, and on the State’s motion, the trial court allowed
him to testify remotely via videoconferencing. The jury found Johnson guilty,
and he now appeals. He argues, among other things, that the doctor’s remote
testimony violated his right to face-to-face confrontation under Article 1,
Section 13 of the Indiana Constitution. We agree, but given other evidence
presented by the State, we find the error to be harmless beyond a reasonable
doubt and affirm Johnson’s conviction.
Facts and Procedural History [2] This case arose from the death of Wes Johnson, who does not appear to have
been related to the defendant. Wes had a history of heroin addiction. In August
or September of 2020, he completed a rehabilitation program and moved in
with his parents in Thorntown.
[3] On the night of October 22, Wes texted Johnson, “You still doin the thing[?]”
Ex. 38. Johnson responded, “Yes.” Id. The next morning, they had the
following text exchange, which Johnson concedes is evidence of a drug deal:
Wes: You up this early
Court of Appeals of Indiana | Opinion 24A-CR-2903 | December 31, 2025 Page 2 of 15 Johnson: Wassup
Wes: Not much man. Could I see you before work. I woke up late and going in late
Johnson: How much
Wes: 60
Johnson: Ok
Id. The two continued texting to arrange a meeting in Indianapolis. They met
shortly after 9:00 a.m., and then Wes drove back to his parents’ house in
Thorntown.
[4] Around 10:30 a.m. the next morning, Wes’s sister found him dead on a
bathroom floor at their parents’ house. She called 911, and officers were
dispatched to the house. On the bathroom sink, they saw a spoon, a syringe,
and white powder that was later found to contain fentanyl. Wes’s phone
messages didn’t indicate that he bought drugs from anyone other than Johnson
around the time of his death. Wes’s mother looked through the house and
didn’t find any other drugs or anything drug-related.
[5] Dr. Thomas Sozio, a forensic pathologist with Central Indiana Forensics
Associates, conducted an autopsy. As part of the autopsy, Dr. Sozio sent a
sample of Wes’s blood to Axis Forensic Toxicology for testing. Axis returned a
report stating that acetylfentanyl was “PRESENT” and that the sample was
Court of Appeals of Indiana | Opinion 24A-CR-2903 | December 31, 2025 Page 3 of 15 “POSITIVE” for fentanyl in the amount of 19.3 ng/mL, with a “Reference
Range” of 1-3 ng/mL. Ex. 28. Based on that report, Dr. Sozio concluded that
Wes died from “Acetylfentanyl and fentanyl intoxication.” Tr. Vol. 3 p. 63.
[6] The State charged Johnson with Level 1 felony dealing in a controlled
substance resulting in death and with being a habitual offender. 1 A jury trial
was scheduled to begin on September 9, 2024. Two months before trial, the
State moved to allow Dr. Sozio to testify via videoconferencing. The State
alleged, in relevant part:
7. In February of 2023, while preparing for trial in the State of Indiana v. Chad Grimball the State learned that Dr. Sozio had moved out of the country and now resides and works in Mexico.
8. The State did not have the ability to complete a trial deposition prior to Dr. Sozio moving to Mexico as the State did not know he was moving to Mexico.
9. The State has been in contact with Dr. Sozio via email regarding testifying at the upcoming trial.
10. Dr. Sozio still lives and works in Mexico.
11. Dr. Sozio is available and willing to testify via a live videoconferencing system such as Zoom or Microsoft teams.
1 The State charged Johnson with a second count of Level 1 felony dealing in a controlled substance resulting in death based on the death of a second person in Boone County on the same day that Wes died. The jury found Johnson not guilty on the second count, and it isn’t relevant to this appeal.
Court of Appeals of Indiana | Opinion 24A-CR-2903 | December 31, 2025 Page 4 of 15 12. The State’s subpoena power does not reach to Mexico and the State has no way to secure Dr. Sozio’s presence in Lebanon, Indiana for trial.
13. Dr. Sozio is an essential witness in this case as he provides part of the chain of custody for the blood and toxicology results. Dr. Sozio authored the autopsy report based on the toxicology results that determined the deaths to be caused by an overdose.
