State v. West

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

v. West, Slip Opinion No. 2022-Ohio-1556.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2022-OHIO-1556

THE STATE OF OHIO, APPELLEE, v. WEST, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State v. West, Slip Opinion No. 2022-Ohio-1556.]

Criminal law—Application of the plain-error standard of review when the accused

failed to object at trial—Judgment affirmed.

(No. 2020-0978—Submitted June 30, 2021—Decided May 11, 2022.)

APPEAL from the Court of Appeals for Franklin County,

No. 19AP-90, 2020-Ohio-3434.

__________________

KENNEDY, J., announcing the judgment of the court.

{¶ 1} In this discretionary appeal from the Tenth District Court of Appeals,

we consider whether a judge’s comments and questions to witnesses during a

criminal trial violated the accused’s right to a fair trial before an impartial judge,

causing structural error notwithstanding the accused’s failure to object.

{¶ 2} A structural error is a violation of the basic constitutional guarantees

that define the framework of a criminal trial; it is not susceptible to harmless-error

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review but rather, when an objection has been raised in the trial court, is grounds

for automatic reversal. State v. Jones, 160 Ohio St.3d 314, 2020-Ohio-3051, 156

N.E.3d 872, ¶ 2, 20 But when the accused fails to object to the error in the trial

court, appellate courts apply the plain-error standard of review, shifting the burden

to the accused to demonstrate that the error affected the trial’s outcome. Id. at ¶ 17.

We have “rejected the notion that there is any category of forfeited error that is not

subject to the plain error rule’s requirement of prejudicial effect on the outcome.”

State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 24, citing

State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 23. We do

not retreat from that position today.

{¶ 3} Appellant, James R. West Jr., the accused in this case, failed to object

to the trial judge’s questioning him during his cross-examination. West therefore

bears the burden to demonstrate plain error on the record—i.e., that there was a

plain or obvious error that affected the outcome of the trial and resulted in a

manifest miscarriage of justice, id. at ¶ 22. Even assuming that the trial judge’s

questioning constitutes error, West’s convictions are nonetheless supported by

overwhelming evidence of his guilt, and he has not established that any error

affected the outcome of his case. He therefore has not shown the existence of plain

error on the record.

{¶ 4} For these reasons, we affirm the judgment of the court of appeals.

Facts and Procedural History

{¶ 5} On October 2, 2017, Patrick Akers drove to the Beverage Warehouse

in the South Linden neighborhood in Columbus to buy a bottle of liquor. His

friends Donovan Banks and “Reese” followed him to the store in a separate car, a

Dodge Charger, and waited outside. Inside the store, Akers saw Reese’s girlfriend

“Nay” and joined her in line.

{¶ 6} West was standing beside Nay at the cash register, and Akers asked if

he was in line. West suggested that Akers could go first if Akers “put[] $20 on his

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bottle,” i.e., paid for part of West’s purchase, but Akers did not understand him.

According to Akers, West became belligerent after Akers asked him what he meant,

and West mentioned having ammunition in his car.

{¶ 7} West swatted Akers with an open hand, knocking Akers’s hat to the

side, and Nay and other customers tried to separate them and deescalate the

situation. Akers left the store, and West pushed through Nay and other customers

who were trying to keep him from following Akers outside.

{¶ 8} As Akers walked away from the store, he signaled Banks and Reese

to come over and, according to Akers, warned them that there was “static.” Two

passengers in West’s car, “D” and an unidentified man, got out of the car and

approached Akers in the parking lot while Reese got out of the Charger and joined

Akers.

{¶ 9} The unidentified man punched Akers, Reese punched West, and then

D punched Reese. According to Akers, D had two handguns, both of which “fell

from his waist and hit the ground” during the fight. D picked up both guns. Banks

then got out of his Charger, and Akers and Reese moved behind him. West, D, and

the unidentified man approached the Charger, and after D hit Banks, West’s group

backed away.

{¶ 10} Once the two groups were separated by at least a car length, West

took a handgun from D and fired shots toward the Charger’s front driver’s side until

he expended the clip. Akers took cover at the rear passenger’s side of the Charger

while Banks and Reese ran from the parking lot. As West finished shooting, D ran

from the scene, turning to fire shots toward the passenger’s side of the Charger

where Akers was taking cover. Akers was shot twice in his right leg.

{¶ 11} West drove away moments before officers from a nearby police

substation arrived on the scene and secured the area. In the hospital, Akers picked

West and another person from a photo array. West agreed to be interviewed by

detectives, and he gave a statement in which he admitted that he had had a

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confrontation with Akers at the Beverage Warehouse and that someone had

punched him in the parking lot. West told the detectives that he was by himself,

and after he heard gunshots, he jumped in his car and drove away. West denied

having a firearm and denied shooting at anyone.

{¶ 12} The grand jury returned a three-count indictment charging West with

two counts of felonious assault, each with a firearm specification, and one count of

having a weapon while under a disability. At trial, the state presented the testimony

of Akers, the officers who had responded to the scene, and the detectives who had

interviewed West. The state also presented evidence of West’s prior convictions

and security-camera footage from the Beverage Warehouse showing the altercation

and shooting from multiple angles.

{¶ 13} Against the advice of defense counsel and over the admonishment

of the judge, West testified on his own behalf. He explained that while he was in

line to buy a bottle of liquor and speaking to Nay, Akers approached and asked why

he was speaking to her. Akers then asked to pass him in the line, and West told

him that he could, if Akers gave him $20. An argument ensued, and West

antagonized Akers by calling him “broke” and saying, “Most broke people can’t

fight.” He also showed Akers the cash that he had pulled from his pocket and said,

“Look, you’ll never get this much money.”

{¶ 14} West testified that when he produced his cash, Akers said, “I’m

going to take that shit from you.” West then proceeded to narrate the security-

camera footage of this encounter; he concluded his narrative in time with the

footage of him pulling his money out in front of Akers and the comment Akers

made in reply. The judge then asked West, “So you’re claiming that he said he

would rob you,” and West responded, “Yeah. His actual words was, ‘I’m gonna

take that shit,’ is what he said to me.” West testified that “[Akers] said he was

going to his car after he said he was going to rob me,” and the judge asked, “He

didn’t say he was going to rob you. You thought that’s what he was implying by

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saying * * * ‘I’m going to take your money’? ” West responded, “He said, ‘I’m

gonna take that shit.’ ”

{¶ 15} West testified that when Akers left the store, Akers signaled to his

friends and yelled to them, “I got something for us,” not “[w]e got static.” As West

narrated the security-camera footage of the action in the parking lot with a laser

pointer, defense counsel asked West where he was, and West replied, “I’m right

here. I’m being struck.” The judge then inquired, “Is that you?” West confirmed,

“Yeah, that’s me getting struck, and that’s Akers right there trying to strike me,

too.” West narrated additional security-camera footage of the scene from a

different angle, after which the judge asked him, “Is that you with the gun,

shooting?” West admitted, “That is me with the gun, shooting.”

{¶ 16} West testified that he acted in self-defense, asserting that when

Reese punched D, both men dropped a firearm. He also claimed that when the

driver of the Charger—Banks—got out of his car, he had a firearm. West explained

that he retreated when he saw Banks with a gun and that he then took a handgun

from D and began shooting, stating “I was in fear for my life at that point.” West

also testified that he did not intend to kill anyone: “I was aiming at the ground for

real. I wanted everybody to get out of the vicinity. I didn’t want to get shot with

all the guns falling out. I was shooting at the ground, trying to get away.”

