Petition for Writ of Certiorari — Steven Vicario, Petitioner v. Ohio

NO. ________

In the

Supreme Court of the United States

STEVEN M. VICARIO,

Petitioner,

v.

STATE OF OHIO,

Respondent.

________________________

On Petition for a Writ of Certiorari to the

Ohio Fifth District Court of Appeals, Delaware County

PETITION FOR A WRIT OF CERTIORARI

Stephen E. Palmer

Counsel of Record

PALMER LEGAL DEFENSE

511 South High Street

Columbus, OH 43215

(614) 224-6142

spalmer@palmerlegaldefense.com

August 24, 2026

SUPREME COURT PRESS

Counsel for Petitioner

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTION PRESENTED

Under Crawford v. Washington, 541 U.S. 36 (2004),

there is generally no Confrontation Clause violation if

a hearsay declarant testifies at trial. But situations

may arise where the defendant nonetheless did not

have a meaningful opportunity to cross-examine the

declarant. Here, the trial court delayed ruling on a

motion in limine to exclude testimonial hearsay until

after the declarant testified. The court then erroneously

admitted the hearsay under the rules of evidence.

Thus, at the time of the declarant’s testimony, the

defense did not know if the trial court would admit the

hearsay and thus could not cross-examine her without

introducing inadmissible hearsay.

The Question Presented Is:

Does the erroneous admission of testimonial

hearsay under these circumstances deprive the defendant of a meaningful opportunity for cross-examination

and thus violate the Confrontation Clause?

ii

PARTIES TO THE PROCEEDINGS

Petitioner and Defendant–Appellant below

●

Steven M. Vicario

Respondent and Plaintiff–Appellee below

●

State of Ohio

iii

LIST OF PROCEEDINGS

Ohio Supreme Court

No. 2026-0340

Citation: 2026-Ohio-1880

State of Ohio v. Steven Vicario

Order denying review: May 26, 2026

_________________

Ohio Fifth Appellate District, Delaware County

No. 25-CAA-030021

Citation: 2025-Ohio-5406

State of Ohio, Plaintiff-Appellee v.

Steven Vicario, Defendant-Appellant

Final Opinion: December 3, 2025

_________________

Court of Common Pleas, Delaware County, Ohio

No. 2024-CRI-040244

State of Ohio, Plaintiff v. Steven Vicario, Defendant

Judgment: February 10, 2025

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDINGS ......................... ii

LIST OF PROCEEDINGS ......................................... iii

TABLE OF AUTHORITIES ..................................... vii

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

CONSTITUTIONAL PROVISIONS INVOLVED...... 1

STATEMENT OF THE CASE .................................... 2

I.

Material Facts .................................................. 2

II. Procedural History ........................................... 4

A. Trial Court—Delaware County Court of

Common Pleas ............................................ 4

B. Direct Appeal—Fifth District Court of

Appeals for Delaware County, Ohio........... 4

C. Discretionary Review — Ohio Supreme

Court ........................................................... 5

REASONS FOR GRANTING THE PETITION ......... 5

I.

Introduction ...................................................... 5

II. The Confrontation Conundrum at Vicario’s

Trial .................................................................. 6

III. The Sixth Amendment Guarantees a

Meaningful Opportunity to Confront and

Cross-Examine the Declarant of Testimonial

Hearsay Under Both Lines of

Confrontation Clause Authority ...................... 8

v

TABLE OF CONTENTS (Cont.)

Page

A. The Trial Court Effectively Precluded

Cross-Examination on V.M.’s Prior

Inconsistent Statements by Delaying

Ruling their Admissibility .......................... 8

B. The Admission of Testimonial Hearsay

Violated Vicario’s Right of Confrontation

Even Though V.M. Testified at Trial ......... 9

C. The Linchpin Is That There Must Be a

Meaningful Opportunity for an

Effective Cross-Examination.................... 13

IV. Under the Proper Standard of Review, the

Constitutional Error was Not Harmless ....... 14

CONCLUSION.......................................................... 16

vi

TABLE OF CONTENTS (Cont.)

