State v. Montgomery

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Montgomery, Slip Opinion No. 2022-Ohio-2211.]
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-2211THE STATE OF OHIO, APPELLEE, v. MONTGOMERY, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Montgomery, Slip Opinion No. 2022-Ohio-2211.]
Criminal law—Right to a fair trial—Sixth and Fourteenth Amendments to the U.S.
Constitution—Structural error—Designating alleged victim of rape as the
state’s representative and seating her at prosecutor’s table throughout trial
undermines the fairness of the fact-finding process and erodes a defendant’s
presumption of innocence.
(No. 2020-0312—Submitted January 27, 2021—Decided June 30, 2022.)
APPEAL from the Court of Appeals for Stark County,
No. 2019CA00012, 2019-Ohio-5178.
_________________
STEWART, J.
{¶ 1} In this discretionary appeal, we are asked to consider whether a
criminal defendant’s right to a fair trial, a right guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution, is denied when the
SUPREME COURT OF OHIO
alleged victim is introduced to the jury as the state’s designated representative and
is permitted to sit at counsel table with the prosecutor during the entirety of the
proceedings. In this case of first impression in this court, we conclude that it is,
because doing so undermines the fairness of the fact-finding process and erodes the
presumption of innocence accorded a criminal defendant. We reverse and remand
for a new trial.
I. RELEVANT BACKGROUND
{¶ 2} Appellant, Theodis Montgomery, was tried and convicted for raping
and kidnapping A.B. The two met through family members and had known each
other for approximately ten years. The events giving rise to the charges occurred
on March 16, 2018, at A.B.’s father’s house. A.B. and Montgomery were the only
people present.
{¶ 3} The crux of Montgomery’s defense was consent. According to A.B.,
Montgomery punched her, raped her, and kept her at the house against her will for
most of the day. After Montgomery allowed her to leave, A.B. called her sister and
the police to report the incident. She also went to Mercy Medical Center, where
she was examined by a sexual-assault nurse and interviewed by two members of
the Canton police department. The examination report indicates that A.B. had
ruptured blood vessels on the outside corner of her right eye, that she had pain on
the right side of her forehead and nose, and that her lower lip was lacerated and
painful when touched. DNA analysis confirmed the presence of Montgomery’s
semen in A.B.’s vagina.
{¶ 4} In August 2018, Montgomery was indicted on one count of
kidnapping in violation of R.C. 2905.01(A)(4) and (B)(2) (the defendant, by force,
threat, or deception, removed the victim or restrained the victim’s liberty with
purpose to engage in sexual activity against the victim’s will or by force, threat, or
deception, under circumstances that created a substantial risk of serious physical
harm to the victim, restrained the victim of her liberty). The kidnapping count
2
January Term, 2022
included two specifications: (1) it was committed with a sexual motivation, R.C.
2941.147, and (2) Montgomery was a repeat violent offender, R.C. 2929.149.
Montgomery was also indicted on one count of rape in violation of R.C.
2907.02(A)(2) (the defendant engaged in sexual conduct and purposely compelled
the victim to submit by force or threat of force), also with a repeat-violent-offender
specification. Montgomery pled not guilty, and the matter proceeded to a jury trial.
{¶ 5} Before the prospective jurors came into the courtroom for voir dire,
the prosecutor told the court that the state intended to designate A.B. as its
representative pursuant to Evid.R. 615(B)(3) and (4).1 Montgomery’s counsel
objected. Montgomery’s counsel also objected to allowing A.B. to sit at the
prosecutor’s table during the trial, arguing that her appearance there would be
prejudicial to Montgomery. After a brief discussion, the trial court granted the
state’s request, but the judge noted that she intended to research the issue to make
sure that “there’s not some concern that I’m not contemplating at this point. * * *
I’m interested in making sure everyone’s rights are being attended to and cared for,
and I don’t want to create prejudice on either side.”2 After the prospective jurors
were seated in the courtroom, the judge introduced everyone at both counsel tables.