14. Dr. Sozio has informed the State he would charge the State $10,000 plus airfare, hotel, and transportation to come back to Indiana for the trial. Even with that the State has no assurances given the lack of subpoena power.
15. The State also has concerns with not only the large sum of money requested but also with agreeing to pay a witness more then [sic] the original contracted rate to have him appear for trial because he now lives outside the jurisdiction.
16. The State believes the newly revised [Indiana] Administrative Rule 14 allows for live videoconferencing testimony of a witness if good cause is shown (brief attached).
17. The State believes this will not violate the Defendant’s 6th Amendment Confrontation Clause Right under the United States Constitution or Article I, Section 13 of the Indiana Constitution as the jury and Defendant will be able to see Dr. Sozio just as if he were in the court room and a full cross examination can be conducted (brief attached).
Appellant’s App. Vol. 2 pp. 48-49. The State didn’t attach any exhibits to
support its claims. Johnson objected to the State’s motion, and the trial court
held a hearing. Again, the State didn’t present any evidence to support its
Court of Appeals of Indiana | Opinion 24A-CR-2903 | December 31, 2025 Page 5 of 15 claims. Nonetheless, the court granted the State’s motion, finding that it had
“presented good cause” as required by Administrative Rule 14 and that
Johnson’s constitutional confrontation rights wouldn’t be violated because he
would “be able to see, hear, question and cross examine Dr. Sozio, via live
video testimony, at trial.” Id. at 56.
[7] The jury trial began as scheduled on September 9. Johnson renewed his
objection to Dr. Sozio testifying remotely, which the trial court denied. Dr.
Sozio testified via Microsoft Teams, stating his conclusion that Wes died from a
fentanyl overdose. The parties could see him on a tablet, and the jurors could
see him on two televisions.
[8] After Dr. Sozio testified, the State said that its next witness would be Stuart
Kurtz, a forensic toxicologist with Axis. Upon learning that Kurtz hadn’t
personally tested Wes’s blood, Johnson argued that admitting evidence of the
testing through someone other than the person who performed the testing
would violate his Sixth Amendment right of confrontation. In response, the
State argued that the testing was done to determine the cause of death, not for
the purpose of litigation, and that therefore the toxicology report was non-
testimonial and would not implicate Johnson’s confrontation rights. The trial
court agreed with the State and allowed Kurtz to testify about the report. The
court also admitted the report itself over Johnson’s objection. Ex. 28. Kurtz
testified, among other things, that the “comatose fatal range” for fentanyl is 3-
20 ng/mL and that the report showing Wes’s fentanyl level was 19.3 ng/mL
Court of Appeals of Indiana | Opinion 24A-CR-2903 | December 31, 2025 Page 6 of 15 was “consistent with a fatality report from Fentanyl intoxication.” Tr. Vol. 3
pp. 99, 110.
[9] The jury found Johnson guilty of dealing resulting in death, and he then
admitted to being a habitual offender. The trial court sentenced him to 60 years
in the Department of Correction.
[10] Johnson now appeals.
Discussion and Decision I. Dr. Sozio’s remote testimony violated Johnson’s right to face-to-face confrontation under Article 1, Section 13 of the Indiana Constitution, but the error was harmless beyond a reasonable doubt [11] Johnson first contends that the trial court violated his rights under the
confrontation clauses of the federal and state constitutions by allowing Dr.
Sozio to testify remotely. We generally review evidentiary rulings for an abuse
of discretion, but claims of constitutional error are reviewed de novo. Ramirez v.
State, 174 N.E.3d 181, 189 (Ind. 2021).
[12] The Sixth Amendment to the U.S. Constitution provides, in relevant part, “In
all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him . . . .” Article 1, Section 13 of the Indiana
Constitution provides, in relevant part, “In all criminal prosecutions, the
accused shall have the right . . . to meet the witnesses face to face . . . .”
Johnson contends that Dr. Sozio’s remote testimony violated both provisions.
Court of Appeals of Indiana | Opinion 24A-CR-2903 | December 31, 2025 Page 7 of 15 Because we conclude that Article 1, Section 13 was violated, we need not
address Johnson’s Sixth Amendment claim.
