State v. Banks

2021 Ohio 4330

Opinion

[Cite as State v. Banks, 2021-Ohio-4330.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-200395 C-200396 Plaintiff-Appellee, : TRIAL NOS. 20CRB-14949A 20CRB-14949B vs. :

AARON BANKS, : O P I N I O N.

Defendant-Appellant. :

Criminal Appeals From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: December 10, 2021

Andrew Garth, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Jon Vogt, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Defendant-appellant Aaron Banks was charged with and found guilty

of two counts of cruelty against a companion animal in violation of R.C. 959.131(B).

In his first assignment of error, Banks argues that he was denied his constitutional

right to confront witnesses against him. In his second assignment of error, Banks

asserts that his convictions were based on insufficient evidence and against the

manifest weight of the evidence. For the following reasons, we overrule both

assignments of error and affirm the judgment of the trial court.

Procedural History

{¶2} Aaron Banks was charged with two counts of cruelty against a

companion animal in violation of R.C. 959.131(B), misdemeanors of the second

degree. Banks pleaded not guilty, and the case proceeded to a bench trial on October

27, 2020. The trial court found Banks guilty and sentenced him to 180 days on each

count—suspended 150 days, committed 30 days—to be served concurrently, and

three years of community control. The trial court also ordered that both dogs be

forfeited to Cincinnati Animal Care with reimbursement for necessary costs, ordered

that Banks not own any companion animals for 15 years, and ordered Banks to

undergo a psychological evaluation and treatment as recommended.

Factual Background

Objection to Use of Zoom Technology

{¶3} At the start of trial, counsel for Banks addressed the court and

expressed an objection to any testimony by Zoom technology, arguing that

unavailability of a witness due to a subpoena not being served was insufficient

grounds to dispense with Bank’s right to face-to-face confrontation. The state

asserted that a witness, Mark Curnutte, did not receive the subpoena and could only

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be available by Zoom, and argued that he is a critical witness and should be allowed

to testify by Zoom, as it has become a normal occurrence with the COVID-19

pandemic. Alternatively, the state asked the court to hear the case in its entirety and

then continue the case in progress for in-person testimony at a later date. The court

responded as follows:

This court was just put under a joint administrative order,

Judge Kubicki and Judge Russell filed October 26th, 2020, we were

one of the numerous counties in a red alert level 3 emergency due to

Covid. They asked us to try to limit in person interactions, gatherings,

try to conduct hearings when possible, using technology. Ohio

Supreme Court has given similar instructions due to Covid. So, I will

allow both direct and cross-examination to be conducted by Zoom

technology for this witness.

Testimony of Diana Lara Curnutte

{¶4} Diana Lara Curnutte is a neighbor of Banks. On August 2, 2020, she

heard “yelping and the screaming of dogs” on the balcony just behind her. She also

heard a man’s voice. She then went up to the top level of her house, the fourth floor,

where her husband was. She pulled out her phone and started videotaping from that

point “where the dogs were scurring [sic] around the deck.” She testified, “I then saw

the defendant, and heard him, but he had taken a giant crate and threw it right at the

dogs. The dogs were then yelping again, and this just went on for – I videotaped it

and was very upset.” The incident went on for around eight to ten minutes before

she started recording, and for “probably 10 minutes” once she started recording.

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Testimony of Mark Curnutte via Zoom Technology

{¶5} On August 2, 2020, Mark Curnutte was at home with his wife. At

around 9:30 a.m., he was alerted to look out an open window after hearing dogs

barking, yelping, and crying. Out of the fourth-floor window, he observed Banks

“beating two dogs.” Banks was “beating the larger dog repeatedly with what

appeared to be a stick or a rod,” and the smaller dog was “cowering in the corner

behind the protection of the larger dog.” The larger dog was absorbing most of the

blows. He did not count how many strikes occurred on the dogs, but “it wasn’t just

one or two.” He believed it to be around ten to 15 strikes. His wife videotaped the

“second beating” which occurred roughly 20 to 30 minutes later. During this second

incident, he saw Banks throw a crate at one of the dogs but could not tell if the crate

hit the dogs because of the railing. When asked how hard Banks hit the dogs, he

replied, “It appeared to be out of anger and with the defendant’s full strength.” The

strikes were on the side of the dog, but not on the head.

{¶6} He testified that, during the course of this case, Banks hung “some sort

of screen, whether it was a sheet or curtain.” He believed it was to shield the view or

prevent them from seeing the deck. The statement on the screen was, “Racist, Liars,

Mazola.” Mazzola is another neighbor.

{¶7} When asked where he was during his remote testimony, he said he was

at home in Mount Adams. He stated, “I had grading to do, and I did not receive a

summons from the Court, and I had other arrangements, including web office hours

with students this morning because that is how we are required to do our office hours

because of the pandemic.” When asked if his work was the only thing keeping him

from being present in court, he responded, “I did not receive a summons from the

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court,” and “I was not showered or shaved, and I did not have a chance to come to

court appropriately dressed.”

Testimony of Samantha Lakamp

{¶8} Samantha Lakamp was at her boyfriend’s house on August 2, 2020.

She could see Banks’s balcony from their balcony. She was in bed and “woke up to

the sound of dogs yelping and crying.” At first, she dismissed the noise, but it kept

going on “excessively for I would say 10 to 15 minutes.” At that point, she went out

on the balcony and saw Banks holding what looked like a “tennis ball thrower,” or a

three-foot-long plastic object. He raised the object and hit the dog with it. The dog

ran around to the other corner of the deck. Then Banks picked up a plastic dog crate

and threw it at the dog. She saw two dogs that day. She described the strike as

Banks raising the object “about to his head” and then bringing it down on the dog.

After the strike, the dogs yelped, had their tails between their legs and ran to the

other side of the deck. She did not know how long this was going on before she woke

up. She could not see the dog when the crate hit it. She did not have any reason to

believe that the crate did not actually hit the dog. After the crate hit the dog, she saw

the dog run out from under the crate.