{¶ 17} During cross-examination, West admitted that getting punched made

him mad and that he then pursued Akers’s group to fight. When the prosecutor

stated that he was wrapping up, the judge asked the prosecutor, “Did he make a

statement to a police officer?” The prosecutor, who had not covered this topic

during cross-examination, responded, “He did,” and then began questioning West

about the statement he had made to police:

Q. All this happened. It’s all on video. We clearly see you

shooting. You made a statement to the cops, didn’t you?

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A. Yes, sir.

Q. And, of course, you told them you had a gun and were

shooting because these guys brought a gun into the situation?

THE COURT: You lied to the police, didn’t you?

THE DEFENDANT: Because I wanted to give myself a

fighting chance at court.

***

Q. Okay. You said, “There was some shooting, but it wasn’t

me,” right?

A. I just told you what I said. I didn’t have a lawyer present,

so why would I plead to anything?

THE COURT: It wasn’t a question of pleading. You waived

your right, and you made a statement to the police. You didn’t tell

them it was self-defense at that time. It’s just that simple, right?

THE DEFENDANT: Yes, sir.

West did not object to any of the court’s questioning.

{¶ 18} After the close of evidence, the judge gave the following instruction

to the jury:

The next part is important. Sometimes I ask questions.

However, any question that I ask or any tone in my voice, because I

can get aggravated, don’t take that as any indication of how I think

the case should come out.

How I think a case should come out has no bearing on

anything. Don’t place any emphasis on any questions I asked, and

don’t put any emphasis on why I asked a question. It doesn’t matter.

What matters is your evaluation. If I did anything, disregard it.

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{¶ 19} The jury found West guilty of both counts of felonious assault and

the associated firearm specifications, and the trial court found him guilty of having

a weapon while under a disability, a count that had been tried to the bench. At

sentencing, the judge noted his belief that West had lied on the witness stand and

that he was on drugs on the night of the incident, but he imposed the same aggregate

amount of prison time that was offered to West at plea-bargaining even though the

state had recommended a longer sentence after the trial. The judge sentenced West

to four years in prison for the felonious assault of Akers, two years for the felonious

assault of Banks, and three years each for the firearm specifications, all to be served

consecutively. The judge also sentenced West to three years in prison for having a

weapon while under a disability, to be served concurrently with the other terms of

incarceration, for an aggregate 12-year prison sentence.

{¶ 20} The Tenth District Court of Appeals affirmed. The court rejected

the argument that the trial court exhibited bias in questioning West at trial and

therefore committed structural error. Instead, the court of appeals applied the plain-

error standard of review to determine whether West had been prejudiced by the

judge’s questioning. The appellate court concluded that West had not demonstrated

plain error, because “when viewed in the context of the record as [a] whole, the trial

court’s questions were limited, and came only after the trial court gave specific

warnings to West regarding testifying against his attorney’s advice and the effect

that would have on his case. * * * And finally, any arguable problem was cured by

the trial court’s curative instruction.” 2020-Ohio-3434, ¶ 17.

{¶ 21} We accepted West’s appeal to review a single proposition of law: “A

criminal defendant’s Due Process right to a fair trial under the United States and

Ohio Constitutions is violated when the trial court engages in questioning that

shows bias against the defendant. Such error is subject to a structural error analysis

and is grounds for automatic reversal.” 160 Ohio St.3d 1451, 2020-Ohio-5166, 157

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N.E.3d 771.

Law and Analysis

Plain, Harmless, and Structural Error

{¶ 22} “ ‘No procedural principle is more familiar to this Court than that a

constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as

well as civil cases by the failure to make timely assertion of the right before a

tribunal having jurisdiction to determine it.’ ” United States v. Olano, 507 U.S.

725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), quoting Yakus v. United States,

321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944). When the defendant forfeits

the right to assert an error on appeal, an appellate court applies plain-error review.

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 21-22. Under

this standard, the defendant bears the burden of “showing that but for a plain or

obvious error, the outcome of the proceeding would have been otherwise, and

reversal must be necessary to correct a manifest miscarriage of justice.” State v.

Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16. An

appellate court has discretion to notice plain error and therefore “is not required to

correct it.” Rogers at ¶ 23.

{¶ 23} In contrast, when a defendant objects to an error at trial, an appellate

court applies harmless-error review. Perry, 101 Ohio St.3d 118, 2004-Ohio-297,

802 N.E.2d 643, at ¶ 15. Under that standard, the state “bears the burden of

demonstrating that the error did not affect the substantial rights of the defendant.”

Id. As with plain error, “[w]hether the defendant’s substantial rights were affected

depends on whether the error was prejudicial, i.e., whether it affected the outcome

of the trial,” Jones, 160 Ohio St.3d 314, 2020-Ohio-3051, 156 N.E.3d 872, at ¶ 18.

But “before a federal constitutional error can be held harmless, the court must be

able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman

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

court is required to reverse the conviction when the state is unable to meet its

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burden. Perry at ¶ 15.

{¶ 24} “We have recognized that when a defendant is represented by

counsel and tried by an impartial fact-finder, there is a strong presumption that all

errors—constitutional and nonconstitutional—are subject to harmless-error

review.” Jones at ¶ 19. Nonetheless, the United States Supreme Court and this

court have held that certain errors cannot be deemed harmless. E.g., Weaver v.

Massachusetts, ___ U.S. ___, ___ 137 S.Ct. 1899, 1907-1908, 198 L.Ed.2d 420

(2017); Perry at ¶ 17.

{¶ 25} Structural errors are “constitutional defects that ‘ “defy analysis by

‘harmless error’ standards” because they “affect[] the framework within which the

trial proceeds, rather than simply [being] an error in the trial process itself.” ’ ”

(Brackets added in Fisher) Perry at ¶ 17, quoting State v. Fisher, 99 Ohio St.3d

127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 9, quoting Arizona v. Fulminante, 499

U.S. 279, 309-310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). “Despite its name,

the term ‘structural error’ carries with it no talismanic significance as a doctrinal

matter. It means only that the government is not entitled to deprive the defendant

of a new trial by showing that the error was ‘harmless beyond a reasonable

doubt.’ ” Weaver at ___, 137 S.Ct. at 1910, quoting Chapman, at 24.

{¶ 26} Structural error has been recognized only in limited circumstances

involving fundamental constitutional rights, including the denial of counsel to an

indigent defendant, the denial of counsel of choice, the denial of self-representation

at trial, the denial of a public trial, and the failure to instruct the jury that the

accused’s guilt must be proved beyond a reasonable doubt. Id. at ___, 137 S.Ct. at

1908; United States v. Davila, 569 U.S. 597, 611, 133 S.Ct. 2139, 186 L.Ed.2d 139

(2013).

Judicial Questioning of the Accused

{¶ 27} In questioning witnesses and commenting on the evidence, a judge

may create “a risk of the appearance of bias.” State v. Cepec, 149 Ohio St.3d 438,

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2016-Ohio-8076, 75 N.E.3d 1185, ¶ 81. We have therefore admonished judges that

“ ‘[i]n a trial before a jury, the court’s participation by questioning or comment

must be scrupulously limited, lest the court, consciously or unconsciously, indicate

to the jury its opinion on the evidence or on the credibility of a witness.’ ” Id. at

¶ 72, quoting State ex rel. Wise v. Chand, 21 Ohio St.2d 113, 256 N.E.2d 613

(1970), paragraph three of the syllabus.