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Order Denying Acceptance of Jurisdiction, Supreme

Court of Ohio (May 26, 2026) ............................. 1a

Opinion and Judgment Entry, Court of Appeals

Delaware County, Ohio, Fifth Appellate District

(December 3, 2025) ............................................. 2a

Judgment Entry on Verdict, Court of

Common Pleas, Delaware County, Ohio

(February 12, 2025) .......................................... 51a

Judgment Entry, Court of Appeals for Delaware

County, Ohio, Fifth Appellate District

(February 6, 2026) ............................................ 54a

OTHER DOCUMENTS

Defendant’s Motion in Limine, Filed in the Court

of Common Pleas of Delaware County, Ohio

(April 4, 2024) ................................................... 60a

vii

TABLE OF AUTHORITIES

CASES

TABLE OF AUTHORITIES

Page

Bullcoming v. New Mexico,

564 U.S. 647 (2011) ..................................... 10, 11

California v. Green,

399 U.S. 149 (1970) ............................................. 6

Chapman v. California,

386 U.S. 18 (1967) ............................................. 15

Crawford v. Washington,

541 U.S. 36 (2004) ............................ i, 6, 9, 14, 16

Davis v. Alaska,

415 U.S. 308 (1974) ..................................... 6, 8, 9

Davis v. Washington,

547 U.S. 813 (2006) ........................................... 12

Delaware v. Fensterer,

474 U.S. 15 (1985) ............................................. 14

Delaware v. Van Arsdall,

475 U.S. 673 (1986) ............................................. 8

Hemphill v. New York,

595 U.S. 140 (2022) ..................................... 11, 12

Kentucky v. Stincer,

482 U.S. 730 (1987) ........................................... 14

Kirby v. United States,

174 U.S. 47 (1899) ............................................... 5

Lee v. Illinois,

476 U.S. 530 (1986) ........................................... 14

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009) ......................... 10, 11, 12, 13

viii

TABLE OF AUTHORITIES (Cont.)

Page

Ohio v. Roberts,

448 U.S. 56 (1980) ..................................... 6, 9, 15

Smith v. Arizona,

602 U.S. 779 (2024) ........................................... 11

Sullivan v. Louisiana,

508 U.S. 275 (1993) ........................................... 15

Taylor v. Illinois,

484 U.S. 400 (1988) ........................................... 10

Williams v. Illinois,

567 U.S. 50 (2012) ....................................... 10, 11

CONSTITUTIONAL PROVISIONS

U.S. Const., amend. VI ............. 1, 2, 4, 5, 8, 10, 12, 16

U.S. Const., amend. XIV, § 1 ...................................... 2

STATUTES

28 U.S.C. § 1257(a) ..................................................... 1

ORC § 2907.02(A)(2) ................................................... 4

ORC § 2907.03(A)(5) ................................................... 4

ORC § 2907.05(A)(1) ................................................... 4

ORC § 2921.12(A)(1) ................................................... 4

JUDICIAL RULES

Ohio Evid. R. 803(4) .................................................... 5

OTHER AUTHORITIES

J. Wigmore,

Evidence § 1367, p. 29 (3d ed.1940) .................... 6

1

OPINIONS BELOW

The opinion of the Ohio Fifth Appellate District,

Delaware County was entered on December 3, 2025.

App.2a. This decision affirmed the judgments of the

Court of Common Pleas, Delaware County, Ohio, dated

February 10, 2025. App.51a, 54a.

JURISDICTION

The Ohio Supreme Court denied jurisdiction on

May 26, 2026. This petition is filed by its August 24,

2026 due date. This Court has Jurisdiction under 28

U.S. Code § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const., amend. VI

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the state and district wherein

the crime shall have been committed, which

district shall have been previously ascertained by

law, and to be informed of the nature and cause of

the accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.

2

U.S. Const., amend. XIV § 1

All persons born or naturalized in the United States

and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they

reside. No State shall make or enforce any law

which shall abridge the privileges or immunities

of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any

person within its jurisdiction the equal protection

of the laws.

STATEMENT OF THE CASE

This case arises from an indictment returned in

the Delaware County Court of Common Pleas, Delaware,

Ohio, charging Vicario with multiple offenses stemming

from allegations that he sexually assaulted his

stepdaughter, V.M. This petition presents a question

under the Sixth Amendment’s Confrontation Clause

concerning whether a defendant receives a meaningful

opportunity to confront a witness when the trial court

delays ruling on the admissibility of the witness’

testimonial hearsay until after the witness has testified

and been excused.

I.