Testimony of Melissa Mazzola

{¶9} Melissa Mazzola’s house is down a hill, two houses to the right of

Banks’s apartment. Part of her view was obstructed by trees and greenery, but “not

tall enough to hide the entire balcony.” Early in the morning on August 2, 2020, her

dogs alerted her by whining and barking. She then heard “this familiar whining and

yelping of these dogs, and barks, behind my house, and I said ‘not again.’ ” She then

went outside on her back deck and heard the dogs continuously crying. She then

called for her husband and said, “Randy, it’s happening again.” She heard dogs

5 OHIO FIRST DISTRICT COURT OF APPEALS

crying and yelping for 15 minutes, saw a crate being thrown at the whimpering dogs,

and saw the dogs “scurring [sic] away from the crate that was being thrown at them

in a corner.” The man she saw on the balcony was Banks. She testified that, the next

day, “there was a sign that was hanging in the back of his deck that was directed to

me, it said ‘Racist, Liars, Mazzola,’ misspelled, but I mean, obviously it was

directed—my last name is Mazzola.”

Testimony of Lieutenant William Allen

{¶10} Lieutenant William Allen is with the Hamilton County Dog Warden’s

office. He investigated a claim of dogs being beaten on the back or rear balcony. He

arrived shortly after 10 a.m. on August 2, 2020, and spoke with Banks directly.

Banks kept trying to make him believe that the dogs were well cared for and that the

dogs meant everything to Banks. When he asked Banks about the beating, Banks

said, “Well, what are you supposed to do when they shit everywhere.” Lieutenant

Allen testified that while Banks did not admit to it, “he didn’t outright deny it either.”

Banks was defensive and upset.

{¶11} Lieutenant Allen found the dogs on the rear balcony. When he got

there, the dogs were terrified. He testified, “When they saw me they retreated,

screaming, went to get away from him.” He explained, “There was [sic] feces on the

deck, and I was trying to earn the dog’s trust at the time.” The dogs tried to get as far

away from him as possible when he approached them. He was able to walk them out

on leashes. He removed the dogs for their safety and their welfare because he

believed what he was told to be true. He saw the video and talked to the witnesses at

the scene who described what they saw. He testified that because dogs have fur, you

cannot see bruising. The dogs appeared healthy and did not show any obvious

injuries.

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Testimony of Albert Federman

{¶12} Albert Federman is Banks’s landlord and neighbor. He lives directly

above him. He denied being friends with Banks. On the morning of August 2, 2020,

he “heard a couple dogs yelping for a matter of moments.” He testified that it was

probably somewhere around five to ten seconds. He came to court because he told

Banks he did not think he abused his animals and offered to testify if Banks needed

him to. He did not see anything that day. He remembers letting the lieutenant into

the complex. He then went right back to his apartment.

The Trial Court’s Ruling

{¶13} The court stated:

In this day and age people are often reluctant to call the police

on their neighbors, and it’s got to be pretty significant usually for

multiple neighbors to all become alarmed and call over to people about

it, call the police, and that’s exactly what this was. The state proved

beyond a reasonable doubt that the defendant knowingly, cruelly beat

these two dogs, repeatedly striking the dogs with this stick, also

throwing the crate on the dogs for extended beating, according to

multiple witnesses, and there’s no question in my mind that the

defendant is guilty of both charges.

Law and Analysis

First Assignment of Error

{¶14} In his first assignment of error, Banks asserts that he was denied the

right to confront witnesses against him in violation of the Sixth Amendment to the

United States Constitution and Section 10, Article 1 of the Ohio Constitution. “While

admission of testimony is generally reviewed for an abuse of discretion, the question

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of whether a criminal defendant’s rights under the Confrontation Clause have been

violated is reviewed de novo.” In re H.P.P., 8th Dist. Cuyahoga Nos. 108860 and

108861, 2020-Ohio-3974, ¶ 19, citing State v. Smith, 162 Ohio App.3d 208, 2005-

Ohio-3579, 832 N.E.2d 1286, ¶ 8 (8th Dist.).

{¶15} “Under both the federal and Ohio constitutions, a criminal defendant

has a right to confront witnesses.” Id. at ¶ 20. The Sixth Amendment to the United

States Constitution requires that, “[i]n all criminal prosecutions the accused shall

enjoy the right * * * to be confronted with the witnesses against him.”

Section 10, Article I of the Ohio Constitution provides that ‘the

party accused shall be allowed * * * to meet the witnesses face to face *

* *; but provision may be made by law for the taking of the deposition

by the accused or by the state, to be used for or against the accused, of

any witness whose attendance can not be had at trial, always securing

to the accused means and the opportunity to be present in person and

with counsel at the taking of such deposition, and to examine the

witness face to face as fully and in the same manner as if in court. * * *’

(Ellipses sic.) State v. Self, 56 Ohio St.3d 73, 76, 564 N.E.2d 446 (1990).

{¶16} “The Confrontation Clauses were written into our Constitutions ‘to

secure for the opponent the opportunity of cross-examination. The opponent

demands confrontation, not for the idle purpose of gazing upon the witness, or of

being gazed upon by him, but for the purpose of cross-examination, which cannot be

had except by the direct and personal putting of questions and obtaining immediate

answers.’ ” (Emphasis in original.) Id., quoting 5 Wigmore, Evidence 150, Section

1395 (1974).

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{¶17} “[T]here is something deep in human nature that regards face-to-face

confrontation between accused and accuser as ‘essential to a fair trial in a criminal

prosecution.’ ” Coy v. Iowa, 487 U.S. 1012, 1017, 108 S.Ct. 2798, 101 L.Ed.2d 857

(1988). “A witness ‘may feel quite differently when he has to repeat his story looking

at the man whom he will harm greatly by distorting or mistaking facts.’ ” Id. at 1019.