{¶ 28} West, however, failed to object to any of the trial judge’s comments

or questions in this case. Therefore, our review is for plain error only, as assertions

of structural error do not preclude an appellate court from applying the plain-error

standard when the accused has failed to object. See Rogers, 143 Ohio St.3d 385,

2015-Ohio-2459, 38 N.E.3d 860, at ¶ 24; Perry, 101 Ohio St.3d 118, 2004-Ohio-

297, 802 N.E.2d 643, at ¶ 23; Johnson v. United States, 520 U.S. 461, 465-466, 117

S.Ct. 1544, 137 L.Ed.2d 718 (1997).

{¶ 29} Even assuming that the judge plainly erred in participating in West’s

cross-examination, West must still demonstrate a reasonable probability that the

judge’s error prejudiced him and that reversal is necessary to correct a manifest

miscarriage of justice. See Rogers, at ¶ 22.

{¶ 30} West has not established a reasonable probability that the judge’s

actions affected the outcome of the trial. The evidence of guilt was overwhelming.

The store’s security cameras captured West having an altercation with Akers, being

held back by other customers, and pushing through them to follow Akers outside.

After being punched, West admitted being mad and participating in the fight. When

Akers and Reese retreated to the Charger, West pursued them. Although he claimed

that Banks had a firearm, the security-camera footage shows no indication of it, and

rather than seeking cover, D punched Banks before West and his group started

walking away. Though in no apparent danger, West obtained a handgun from D,

emptied the clip in Akers’s direction from at least a car-length away, and then drove

away as police arrived. He then lied to the police about the shooting and failed to

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assert self-defense as he gave his statement. This evidence contradicts West’s claim

that he acted in self-defense.

{¶ 31} The jury was able to gauge the credibility of West’s testimony and

compare his version of events with the security-camera footage documenting the

shooting. The jury was also instructed to disregard any inference it might draw

from the judge’s questioning and tone, and it is presumed that a jury follows the

trial court’s instructions, State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749

(2001). A review of the record demonstrates that no reasonable factfinder could

have examined the evidence and determined that West’s assertion of self-defense

was credible. Therefore, there is no reasonable probability that any comment or

question by the judge affected the outcome of this case.

{¶ 32} Both dissenting opinions recognize that plain-error review applies

when a defendant has failed to object to an alleged structural error in the trial court.

Nonetheless, they would reject the traditional outcome-determinative test of

evaluating prejudice under the plain-error rule and hold that an appearance of

judicial bias automatically affects a defendant’s substantial rights.

{¶ 33} But their approach is inconsistent with that of the federal courts,

which rely on the outcome-determinative standard in reviewing unpreserved claims

of judicial bias. Indeed, when such an error has occurred, courts applying plain-

error review consider the likelihood that the outcome of the proceedings would

have been different but for the judge’s actions in questioning witnesses. See, e.g.,

United States v. Barnhart, 599 F.3d 737, 745-747 (7th Cir.2010) (holding that

although the judge’s questioning witnesses constituted error, that error did not

affect the defendant’s substantial rights, because he failed to show that “but for the

judge’s improper questioning, he probably would not have been convicted”);

United States v. Rivera-Rodríguez, 761 F.3d 105, 123 (1st Cir.2014) (concluding

that the case against the defendant was not strong and thus “[w]ithout [the judge’s]

improper interventions, there is a reasonable probability that [the defendant] would

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not have been convicted”).

{¶ 34} The United States Supreme Court has also employed an outcome-

determinative analysis when reviewing alleged structural defects for plain error. In

Johnson, the court considered the effect of a trial-court error in failing to submit an

element of the crime to the jury. 520 U.S. at 467, 117 S.Ct. 1544, 137 L.Ed.2d 718.

The court concluded that even assuming that the error was structural, reversal was

unwarranted because the evidence supporting the omitted element was

“overwhelming.” Id. at 469-470; see also United States v. Cotton, 535 U.S. 625,

632-633, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (indictment’s failure to allege a

fact that increased the statutory maximum sentence was not plain error, because the

evidence was overwhelming and essentially uncontroverted).

{¶ 35} Were this court to hold that reversal is warranted any time a

structural error has occurred, there would be no practical difference between

reviewing the error under the harmless-error and plain-error standards of review.

As the Johnson court explained, “the seriousness of the error claimed does not

remove consideration of it from the ambit of the Federal Rules of Criminal

Procedure.” Id. at 466. We likewise decline to elevate any class of errors beyond

the application of our plain-error rule. And while we recognize that there may be

situations in which a structural error so affects the fairness of a judicial proceeding

that reversal is warranted despite the failure to preserve the error, this is not such a

case. Because of the overwhelming evidence of West’s guilt, he is unable to show

any reasonable probability that the outcome of his trial would have been otherwise.

He therefore failed to establish the prejudice prong of the plain-error rule.

Conclusion

{¶ 36} Because West failed to object to the trial judge’s questioning him

during his cross-examination, he bears the burden to establish a reasonable

probability that but for the judge’s actions, he would not have been found guilty of

the charged offenses. Given the overwhelming evidence of his guilt, this is a

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showing that West cannot make.

{¶ 37} We are convinced from the record that any error did not affect the

outcome of West’s trial. We therefore affirm the judgment of the Tenth District

Court of Appeals.

Judgment affirmed.

FISCHER and DEWINE, JJ., concur.

O’CONNOR, C.J., concurs in judgment only.

DONNELLY, J., dissents, with an opinion.

BRUNNER, J., dissents, with an opinion joined by STEWART, J.

_________________

DONNELLY, J., dissenting.

{¶ 38} The issue in this case is whether the trial judge exhibited bias in favor

of appellee, the state of Ohio, and against appellant, James R. West Jr., through his

comments and questions during the jury trial. Like the judge in the Tenth District

Court of Appeals who dissented in part below, I believe the record here

substantiates West’s claim of judicial bias that, when coupled with other collateral

harm that I will discuss later, constitutes “structural error” that irreparably

compromised the fundamental fairness of the trial-court proceedings. I therefore

believe we should recognize plain error here in order to correct a constitutionally

flawed trial process.

{¶ 39} The lead opinion, on the other hand, stating that it will “not retreat”

from requiring that all forfeited errors, including structural errors, be subject to

plain-error analysis under Crim.R. 52(B), finds no plain error here. Lead opinion,

¶ 2. It does so without actually addressing whether there was an error that was plain

and without ever saying whether the trial judge’s behavior was structural error.

Instead, it simply concludes that West failed to show that the outcome of his trial

would have been different.

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{¶ 40} Contrary to the conclusion in the lead opinion, however, I believe

that there is a reasonable probability that West was prejudiced by the trial judge’s

conduct. I would, accordingly, reverse West’s conviction and grant him a new trial.

Because the majority instead upholds West’s conviction, I respectfully dissent.

{¶ 41} There is no dispute that West did not object to the trial judge’s

repeated questioning of witnesses and interruptions. I readily agree with the lead

opinion that West’s assertion of structural error does not exempt the trial judge’s

actions from being subject to the plain-error analysis applicable to any unpreserved

issue. See State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643,

¶ 23 (unpreserved claim of structural error remains subject to Crim.R. 52(B)).1 But

the lead opinion does not fully apply that analysis to the facts of this case.

{¶ 42} Under Crim.R. 52(B), “[p]lain errors or defects affecting substantial

rights may be noticed although they were not brought to the attention of the court.”