Material Facts

On November 3, 2023, V.M. underwent a forensic

interview at Nationwide Children’s Hospital, conducted

immediately after making the allegations. V.M. discussed the accusations during this interview, but her

responses were hesitant and often required prompting

3

from the interviewer. Approximately five months

later, V.M. made an unrelated accusation against her

biological father, resulting in a second forensic interview

on April 4, 2024. At the close of the second interview,

forensic interviewer, Jamie Castro, questioned V.M.

about her prior accusation against Vicario. In response,

V.M. made additional statements, this time directly

accusing Vicario of specific sexual misconduct.

Before trial, Vicario filed a motion in limine,

seeking to exclude Castro’s testimony about V.M.’s

statements in the second forensic interview. The trial

court delayed ruling until after trial began and after

V.M. testified. The court then overruled the motion,

thereby permitting Castro to repeat V.M.’s out-ofcourt statements made during the second forensic

interview.

At the time of V.M.’s testimony, defense counsel

did not know if the trial court would admit these

statements. As such, Vicario found himself on the

horns of an impossible dilemma. If he questioned V.M.

about her prior statements in the second interview

(which were inconsistent with her first interview), he

would be introducing damaging evidence that might

not otherwise be admitted. But if he risked waiting for

a court ruling, he would lose the opportunity to confront

V.M. during the normal course of the trial process. He

chose the latter.

Notably, the Ohio Court of Appeals later determined

the statements were inadmissible hearsay. But the

court refused to find a confrontation violation because

V.M. testified at trial and/or Vicario could have issued

a subpoena and called her in his case-in-chief.

4

II. Procedural History

A. Trial Court—Delaware County Court of

Common Pleas

A Delaware County Grand Jury indicted Vicario

on three counts of rape in violation of Ohio Revised

Code § 2907.02(A)(2), three counts of sexual battery in

violation of Ohio Revised Code § 2907.03(A)(5), one

count of tampering with evidence in violation of Ohio

Revised Code § 2921.12(A)(1), and one count of gross

sexual imposition in violation of Ohio Revised Code

§ 2907.05(A)(1). Before trial, the State dismissed the

gross sexual imposition count.

The case proceeded to a jury trial in the Delaware

County Court of Common Pleas. The State alleged

that Vicario sexually assaulted his stepdaughter, V.M.

Vicario maintained that V.M. fabricated the allegations.

The jury returned a mixed verdict, finding Vicario

guilty of two counts of rape, two counts of sexual battery,

and one count of tampering with evidence, while

acquitting him on the remaining charges. The trial

court imposed an aggregate indefinite prison term of

25 to 31½ years and classified Vicario as a Tier III sex

offender. Vicario, 2025-Ohio-5406, ¶ 52.

B. Direct Appeal—Fifth District Court of

Appeals for Delaware County, Ohio

Vicario appealed his convictions to the Fifth

District Court of Appeals for Delaware County, Ohio,

asserting seven assignments of error. As relevant here,

Vicario argued that the trial court violated the Sixth

Amendment’s Confrontation Clause by permitting

Jamie Castro to testify regarding V.M.’s prior forensic

interview. The Fifth District agreed that Castro’s testi-

5

mony was improperly admitted and did not qualify as

statements for medical diagnosis or treatment under

Ohio Evid. R. 803(4). Vicario, 2025-Ohio-5406, ¶ 114.

The court nonetheless held that no Confrontation Clause

violation occurred because “[n]othing prevented Vicario

from questioning her about the April 4, 2024, forensic

interview, nor did Vicario request to recall V.M. once

Castro later described the interview.” Id. ¶ 107. The

court further concluded that the error was harmless

and affirmed Vicario’s convictions. Id. at ¶ 116.

Vicario timely moved for reconsideration, arguing

that the court misapplied the Confrontation Clause

and that it was no cure to recall V.M. during the

defense case. The Fifth District denied reconsideration.

C. Discretionary Review — Ohio Supreme

Court

Vicario timely sought discretionary review in the

Ohio Supreme Court. The court denied jurisdiction.

REASONS FOR GRANTING THE PETITION

I.