[13] The Indiana Constitution’s confrontation right “has a special concreteness and
is more detailed” than the federal right. Brady v. State, 575 N.E.2d 981, 987
(Ind. 1991). “A face-to-face meeting occurs when persons are positioned in the
presence of one another so as to permit each to see and recognize the other.” Id.
Indiana’s confrontation right contains both the right to cross- examination and the right to meet the witnesses face to face. It places a premium upon live testimony of the State’s witnesses in the courtroom during trial, as well as upon the ability of the defendant and his counsel to fully and effectively probe and challenge those witnesses during trial before the trier of fact through cross-examination. The defendant’s right to meet the witnesses face to face has not been subsumed by the right to cross-examination. That is to say, merely ensuring that a defendant’s right to cross-examine the witness is scrupulously honored does not guarantee that the requirements of Indiana’s Confrontation Clause are met. The Indiana Constitution recognizes that there is something unique and important in requiring the face-to-face meeting between the accused and the State’s witnesses as they give their trial testimony. While the right to cross-examination may be the primary interest protected by the confrontation right in Article I, § 13 of the Indiana Constitution, the defendant’s right to meet the witnesses face to face cannot simply be read out of our State's Constitution.
Id. at 988.
[14] A divided panel of this Court recently addressed whether testimony via
videoconferencing satisfies the face-to-face requirement in Shabazz v. State, 255
Court of Appeals of Indiana | Opinion 24A-CR-2903 | December 31, 2025 Page 8 of 15 N.E.3d 533 (Ind. Ct. App. 2025). Our Supreme Court later granted transfer and
currently has the case under advisement, but the panel’s discussion of the issue
is instructive.
[15] The trial court in Shabazz allowed the State to present a DOC inmate via
videoconferencing because he was housed in a facility four hours from the
courthouse and the county jail had indicated that it “lacked the resources” to
transport him. Id. at 541. On appeal, a majority of the panel held that this didn’t
violate Article 1, Section 13 because (1) the county jail’s lack of resources
constituted good cause, (2) Shabazz’s attorney was able to cross-examine the
inmate, (3) the inmate and the people in the courtroom could see each other,
and (4) the inmate was not an eyewitness to the alleged crime and only
provided cumulative testimony about one of Shabazz’s multiple jailhouse
admissions. Id. at 542.
[16] In a separate opinion, Judge Tavitas disagreed. She acknowledged that a
criminal defendant’s right to face-to-face confrontation “‘must occasionally give
way to considerations of public policy and the necessities of the case,’” id. at
552 (quoting State v. Owings, 622 N.E.2d 948, 951 (Ind. 1993)), but she
concluded that a county’s interest in conserving its limited resources didn’t
amount to an important public policy justifying remote testimony, id. at 552-53.
Drawing a contrast, Judge Tavitas noted that Indiana’s protected-person
statutes (found in Indiana Code chapter 35-37-4), which aim to shield child
witnesses and other vulnerable witnesses from the potential trauma of testifying
in front of the people they are accusing, “involve a matter of important public
Court of Appeals of Indiana | Opinion 24A-CR-2903 | December 31, 2025 Page 9 of 15 policy.” Id. at 553 n. 9. Our Supreme Court has held as much. See Brady, 575
N.E.2d at 989 (holding that testimony via closed-circuit television under a
protected-person statute is permissible under Article 1, Section 13).
[17] Finally, Judge Tavitas emphasized the importance of in-person testimony in
criminal trials:
The ability to see a witness on a video screen is a poor substitute for in-person testimony. As noted above, the uniqueness of in- person testimony has been recognized by the United States Supreme Court and the Indiana Supreme Court. Not only is it more difficult to bear false witness when facing the accused in court, the jury (or the judge when acting as the trier of fact) can see the entire demeanor of the witnesses—such as facial expressions, nervous fidgeting, eye movement, and many other such subtle nuances that are much more easily noticed when viewing a witness in person. See Daniel M. Bialerk, Note, Assessing Witness Demeanor in the Age of Covid-19 and Beyond, 31 Cornell J.L. & Pub. Pol’y 451, 473 (2022) (“[I]n-person court sessions allow factfinders to more easily see nonverbal body gestures, which may facilitate communication in other ways.”). This is much more difficult, if not impossible, to do on a video screen. In my opinion, “face to face” means exactly what it says. Screen-to-screen is not face-to-face.