To qualify for plain-error relief, the defendant must establish that (1) an error (i.e.,

a deviation from a legal rule) occurred, (2) the error was plain (i.e., obvious), and

(3) the error affected the defendant’s substantial rights. See State v. Morgan, 153

Ohio St.3d 196, 2017-Ohio-7565, 103 N.E.3d 784, ¶ 36; State v. Spaulding, 151

Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 64; State v. Barnes, 94 Ohio

St.3d 21, 27, 759 N.E.2d 1240 (2002). Even then, an appellate court is not required

to correct a plain error. See State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459,

38 N.E.3d 860, ¶ 23. “Notice of plain error under Crim.R. 52(B) is to be taken with

the utmost caution, under exceptional circumstances and only to prevent a manifest

1. The lead opinion’s reliance on State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d

860, is misplaced because that case involved only plain error, not structural error.

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miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus.2

{¶ 43} In this case, the lead opinion does not address the first or second

plain-error prongs—whether an error occurred and whether it was plain—but

instead proceeds directly to address the third prong of the analysis—whether the

error affected West’s substantial rights. Believing that the issue here cannot

properly be resolved without the context of full plain-error analysis, I hereafter

apply that analysis to the specific facts of this case.

Whether There Was Error

{¶ 44} Evid.R. 614(B) authorizes a trial court to interrogate witnesses “in

an impartial manner.” See State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954,

45 N.E.3d 127. In State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, 75 N.E.3d

1185, ¶ 72-73, we restated the limits of judge questioning in a jury trial:

“In a trial before a jury, the court’s participation by questioning or

comment must be scrupulously limited, lest the court, consciously

or unconsciously, indicate to the jury its opinion on the evidence or

on the credibility of a witness.” State ex rel. Wise v. Chand, 21 Ohio

St.2d 113, 256 N.E.2d 613 (1970), paragraph three of the syllabus.

“[A] criminal trial before a biased judge is fundamentally

unfair and denies a defendant due process of law.” State v. LaMar,

95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34. The

term “biased” “implies a hostile feeling or spirit of ill will or undue

friendship or favoritism toward one of the litigants or his attorney,

with the formation of a fixed anticipatory judgment on the part of

2. Federal courts apply the same plain-error analysis under Fed.R.Crim.P. 52(b) and will grant relief

only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

See, e.g., United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010).

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the judge, as contradistinguished from an open state of mind which

will be governed by the law and the facts.” State ex rel. Pratt v.

Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph four

of the syllabus.

(Brackets sic and emphasis added.)

{¶ 45} To determine whether the trial judge’s questioning of witnesses was

conducted in an impartial manner requires consideration of the trial record as a

whole. See United States v. Saenz, 134 F.3d 697, 702 (5th Cir.1998); United States

v. Tilghman, 134 F.3d 414, 417 (D.C.Cir.1997). “ ‘To rise to the level of

constitutional error, the * * * judge’s actions, viewed as a whole, must amount to

an intervention that could have led the jury to a predisposition of guilt by

improperly confusing the functions of judge and prosecutor.’ ” Saenz at 702,

quoting United States v. Bermea, 30 F.3d 1539, 1569 (5th Cir.1994).

{¶ 46} In the case before us, the trial transcript exposes an escalating lack

of impartiality by the trial judge as shown by repeated instances of gratuitous

judicial intervention that bolstered the state’s case while undermining West’s case.

{¶ 47} For example, when Patrick Akers testified on direct examination that

he did not see who picked up the two guns that fell to the ground in the parking lot

but that he did see West hand a gun to one of his confederates, the trial judge

interjected:

THE COURT: So you’re saying you saw the defendant with

two guns, hand one to somebody, and did he still have a gun?

THE WITNESS: That’s correct.

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{¶ 48} After the prosecutor asked Akers to identify the person who had

started shooting in the parking lot and Akers named West as the shooter, the trial

judge could not resist interjecting to ask for an in-court identification:

THE COURT: The defendant over there that you’ve

identified?

THE WITNESS: That’s correct.

{¶ 49} When the prosecutor questioned Akers about security-camera video

of the parking lot that was being played for the jury, the trial judge twice interjected

to have Akers identify West in the video.

{¶ 50} After the trial court denied West’s Crim.R. 29 motion for acquittal

at the close of the state’s case, West’s counsel asked for an Evid.R. 104 hearing to

address West’s desire to testify on his own behalf against the advice of counsel.

West stated that he wanted to fire his lawyer, but the trial court told West that he

could not fire his lawyer that close to the end of the trial. After the court confirmed

West’s desire to testify on his own behalf, West took the witness stand.

{¶ 51} Describing the in-store confrontation between himself and Akers,

West testified that he had taunted Akers by pulling out a wad of money and saying,

“Look, you’ll never get this much money,” to which Akers replied, “N* * **, I’m

gonna take that s* * * from you.” As West testified about the events inside the

store that were captured on security-camera video, the trial judge interjected:

THE COURT: So you’re claiming that [Akers] said he

would rob you?

THE DEFENDANT: Yeah. His actual words was, “I’m

gonna take that s* * *,” is what he said to me. And then we go to

the part where we’re going outside the door.

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{¶ 52} When West testified moments later that he saw Akers going to his

car after he had said that he would rob West, the trial judge again interjected:

THE COURT: He didn’t say he was going to rob you. You

thought that’s what he was implying by saying the “N” word, and

“I’m going to take your money.”

THE DEFENDANT: He said, “I’m gonna take that s* * *.”

I told him he would never get that kind of money that I had on me

at the time.* * *

This confrontational exchange before the jury makes clear that it was the trial judge

who interpreted Akers’s statement as an indication that Akers was going to rob

West, yet the trial judge attacked West’s credibility because Akers did not in fact

use the word “rob.” West’s acquiescence to the trial judge’s characterization of

Akers’s statement does not change the fact that West never testified that Akers had

used the word “rob.”

{¶ 53} Still, during the course of West’s direct examination while the

security video played, the trial judge interjected:

THE COURT: Is that you with the gun, shooting?

THE DEFENDANT: That is me with the gun, shooting.

THE COURT: You can explain in a moment.

Given the trial judge’s repeated interruption of West’s testimony, I discern no

reason for denying West the opportunity to explain his conduct at that point in the

trial.

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{¶ 54} Before the prosecutor cross-examined West, the trial judge

questioned whether West had seen one of Akers’s confederates emerge from a car

with a gun.

THE COURT: Did you see a gun? Did you see a gun?

THE DEFENDANT: I saw a gun.

THE COURT: But he went backwards behind the car?

THE DEFENDANT: He came out with a gun behind the car,

and that’s when we immediately started backing up.

THE COURT: Are you testifying that any shots were fired

at you?

THE DEFENDANT: I don’t know. I don’t know.

Everything was — I wasn’t sure I seen — I don’t know for sure that

the other guy dropped his gun.

{¶ 55} When West’s counsel concluded her direct examination of West, the

trial judge gave West an open forum to add anything else to his testimony.

{¶ 56} At the outset of his cross-examination of West, the prosecutor was

quick to seize upon and indeed align himself with the trial judge’s confrontation

with West about whether Akers had said he was going to “rob” West:

Q. [Prosecutor]: As the Judge correctly pointed out, he didn’t

say he was going to rob you?

A. [West]: In slang terms in the neighborhood, “N* * **, I’m

gonna take that s* * *,” what else could he mean?

{¶ 57} West acknowledged during cross-examination that he could have

gone about his business while Akers went about his own business, but the trial judge

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summarily precluded West from testifying about why he did not do that with a curt,

“They’ve heard you explain why.”