She introduced A.B. as the state’s designated representative. Following a three-
day trial, the jury found Montgomery guilty of kidnapping and rape. He was also
found guilty of the repeat-violent-offender specification but not of the sexual-
motivation specification. The trial court imposed a ten-year sentence on each
count, to be served concurrently.
1. Evid.R. 615(B)(3) excludes from an order for the separation of witnesses any person whose
presence is shown to be essential to the presentation of the party’s cause; Evid.R. 615(B)(4) excludes
the alleged victim from any separation order.
2. The trial court judge evidently recognized that the state’s request was problematic, prompting
her to express a desire to research any issues surrounding the request. However, there is nothing in
the record showing whether the judge followed through with her intention to research the issue.
3
SUPREME COURT OF OHIO
{¶ 6} Montgomery appealed to the Fifth District Court of Appeals, arguing
that he was denied his right to a fair trial, as guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution, when the trial court allowed A.B.
to remain in the courtroom as the state’s designated representative. 2019-Ohio-
5178, ¶ 16. The court of appeals affirmed. Montgomery appealed to this court, and
we accepted jurisdiction to review a single proposition of law from Montgomery’s
memorandum in support of jurisdiction:
An Appellant is denied his right to a fair trial guaranteed by
the 6th and 14th amendments to the United States constitution when
a trial court permits an alleged victim to be introduced to the jury
during voir dire as representing the State of Ohio and permits them
[sic] to sit with the Prosecutor for the State at counsels table
throughout the entire trial in front of the jury.
See 158 Ohio St.3d 1487, 2020-Ohio-1634, 143 N.E.3d 528.
II. ANALYSIS
A. The Right to a Fair Trial Under the Sixth and Fourteenth Amendments to the
United States Constitution
{¶ 7} The right to a fair trial stems from the Sixth Amendment to the United
States Constitution, which states:
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
4
January Term, 2022
witnesses in his favor, and to have the Assistance of Counsel for his
defence.
This right is applicable to the states through the Fourteenth Amendment. See
Ramos v. Louisiana, ___U.S. ___, ___, 140 S.Ct. 1390, 1397, 206 L.Ed.2d 583(2020). One of the rights guaranteed to a criminal defendant by the Sixth
Amendment is the right to be tried by an impartial jury. Id.; Duncan v. Louisiana,
391 U.S. 145, 156, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). “[T]he definition of
impartiality is not a static concept, but can be defined only in relation to specific
facts and circumstances.” Farese v. United States, 428 F.2d 178, 179 (5th
Cir.1970), citing Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d
1250 (1959).
{¶ 8} The Fourteenth Amendment provides added protection for a fair trial
in its equal-protection and due-process clauses. See Estelle v. Williams, 425 U.S.
501, 503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (“The right to a fair trial is a
fundamental liberty secured by the Fourteenth Amendment”); see also State v.
Lane, 60 Ohio St.2d 112, 114, 397 N.E.2d 1338 (1979), quoting In re Murchison,
349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) (“ ‘A fair trial in a fair tribunal
is a basic component of due process’ ”). What constitutes fairness is not discrete.
“[C]ourts must be alert to factors that may undermine the fairness of the fact-finding
process * * * and carefully guard against dilution of the principle that guilt is to be
established by probative evidence and beyond a reasonable doubt.” Estelle at 503,
citing In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). “It
is well established that the mere probability of deleterious effects on fundamental
rights calls for close judicial scrutiny.” Lane at 115.
