      [Cite as In re H.P.P., 2020-Ohio-3974.]

                            COURT OF APPEALS OF OHIO

                           EIGHTH APPELLATE DISTRICT
                              COUNTY OF CUYAHOGA

IN RE H.P.P., JR.                                :

A Minor Child                                    :        Nos. 108860 and 108861

                                                 :



                                 JOURNAL ENTRY AND OPINION

              JUDGMENT: AFFIRMED
              RELEASED AND JOURNALIZED: August 6, 2020


          Civil Appeal from the Cuyahoga County Court of Common Pleas
                                 Juvenile Division
                     Case Nos. DL19100170 and DL19104244


                                          Appearances:

              Tim Young, Ohio Public Defender, and Lauren
              Hammersmith, Assistant State Public Defender, for
              appellant.

              Michael C. O’Malley, Cuyahoga County Prosecuting
              Attorney, and Eric Collins, Assistant Prosecuting
              Attorney, for appellee.


MICHELLE J. SHEEHAN, J.:

                 Appellant H.P.P., Jr. (“appellant” or “H.P.” hereafter), appeals from

a judgment of the Juvenile Division of the Cuyahoga County Common Pleas Court

that found him delinquent for committing grand theft and safecracking. On appeal,
he argues the juvenile court should not have permitted a witness to testify by Skype

at trial. Having reviewed the record and the applicable law, we affirm the juvenile

court’s judgment.

                                    Background

                In August 2018, appellant was in the permanent custody of

Cuyahoga County Department of Children and Family Services (“CCDCFS”) and

resided at the Alton House, a youth group home, in Columbus. On the day of the

incident, August 10, 2018, he went into an office where Chantelle Massie, a

Therapeutic Behavioral Specialist, was working. The state’s evidence shows that he

used a code to open a safe, took a screwdriver from the safe, and then used the

screwdriver to pry open a locked cabinet in an adjoining office. He took money and

the key to the facility’s van from the cabinet and tried to leave in the van, but crashed

immediately. The staff of Alton House called the police, and appellant was stopped

by the police officers when he walked away from the scene of the accident.

                On August 11, 2018, the state filed a complaint in Franklin County

juvenile court, alleging appellant was delinquent for committing two counts of

safecracking, a fourth-degree felony, and one count of grand theft involving a motor

vehicle, also a fourth-degree felony. On December 5, 2018, the day the matter was

scheduled before a magistrate for an adjudicatory hearing, appellant’s counsel

moved orally to transfer the case to Cuyahoga County. The state objected to the

transfer citing the fact that all the witnesses were located in Franklin County and

they would have to travel to Cuyahoga County for trial. The Franklin County juvenile
court granted the transfer on the grounds that appellant juvenile was in the custody

of CCDCFS and was also on probation in Cuyahoga County. The matter was

transferred to Cuyahoga County in January 2019.

                 On March 14, 2019, appellant was arraigned in Cuyahoga County

juvenile court. On April 5, 2019, the juvenile court set the matter for trial on

April 26, 2019. On April 23, 2019, the state filed a motion requesting permission

for Chantelle Massie to testify by Skype. The state alleged that Massie had already

taken a day off work when she appeared at trial set in the Franklin County juvenile

court and it was a burden for her to leave her work again on short notice and to travel

to Cleveland. The state contended that to allow Massie to testify remotely would

preserve the state’s resources and the court’s time.

                 Appellant, through counsel, opposed the state’s motion, arguing that

the request for remote testimony was based on convenience to the witness rather

than necessity. He argued that remote testimony would not allow the court to fully

observe the witness’s body language or tone of voice.

                 On April 26, 2019, the matter was heard before a magistrate.1 Before

the trial, the magistrate heard the state’s motion to have Massie testify via Skype.

The magistrate granted the state’s motion but advised the parties that “[i]f there

becomes a circumstance which makes the witness’s testimony difficult that I am not




       1 Appellant was tried for another unrelated case at this hearing, but that case is not
part of this appeal.
presently aware of, then we’ll address it at that time and can make her available at a

later time or later date if necessary.”