{¶ 58} Then, as the prosecutor signaled that he was wrapping up his cross-

examination, the trial judge prompted an entirely new line of questioning that was

of apparent interest to him—and, by implication, of interest to the jury:

THE COURT: Did [West] make a statement to a police

officer?

MR. PIERSON [Prosecutor]: He did.

THE COURT: All right. Let’s move on.

And it is here that the trial judge’s overt bias and lack of impartiality finally

poisoned the proceedings beyond any point of salvage.

{¶ 59} Earlier in the trial, Detective Randy VanVorhis with the Columbus

Police Department testified that West had given a statement to the police in which

he had denied having a gun, shooting a gun, or knowing who was shooting a gun

on the night in question. When the prosecutor questioned West about his statement

to the police during the extended cross-examination, the prosecutor asked: “And,

of course, you told them you had a gun and were shooting because these guys

brought a gun into the situation?” Before West could even begin to respond, the

trial judge again interjected:

THE COURT: You lied to the police, didn’t you?

THE DEFENDANT: Because I wanted to give myself a

fighting chance at court.

Q: That’s what you’re doing here, lying to the Court to give

yourself a fighting chance here?

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January Term, 2022

A: No, I just knew if I pled guilty that day, there would be

no way for me to come all the way to this point.

{¶ 60} The trial judge’s officious interjection here did not serve just to tell

West that he had lied. It communicated an unmistakable and more troubling

message from judge to jury: this defendant lies.

{¶ 61} The trial judge then rebuked West for his apparent misapprehension

that a statement to the police would be tantamount to a plea to a criminal charge:

THE COURT: It wasn’t a question of pleading. You waived

your right, and you made a statement to the police. You didn’t tell

them it was self-defense at that time. It’s just that simple, right?

THE DEFENDANT: Yes, sir.

When the prosecutor concluded his cross-examination of West and West’s counsel

indicated that there would be no redirect examination, the trial judge again gave

West an open forum to add anything else to his testimony that would not be

repetitive of his prior testimony. As West began to testify with no questions before

him, his counsel objected. Mindful of the preexisting tension between West and

his counsel, the trial judge proclaimed in front of the jury: “I want to give him a

chance to say everything, but your lawyer thinks you should stop.” While

ostensibly addressed to West, this gratuitous comment sent a disturbing message to

the jury: West’s own lawyer does not want you to hear what he may say.

{¶ 62} West’s case fundamentally turned on the credibility of the witnesses.

The jury had to decide whether to believe that West had acted in self-defense.

When the credibility of witness testimony is at issue in a jury trial, it is most

imperative that the trial judge exhibit steadfast impartiality in his trial conduct so

as not to influence the jury in its credibility determinations by betraying his belief

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as to the defendant’s guilt or innocence. See Chand, 21 Ohio St.2d 113, 256 N.E.2d

613, paragraph three of the syllabus.

{¶ 63} For example, in United States v. Victoria, 837 F.2d 50 (2d Cir.1988),

the defendants were convicted on federal charges of conspiracy to manufacture,

distribute, and possess with intent to distribute cocaine. They claimed to have been

unaware that boxes they had delivered to an apartment contained materials used in

a cocaine-manufacturing operation. The trial judge repeatedly interrupted the

defendants’ direct examinations with questions that “revealed interrogation in the

nature of cross-examination challenging the credibility of the witnesses.” Id. at 54.

Reversing the defendants’ convictions based on judicial misconduct, the Second

Circuit Court of Appeals explained:

Clearly implied in the questions is the Court’s skepticism regarding

the appellants’ claim that they lacked any knowledge of the cocaine

manufacturing operation. Even before the prosecutor’s cross-

examination of [one appellant], the trial judge intervened with

questions he later said were designed to test the credibility of the

witness.

* * * There can be no doubt that the Court’s interruption

* * * did not have as its purpose the clarification of ambiguities, the

correction of misstatements or the development of information used

to make rulings. The sole purpose of the interrogation, as conceded

by the trial court, was to challenge the credibility of the witness.

Unfortunately, it also served to convey to the jury here the judge’s

opinion that the witness was not worthy of belief. When such doubt

is injected by the court in a case where credibility of a defendant-

witness is a key issue, there has been a deprivation of a fair jury trial.

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(Citations omitted.) Id. at 54-55.

{¶ 64} The trial judge’s interjections here were similarly intended to

challenge West’s credibility before he was ever subjected to cross-examination by

the prosecutor. Indeed, the trial judge did not mince words about what he really

thought of West. When sentencing West, the trial judge stated:

THE COURT: And I think you lied on the stand. I do, sir,

I’m sorry. I think you absolutely lied and changed your story. I get

it, nobody wants to do 12 or 13 years. People do lie when they’re

facing heavy time. You’re out there thugging. Maybe you’re not a

thug. I don’t know.

***

* * * I think you were high that night. That’s what I think.

I think you were on something.

There was, of course, no evidence presented at trial to substantiate the trial judge’s

character assessments.

{¶ 65} I empathize with the frustration of trial judges who occasionally

endure meandering witness examinations and who may be tempted to clarify

testimony that may be unclear to jurors. But in an adversarial system of justice

with parties represented by counsel, it is those parties who are responsible for

presenting their respective cases in the crucible of trial. Judges must resist the urge

to intervene so as not to compromise the fundamental integrity and fairness of the

trial proceedings.

{¶ 66} On this record, however, I have no difficulty concluding that the trial

judge did not conduct the trial proceedings with the steadfast impartiality demanded

by Evid.R. 614(B).

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Whether The Error Was Plain

{¶ 67} That the trial judge widely overstepped his bounds in his witness

interrogations is plain and obvious. Indeed, the trial judge himself felt obliged to

give a curative instruction concerning his own trial conduct, supplementing the

final jury instructions with the following statements:

The next part is important. Sometimes I ask questions.

However, any question that I ask or any tone in my voice, because I

can get aggravated, don’t take that as any indication of how I think

the case should come out.

How I think the case should come out has no bearing on

anything. Don’t place any emphasis on any questions I asked, and

don’t put any emphasis on why I asked a question. It doesn’t matter.

What matters is your evaluation. If I did anything, disregard it.

{¶ 68} To be sure, a timely curative instruction may, in some circumstances,

adequately address an isolated instance of bias. See, e.g., Cepec, 149 Ohio St.3d

438, 2016-Ohio-8076, 75 N.E.3d 1185, at ¶ 76-77 (curative instruction sufficient

to address arguably questionable tone of judge’s isolated interjection). In this case,

however, no curative instruction was given contemporaneously with any of the trial

judge’s numerous interjections during the course of the three-day trial in which

jurors could see and hear the trial judge become increasingly aggravated with

certain witnesses’ testimony while being more solicitous of other witnesses’

testimony. Instead, the curative instruction was given at the end of the trial court’s

instructions to the jury. Given the extent to which the trial judge’s behavior may

have influenced the jury’s assessment of West’s credibility throughout the course

of this trial, a curative instruction given just minutes before the case was delivered

to the jurors for their deliberations is simply too little and too late.

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January Term, 2022

{¶ 69} Viewing the entire trial record in context, I have no difficulty

concluding that the trial court’s officious conduct was plain, obvious, and

persistent.