The mere inconvenience of securing the presence of a witness does not outweigh the defendant’s right to confront the witnesses against him face-to-face. See Daniel Tran, Note, Is Witness Credibility on Virtual Courtroom Procedures Impaired or Enhanced for Adults or Children?, 32 S. Cal. Interdisc. L.J. 491, 512 (2023) (concluding that virtual courtroom proceedings are likely unconstitutional absent compelling interests because such virtual proceedings “impair witness credibility for adults,” and
Court of Appeals of Indiana | Opinion 24A-CR-2903 | December 31, 2025 Page 10 of 15 concluding that mere efficiency and convenience are not compelling interests).
Id. at 553-54 (footnote omitted).
[18] We find Judge Tavitas’s analysis to be more persuasive and adopt it here.
Technology has done amazing things, but so far it hasn’t been able to replicate
the feeling of being in a room with someone. So the question then becomes
whether the State identified an important public policy that justified Dr. Sozio
testifying remotely. It did not. The State claimed only that Dr. Sozio (1)
couldn’t be subpoenaed while in Mexico, (2) was demanding more money than
what he was entitled to under his contract, and (3) might not appear even if the
State paid him the amount he was demanding. The State didn’t present any
evidence to support these claims, but even if it had, accommodating an
available but uncooperative witness doesn’t rise to the level of an important
public policy. Therefore, the trial court violated Johnson’s right to face-to-face
confrontation by allowing Dr. Sozio to testify remotely.
[19] In arguing otherwise, the State relies, as it did in the trial court, on Interim
Administrative Rule 14, which governs remote proceedings. 2 Subsection (C) of
the interim rule provides, in part, “A court must conduct all testimonial
proceedings in person except that a court may conduct the proceedings
2 Our Supreme Court is currently considering a proposed final version of Rule 14. See https://www.in.gov/courts/publications/proposed-rules/april-2025/.
Court of Appeals of Indiana | Opinion 24A-CR-2903 | December 31, 2025 Page 11 of 15 remotely for all or some of the case participants for good cause shown or by
agreement of the parties.” But the same subsection also states, “Remote
proceedings must comply with constitutional and statutory guarantees.”
Because Dr. Sozio’s remote testimony wasn’t permissible under Article 1,
Section 13 of the Indiana Constitution, it wasn’t permissible under Rule 14(C).
[20] For these reasons, we conclude that the trial court erred by allowing Dr. Sozio
to testify remotely. But not every constitutional error requires reversal. We will
affirm if the error was harmless beyond a reasonable doubt. Ramirez, 174
N.E.3d at 192. Here, the key takeaway from Dr. Sozio’s testimony—that Wes
died of a fentanyl overdose—was independently established by the toxicology
report and Kurtz’s testimony about the report. Johnson doesn’t dispute the
significance of the toxicology evidence, but he renews his argument that this
evidence was erroneously admitted in violation of his Sixth Amendment
confrontation rights because the person who performed the testing wasn’t called
to testify. We disagree.
[21] Our Supreme Court rejected a similar argument in Ackerman v. State, 51 N.E.3d
171 (Ind. 2016). There, a child died while in Ackerman’s care. A doctor
conducted an autopsy the same day and issued a report stating that the child
had injuries internally and to his head, neck, abdomen, and extremities, that the
cause of death was multiple injuries, and that the manner of death was
homicide. The coroner, however, listed the manner of death as undetermined,
and no charges were filed at that time. When new evidence emerged decades
later, Ackerman was charged with and tried for murder. By that time, the
Court of Appeals of Indiana | Opinion 24A-CR-2903 | December 31, 2025 Page 12 of 15 autopsy doctor had died, but the trial court admitted his report into evidence
and allowed another doctor to testify about the report. On appeal, Ackerman
argued that this violated his Sixth Amendment confrontation rights. Our
Supreme Court disagreed, concluding that the report wasn’t “testimonial,” and
therefore didn’t implicate the Sixth Amendment confrontation clause, because
it wasn’t created for the “primary purpose” of aiding a criminal investigation or
prosecution. Id. at 186-89. While the report was eventually used for that
purpose, the primary purpose for which the autopsy was conducted and the
report was created was simply to determine the cause of the child’s death. Id.