                Before Massie testified, the defense counsel renewed appellant’s

objection to the video testimony. After placing Massie under oath, the magistrate

asked the parties to accommodate the video testimony by speaking slowly and to

wait their turn to speak. The magistrate also ensured that the witness was alone in

the room where she was testifying. The transcript reflects the following:

      [THE COURT]: Okay. And I know in video there might be a slight
      second delay in the transmission of our voices, so I ask all parties in
      this courtroom and you to please speak slowly and wait until the other
      person finishes their question or their answer before you proceed to
      the next question or answer. Okay?

      [WITNESS]: Okay.

      [THE COURT]: And you are in a secure room right now, secure as in
      the door is closed?

      [WITNESS]: Yes, the door is closed.

      [THE COURT]: Okay. And is anyone else in that room with you?

      [WITNESS]: No.

      [THE COURT]: Okay. Thank you. * * *

(Tr. 92.)

                At the start of Massie’s testimony, she indicated the video was

“freezing,” but the technical glitch appeared to resolve itself quickly; the transcript

reflects the following:

      [PROSECTOR]: Miss Massie, can you state your name for the record
      and spell it?
      [WITNESS]: It’s completely freezing. It’s working now.

(Tr. 93.)

               The transcript also reflects that when Massie was asked to identify

appellant, she initially indicated she could not see his face, but the problem was also

remedied quickly:

      [DEFENSE COUNSEL]: Your honor, can we blowup the picture up
      there at the top? I don’t believe she can even see [H.P.] from the
      corner that’s showing up there.

      THE COURT: That’s not what she’s seeing. That’s what we’re seeing.

      WITNESS: I can’t see his face.

      THE COURT: Okay. Tilt the screen.

      [PROSECUTOR]: Is that better?

      WITNESS: Yes.

(Tr. 94-95.)

               After identifying H.P., Massie went on to testify that she is a

Therapeutic Behavioral Specialist for The National Youth Advocate Program. On

the day of the incident, while she was working at an office at the Alton House, H.P.

came into the office, seemingly upset. He appeared to calm down after sitting down.

While she continued to focus on her work, he got up and went to an adjoining office,

closing and locking the door. She heard what appeared to be rattling of the padlock

on a cabinet in that office. H.P. then came out of that office and proceeded to use a

code to open a safe in the office where Massie was working. She did not know how

H.P. knew the code and also did not think there was anything inside the safe, but
H.P. took a screwdriver out of the safe. He then went back to the office where the

locked cabinet was located, again shutting the door and locking it. Massie then

heard some “bustling” sound around the padlock. It later turned out that H.P. took

some money out of the cabinet as well as a key to the facility’s van. Massie tried to

talk to H.P. but he ignored her and walked past her. She then heard the van starting

and saw H.P. in the driver’s seat. She tried to persuade him from leaving but H.P.

left with the van. The staff at the Alton House contacted the police. After Massie

testified regarding the incident, she was cross-examined by the defense counsel.

               During Massie’s testimony, there were several occasions where she

indicated she could not hear the question well. On each occasion, the question was

repeated and she answered the question. Pages 95-96 of the transcript reflect the

following:

      [PROSECUTOR]: What do you remember about that incident? What
      do you remember about the incident?

             Miss Massie, can you hear me?

      [WITNESS]: No.

      [PROSECUTOR]: Can you hear me now?

      [WITNESS]: A little bit. I think it’s a poor connection. Okay. I think
      it’s on my end. Try it again.

      [PROSECUTOR]: What do you remember about the incident with the
      stolen van and money?

      [WITNESS]: It’s really — all I heard was what do I remember about
      the stolen van and money.

      [PROSECUTOR]: That’s correct.
      [WITNESS]: Okay. I remember [H.P.] coming into the office. * * *.

      ***

      [PROSECUTOR]: Did you observe anything else after he locked the
      door?

      [WITNESS]: I didn’t hear you.

      [PROSECUTOR]: Did you observe anything else, did you hear
      anything else after he locked the door?

      [WITNESS]: There was kind of rattling of like the padlock on our
      cabinet, but that’s all I heard.