Whether the Defendant’s Rights Were Substantially Affected

{¶ 70} To qualify as plain error, the error must have affected the defendant’s

substantial rights by affecting the outcome of the trial. See State v. Wilks, 154 Ohio

St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 52; Barnes, 94 Ohio St.3d at 27,

114 N.E.3d 1092 (error affects substantial rights if it affected the outcome of the

trial). A defendant invoking plain error typically must demonstrate a reasonable

probability that the error resulted in prejudice. See Rogers, 143 Ohio St.3d 385,

2015-Ohio-2459, 38 N.E.3d 860, at ¶ 22.

{¶ 71} It is unclear, however, whether all forfeited errors require a specific

showing that the error in fact affected the defendant’s substantial rights. In United

States v. Olano, 507 U.S. 725, 735, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the

United States Supreme Court observed that “[n]ormally, although perhaps not in

every case, the defendant must make a specific showing of prejudice to satisfy the

‘affecting substantial rights’ prong of Rule 52(b),” acknowledging that “[t]here

may be a special category of forfeited errors that can be corrected regardless of their

effect on the outcome” and others “that should be presumed prejudicial if the

defendant cannot make a specific showing of prejudice.”

{¶ 72} In this case, West maintains that it was “structural error” for him to

stand trial before a judge who was not impartial. See Tumey v. Ohio, 273 U.S. 510,

47 S.Ct. 437, 71 L.Ed. 749 (1927). Structural errors fall within the “ ‘very limited

class’ ” of fundamental constitutional errors that affect the adjudicatory framework

within which a criminal trial proceeds, rather than being simply an error in the trial

process itself. United States v. Marcus, 560 U.S. 258, 263, 130 S.Ct. 2159, 176

L.Ed.2d 1012 (2010), quoting Johnson v. United States, 520 U.S. 461, 468, 117

S.Ct. 1544, 137 L.Ed.2d 718 (1997); see also Arizona v. Fulminante, 499 U.S. 279,

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SUPREME COURT OF OHIO

310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). While the lead opinion sets forth

several recognized structural errors, it conspicuously omits the specific structural

error alleged in this case—a biased judicial officer. See lead opinion at ¶ 26.

{¶ 73} Because a structural error infects the entire trial process from

beginning to end, it defies analysis by harmless-error standards, see Fulminante at

309-310, and renders the criminal trial an unreliable vehicle to determine guilt or

innocence or to impose a fair criminal punishment, see Rose v. Clark, 478 U.S. 570,

577-578, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). Structural errors “are so

intrinsically harmful as to require automatic reversal (i.e., ‘affect substantial

rights’) without regard to their effect on the outcome.” Neder v. United States, 527

U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Consistent with the foregoing,

our decisions have likewise recognized that the presence of a biased judge on the

bench constitutes a structural error warranting reversal. In State v. Sanders, 92

Ohio St.3d 245, 278, 750 N.E.2d 90 (2001), we stated: “The presence of a biased

judge on the bench is, of course, a paradigmatic example of structural constitutional

error, which if shown requires reversal without resort to harmless-error analysis.”

More recently in Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, 75 N.E.3d 1185, at

¶ 73, we reiterated that “[t]he presence of a biased judge is structural error, which,

if demonstrated, requires reversal.”

{¶ 74} In this case, however, the lead opinion does not definitively say

whether or not the trial judge’s conduct here qualified as structural error. The lead

opinion similarly does not directly say whether a biased judicial officer is grounds

for automatic reversal under plain-error analysis or instead requires an affirmative

showing that the judge’s bias actually affected the outcome of the trial. The lead

opinion does not cite any case in support to suggest that the structural error of a

biased judicial officer requires proof that the bias actually affected the defendant’s

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January Term, 2022

substantial rights.3 The lead opinion nevertheless says that assuming that the judge

plainly erred in participating in West’s cross-examination, West has not established

a reasonable probability that the judge’s actions affected the outcome of the trial. I

respectfully disagree.

{¶ 75} Putting aside for the moment whether the trial judge’s conduct here

represented a structural error, the fact that the trial judge felt impelled to provide a

curative instruction just prior to the commencement of the jury’s deliberations was

a tacit acknowledgement by the judge of a reasonable probability that his trial

behavior may have affected the jury’s consideration of the evidence. And that, by

implication, could affect the defendant’s substantial rights. So regardless of

whether the judge’s actions in this case rose to the level of structural error, the

cumulative effect of the trial judge’s interjections that necessitated his belated

curative instruction itself establishes a reasonable probability that the error was

prejudicial.

{¶ 76} While bias may be apparent at the inception of a case, it may also

emerge at any point during the course of a case or proceeding—and perhaps at no

worse time than when the case is being tried to a jury. And in this case, the trial

judge’s intrusive interjections permeated the trial proceedings in exponential

fashion, bolstering the state’s case while casting doubt on West’s credibility and

thus on his case. I disagree with the lead opinion’s attempt to minimize the impact

of the trial judge’s persistent interruptions. Regardless of the strength of the state’s

case, the trial judge needlessly stepped in to assist the state’s presentation to the

point of telling the jury that West’s testimony was not worthy of belief.

3. The lead opinion cites United States v. Barnhart, 599 F.3d 737, 745-747 (7th Cir.2010), but that

case involved improper questioning by the judge, not the structural error of a biased judicial officer.

And although the improper judicial intervention in United States v. Rivera-Rodríguez, 761 F.3d 105,

123-124 (1st Cir.2014), was not addressed as structural error, its cumulative effect was nevertheless

deemed to be so prejudicial as to result in the court’s vacating the defendant’s conviction.

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{¶ 77} The lead opinion insists that “[t]he evidence of guilt was

overwhelming.” Lead opinion at ¶ 30. But that is immaterial if West had to stand

trial before a biased judicial officer. In Tumey, 273 U.S. at 535, 47 S.Ct. 437, 71

L.Ed. 749, the United States Supreme Court flatly stated: “No matter what the

evidence was against him, [Tumey] had the right to have an impartial judge.”

Indeed, if the trial court had deprived West of the right to have appointed counsel

represent him at trial, would today’s lead opinion dismiss a claim of error because

the evidence of guilt was overwhelming?

{¶ 78} Whether every structural error is necessarily grounds for automatic

reversal under plain-error analysis without an affirmative showing that the

defendant’s substantial rights were actually affected remains an open question. The

United States Supreme Court has, on several occasions, declined to resolve whether

structural errors “automatically satisfy the third prong of the plain-error test”

because it was unnecessary to do so. See, e.g., Puckett v. United States, 556 U.S.

129, 140-141, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (breach of plea deal was not

structural error); United States v. Cotton, 535 U.S. 625, 632-633, 122 S.Ct. 1781,

152 L.Ed.2d 860 (2000) (indictment’s failure to allege drug quantity did not

seriously affect the fairness, integrity, or public reputation of judicial proceedings);

Johnson, 520 U.S. at 469-470, 117 S.Ct. 1544, 137 L.Ed.2d 718 (failure to submit

issue of materiality to jury did not seriously affect the fairness, integrity, or public

reputation of judicial proceedings); Olano, 507 U.S. at 737-741, 113 S.Ct.1770,

123 L.Ed.2d 508 (presence of alternate jurors during jury deliberations did not

seriously affect the fairness, integrity, or public reputation of judicial proceedings).

{¶ 79} I agree that we should exercise restraint before pronouncing

categorically that a particular unpreserved structural error necessarily affected the

defendant’s substantial rights prejudicially. Contrary to what the lead opinion says,

I do not mean to suggest that the mere “appearance of judicial bias automatically

affects a defendant’s substantial rights,” lead opinion at ¶ 32. In my view, there is

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January Term, 2022

a qualitative distinction between an appearance of judicial bias (a trial error) and a

biased judicial officer (a structural error).