Introduction

The Sixth Amendment guarantees the accused

has the right “to be confronted with the witnesses

against him.” As Justice Harlan aptly put it, confrontation at trial is “essential for the due protection of life

and liberty . . . . ” Kirby v. United States, 174 U.S. 47,

56 (1899). The primary interest of the Confrontation

Clause is the right of cross-examination, deemed “the

‘greatest legal engine ever invented for the discovery

of truth.’” California v. Green, 399 U.S. 149, 158

6

(1970), quoting 5 J. Wigmore, Evidence § 1367, p. 29

(3d ed.1940).

Two distinct lines of confrontation authority have

emerged. The first addresses a scenario where a trial

court precludes a defendant from cross-examining a

witness on a particular topic, such as bias or motive to

lie. See, e.g., Davis v. Alaska, 415 U.S. 308, 315–16

(1974). The second involves hearsay evidence at trial

and its inherent relationship to the confrontation.

Crawford v. Washington, 541 U.S. 36, 60–69 (2004)

(abandoning the Ohio v. Roberts, 448 U.S. 56 (1980)

reliability approach to confrontation and hearsay).

The facts of this case fall within both—the trial

court effectively prevented counsel from cross-examining

V.M. on her inconsistencies by delaying a ruling on

the admissibility of her hearsay statements. Though

she testified at trial, it was too late for meaningful

cross-examination. She was absent for confrontation

on her prior testimonial hearsay.

II. The Confrontation Conundrum at Vicario’s

Trial

Before trial, Vicario moved to exclude Castro’s

testimony concerning V.M.’s second forensic interview.

Rather than rule on the motion before V.M. testified,

the trial court expressly reserved its ruling until

Castro was called as a witness. Faced with an unresolved evidentiary issue, trial counsel reasonably chose

not to question V.M. about statements contained in

the second forensic interview. Had counsel done so, he

would have introduced the very evidence he sought to

exclude and risked opening the door to otherwise

inadmissible testimony.

7

Only after V.M. completed her testimony and was

excused did the trial court deny the motion in limine and

permit Castro to recount V.M.’s testimonial statements

to the jury. At that point, the opportunity to confront

V.M. regarding those statements had already passed.

At trial, V.M. testified that Vicario rubbed his

penis against her vagina but denied penetration. She

testified that she pretended to be asleep and did not say

anything to Vicario during the incident. V.M. further

testified that Vicario later penetrated her anus.

On cross-examination, Vicario’s trial counsel challenged V.M.’s credibility by focusing on inconsistencies

between her trial testimony and the statements she

made during her first forensic interview. Counsel did

not question V.M. about her second forensic interview.

That would have resulted in the certain admission of

the hearsay statements he sought to exclude.

In the second interview (in contrast to V.M.’s first

interview and trial testimony), V.M. said Vicario penetrated both her vagina and anus. But that inconsistency

did not emerge until after V.M. testified.

Had the trial court ruled on the admissibility of

Castro’s testimony about the second interview before

V.M. testified, trial counsel could have confronted V.M.

with that inconsistency during cross-examination. The

delayed ruling therefore did more than create a

theoretical limitation on cross-examination—it prevented Vicario from confronting V.M. with a substantive

inconsistency bearing directly on vaginal penetration—

a substantive element of the offense. While trial

counsel questioned Castro about this inconsistency,

that was hardly a substitute for direct confrontation

of Vicario’s accuser.

8

III. The Sixth Amendment Guarantees a

Meaningful Opportunity to Confront and

Cross-Examine the Declarant of Testimonial

Hearsay Under Both Lines of Confrontation

Clause Authority

A. The Trial Court Effectively Precluded

Cross-Examination on V.M.’s Prior

Inconsistent Statements by Delaying

Ruling their Admissibility

This Court has long recognized that the Sixth

Amendment requires a meaningful opportunity for

cross-examination. In Davis v. Alaska, 415 U.S. 308,

315–18 (1974), the Court found a Confrontation Clause

violation where the trial court prevented the defense

from questioning a juvenile witness about his probationary status and potential bias. Likewise, in Delaware

v. Van Arsdall, 475 U.S. 673, 679 (1986), the Court

held that a trial court violated the Confrontation Clause

by “cutting off all questioning about an event” from

which the jury could have inferred that the witness

had a motive to favor the prosecution.

These decisions establish that a declarant’s physical

presence on the witness stand does not, by itself, satisfy

the Sixth Amendment. The defendant must have a

meaningful opportunity to cross-examine the declarant

concerning the testimonial evidence ultimately presented against him.