(Tr. 95-96.)

               Page 99 of the transcript reflects the following:

      [PROSECUTOR]: Did you observe the manager’s office that night
      after [H.P.] drove away?

      [WITNESS]: Could you repeat the first part of your question?

      [PROSECUTOR]: Did you observe the manager’s office after [H.P.]
      drove away in the van?

      [WITNESS]: Yes. I ran in there to see what had happened and he had
      left the screwdriver and the cabinet was bent and the lock was broke.

(Tr. 99.)

               Page 102 of the transcript reflects the following:

      [DEFENSE COUNSEL]: Okay. What did you do at that point?

             [WITNESS]: I knew he couldn’t get into it [the cabinet], break
      into it, so I just waited until he came out because I didn’t have a key
      for the back office.

      [DEFENSE COUNSEL]: So it was really fine that he was in there?
      [WITNESS]: You broke up. I didn’t hear you.

      [DEFENSE COUNSEL]: Oh. So was it okay that * * * he was in there
      then?

      [WITNESS]: No. They’re not allowed in the office at all.

(Tr. 102.)

               Page 103 of the transcript reflects the following:

      [DEFENSE COUNSEL]: So after he came back out, you don’t know
      how he knew the code. You just —

      [WITNESS] No — Go ahead. What?

      [DEFENSE COUNSEL] You said there was a code that he typed in?

      [WITNESS] To the safe, yes.

(Tr. 103.)

               After Massie testified, the state presented the testimony of three

police officers, Officer Jeffrey Ward, Officer Joshua Buck, and Detective Carl Covey,

who testified in the courtroom. The two officers testified that they arrested appellant

on a public sidewalk near the Alton House after the incident. The detective testified

regarding his investigation of the case.      After trial, the magistrate found the

allegations of the complaint proven. Appellant was adjudicated delinquent for

having committed the offenses of grand theft and safecracking charged in the

complaint.

               On May 15, 2019, appellant, through counsel, filed objections to the

magistrate’s decision. One of the objections he raised related to the magistrate’s

permission for Massie to testify by video conferencing. Appellant argued the state
failed to demonstrate an important state interest, public policy, or necessity to

justify the remote testimony by a key witness, in violation of his right of

confrontation. He alleged the quality of the video was poor, there were frequent

problems with communications, and the trial court lacked the ability to control the

witness’s surroundings or materials to which she had access. He also argued the

trial court was unable to observe the demeanor and truthfulness of this key witness.

                On June 11, 2019, the trial court issued a journal entry overruling

appellant’s objection to the remote testimony. It found Massie unavailable to testify

because she was employed in Columbus and working on the day of trial and her

testimony met the reliability elements of confrontation — she was under oath,

subject to cross-examination, and observable. In addition, the trial court noted the

magistrate allowed the witness to testify via Skype with the provision that any

difficulties during the testimony arising from the video conferencing would be

addressed and, if the difficulties could not be remedied, the witness would be made

available at a later date. The court noted that while it appeared from the record that

there may have been a few occasions where the witness was unable to hear the

question asked due to a connection issue, there was no objection made by the

defense. The court determined that the reliability elements were satisfied because

the parties and the court had the opportunity to view the witness during her

testimony and to observe her demeanor, and nothing in the record indicated any

physical evidence or exhibits were improperly shown to the witnesses.
                On appeal, appellant raises the following assignment of error for our

review:

      The juvenile court violated H.P.P., Jr.’s constitutional right to
      confrontation when it allowed the sole eyewitness to testify via Skype,
      in violation of the Sixth and Fourteenth Amendment to the U.S.
      Constitution; and, Article I, Section 10 of the Ohio Constitution.2

                                       Analysis

                While admission of testimony is generally reviewed for an abuse of

discretion, the question of whether a criminal defendant’s rights under the

Confrontation Clause have been violated is reviewed de novo. State v. Smith, 162

Ohio App.3d 208, 2005-Ohio-3579, 832 N.E.2d 1286, ¶ 8 (8th Dist.), citing United

States v. Robinson, 389 F.3d 582, 592 (6th Cir.2004).