{¶ 80} And I cannot imagine a more fundamental breakdown of the

criminal-trial framework than to have the presiding judge overtly communicate to

the jury his disbelief of the defendant’s case. Had West objected to this structural

error in this case, there could be little doubt that automatic reversal would be

warranted without West’s having to show that but for the error, the outcome of the

trial would have been different. I do not understand how West’s failure to object

to a broken trial process can validate that broken process. The lead opinion

provides no legal justification for requiring proof that the defendant’s substantial

rights were actually affected by an error that intrinsically affected the defendant’s

substantial rights.

Manifest Miscarriage of Justice

{¶ 81} Establishing plain error does not necessarily warrant granting relief

for plain error. As indicated previously, our precedent establishes that notice of

plain error “is to be taken with the utmost caution, under exceptional circumstances

and only to prevent a manifest miscarriage of justice.” Long, 53 Ohio St.2d 91, 372

N.E.2d 804, paragraph three of the syllabus.

{¶ 82} In my view, this case qualifies for recognition of plain error for two

reasons. First, and most obviously, the nature of the error here is so fundamental

to the integrity of criminal-trial proceedings that to ignore it would be a manifest

miscarriage of justice.

{¶ 83} Second, the trial judge was already aware of tension between West

and his counsel. The court was aware that West wanted to testify on his own behalf

contrary to the advice of his counsel. The court was further aware that West wanted

to fire his counsel at the conclusion of the state’s case.

{¶ 84} Mindful of an already strained attorney-client relationship, the trial

judge invited West to testify about anything he wanted to add to his testimony.

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When West’s counsel objected, the trial judge said, “I want to give him a chance to

say everything, but your lawyer thinks you should stop.” Aside from fueling the

hostility and distrust between attorney and client, the trial judge’s comment in front

of the jury suggested that West’s attorney must have had something to hide because

she did not want him to testify further.

{¶ 85} These trial proceedings show not only a fundamental breakdown of

the criminal-trial process but also an attempt to undermine the attorney-client

relationship. I do not see how these critical errors can simply be swept under the

“harmless error” rug. They represent fundamental violations of any fair-criminal-

trial process. Because the lead opinion declines to recognize these errors for what

they are, I respectfully dissent.

_________________

BRUNNER, J., dissenting.

{¶ 86} I generally concur in Justice Donnelly’s dissent, but I wish to clarify

that plain-error analysis of whether the error affected the trial’s outcome is

unnecessary when a structural error is recognized.

{¶ 87} I agree with Justice Donnelly that the United States Supreme Court

has not settled whether a party arguing error to be both plain and structural must

demonstrate prejudice to substantial rights.4 However, for crimes adjudicated in

Ohio courts, the plain language of Crim.R. 52 controls.

4. The United States Supreme Court has observed that it “has several times declined to resolve

whether ‘structural’ errors—those that affect ‘the framework within which the trial proceeds,’

Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)—automatically

satisfy the third prong of the plain-error test [that is, that the error affected substantial rights, which

in the ordinary case means that it affected the outcome of the proceedings].” Puckett v. United

States, 556 U.S. 129, 140, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009), citing United States v. Olano,

507 U.S. 725, 735, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), Johnson v. United States, 520 U.S.

461, 469, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), and United States v. Cotton, 535 U.S. 625, 632,

122 S.Ct. 1781, 152 L.Ed.2d 86 (2002). In other words, when the United States Supreme Court has

been asked to apply plain-error review to a structural error, it seems to have avoided the question,

instead holding the error not to be structural. See, e.g., Johnson at 468-470.

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January Term, 2022

{¶ 88} In Ohio, harmless errors are errors that do not affect substantial

rights. Crim.R. 52(A). Yet structural errors can never be harmless. State v.

Sanders, 92 Ohio St.3d 245, 278, 750 N.E.2d 90 (2001) (“The presence of a biased

judge on the bench is, of course, a paradigmatic example of structural constitutional

error, which if shown requires reversal without resort to harmless-error analysis”),

citing Arizona v. Fulminante, 499 U.S. 279, 309-310, 111 S.Ct. 1246, 113 L.Ed.302

(1991). Moreover, while some structural errors (such as denial of the right to a

public trial or to select defense counsel) may not, in the end, affect a trial’s outcome,

it would be hard to argue that any structural error does not “affect substantial

rights.” See, e.g., Weaver v. Massachusetts, ___ U.S. ___, ___, 137 S.Ct. 1899,

1907-1908, 198 L.Ed.2d 420 (2017) (noting that structural error has been

recognized in cases when the defendant was denied the right to conduct his own

defense, the right to select his own attorney, the right to a reasonable-doubt

instruction, or the right to an attorney); Fulminante at 309-310 (noting other

previously found structural errors, including judicial bias, racially exclusive grand-

jury proceedings, and the deprivation of a public trial). Structural error by its nature

affects substantial rights. Weaver at ___, 137 S.Ct. at 1907-1908. And Crim.R.

52(B) requires that “plain error” be an “error[] or defect[] affecting substantial

rights.” Therefore, a “structural error” may also be a “plain error,” according to

Crim.R. 52(B).

{¶ 89} The failure to object to an alleged error at trial generally triggers

plain-error analysis, even when the alleged error could be a potential structural

error. See, e.g., Johnson v. United States, 520 U.S. 461, 466, 117 S.Ct. 1544, 137

L.Ed.2d 718 (1997). But see State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215,

954 N.E.2d 596, ¶ 35 (“However, in State v. Colon, 119 Ohio St.3d 204, 2008-

Ohio-3749, 893 N.E.2d 169 * * *, this court clarified that when a defendant fails to

preserve objections to a defective indictment during the course of a trial, the issues

are generally forfeited and must be reviewed under a plain-error analysis except in

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rare cases of structural error. Id. at ¶ 7”); State v. Fry, 125 Ohio St.3d 163, 2010-

Ohio-1017, 926 N.E.2d 1239, ¶ 39 (using identical language).

{¶ 90} A court may choose to disregard plain error. Thus, plain-error

analysis is permissive: “Plain errors or defects affecting substantial rights may be

noticed although they were not brought to the attention of the court.” (Emphasis

added.) Crim.R. 52(B). We have previously recognized that courts should use

restraint when recognizing plain errors, even when such errors might otherwise

have been deemed structural.

[B]oth this court and the United States Supreme Court have

cautioned against applying a structural-error analysis where, as here,

the case would be otherwise governed by Crim.R. 52(B) because the

defendant did not raise the error in the trial court. See [State v. Hill,

92 Ohio St.3d 191, 199, 749 N.E.2d 274 (2001)]; Johnson, 520 U.S.

at 466, 117 S.Ct. 1544, 137 L.Ed. 2d 718. This caution is born of

sound policy. For to hold that an error is structural even when the

defendant does not bring the error to the attention of the trial court

would be to encourage defendants to remain silent at trial only later

to raise the error on appeal where the conviction would be

automatically reversed. We believe that our holdings should foster

rather than thwart judicial economy by providing incentives (and not

disincentives) for the defendant to raise all errors in the trial court—

where, in many cases, such errors can be easily corrected.

(Emphasis sic.) State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d

643, ¶ 23. But regardless of whether raised as or considered plain error, when the

error is structural, no amount of analysis of whether the error affected the trial’s

outcome will diminish the fact that substantial rights were affected. See Weaver at

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___, 137 S.Ct. at 1907-1908; Fulminante at 309-310; State v. Fisher, 99 Ohio St.3d

127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 9.