{¶18} “The central concern of the Confrontation Clause is to ensure the

reliability of the evidence against a criminal defendant by subjecting it to rigorous

testing in the context of an adversary proceeding before the trier of fact.” Maryland

v. Craig, 497 U.S. 836, 845, 110 S.Ct.3157, 111 L.Ed.2d 666 (1990). The

Confrontation Clause guarantees not only the right to a personal examination, but

also ensures that witness statements are given under oath, that the witness submits

to cross-examination, and that the trier of fact is able to observe the witness’s

demeanor and assess his or credibility. Id. at 845-846. “The combined effect of

these elements of confrontation – physical presence, oath, cross-examination, and

observation of demeanor by the trier of fact – serves the purposes of the

Confrontation Clause by ensuring that evidence admitted against an accused is

reliable and subject to the rigorous adversarial testing that is the norm of Anglo-

American criminal proceedings.” (Citations omitted.) Id. at 846.

{¶19} However, “[t]he Confrontation Clause does not guarantee criminal

defendants an absolute right to a face-to-face meeting with the witness against them

at trial.” Id. at the syllabus. The right “ ‘must occasionally give way to considerations

of public policy and the necessities of the case.’ ” Id. at 849, citing Mattox v. United

States, 156 U.S. 237, 243, 15 S.Ct. 337, 39 L.Ed. 409 (1895). “[A] defendant’s right to

confront accusatory witnesses may be satisfied absent a physical, face-to-face

confrontation at trial only where denial of such confrontation is necessary to further

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an important public policy and only where the reliability of the testimony is

otherwise assured.” Id. at 850. “[T]he presence of [the] other elements of

confrontation—oath, cross-examination, and observation of the witness’ demeanor—

adequately ensures that the testimony is both reliable and subject to rigorous

adversarial testing in a manner functionally equivalent to that accorded live, in-

person testimony.” Id. at 851. When determining whether dispensing with the face-

to-face requirements is necessary to further an important public policy, the trial

court must hear evidence and make a case-specific finding of necessity. Id. at 855.

{¶20} The Supreme Court of Ohio has stated, “Our interpretation of Section

10, Article I [of the Ohio Constitution] has paralleled the United States Supreme

Court’s interpretation of the Sixth Amendment: the primary purpose of our

Confrontation Clause ‘is to provide the accused an opportunity for cross-

examination.’ ” Self, 56 Ohio St.3d at 78, 564 N.E.2d 446, citing Henderson v.

Maxwell, 176 Ohio St. 187, 188, 198 N.E.2d 456 (1964).

Though our Constitution uses the specific phrase ‘face to face,’

that phrase has not been judicially interpreted at its literal extreme.

This is because the purpose of the ‘face to face’ clause of the Ohio

Constitution (as well as the parallel provision of the Sixth

Amendment) is to guarantee the opportunity to cross-examine and the

right to observe the proceeding. Taking the phrase ‘face to face’ to its

outer limits, one could argue that a witness who looks away from the

defendant while testifying is not meeting the defendant ‘face to face.’

As we have indicated, a criminal defendant is ordinarily entitled to a

physical confrontation with the accusing witnesses in the courtroom.

Yet, the value which lies at the core of the Confrontation Clauses does

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not depend on an ‘eyeball to eyeball’ stare-down. Rather, the

underlying value is grounded upon the opportunity to observe and

cross-examine. The physical distance between the witness and the

accused, and the particular seating arrangement of the courtroom, are

not at the heart of the confrontation right.

(Citation omitted.) Id. at 79.

{¶21} Thus, the face-to-face language in the Ohio Constitution has not been

interpreted as literal but has instead been read as requiring the opportunity to

observe and cross-examine. See id. Therefore, under our current precedent,

“ ‘Section 10, Article I provides no greater right of confrontation than the Sixth

Amendment.’ ” Id.; see State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933

N.E.2d 775, ¶ 12.

{¶22} Accordingly, Ohio has established a two-part test “for determining

whether an alternative to face-to-face confrontation qualifies as an exception to the

Confrontation Clause”:

the procedure must (1) be justified, on a case-specific finding, based on

important state interests, public policies, or necessities of the case and (2)

must satisfy the other three elements of confrontation – oath, cross-

examination, and observation of the witness’s demeanor.

State v. Howard, 2020-Ohio-3819, 156 N.E.3d 433, ¶ 53 (2d Dist.), citing State v.

Marcinick, 8th Dist. Cuyahoga No. 89736, 2008-Ohio-3553, ¶ 14.

{¶23} Banks argues that the trial court’s decision to allow Mark Curnutte to

testify via Zoom technology was not based on an important state interest, public

policy, or necessities of the case because, while the trial court relied on an

administrative order to limit in-person appearances due to the COVID-19 pandemic,

11 OHIO FIRST DISTRICT COURT OF APPEALS

the witness himself did not express any concerns about COVID-19 nor was there any

evidence that the witness was in a high-risk group for exposure to COVID-19.

{¶24} Preventing the spread of COVID-19 is an important public policy that

may warrant an exception to face-to-face confrontation under the appropriate

circumstances. See United States v. Donziger, S.D.N.Y. Nos. 19-CR-561 and 11-CV-

691, 2020 WL 5152162, *2 (August 31, 2020) (“With respect to the Craig standard,

there is no question that limiting the spread of COVID-19 and protecting at-risk

individuals from exposure to the virus are critically important public policies.”). The

Ohio Supreme Court has acknowledged the importance of preventing the spread of

COVID-19 and found that, “[d]uring this public-health emergency, a judge’s priority

must be the health and safety of court employees, trial participants, jurors, and

members of the public entering the courthouse.” In re Disqualification of Fleegle,

161 Ohio St.3d 1263, 2020-Ohio-5636, 163 N.E.3d 609 ¶ 8 (Finding that, “[b]y failing

to follow the Ohio Department of Health and Governor DeWine’s directives, a judge

endangers the health of those who enter the courthouse and their families,” and

disqualification of a judge may be sought if, “attorneys or litigants believe that judges

are not taking seriously recommendations from this court, the governor, or other

public-health officials, and that as a result the health of trial participants, jurors, or

the public is at risk.”).