By delaying its decision on the admissibility of

V.M.’s second forensic interview, the trial court put

Vicario in an impossible position. If he asked V.M.

about her inconsistencies, he would be admitting the

evidence he sought to exclude. If he did not ask her

9

about it, he was foregoing cross-examination on V.M.’s

credibility by exposing her inconsistencies.

This was paramount to the situation addressed in

Davis and its progeny. It is true that the court did not

expressly prohibit cross-examination.1 The judge put

the impossible choice on Vicario, punishing him either

way. In that regard, it was perhaps more dangerous

than an express prohibition. The confrontation problem

came disguised as routine procedure; a proverbial

wolf in sheep’s clothing. Either way the effect was the

same. V.M. was not subjected to the rigors of crossexamination, leaving her credibility on that topic

unchallenged.

B. The Admission of Testimonial Hearsay

Violated Vicario’s Right of Confrontation

Even Though V.M. Testified at Trial

In Crawford v. Washington, 541 U.S. 36 (2004),

the Court rejected the notion of “reliability” based

assessment of hearsay evidence previously set forth

in Ohio v. Roberts, 448 U.S. 56, 66 (1980). Crawford

was clear that “the Framers would not have allowed

admission of testimonial statements of a witness who

did not appear at trial unless he was unavailable to

testify, and the defendant had had a prior opportunity

for cross-examination.” Id., at 53–54.

For more than two decades since Crawford, this

Court has consistently reaffirmed the core importance

of cross-examination at trial, rejecting attempts to shift

the burden of exercising the right onto the accused or

to circumvent confrontation altogether.

1 As addressed below, it was no remedy for Vicario to re-call V.M.

10

In Melendez-Diaz v. Massachusetts, 557 U.S. 305

(2009), the Court held that under the Confrontation

Clause, defendants have a right to cross-examine drug

laboratory drug analysts in person. It was no longer

sufficient for prosecutors to submit written “certificates

of analysis” to establish drug weights and quantities.

The Sixth Amendment requires live testimony, subject

to cross-examination. Id. at 315. Significantly, the Court

rejected the notion that the defense could have exercised

the right of cross-examination by issuing its own subpoena for the analysts. “[T]he Confrontation Clause

imposes a burden on the prosecution to present its

witnesses, not on the defendant to bring those adverse

witnesses into court.” Id. at 324.

The Court reaffirmed that principle in Bullcoming

v. New Mexico, 564 U.S. 647 (2011). This time in the

context of blood alcohol testing, the Court again held

that the State could not avoid confrontation by presenting the testimony of a surrogate analyst in place of the

analyst who performed the forensic testing. The state

again argued that the defense could satisfy confrontation by calling the lab technicians in its own case or

by performing its own testing. Id. at 666. As in MelendezDiaz, this was not sufficient. “[T]he obligation to

propel retesting when the original analyst is unavailable

is the State’s, not the defendant’s.” Id., referencing

Taylor v. Illinois, 484 U.S. 400, 410, n. 14 (1988)

(“Confrontation Clause’s requirements apply ‘in every

case, whether or not the defendant seeks to rebut the

case against him or to present a case of his own’”).

In Williams v. Illinois, 567 U.S. 50 (2012), the

Court addressed the same issues in the context of

DNA testing. Though the Court determined surrogate

DNA testimony violated the Confrontation Clause, it

11

was split on why the statements of non-testifying lab

analysts were “testimonial.” Id. at 53.

Then, in Smith v. Arizona, 602 U.S. 779 (2024),

the Court laid the “muddle” of the Williams plurality to

rest. Id. at 789. The Court held that when a surrogate

expert testifies to the details of forensic testing performed by an absent analyst, those underlying details

are offered for their truth. Consequently, if the absent

analyst’s lab notes or reports are testimonial, their

introduction through a surrogate witness violates the

Confrontation Clause unless the testing analyst is

unavailable and the defendant had a prior opportunity

for cross-examination. Id. at 802-3

The Court in Smith did not address whether courts

could satisfy confrontation by requiring the defense to

subpoena and cross-examine non-testifying witnesses

on its own accord. It did not have to, as that issue was

firmly laid to rest in Melendez-Diaz and Bullcoming.

It is nonetheless clear from Smith that confrontation

would not tolerate that.