[22] Likewise, here, while the toxicology report was eventually used in a criminal
prosecution, the primary purpose of the toxicology work was simply to
determine the cause of Wes’s death. The toxicology work was ordered by Dr.
Sozio as part of the autopsy, not by police or prosecutors. Therefore, under
Ackerman, the toxicology report wasn’t testimonial, and the trial court didn’t err
by admitting the report and Kurtz’s testimony about the report. And because
that evidence independently established that Wes died from a fentanyl
overdose, we agree with the State that the erroneous admission of Dr. Sozio’s
remote testimony was harmless beyond a reasonable doubt. 3
3 We acknowledge the tension between our holding above that Johnson had the right to confront Dr. Sozio in person about his autopsy of Wes and our Supreme Court’s holding in Ackerman that an autopsy report can, at least sometimes, be admitted into evidence with no testimony at all from the autopsy doctor. Indeed, Johnson contends that Ackerman was wrongly decided. But that is an issue he will have to take up with our Supreme Court. In the alternative, Johnson asserts that Ackerman is no longer good law after the U.S.
Court of Appeals of Indiana | Opinion 24A-CR-2903 | December 31, 2025 Page 13 of 15 II. The State presented sufficient evidence to prove that Johnson dealt the fentanyl that caused Wes’s death [23] Johnson also argues that even if the State presented sufficient admissible
evidence to prove that Wes died from a fentanyl overdose, it failed to prove that
Johnson dealt the fentanyl that caused the death. When reviewing sufficiency-
of-the-evidence claims, we neither reweigh the evidence nor judge the
credibility of witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). We
will only consider the evidence supporting the conviction and any reasonable
inferences that can be drawn from the evidence. Id. A conviction will be
affirmed if there is substantial evidence of probative value to support each
element of the offense such that a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt. Id.
[24] Johnson doesn’t dispute that the State presented sufficient evidence to prove he
dealt drugs to Wes. Rather, he contends the State failed to prove that the drugs
Wes bought from Johnson were the drugs that killed him. We disagree. The
State presented evidence that Wes went home after buying drugs from Johnson
Supreme Court’s decision in Smith v. Arizona, 602 U.S. 779 (2024), but he doesn’t explain why, so that argument is waived. We also note that Johnson didn’t make any argument, either in his trial objection or in his brief on appeal, about Indiana’s “notice-and-demand” statutes, found in Indiana Code chapter 35-36-11. Among other things, those statutes require the State to file pre-trial notice if it intends to introduce as evidence in a criminal trial a “laboratory report,” which is defined as “a written report or affidavit relating to the results of a scientific test that is prepared for use at trial or to assist in a law enforcement investigation.” Ind. Code §§ 35-36-11-1, -2; see also Fischer v. State, --- N.E.3d ---, No. 25A-CR-494 (Ind. Ct. App. Dec. 16, 2025). We see no indication in the record that the State filed such a notice in this case, but because Johnson hasn’t made an argument under the statutes, we need not address them further.
Court of Appeals of Indiana | Opinion 24A-CR-2903 | December 31, 2025 Page 14 of 15 and that he didn’t have any messages about acquiring additional drugs. Also,
Wes’s mother looked through the house and didn’t find any other drugs or
anything drug-related. This evidence is sufficient to support a finding that the
only drugs Wes had, and the drugs that killed him, were the drugs he bought
from Johnson.
[25] Affirmed.
Tavitas, J., and Felix, J., concur.
ATTORNEY FOR APPELLANT Riley L. Parr Lebanon, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-CR-2903 | December 31, 2025 Page 15 of 15