{¶25} There is no question that the witness’s expressed justifications alone

are inadequate to warrant an exception to the face-to-face requirement in this case.

However, the trial court permitted the remote testimony, not because of the excuses

of the witness, but in order to limit in-person contact and interactions and comply

with the judicial administrative order put in place in response to the heightened

pandemic status at the time of trial in order to protect everyone who enters the

12 OHIO FIRST DISTRICT COURT OF APPEALS

courthouse. Thus, the question in this case is about more than just witness

convenience. The question is whether the circumstances are appropriate to warrant

an exception to the face-to-face requirement where the trial occurs in the middle of a

public-health emergency due to COVID-19, in a county on red-alert level three,

where the trial court has been issued orders to limit in-person appearances as much

as possible and to instead utilize technology, and where the trial court relies on these

circumstances when making a case-specific decision to allow a witness, who did not

receive a subpoena and who the state characterizes as a critical witness, to testify

remotely, even though the witness himself did not express any COVID-19 concerns.

Put another way, must the witness have expressed COVID-19 concerns in the context

of the surrounding global pandemic occurring at the time of trial in order to warrant

an exception to the face-to-face requirement or was the trial court permitted to rely

on the specific circumstances of the case beyond the witness himself?

{¶26} We reserve this question for another day as we find that, even if there

was a violation of the confrontation clause, any error was harmless error. “A

reviewing court may overlook an error where the remaining admissible evidence,

standing alone, constitutes ‘overwhelming’ proof of a defendant’s guilt.” State v.

Oliver, 2018-Ohio-3667, 112 N.E.3d 573, ¶ 25 (8th Dist.), citing State v. Williams, 6

Ohio St.3d 281, 290, 452 N.E.2d 1323 (1983). Even without considering Mark

Curnette’s testimony, there was additional testimony from another witness that

Banks struck one of his dogs. Also, multiple witnesses testified that he threw a crate

at both dogs. The video in evidence shows Banks throwing a large crate at the dogs

and shows the crate hit both of the dogs. Further, multiple witnesses testified that

the dogs were yelping and crying when this was occurring. Finally, the lieutenant

with the dog warden’s office testified that, when asked about the abuse allegations,

13 OHIO FIRST DISTRICT COURT OF APPEALS

Banks replied, “Well, what are you supposed to do when they shit everywhere.” This

evidence alone is sufficient to support the convictions. See State v. Miner, 2020-

Ohio-5600, 164 N.E.3d 512, ¶ 31 (5th Dist.) (Finding evidence that the appellant

punched a dog sufficient to support a finding that the appellant knowingly

committed an act of cruelty against a companion animal.). Accordingly, this

assignment of error is overruled.

Second Assignment of Error

{¶27} In his second assignment of error, Banks challenges the sufficiency

and manifest weight of the evidence and argues that there was insufficient evidence

to prove beyond a reasonable doubt that he was guilty of cruelty against a companion

animal.

{¶28} “In a challenge to the sufficiency of the evidence, the question is

whether after reviewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found all of the essential elements of the crime

beyond a reasonable doubt.” State v. Hill, 1st Dist. Hamilton Nos. C-190638, C-

190639, C-190640 and C-190641, 2021-Ohio-294, ¶ 11, citing State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “In contrast, when

considering a challenge to the weight of the evidence, the court must examine the

entire record, weigh all the evidence and all reasonable inferences, consider the

credibility of the witnesses, and determine whether, in resolving conflicts in the

evidence, the court clearly lost its way and created a manifest miscarriage of justice.”

Id., citing State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

{¶29} R.C. 959.131(B) provides, “No person shall knowingly torture, torment,

needlessly mutilate or maim, cruelly beat, poison, needlessly kill, or commit an act of

cruelty against a companion animal.” R.C. 959.131(A)(2) provides, “ ‘Cruelty,’

14 OHIO FIRST DISTRICT COURT OF APPEALS

‘torment,’ and ‘torture’ have the same meanings as in section 1717.01 of the Revised

Code.” R.C. 1717.01 (B) provides, “ ‘Cruelty,’ ‘torment,’ and ‘torture’ include every

act, omission, or neglect by which unnecessary or unjustifiable pain or suffering is

caused, permitted, or allowed to continue, when there is a reasonable remedy or

relief.”

{¶30} Banks argues that the evidence fails to show that he needlessly beat his

dogs, as alleged in the complaints. However, two separate witnesses testified that

Banks struck his dogs with a stick-like object and multiple witnesses testified that he

threw the crate at the dogs. The video in evidence also shows Banks throwing the

crate at the dogs and shows the crate hitting the dogs. Additionally, multiple

witnesses testified that the dogs were yelping and crying when this was occurring.

Finally, the lieutenant with the dog warden’s office testified that, when asked about

the abuse allegations, Banks replied, “Well, what are you supposed to do when they

shit everywhere.” Viewing the evidence in a light most favorable to the state, a

rational trier of fact could have found all the elements proven beyond a reasonable

doubt. See Miner, 2020-Ohio-5600, 165 N.E.3d 512, at ¶ 31 (Finding evidence that

the appellant punched a dog sufficient to support a finding that the appellant

knowingly committed an act of cruelty against a companion animal.).