                Under both the federal and Ohio constitutions, a criminal defendant

has a right to confront witnesses. The Sixth Amendment to the United States

Constitution provides that “[i]n all criminal prosecutions the accused shall enjoy the

right * * * to be confronted with the witnesses against him.” Article I, Section 10 of

the Ohio Constitution states that “[i]n any trial, in any court, the party accused shall

be allowed * * * to meet the witnesses face to face * * *.” While these constitutional



      2  There are two appeal numbers in this consolidated case; Appeal No. 108861 was
taken from the juvenile court’s judgment in the instant lower court case (DL 19100170),
while Appeal No. 108860 was taken from the court’s entry in an unrelated assault case,
DL 19104244, in which the court committed appellant to the Ohio Department of Youth
Services for a minimum of six months consecutive to appellant’s commitment in the
instant case (DL 19100170) for a total of 18 months to a maximum period not to exceed
appellants attainment of the age of 21. On appeal, appellant does not assign any errors
regarding the trial court’s judgment regarding the term of his commitment for our review.
provisions are not identical, 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.

                In the seminal case from the United States Supreme Court

permitting remote testimony, Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111

L.Ed.2d 666 (1990), the Court explained that although a preference for face-to-face

confrontation at trial is reflected in the Confrontation Clause, the preference “‘must

occasionally give way to considerations of public policy and the necessities of the

case.’” Id. at 849, quoting Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337

(1895). The Court noted that the right to confrontation is not absolute, rather, “[t]he

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.” Craig at 845. The court

in Craig upheld a conviction after determining that a showing of necessity was made

by the state for a child witness to testify via closed circuit television.

                Pursuant to Craig, this court held that to qualify as an exception to

the face-to-face confrontation requirement, “‘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.

Marcinick, 8th Dist. Cuyahoga No. 89736, 2008-Ohio-3553, ¶ 18, quoting Harrell

v. State, 709 So.2d 1364, 1369 (Fla.1998), citing Craig at 849-851.
                Regarding the question of whether the video testimony was justified,

this court in Marcinick found the teleconferencing testimony of a social worker who

was in Belgium at the time of the trial did not violate the defendant’s right to

confrontation. In State v. Oliver, 2018-Ohio-3667, 112 N.E.3d 573 (8th Dist.), two

out-of-state individuals were eyewitnesses to the assault and burglary offenses

committed by appellant in Cleveland. Both had returned to their state of residence

when the trial was held, and the trial court allowed them to testify by Skype. This

court determined the state sufficiently established that one of the witnesses who

resided in Kentucky and was caring for her husband after his surgery was

unavailable. See also State v. Sheline, 8th Dist. Cuyahoga No. 196649, 2019-Ohio-

528 (witness who was in California at time of trial was deemed unavailable where

state had attempted but was unsuccessful at making arrangements to fly her back

for trial). However, this court in Oliver concluded that the trial court erred in

permitting the remote testimony of the other out-of-state witness, who resided in

Jacksonville, Florida, but was not employed at the time of trial. This court found

this witness was not unavailable; the fact she would be inconvenienced was

insufficient justification to allow this witness to testify remotely.       This court,

however, ultimately found the error harmless because her testimony was

cumulative.

                There is no bright-line rule, however, for determining whether a

certain distance would justify remote testimony. Rather, the court is to make a case-

specific finding, “based on important state interests, public policies, or necessities of
the case.” Marcinick at ¶ 18. Here, the state points to the specific circumstances of

the case. The witness resided and worked in Columbus, where the criminal incident

occurred, but the case was transferred at the last moment upon motion by

appellant’s attorney on the day of the scheduled trial. On the day of trial, she was

unavailable because she was working that day as a therapeutic behavioral specialist

at a youth home operated by the National Youth Advocate Program in Franklin

County. Furthermore, the trial court allowed the possibility of having the witness

testify in the courtroom on a later date should particularized concerns arise over her

remote testimony. Under the totality of these case-specific circumstances, the

testimony of the witness by Skype from Columbus appears to be justified, as the trial

court found.