{¶ 91} Consequently, if a reviewing court concludes that an unobjected-to

plain error (e.g., when a court deprives the defendant of the right to a public trial

and the defendant fails to object to the courtroom’s closure) did not affect the

outcome of the trial, the language of Crim.R. 52(B) permits the reviewing court to

exercise restraint and choose to disregard it. But if a reviewing court conducting

plain-error analysis concludes that a structural error occurred, no amount of

analysis of whether the structural error affected the trial’s outcome would change

the fact that one or more substantial rights were affected. Plain errors are defined

by rule for their propensity to affect substantial rights. See Crim.R. 52(B).

Structural errors come in several varieties, but all concern substantial or

fundamental rights. See, e.g., Weaver, ___ U.S. at ___, 137 S.Ct. at 1907-1908,

198 L.Ed.2d 420; Fulminante, 499 U.S. at 309-310, 111 S.Ct. 1246, 113 L.Ed.302

(listing previously recognized structural errors, and, in addition, denial of the right

to a public trial, judicial bias, and racially exclusive jury selection). Thus, if a plain

error is determined to be structural, the analysis ends without the need to separately

consider whether the error’s effect on the defendant’s substantial rights affected the

outcome of the trial. See, e.g., State v. Thomas, 152 Ohio St.3d 15, 2017-Ohio-

8011, 92 N.E.3d 821, ¶ 32-33.

{¶ 92} The lead opinion posits that under the dissenting justices’ view, if

“reversal is warranted any time a structural error has occurred, there would be no

practical difference between reviewing the error under the harmless-error and plain-

error standards of review.” Lead opinion, ¶ 35. This is not true. Differences exist

between plain-error review and harmless-error review, even in the context of

structural error. First, plain error, unlike harmless error, requires a showing that

the error was an obvious defect, and the burden is on the accused to show that an

alleged error is plain. Thomas at ¶ 32-33. Second, the burden is on the state to

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show, beyond a reasonable doubt, that an alleged error is harmless. State v. Morris,

141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 23. Third, whether to

notice plain error is discretionary—meaning, a court may choose to disregard an

error that otherwise satisfies the plain-error standard, as a matter of discretion.

Crim. R. 52(B). No similar discretionary latitude is accorded in the case of

harmless error—when an error is shown to be harmless it “shall be disregarded.”

(Emphasis added.) Crim. R. 52(A). None of this analysis affects the fact that

structural errors are in their own classification because, by their nature, they affect

substantial rights. No separate determination follows, because the error is endemic

to the process. A structural error may be an obvious defect in the trial proceedings,

or not. It may be proven, or not. It may be noticed, or not. Because structural

errors always affect substantial rights by their nature, they are never harmless.

{¶ 93} Further, plain-error review that applies an “outcome determinative

standard,” lead opinion at ¶ 32, is outdated. Using clear- or absolute-outcome

determination first arose in Ohio in 1978 in a case in which this court held that “[a]

jury instruction violative of R.C. 2901.05(A) does not constitute a plain error or

defect under Crim.R. 52(B) unless, but for the error, the outcome of the trial clearly

would have been otherwise.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

(1978), paragraph two of the syllabus. Thirty-seven years later, in 2015, this court

modified a clear-outcome-determination standard in favor of demonstrating a

“reasonable probability” that the error resulted in prejudice:

[E]ven if the error is obvious, it must have affected substantial

rights, and “[w]e have interpreted this aspect of the rule to mean that

the trial court’s error must have affected the outcome of the trial.”

[State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).]

The accused is therefore required to demonstrate a reasonable

probability that the error resulted in prejudice—the same deferential

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January Term, 2022

standard for reviewing ineffective assistance of counsel claims.

United States v. Dominguez Benitez, 542 U.S. 74, 81-83, 124 S.Ct.

2333, 159 L.Ed.2d 157 (2004) (construing Fed.R.Crim.P. 52(b), the

federal analog to Crim.R. 52(B), and also noting that the burden of

proving entitlement to relief for plain error “should not be too

easy”).

(Second set of brackets and emphasis added in Rogers.) State v. Rogers, 143 Ohio

St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. We confirmed the deliberate

nature of this shift when, two years later, we stated:

We recently clarified in State v. Rogers * * * that the accused is

“required to demonstrate a reasonable probability that the error

resulted in prejudice—the same deferential standard for reviewing

ineffective assistance of counsel claims.” (Emphasis sic.) Id. at

¶ 22, citing [Dominguez Benitez at 81-83.]

Thomas at ¶ 33.

{¶ 94} While the language of clear-outcome determination has continued to

be repeated, even post-Rogers, it is more likely to be found in lengthy death-penalty

opinions citing cases that predate Rogers and Thomas. See, e.g., State v. Graham,

164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d 841, ¶ 31, 93; State v. Madison,

160 Ohio St.3d 232, 2020-Ohio-3735, 155 N.E.3d 867, ¶ 135; State v. Ford, 158

Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 124; State v. Clinton, 153 Ohio

St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 39; State v. Cepec, 149 Ohio St.3d

438, 2016-Ohio-8076, 75 N.E.3d 1185, ¶ 67. Recent cases that avoid using the old

boilerplate language have instead used the language from Rogers. See, e.g., State

v. Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, ¶ 218; State v.

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Myers, 154 Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 130; State v.

Kirkland, 160 Ohio St.3d 389, 2020-Ohio-4079, 157 N.E.3d 716, ¶ 72.

{¶ 95} Accordingly, when considering plain errors, I would use the legal

standard enunciated in Rogers and reiterated in Thomas: an accused seeking to

show that an obvious error affected his or her substantial rights (and thereby the

outcome of the accused’s trial) must demonstrate a reasonable probability that the

error resulted in prejudice—that is, the accused must show that the probability of a

different result is sufficient to undermine confidence in the outcome of the

proceeding. See Myers at ¶ 130; Dominguez Benitez at 81-83; Tench at ¶ 218;

Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, at ¶ 33; Rogers at

¶ 22. This common-sense approach avoids such phrasings as “clear outcome

determination,” which refers to a concept that is generally impossible to prove when

the accused has been tried to a jury. Because jury deliberations are held in secret,

it is particularly difficult to discern whether a particular error clearly affected the

outcome of a trial. See Evid.R. 606(B) (“a juror may not testify as to any matter or

statement occurring during the course of the jury’s deliberations or to the effect of

anything upon that or any other juror’s mind or emotions as influencing the juror”).

{¶ 96} I agree with Justice Donnelly that there was structural error in this

case, which, by definition, affected West’s substantial rights and therefore may also

be noticed as plain error. While we could decline to notice the error (because plain-

error analysis is permissive), I would notice both the plain and structural errors

based on Justice Donnelly’s description of the facts in this case. Accordingly, I

would reverse the court of appeals’ judgment and remand the cause for a new trial.

{¶ 97} With these points offered as a corollary to Justice Donnelly’s

dissenting opinion, I also respectfully dissent from the lead opinion in this case.

STEWART, J., concurs in the foregoing opinion.

_________________

G. Gary Tyack, Franklin County Prosecuting Attorney, and Michael P.

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January Term, 2022

Walton, Assistant Prosecuting Attorney, for appellee.

Joseph R. Landusky II, for appellant.

Russell S. Bensing, urging reversal on behalf of amicus curiae, Ohio

Association of Criminal Defense Lawyers.

_________________

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