{¶31} Banks alternatively argues that his convictions were against the

manifest weight of the evidence. The only contradictory testimony presented by

Banks was the testimony of his landlord. While Bank’s landlord did testify that the

barking or yelping only lasted a few seconds, several witnesses for the state testified

that the barking or yelping lasted for over 15 minutes. No other evidence was

contradicted. Thus, when viewing and weighing all the evidence, it cannot be

determined that the trial court clearly lost its way and created a manifest miscarriage

15 OHIO FIRST DISTRICT COURT OF APPEALS

of justice. Having concluded that the convictions are based on sufficient evidence

and not against the manifest weight of the evidence, we overruled this assignment of

error.

Conclusion

{¶32} Having considered and overruled Banks’s two assignments of error, we

affirm the judgment of the trial court.

Judgment affirmed.

WINKLER, J., concurs. BERGERON, J., concurs separately

BERGERON, J., concurring separately.

{¶33} Inconsistent guidance regarding the status of the criminal defendant’s

confrontation right under Ohio’s Constitution punctuates our caselaw. At times,

courts have lauded Ohio’s confrontation right, recognizing that it requires face to

face confrontation in nearly all cases. But at other times, courts have tethered Ohio’s

confrontation right to the United States Supreme Court’s confrontation

jurisprudence, which has meandered about somewhat. In the midst of a global

pandemic—one that has disrupted our lives, as well as the ordinary administration of

justice—we need better certainty on the status of Ohio’s confrontation right. I concur

separately to draw attention to this predicament.

I.

{¶34} Under Article I, Section 10 of our current Ohio Constitution “the party

accused shall be allowed to appear and defend in person and with counsel * * * to

meet the witnesses face to face, and to have compulsory process to procure the

attendance of witnesses in his behalf.” Both the 1851 and 1802 Ohio Constitutions

contained similar language. See Ohio Constitution of 1851, Article I, Section 10

16 OHIO FIRST DISTRICT COURT OF APPEALS

(“[T]he party accused shall be allowed to appear and defend in person and with

counsel * * * to meet the witnesses face to face, and have compulsory process to

procure the attendance of witnesses in his behalf.”); Ohio Constitution of 1802,

Article VIII, Section 11 (“[T]he accused hath a right to be heard by himself and his

counsel * * * to meet the witness face to face; to have compulsory process for

obtaining witnesses in his favor.”). When that provision was amended in 1912, the

framers recognized a need for an exception, carving out an exception for out-of-court

depositions. But in so doing, this newly-added clause retained the significance of the

“face to face” requirement: “[P]rovision may be made by law for the taking of the

deposition by the accused or by the state * * * always securing to the accused means

and the opportunity to be present in person * * * and to examine the witness face to

face as fully and in the same manner as if in court.” Thus, in two separate places in

Section 10, our Constitution underscores the importance of the “face to face”

concept. Id.

{¶35} The Sixth Amendment to the United States Constitution, on the other

hand, secures the right “to be confronted with the witnesses against [the criminal

defendant]; to have compulsory process for obtaining witnesses in his favor, and to

have the assistance of counsel for his defense.” Notably, it does not say that the

confrontation must be “face to face.”

{¶36} Building on our constitutional language, in the mid-nineteenth

century, Ohio courts identified the criminal defendant’s right to “meet his witnesses

face to face” as an essential component of Ohio’s Constitution. See Farrington v.

State, 10 Ohio 354, 356 (1841) (“It is a fundamental principle in this state, that in

criminal prosecutions the accused has not only the right to be heard, by himself or

counsel, but to meet his witnesses face to face; to require the testimony against him

17 OHIO FIRST DISTRICT COURT OF APPEALS

to be under the sanction of an oath, and the witnesses to be subject to any competent

cross-examination.”); Kirk v. State, 14 Ohio 511, 513 (1846) (“[C]areful has been the

constitution to secure the pure and impartial administration of criminal justice, and

to guard the accused from the possibility of oppression and wrong, under the forms

of a criminal prosecution. It is [the criminal defendant’s] right to have a public trial,

that he shall meet the witnesses face to face, before the public; and that all that can

be said or preferred against him, and all that can be said or urged in his favor, shall

be in the hearing and presence of the public.” (Emphasis sic.)).

{¶37} Shortly after the promulgation of the 1851 Constitution, the Supreme

Court emphasized that the confrontation right “is a constitutional guaranty of one of

the great fundamental privileges well established,” and that our Constitution was

intended “to give it permanency, and secure it against the power of change or

innovation.” Summons v. State, 5 Ohio St. 325, 340 (1856). As the court described

this right, it explained that the crux of the confrontation right was “the personal

presence of the witnesses.” Id. at 341.

{¶38} During the balance of the nineteenth century, at least two Supreme

Court cases reaffirmed the significance of the “face to face” requirement. See

Wheeler v. State, 34 Ohio St. 394, 398 (1878) (“A coroner’s inquest with us is of such

a nature, that to admit it, against the objection of the accused, would violate that

clause of the bill of rights which entitles him to meet the witnesses face to face.”);

Griffin v. State, 34 Ohio St. 299, 304 (1878) (“[N]o doubt that the prisoner had a

constitutional right (art. 1, § 10) to appear in court at his trial, and defend in person

and by counsel, and to meet the witnesses face to face, before an impartial jury.”). To

be sure, the Supreme Court recognized common law hearsay exceptions during this

time, a category of exceptions that would subsequently expand with the

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modernization of hearsay law and exclusions. See, e.g., Summons at 334 (admission

of dying declaration against criminal defendant does not violate the face to face

requirement).

{¶39} Shortly after the turn of the twentieth century, the Supreme Court

began linking the interpretation of Ohio’s confrontation right with that of the Sixth

Amendment. In State v. Wing, the court considered whether an individual could

repeat testimony he heard at a preliminary hearing in light of witness unavailability

for trial. State v. Wing, 66 Ohio St. 407, 418-419, 64 N.E. 514 (1902). The court held

that admission of this testimony would violate the confrontation requirement,

relying on a United States Supreme Court case—Motes v. United States, 178 U.S.