The Court has likewise rejected judicially created

exceptions to the Confrontation Clause. In Hemphill

v. New York, 595 U.S. 140 (2022), the Court held that

there is no valid exception where the defense theory

“opened the door” for otherwise non-admissible testimonial hearsay. The prosecution cannot admit testimonial

hearsay to refute a defense theory that the declarant

(not the defendant) committed the crime. Id. at142.

The throughline of these decisions is clear.

Confrontation requires actual face-to-face crossexamination. And courts cannot put the burden of

exercising the Right of Confrontation on the defense

by requiring it to procure the state’s witnesses on its own

12

accord. Nor can courts craft rules that would suspend

confrontation where the defense employs a certain trial

strategy that the prosecution cannot refute without

resorting to testimonial hearsay. Hemphill, supra.

This case presents the next unanswered question.

Unlike the prior cases, the constitutional injury did

not arise from a surrogate analyst, an affidavit, or an

expert’s reliance on testimonial statements. It arose

from the trial court’s decision to delay ruling on the

admissibility of testimonial hearsay until after the

declarant had testified and been excused.

The Fifth District concluded that no constitutional

violation occurred because Vicario could have recalled

V.M. during the defense case-in-chief. Whether that

proposed procedure comports with the Sixth Amendment

is a question this Court has not yet addressed. But a

similar argument failed in Melendez-Diaz, and it should

fail here for the same reasons. 557 U.S. 305 at 324.

As in Melendez-Diaz, this would have required a

defense subpoena for the state’s key witness. “Unlike

the Confrontation Clause, [state subpoena power and/or

Compulsory Process] are of no use to the defendant

when the witness is unavailable or simply refuses to

appear.” Id. citing Davis v. Washington, 547 U.S. 813,

820 (2006). There was no guarantee that the defense

could procure V.M.’s attendance. It did not have her

under subpoena, and as an alleged child victim, there

was no easy access to her.

But beyond the undue onus and potential perils

of subpoena power, calling V.M. in the defense case

was no substitute for cross-examination at the time of

her testimony. In the eyes of the jury, the time for

questioning V.M. had passed, and the flow of cross-

13

examination was irreparably interrupted. If the defense

called V.M. later, for more cross-examination, it would

only leave the impression that Vicario was beating up

on a child victim. And worse, the State would have had

yet another opportunity to elicit testimony against

Vicario, but this time using leading questions while it

cross-examined V.M. (its own witness). And finally,

there would still be no remedy for the underlying

error—the second forensic interview was inadmissible

testimonial hearsay.

Just as in Melendez-Diaz, requiring Vicario to call

V.M. as his own witness to remedy the confrontation

problem would shift all the adverse consequences of

that to him. That would effectively punish him for

exercising his right of confrontation.

C. The Linchpin Is That There Must Be a

Meaningful Opportunity for an Effective

Cross-Examination

The issue here falls somewhere between these

two lines of authority. On the one hand, V.M. testified

at trial and was present for cross-examination on other

topics. But the procedural delay effectively precluded

cross-examination on the damaging testimonial hearsay. Complicating the issue, the trial court’s delayed

decision to admit the second interview was erroneous

and violated Ohio’s hearsay rules.

The overriding principles and the historical context

of confrontation provide an analytical solution. As this

Court has recognized: “[a]lthough claims arising under

the Confrontation Clause may not always fall neatly

into one of these two categories, these cases reflect the

Confrontation Clause’s functional purpose in ensuring

a defendant an opportunity for cross-examination.”

14

Kentucky v. Stincer, 482 U.S. 730, 739 (1987) citing

Lee v. Illinois, 476 U.S. 530 (1986).

The linchpin of all this is that at its core, the

Confrontation Clause guarantees more than the physical

presence of a witness on the stand. It guarantees a

meaningful opportunity for cross-examination. Crawford

v. Washington, 541 U.S. 36, 59 n.9 (2004); Delaware v.

Fensterer, 474 U.S. 15, 20 (1985) (the Confrontation

Clause secures “an opportunity for effective crossexamination.”). To have any value, that opportunity

must be meaningful considering the evidence ultimately

presented to the jury. Vicario did not have that opportunity, even though V.M. testified at trial.