               Regarding the reliability elements, Massie was under oath and

subject to cross-examination. However, appellant argues the reliability element was

not met because the trial court was not able to properly view the witness’s demeanor.

               As the United States Supreme Court held, while the Confrontation

Clause reflects a preference for face-to-face confrontation at trial, the defendant’s

right to confrontation is not violated provided that the witness “testify under oath;

the defendant retains full opportunity for contemporaneous cross-examination; and

the judge, jury, and defendant are able to view (albeit by video monitor) the

demeanor (and body) of the witness as he or she testifies.” Craig, 497 U.S. at 851,

110 S.Ct. 3157. The Court further explained:
      [a]lthough we are mindful of the many subtle effects face-to-face
      confrontation may have on an adversary criminal proceeding, the
      presence of these 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. See also State v. Self, 56 Ohio St.3d 73, 564 N.E.2d 446 (1990) (“[l]iteral face-

to-face confrontation is not the sine qua non of the confrontation right”; rather, its

“underlying value is grounded upon the opportunity to observe and to cross-

examine”).

                Here, the transcript reflects that at the hearing on the state’s motion

for permission of the video testimony, the court noted that “we have an extremely

large screen in our courtroom that is visible to everyone in the courtroom” and asked

the defense counsel for the specific basis of her claim that the witness’s demeanor

cannot be observed. In response, the defense counsel did not object to the specific

technological setup in the courtroom, but rather lodged a general complaint that

video testimony in general would not allow one to “pick up the nuances that you do

when you have a face-to-face [confrontation].” During Massie’s testimony, no

objection was raised on the ground that her demeanor could not be observed on the

video screen.

                Appellant claims on appeal that Massie’s testimony was “riddled

with malfunctions of the Skype video feed.” This allegation is not borne out by our

review of the transcript, however. Before the witness began her testimony, the court

asked the parties and the witness to be aware of the potential pitfalls of video
testimony and to speak in a manner to accommodate such testimony. The court also

stated that it would address specific concerns if they arose and would be willing to

allow the witness to testify at a later date if necessary. While there was one occasion

where the witness indicated the feed was freezing, the technological issue was

quickly resolved and the transcript reveals no further glitches with the video feed.

In addition, on several occasions where the witness indicated she did not hear the

question, the question was repeated and the testimony continued without further

problems. The defense counsel did not raise concerns on any of these occasions.

               Given the record before us, therefore, even if we were to find the trial

court erred in allowing the witness to testify remotely because the state did not

sufficiently justify the witness’s unavailability, we note that a Confrontation Clause

error does not require an automatic reversal. “A constitutional error can be held

harmless if we determine that it was harmless beyond a reasonable doubt.” State v.

Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 78, citing

Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Whether a Sixth Amendment error is harmless beyond a reasonable doubt depends

on “whether there is a reasonable possibility that the evidence complained of might

have contributed to the conviction.” Conway at ¶ 78, citing Chapman at 23. The

record shows that the trial court here took precautions to ensure that the remote

testimony did not violate appellant’s right to confrontation. Having thoroughly

reviewed the record, we cannot say there is a reasonable possibility that the remote

testimony contributed to appellant’s conviction. Even if the state did not sufficiently
justify Massie’s testifying remotely, we find the trial court’s admission of the

witness’s remote testimony harmless beyond a reasonable doubt. Accord State v.

Durst, 6th Dist. Huron No. H-18-019, 2020-Ohio-607 (while a witness should not

have been permitted to testify remotely because the state did not establish that he

was unavailable to appear in person, the admission of the remote testimony without

a preliminary showing of unavailability was harmless error). Appellant’s sole

assignment of error lacks merit.

               Judgment affirmed.

      It is ordered that appellee recover of appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court, juvenile division, to carry this judgment into execution. The

finding of delinquency having been affirmed, any bail or stay of execution pending

appeal is terminated. Case remanded to the trial court for execution of commitment.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



_____________________________
MICHELLE J. SHEEHAN, JUDGE

SEAN C. GALLAGHER, P.J., and
RAYMOND C. HEADEN, J., CONCUR