458, 20 S.Ct. 993, 44 L.Ed. 1150 (1900). Id. Although the court reaffirmed the

importance of the confrontation requirement, cautioning that it “should not, except

for the best of reasons, be weakened, invaded, or destroyed[,]” this mingling of the

United States Supreme Court’s Sixth Amendment jurisprudence with the Ohio

confrontation analysis may have done exactly that which the court admonished

against. Id. at 425.

{¶40} Further steps along this path led to a gradual erosion of the

independent significance of Article I, Section 10. By the 1980s, courts viewed Ohio’s

“face to face” requirement as synonymous with the confrontation requirement under

the United States Constitution. In State v. Madison, the Supreme Court rejected the

“claim[] that [Article I, Section 10] is more demanding of a face-to-face confrontation

than that of the United States Constitution.” State v. Madison, 64 Ohio St.2d 322,

330, 415 N.E.2d 272 (1980). One year later, the Supreme Court held that “ ‘a

primary interest secured by [the confrontation requirement] is the right of cross-

examination,’ ” which could be adequately protected “ ‘even in the absence of

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physical confrontation.’ ” State v. Spikes, 67 Ohio St.2d 405, 412, 423 N.E.2d 1122

(1981), quoting Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d

934 (1965). But this new confrontation analysis was ill-defined, with the court

recognizing the need for “exceptions when public policy and the necessity of the case

so warrant.” Madison at 325. In other words, the confrontation right could be

curbed with nothing more than a judicial whim.

{¶41} A few years later, the Supreme Court tied some of these threads

together in holding that “Section 10, Article I of the Ohio Constitution provides no

greater right of confrontation than the Sixth Amendment.” State v. Self, 56 Ohio

St.3d 73, 79, 564 N.E.2d 446 (1990). The Self decision unceremoniously dismissed

the text of the Ohio Constitution, writing “[l]iteral face-to-face confrontation is not

[an essential condition] of the confrontation right. * * * [P]hysical confrontation may

constitutionally be denied where the denial is necessary to further an important

public policy and ‘the reliability of the testimony is otherwise assured.’ ” Id. at 77,

quoting Maryland v. Craig, 497 U.S. 836, 850, 110 S.Ct. 3157, 111 L.Ed.2d 666

(1990). The Self court cited just one authority for the proposition that “face to face”

has not been interpreted literally—Justice Brown’s dissent in Madison. Self at 79,

citing Madison at 332 (Brown, J., dissenting). But Justice Brown made the opposite

point that “[t]he language in the Ohio Constitution must be read to give a defendant

greater rights to confrontation and cross-examination than that given under the

federal constitution.” Madison at 333 (Brown, J., dissenting).

{¶42} Just three years after Self, the Supreme Court appeared to resuscitate

Article I, Section 1o in State v. Storch, a case involving the sexual assault of a child

under the age of 13. State v. Storch, 66 Ohio St.3d 280, 612 N.E.2d 305 (1993). On

appeal, the defendant argued that the admission of the alleged victim’s out-of-court

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statements violated his confrontation rights under the Ohio and United States

Constitutions. Id. at syllabus. Describing Article I, Section 10 as “more detailed in

the rights it sets forth” than the Sixth Amendment, the Supreme Court explained that

“[f]or many years, the rights to confrontation set forth in the respective Constitutions

were construed as being the same, in part because the right to confrontation in the

Sixth Amendment was considered by the United States Supreme Court to require

face-to-face confrontation in most circumstances.” Id. at 288. But the court noted

that, “[i]n the last thirteen years, the United States Supreme Court has drifted away

from that requirement.” Id. Moreover, while “ ‘the admission into evidence of a

hearsay statement pursuant to a firmly rooted hearsay exception does not violate a

defendant’s right of confrontation’ under the Sixth Amendment as that federal right

is defined by the United States Supreme Court * * * the admission may violate our

state constitutional right of confrontation.” Id. at 291.1 The court, thus, “construe[d]

the right to confrontation contained in Section 10, Article I to require live testimony

where reasonably possible.” Id. at 293. Although victims of child abuse are not

always obligated to provide testimony, the court held that the Ohio Constitution

required the trial court “to bring the child to court or to bring the court to the child to

gain an unbiased view of whether the child was capable of testifying” rather than

“rel[ying] upon the testimony [from a third person] who indicated that * * * the child

would not be able to express herself in a courtroom.” Id. at 293-294.

{¶43} Although in many respects Storch simply retraced our steps back to

the historical understanding of Ohio’s confrontation right, it did not receive a warm

1 The “firmly rooted hearsay exception” language comes from Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which was abrogated by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

21 OHIO FIRST DISTRICT COURT OF APPEALS

embrace from Ohio courts (perhaps owing to the context of the case), which found

various ways to distinguish or disregard it. See State v. Johnson, 4th Dist. Ross No.

94 CA 2004, 1995 WL 764319, *8-9 (Dec. 26, 1995) (labeling “face to face” analysis

dicta); State v. Edinger, 10th Dist. Franklin No. 05AP-31, 2006-Ohio-1527, ¶

83 (limiting Storch to Evid.R. 807 cases); State v. Brown, 5th Dist. Stark No. CA-

9543, 1994 WL 477888, *2 (Aug. 22, 1994) (same).

{¶44} The Supreme Court appeared to lend credence to these complaints

when, in the footnote of a 2007 opinion involving a confrontation issue, it suggested

that Storch may be confined to Evid.R. 807 cases. See State v. Muttart, 116 Ohio

St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, fn. 5 (“Our analysis is not altered by the

court’s decision in State v. Storch * * * which addressed the constitutionality of Evid.R.