{¶ 9} In Lane, this court addressed the constitutional right to a fair trial. Id.
at 114. The trials for three men who were imprisoned at the Southern Ohio
Correctional Facility and who had been charged with escaping from the facility
5
SUPREME COURT OF OHIO
began in a county courthouse. (Two of the men were tried jointly.) Following voir
dire in one trial, and during voir dire in the second, the state orally moved to transfer
the trials to the prison. Over objections, the court granted the state’s motion to hold
the trials at the prison, citing security and convenience. This court held that
allowing the trials to proceed in the confines of the prison denied the men the
fundamental right to a public trial, id. at paragraph two of the syllabus, and
undermined the jury’s impartiality, eroded the presumption of innocence, and
chilled the rights of the inmates to obtain witnesses, id. at paragraph one of the
syllabus. This court noted that the setting transmitted too great an impression of
guilt, id. at 115, and we held that the trial “offend[ed] due process as being
fundamentally unfair because of the inherent potential for prejudice.” Id. at 118.
Likewise, here we consider whether introducing the alleged victim as the state’s
representative and seating her at the prosecutor’s table, where she remained during
the entirety of the proceedings, undermined the fairness of Montgomery’s trial.
B. Marsy’s Law and Evid.R. 615(B)
{¶ 10} As an initial matter, the Fifth District Court of Appeals resolved
Montgomery’s objection and challenge on direct appeal by applying Ohio
Constitution, Article I, Section 10a, a provision known as Marsy’s Law, and
Evid.R. 615(B), in support of its decision to allow A.B. to sit at the prosecutor’s
table. The constitutional provision states that a victim is entitled to be present at
all proceedings; the evidence rule states that an alleged victim need not be excluded
from a proceeding so as not to hear the testimony of other witnesses. The trial court
overruled Montgomery’s objection, citing the alleged victim’s right to be present
in the courtroom under Marsy’s Law. On appeal, Montgomery argued that the trial
court erred because Marsy’s Law does not provide for the victim to be the state’s
designated representative. The court of appeals overruled this assignment of error.
2019-Ohio-5178 at ¶ 25.
6
January Term, 2022
{¶ 11} For decades, Ohio law has given victims of crime the right to be
present in the courtroom during criminal proceedings against an accused. R.C.
2930.09. In 2017, an amendment to the Ohio Constitution, Marsy’s Law,
established additional constitutional due-process rights for victims and reiterated
their right to be present at all public criminal proceedings for the accused. Ohio
Constitution, Article I, Section 10a(A)(2).
{¶ 12} Evid.R. 615 governs the separation and exclusion of witnesses.
Evid.R. 615(A) provides in part: “Except as provided in division (B) of this rule, at
the request of a party the court shall order witnesses excluded so that they cannot
hear the testimony of other witnesses * * *.” Evid.R. 615(B) exempts the following
persons from orders for the separation and exclusion of witnesses:
(1) a party who is a natural person,
(2) an officer or employee of a party who is not a natural
person designated as its representative by its attorney,
(3) a person whose presence is shown by a party to be
essential to the presentation of the party’s cause, and
(4) in a criminal proceeding, an alleged victim of the
charged offense to the extent that the alleged victim’s presence is
authorized by the General Assembly or by the Ohio Constitution.
{¶ 13} The case before us, however, does not involve a challenge to the
alleged victim’s right to be present in the courtroom. This case involves
designating the alleged victim as the state’s representative and seating her at the
7
SUPREME COURT OF OHIO
prosecutor’s table. Neither the trial court nor the court of appeals acknowledged
this distinction.3 But the distinction is significant.
{¶ 14} Although Marsy’s Law gives a victim the right to be present at all
critical stages of the criminal proceedings and Evid.R. 615(B)(4) exempts a victim
from an order of separation and exclusion of witnesses, neither provision addresses
allowing the victim to sit at the prosecutor’s table as the state’s designated
representative. And it is not the role of the judiciary, as the trial court and the court
of appeals have done in this case, to enlarge the language of these provisions to
authorize a victim to do so. Weaver v. Edwin Shaw Hosp., 104 Ohio St.3d 390,
2004-Ohio-6549, 819 N.E.2d 1079, ¶ 13. In any event, Montgomery is not
challenging A.B.’s right under Marsy’s Law to be present in the courtroom and he
did not request A.B.’s exclusion from the courtroom as a witness pursuant to
Evid.R. 615. Therefore, these provisions are inapplicable.