Under Crawford, it would be easy to conclude that

the mere presence of a witness always satisfies confrontation. But, as this case exemplifies, that is not always

the case. The real question is whether the core value

of the Clause was satisfied. It may be that under

Crawford it most often does. But such a rigid approach

does not allow for cases that fall through the cracks in

the middle. That is what happened here.

IV. Under the Proper Standard of Review, the

Constitutional Error was Not Harmless

The question remains as to whether the error

here was harmless. The Fifth District employed an

incorrect standard of review, deeming the evidentiary

error “nonconstitutional” and thus harmless: “After

excising [the hearsay statements], the remaining

evidence, including V.M.’s testimony, the first forensic

interview, the PSANE examination, and DNA findings

15

independently establishes [sic] guilt beyond a reasonable

doubt.” Vicario, 2025-Ohio-5406, ¶ 116.2

Under the proper standard of review, as set forth

in Chapman v. California, 386 U.S. 18 (1967), the

burden rests with the State, as the beneficiary of the

constitutional error, to prove beyond a reasonable doubt

that the error “did not contribute to the verdict obtained.”

Id. at 24. The constitutional inquiry therefore focuses

on the effect of the error upon the jury’s verdict, not

whether sufficient evidence otherwise exists to sustain

the conviction. See Ohio v. Roberts, 181 Ohio St.3d

236, 2025-Ohio-5120, ¶ 136 (adopting the Chapman

standard of review).

This Court has repeatedly cautioned against

confusing constitutional harmless-error review with a

sufficiency-of-the-evidence analysis. As Justice Scalia

explained: “The inquiry . . . is not whether, in a trial

that occurred without the error, a guilty verdict would

surely have been rendered, but whether the guilty

verdict actually rendered in this trial was surely

unattributable to the error.” Sullivan v. Louisiana,

508 U.S. 275, 279 (1993). Thus, the reviewing court

2 The Fifth District employed an incorrect standard of review,

even under Ohio law. On May 14, 2025, almost six months before

the Vicario decision, the Ohio Supreme adopted a uniform

standard of review for both evidentiary and constitutional errors.

This standard, consistent with Chapman v. California, provides:

“When a defendant objects to a constitutional error at trial, the

error is a reversible error unless the State establishes beyond a

reasonable doubt that the error complained of did not contribute

to the conviction.” Ohio v. Roberts, 118 Ohio St.3d 236 ¶ 136

(2025), citing Chapman, 386 U.S. 18, 24 (1967). Vicario filed a

Motion for Reconsideration in the Fifth District requesting the

court to re-evaluate the error under the proper standard. The

Fifth District denied the request.

16

must determine whether the constitutional violation

contributed to the verdict actually returned by the jury,

not whether the remaining evidence could independently support a conviction.

The prejudice cannot be understated. The improper

hearsay in the second interview bolstered V.M.’s credibility improperly. The jury heard Sammons testify

about V.M.’s statements during the first forensic

interview. It then heard V.M.’s testimony. And to

punctuate the point, the jury heard Castro (yet again)

repeat was V.M. said about Vicario. Specific to the

elements of the offenses, V.M. denied vaginal penetration

in the first interview, but not the second. Castro’s

repetition of this, absent any meaningful crossexamination, certainly impacted the most important

part of the case—V.M.’s credibility. Under the proper

standard of review, this was not harmless.

CONCLUSION

Since its landmark decision in Crawford v.

Washington, this Court has consistently refused to

permit courts to circumvent the constitutional guarantee

of confrontation. The Sixth Amendment “commands,

not that evidence be reliable, but that reliability be

assessed in a particular manner: by testing in the

crucible of cross-examination.” Crawford, 541 U.S. 36,

61 (2004). This case presents a question left unanswered

by Crawford and other confrontation jurisprudence:

whether a declarant’s earlier appearance at trial

satisfies the Sixth Amendment when the trial court’s

delayed evidentiary ruling deprives the defendant of

a meaningful opportunity to cross-examine the declarant

17

about the testimonial statements ultimately admitted

against him.

For the reasons stated, the Court should grant

the petition for certiorari.

Respectfully submitted,

/s/ Stephen E. Palmer

Stephen E. Palmer

Counsel of Record

PALMER LEGAL DEFENSE

511 South High Street

Columbus, OH 43215

(614) 224-6142

spalmer@palmerlegaldefense.com

Counsel for Petitioner

August 24, 2026