807 under the federal and Ohio Constitutions.”). And then in 2010, the Supreme

Court circled back to Self: “ ‘Section 10, Article I of the Ohio Constitution provides no

greater right of confrontation than the Sixth Amendment.’ ” State v. Arnold, 126

Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶ 12, quoting Self, 56 Ohio St.3d at

79, 564 N.E.2d 446. But Arnold made no mention of Storch—and provided no

analysis of the language of Article I, Section 10—leaving courts and litigants to

grapple with Storch’s validity in the subsequent years. See, e.g., Matter of S.M.B.,

10th Dist. Franklin No. 17AP-899, 2019-Ohio-3578, ¶ 94, 109 (Nelson, J., concurring

in part and dissenting in part) (describing Ohio’s confrontation jurisprudence as

“notoriously murky,” but concluding that “it seems likely * * * that Storch no longer

provides authority for the proposition that Ohio’s Constitution ensures greater

confrontation clause rights than does the federal constitution.”); State v. Carter,

2017-Ohio-7501, 96 N.E.3d 1046, ¶ 41-42 (7th Dist.) (rejecting claim that Ohio’s

22 OHIO FIRST DISTRICT COURT OF APPEALS

confrontation right is more robust than the federal confrontation right, suggesting

that Arnold abrogated Storch).

II.

{¶45} While Ohio’s confrontation jurisprudence is especially “murky,” it is

not the only state with a “face to face” confrontation clause. The Indiana Supreme

Court enforced the state’s “face to face” confrontation clause in Brady v. State, 575

N.E.2d 981, 987 (Ind.1991). There the court recognized that “the federal right of

confrontation and the state right to a face-to-face meeting are co-extensive” but

nevertheless “[t]he language employed in the two provisions is different[.]” Id. The

court explained that “[t]he words ‘face to face’ as used in the passage is an adverbial

phrase modifying ‘to meet,’ and thus describes how a criminal defendant in this state

and the State’s witnesses are to meet. ‘Hand in hand’ and ‘back to back’ are similar

modifiers. The separate definition given it in most dictionaries shows its persistent

and common usage.” Id. Characterizing the common understanding of “face to face”

as “primary, unmistakable, and dominant” the court held that “face to face” means

the “persons are positioned in the presence of one another so as to permit each to see

and recognize the other.” Id. Therefore, “[w]hile the language employed in

[Indiana’s confrontation clause] has much the same meaning and history as that

employed in the Sixth Amendment, it has a special concreteness and is more

detailed.” Id.

{¶46} The Illinois Constitution once included a “face to face” confrontation

requirement, but the Illinois legislature amended this language to mirror the Sixth

Amendment after People v. Fitzpatrick, 158 Ill.2d 360, 365, 633 N.E.2d 685 (1994).

There the Illinois Supreme Court held that “the confrontation clause of the Illinois

Constitution provides that a defendant is entitled to a face-to-face confrontation with

23 OHIO FIRST DISTRICT COURT OF APPEALS

a witness. * * * The language in the Illinois Constitution confers an express and

unqualified right to a face-to-face confrontation with witnesses.” Id. Hence, the

court held that “closed circuit television does not provide the defendant with the

face-to-face encounter envisioned by the drafters of the Illinois Constitution.” Id.

Several months later, the Illinois General Assembly proposed, and the voters passed,

an amendment to Illinois’s confrontation clause that replaced “to meet the witnesses

face to face” with “to be confronted with the witnesses against him or her.” The

Illinois Supreme Court recognized that “[t]he legislative debates surrounding the

proposed constitutional amendment indicate that the amendment was intended to

reverse the effects of the Fitzpatrick decision and to change the language of the

confrontation clause in the Illinois Constitution to conform with the language of the

confrontation clause in the United States Constitution.” People v. Dean, 175 Ill.2d

244, 254, 677 N.E.2d 947 (1997).

{¶47} Pennsylvania’s “face to face” confrontation requirement met a similar

fate. The Pennsylvania Supreme Court once held that, unlike the federal

confrontation clause, Pennsylvania’s “face to face” confrontation clause “does not

reflect a ‘preference’ but clearly, emphatically and unambiguously requires a ‘face to

face’ confrontation.” Commonwealth v. Ludwig, 527 Pa. 472, 478, 594 A.2d 281

(1991). That court was “cognizant” of the public interest in protecting witnesses,

particularly in child abuse cases, but nevertheless held that this “interest cannot be

preeminent over the accused’s constitutional right to confront the witnesses against

him face to face.” Id. at 480. In 2003, however, Pennsylvania amended its

confrontation clause to mirror the federal confrontation clause, thus abrogating

Ludwig. See Commonwealth v. Tighe, 224 A.3d 1268, 1279 (Pa.2020) (“ ‘By

removing the “face-to-face” language from the Pennsylvania Constitution and

24 OHIO FIRST DISTRICT COURT OF APPEALS

making the confrontation clauses of the Pennsylvania Constitution and the Sixth

Amendment identical, the amendment was designed to permit the enactment of laws

or the adoption of rules that would permit child victims or witnesses to testify in

criminal proceedings outside the physical presence of the accused.’ ”), quoting

Commonwealth v. Williams, 624 Pa. 183, 84 A.3d 680 (2014), fn. 2.

{¶48} The interpretation of “face to face” that prevailed in the courts above is

certainly not unanimous. Some states have simply construed their “face to face”

confrontation clauses to conform to the Sixth Amendment confrontation right,

stripping that language of any independent significance. The State of Washington

treats its “face to face” confrontation clause as identical to the federal confrontation

clause. State v. Foster, 135 Wash.2d 441, 459, 957 P.2d 712 (1998) (“Although the

language of the Sixth Amendment and this state’s confrontation clause is not word-

for-word identical, the meaning of the words used in the parallel clauses is

substantially the same. * * * We find no significant difference between the language

used in the parallel provisions of the state and federal confrontation clauses.”). The

Kansas Supreme Court follows a similar approach. State v. Busse, 231 Kan. 108, 111,

642 P.2d 972 (1982) (“[T]he right of confrontation under the United States

Constitution and the right to meet the witnesses ‘face to face’ under Section 10 of the