C. The Trial Court Erred in Designating the Alleged Victim as the State’s
Representative and Allowing Her to Sit at the Prosecutor’s Table
{¶ 15} When the prospective jurors entered the courtroom, the judge stated:
I’d like to introduce everyone in the room to you so you
know who we all are. Representing the State of Ohio in every
criminal case here in Stark County is the Stark County Prosecutor’s
Office. The Stark County Prosecutor is John Ferrero, representing
his office today is Attorney Mike Bickis.
***
3. Montgomery sought reconsideration of the court of appeals’ decision, asserting that his right to
a fair trial was violated and the presumption of innocence was impaired when A.B. was designated
as the state’s representative and allowed to sit at the prosecutor’s table during the entire trial. The
court of appeals overruled the application on the basis that it failed to call attention to an obvious
error in the court’s decision or to raise an issue that the court had failed to consider.
8
January Term, 2022
And seated with him is the State’s representative in this case,
Miss A.B.
{¶ 16} The victim of an alleged crime is not a party to the criminal
proceedings against the defendant. State v. Yerkey, 2020-Ohio-4822, 159 N.E.3d
1232, ¶ 25 (7th Dist.). Additionally, the victim of an alleged crime is not a surrogate
of the state. It is therefore incongruous that a victim could be designated as the
representative for the state during the prosecution of the defendant.
{¶ 17} The prosecuting attorney is the state’s legal representative in all
criminal matters. R.C. 309.08(A); State v. Heinz, 146 Ohio St.3d 374, 2016-Ohio-
2814, 56 N.E.3d 965, ¶ 21. And while it is common practice for the prosecuting
attorney to designate an individual to be a personal representative of the state and
sit at counsel table during a criminal trial, State v. Lewis, 70 Ohio App.3d 624, 640,
591 N.E.2d 854 (4th Dist.1990), as the state and the second dissenting opinion note,
there is no statute or rule that explicitly dictates who that person can be. However,
given that the state’s selection of a representative to sit at counsel table and remain
in the courtroom throughout the proceedings is a subject that, if challenged, is
routinely done in the context of witness separation, Evid.R. 615(B)(2) may be
viewed as implicitly and logically limiting the state’s selection of a representative
to a person who is an officer or employee of the state. Marr v. Mercy Hosp., 6th
Dist. Lucas No. L-97-1160, 1998 Ohio App. LEXIS 2227, *5 (May 22, 1998),
citing State v. Lapping, 75 Ohio App.3d 354, 363, 599 N.E.2d 416 (1991); see also
State v. Hartzell, 2d Dist. Montgomery No. 17499, 1999 Ohio App. Lexis 3812
(Aug. 20, 1999) (trial court erred when it allowed the state to designate a
representative who was not an officer or employee of the state).
{¶ 18} The state concedes that A.B. does not meet the criteria to be
designated as the state’s representative under Evid.R. 615(B)(2) but argues that the
trial court’s introduction and references to A.B. as the state’s representative did not
9
SUPREME COURT OF OHIO
prejudice Montgomery or bolster A.B.’s credibility, because the references were
limited. Furthermore, the state argues that A.B.’s credibility was not bolstered
because the prosecutor never remarked on her credibility. The state and the second
dissenting opinion point out that while there is no specific Ohio law that permits
the alleged victim to sit at the prosecutor’s table, there is no specific law that
prevents that conduct. Both the state and the second dissenting opinion are missing
the point. Regardless of whether there is any explicit prohibition against seating
the alleged victim at the state’s counsel table, we must decide whether doing so
violated Montgomery’s right to a fair trial.