Kansas Bill of Rights are satisfied when defendant has had an opportunity to cross-

examine the witnesses against him. * * * ‘Under both the federal and state

constitutions a defendant charged with crime is entitled to be confronted with

the witnesses against him.’ ”), quoting State v. Terry, 202 Kan. 599, 599, 451 P.2d

211 (1969). And the Kentucky Supreme Court has made clear that the “face to face”

language in its constitution is insignificant. See v. Commonwealth, 746 S.W.2d 401,

402 (Ky.1988) (“The right to confront one's accusers in a criminal trial is a right

25 OHIO FIRST DISTRICT COURT OF APPEALS

guaranteed by the 6th Amendment to the United States Constitution and also by

Section 11 of the Kentucky Constitution. The United States Constitution grants the

accused the right ‘to be confronted with the witnesses against him.’ The Kentucky

Constitution grants the accused the right 'to meet the witnesses face to face.’ The

difference in language is not significant and both amendments are simply designed

to require that a defendant in a criminal case is entitled to a confrontation with his

accusers.”).

III.

{¶49} This backdrop illustrates the importance of the debate and why we, as

a state, should take a closer look at this question. In many respects, however, the

question framed is more general: are we going to abdicate our constitutional

interpretation to Washington, or will we recognize and enforce different language

and rights in our own Constitution?

{¶50} Ohio courts, particularly the Supreme Court, “can and will interpret

our Constitution to afford greater rights to our citizens when [they] believe that such

an interpretation is both prudent and not inconsistent with the intent of the

framers.” State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 21,

citing Jeffery Sutton, What Does—and Does Not—Ail State Constitutional Law, 59

U.Kan.L.Rev. 687, 707 (2011) (“There is no reason to think, as an interpretive matter,

that constitutional guarantees of independent sovereigns, even guarantees with the

same or similar words, must be construed the same. Still less is there reason to think

that a highly generalized guarantee, such as prohibition on ‘unreasonable’ searches,

would have just one meaning for a range of differently situated sovereigns.”). While

courts “can and should borrow from well-reasoned and persuasive precedent from

other states and the federal courts, * * * in so doing [they] cannot be compelled to

26 OHIO FIRST DISTRICT COURT OF APPEALS

parrot those interpretations.” Id. at ¶ 22. See, e.g., Sherman v. Ohio Pub. Emps.

Retirement Sys., 163 Ohio St.3d 258, 2020-Ohio-4960, 169 N.E.3d 602, ¶ 37 (Fisher,

J., concurring) (“Among those points is my concern that we avoid any upward

delegation of our authority and duty to interpret the Ohio Constitution, placing us in

a position in which we might blindly accept any further developments in federal

law.”).

{¶51} Hitching our sail to the federal constitutional interpretation creates

numerous problems. When the United States Supreme Court’s interpretation aligns

with how Ohio views its Constitution, I suppose no damage is done, but when it

departs, it often leaves courts floundering and trying to adjust the analysis and

methodology on the fly (as attempted in Storch). There is a better way—let’s just

interpret our state constitution as it stands independently and then we don’t have to

scramble if SCOTUS goes awry. This makes even more sense given the textual

differences between our confrontation clause and the Sixth Amendment. We have a

different confrontation clause, written in a different time with a different backdrop,

and invoking different language—let’s embrace those distinctions and give our

Constitution its due.

{¶52} And this is not simply an academic debate that might generate pages of

law review articles. Zoom and related technology have pressed this issue to the

forefront. As we all have become somewhat accustomed to meeting with others by

Zoom, and even to appearing in court via Zoom, this certainly sparks confrontation

clause concerns in criminal trials. Courts around the country have begun to grapple

with this. See, e.g., State v. Oliver, 2018-Ohio-3667, 112 N.E.3d 573, ¶ 24-25 (8th

Dist.) (an available witness could not testify through videoconference, but an

unavailable witness could testify through videoconference despite video stream

27 OHIO FIRST DISTRICT COURT OF APPEALS

interruptions experienced during the testimony); State v. Bailey, 404 Mont. 384,

2021 MT 157, 489 P.3d 889, ¶ 49 (the trial court erred by allowing the prosecution’s

expert witness to testify via videoconference without a showing that remote

testimony was necessary to further an important public policy).

{¶53} I certainly understand the impulse to bend or twist our constitutional

language in such a way as to render it Zoom-compatible. But if we do that, we might

as well admit that the clause “face to face”—inserted twice at two different times in

our constitutional history—really has no meaning. And if we scrub out that clause,

what’s to stop us from going further?

{¶54} Our constitutional heritage points in a different direction, urging us to

“secure” the confrontation right “against the power of change or innovation.”

Summons, 5 Ohio St. at 340. I would urge the Supreme Court to consider this issue

anew (at some point in the near future), and provide guidance to clarify the existing

confusion in the caselaw. In so doing, we should no longer reflexively follow federal

guidance. Instead, we should honor the distinct language in our Constitution and

the purpose of it, as reinforced by our precedent from an earlier age.

{¶55} This case is ultimately an easy one because, regardless of what

standard one might apply, we can’t permit a witness situated a stone’s throw from

the courthouse not to appear in person simply because he hadn’t showered and

shaved. If we sanction that, then we essentially obliterate the confrontation right, or

at least we open the door to its demise. We can accordingly leave any debate over the

proper confrontation standard in Ohio for another day, with a case presenting a

much closer question.

{¶56} Therefore, I respectfully concur with majority opinion because I

believe any violation of Mr. Banks’s confrontation right here would constitute

28 OHIO FIRST DISTRICT COURT OF APPEALS

harmless error on the record at hand. In light of this conclusion, this case may offer

a poor vehicle for Supreme Court review of this point, but we certainly need guidance

on these matters as the practice of law and the administration of the courts continue

to evolve in response to the pandemic and to technological innovation.

Please note:

The court has recorded its own entry this date.