{¶ 19} The presumption of innocence accorded an accused is a basic
component of a fair trial; it is our duty to be alert to factors that undermine fairness
in the fact-finding process and dilute the right to this presumption. Lane, 60 Ohio
St.2d at 115, 397 N.E.2d 1338. Although the trial court’s introduction of A.B. as
the state’s representative might have been brief, the designation of A.B. as the
state’s representative was error, and that error was compounded when she was
allowed to sit at the prosecutor’s table throughout the trial in her dual role as the
victim of the alleged crime and as the representative of the state charged with
prosecuting Montgomery for that alleged crime. As we established in Lane, this
court must be vigilant to ward against scenarios that undermine a jury’s
impartiality, erode the presumption of innocence, and allow for a setting that
transmits too great an impression of guilt and that offends due process as
fundamentally unfair because of the inherent potential for prejudice. The scenario
at issue in this case triggers these factors.
{¶ 20} The second dissenting opinion states that “there is support in Ohio
[for the proposition] that the state may choose anyone, including a deceased
victim’s wife, to serve as the state’s representative so long as the person’s presence
is not used in an inappropriate manner,” dissenting opinion of Fischer, J., ¶ 130.
However, this assertion is supported by a single Ohio court of appeals opinion, see
10
January Term, 2022
State v. Bryant, 105 Ohio App. 452, 454, 152 N.E.2d 678 (2d Dist.1957). The
additional case cited by the second dissenting opinion does not support this broad
proposition. State v. Lewis, 70 Ohio App.3d 624, 640, 591 N.E.2d 854 (4th
Dist.1990), states only that a trial court’s decision to allow a county sheriff to be
the state’s representative and sit at the state’s counsel table was not prejudicial to
the defendant.4
{¶ 21} The state argues here that the trial court’s decision falls within the
protocol under Evid.R. 615. However, the state’s and the trial court’s improper
reliance on Evid.R. 615 notwithstanding, the fundamental question we must answer
is not whether the state may choose whomever it wants as its representative at a
criminal trial and seat that representative at the prosecutor’s table, as the second
dissenting opinion reframes the issue before us. Rather, the question we must
answer is whether permitting the state to designate A.B. as the state’s representative
and allowing her to sit at counsel table infringed on Montgomery’s right to a fair
trial. The second dissenting opinion ignores the constitutional issue before us and
focuses primarily on what it calls the state’s common-law right to choose
whomever it wants as its designated representative and to have that person seated
at counsel table, as long as the choice is not made for improper purposes. The
second dissent’s focus is misplaced.
4. Although we disagree with the second dissenting opinion’s reliance on Bryant to declare that the
state may choose anyone it wants to be designated its representative, that opinion fails to point to
anything in the record showing that A.B. was chosen as a representative to provide assistance to the
state in prosecuting Montgomery. Although the prosecutor cited Evid.R. 615(B)(3) and (4) as the
basis for his request to have the victim sit at counsel table, he asked for the victim to be designated
as the state’s representative, which falls under Evid.R. 615(B)(2). Furthermore, at no time did the
prosecutor assert, let alone demonstrate, that the victim was essential to the state’s presentation of
the case pursuant to Evid.R. 615(B)(3), nor did he explain why the victim should be the state’s
representative. But even if the state had made any attempt to demonstrate why designating A.B. as
the state’s representative and having her sit at counsel table was necessary to prosecute the case
against Montgomery, the state’s justifications would still be outweighed by Montgomery’s
constitutional right to a fair trial.
11
SUPREME COURT OF OHIO
{¶ 22} As noted earlier, Evid.R. 615(B)(2) implicitly limits the personal
representatives from which the state may choose to officers or employees. But
assuming without deciding that the state does have the right to designate as its
personal representative someone other than an officer or an employee (or in the
second dissenting opinion’s words, “anyone”), that right is inferior to a criminal
defendant’s constitutional rights. See State v. J.M., 10th Dist. Franklin No. 14AP-
621, 2015-Ohio-5574, ¶ 28 (“the state and the defendant in a criminal case do not
have the same rights”). The second dissent’s emphasis on the state’s right to choose
its representative rather than on Montgomery’s right to a fair trial provides no
justification for affirming the judgments of the lower courts.
{¶ 23} Seating A.B. at the prosecutor’s table reinforced the error of
designating her as the state’s representative. It risked misleading the jury into
thinking that just as defense counsel represents the defendant, the prosecuting
attorney represents the alleged victim, or even more harmful, that the alleged victim
as the complaining witness and the prosecution are one and the same. We find that
the victim’s dual role warped the framework within which the trial proceeded.
Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
{¶ 24} Just as we determined in Lane that the unconventional act of holding
a criminal trial inside a prison offended due process because it was fundamentally
unfair, we find that the unconventional acts of designating an alleged victim as the
state’s representative and allowing her to sit at the prosecutor’s table eroded the
presumption of innocence accorded Montgomery and violated his fundamental
right to a fair trial, in violation of the Sixth and Fourteenth Amendments.
III. REMEDY
{¶ 25} In general, “ ‘a constitutional error does not automatically require
reversal of a conviction.’ ” Weaver v. Massachusetts, ___U.S. ___, ___, 137 S.Ct.
1899, 1907, 198 L.Ed.2d 420 (2017), quoting Fulminante at 306. For purposes of
determining whether a conviction should be reversed, the Supreme Court has
12
January Term, 2022
divided constitutional errors into two classes: “trial errors,” which are reviewable
for harmless error, and “structural errors,” which are per se cause for reversal. State
v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 9, citing
Fulminate at 306-312, and State v. Esparza, 74 Ohio St.3d 660, 661, 660 N.E.2d
1194 (1996). Most constitutional errors are trial errors. United States v. Gonzalez-
Lopez, 548 U.S. 140, 148, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). Trial errors
occur during “ ‘presentation of the case to the jury’ and their effect may ‘be
quantitatively assessed in the context of other evidence presented in order to
determine whether [they were] harmless beyond a reasonable doubt.’ ” (Brackets
sic.) Id., quoting Fulminante at 307-308. A constitutional trial error is harmless
when the state demonstrates “ ‘beyond a reasonable doubt that the error complained
of did not contribute to the verdict obtained.’ ” Weaver at ___, 137 S.Ct. at 1907,
quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705(1967).
{¶ 26} On the other hand, a constitutional error is structural when it affects
the framework in which the trial is conducted, rather than simply being an error in
the trial process itself. State v. Jones, 160 Ohio St.3d 314, 2020-Ohio-3051, 156
N.E.3d 872, ¶ 20. “ ‘The purpose of the structural error doctrine is to ensure
insistence on certain basic, constitutional guarantees that should define the
framework of any criminal trial.’ ” Id. at ¶ 21, quoting Weaver at ___, 137 S.Ct. at
1907. Structural errors defy analysis under harmless-error standards, id. at ¶ 20,
and the effect of these errors is unquantifiable in the context of an entire trial,
Gonzalez-Lopez at 150.
{¶ 27} In Weaver, the Supreme Court identified three broad rationales for
finding that a constitutional error is structural. Weaver at ___, 137 S.Ct. at 1908.
A constitutional error has been deemed structural when the right that is violated
protects an interest other than protecting the defendant from erroneous conviction,
like an accused’s fundamental right to conduct his own defense and direct the
13
SUPREME COURT OF OHIO
manner in which he protects his own liberty. Id., citing Faretta v. California, 422
U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
{¶ 28} The Supreme Court has deemed a constitutional error structural
when the effects of the error are too difficult to measure. Weaver,___U.S. at ___,
137 S.Ct. at 1908, 198 L.Ed.2d 420. “For example, when a defendant is denied the
right to select his or her own attorney, the precise ‘ “effect of the violation cannot
be ascertained.” ’ ” Id., quoting Gonzalez-Lopez, 548 U.S. at 149, 126 S.Ct. 2557,
165 L.Ed.2d 409, fn. 4, quoting Vasquez v. Hillery, 474 U.S. 254, 263, 106 S.Ct.
617, 88 L.Ed.2d 598 (1986). As a practical matter, in regard to this type of error,
the government will find it almost impossible to show that the error was harmless
beyond a reasonable doubt. Id.{¶ 29} Finally, a constitutional error has been deemed structural when it
always results in a trial that is fundamentally unfair. Id. For example, a trial court’s
failure to give a reasonable-doubt instruction always results in a trial that is
fundamentally unfair. Id., citing Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct.
2078, 124 L.Ed.2d 182 (1983). The rationales for why an error is deemed structural
are not rigid, and more than one may explain why an error is ultimately held to be
structural. Id. Constitutional errors that have been deemed structural have included
the presence of a biased judge, Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed.
749 (1927); the introduction of a coerced confession, Payne v. Arkansas, 356 U.S.
560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958); and the unlawful exclusion of members
of the defendant’s race from a grand jury, Hillery. These errors permeated the
“entire conduct of the trial from beginning to end,” Fulminante, 499 U.S. at 310,
111 S.Ct. 1246, 113 L.Ed.2d 302, and “[w]ithout these basic [constitutional]
protections, a criminal trial cannot reliably serve its function as a vehicle for
determination of guilt or innocence,” Rose v. Clark, 478 U.S. 570, 577-578, 106
S.Ct. 3101, 92 L.Ed.2d 460 (1986), citing Powell v. Alabama, 287 U.S. 45, 53 S.Ct.
55, 77 L.Ed. 158 (1932).
14
January Term, 2022
{¶ 30} Designating A.B. as the state’s representative and seating her at the
prosecutor’s table throughout the proceedings undermined the “structural integrity
of the criminal tribunal itself,” Hillery at 263-264. They were errors that permeated
the entirety of the proceedings, and the effect of these errors is too difficult, if not
impossible, to measure. Allowing the victim to be introduced as the state’s
representative and sit at the counsel table with the prosecutor are not merely trial
errors, which can be assessed for any harm caused to Montgomery in light of the
evidence presented against him. To the contrary, there is no way to gauge the
impact these errors had on the fundamental fairness of Montgomery’s trial. See
Gonzalez-Lopez, 548 U.S. at 150, 126 S.Ct. 2557, 165 L.Ed.2d 409 (“Harmless-
error analysis in such a context would be a speculative inquiry into what might have
occurred in an alternate universe”).
{¶ 31} The errors that occurred in Montgomery’s trial are not akin to the
state’s vouching for the credibility of a witness, see State v. Myers, 154 Ohio St.3d
405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 145 (explaining that vouching occurs
when the prosecutor implies knowledge of facts outside the record or expresses a
personal opinion about the credibility of a witness). Instead, like other structural
errors that infect the entire framework of the trial from beginning to end, see Tumey
(denial of right to impartial judge), and Gideon v. Wainwright, 372 U.S. 335, 83
S.Ct. 792, 9 L.Ed.2d 799 (1963) (denial of right to counsel), the errors in this case
influenced the entire trial; the errors conflated the role of the victim and prosecutor
and transcended the criminal process. Fulminante at 311. A.B.’s being designated
as the state’s representative and being seated at the counsel’s table throughout the
trial cannot be quantitatively assessed in the context of the other evidence that was
15
SUPREME COURT OF OHIO
presented.5 Put simply, Montgomery’s trial did not and could not reliably serve its
function as a fair and appropriate venue for the determination of his guilt.
{¶ 32} The first dissent recognizes that the United States Supreme Court
has categorized structural errors as “ ‘ “highly exceptional,” ’ ” dissenting opinion
of Kennedy, J., ¶ 118, quoting Greer v. United States, ___ U.S. ___, ___, 141 S.Ct.
2090, 2100, 210 L.Ed.2d 121 (2021), quoting United States v. Davila, 569 U.S.
597, 611, 133 S.Ct. 2139, 186 L.Ed.2d 139 (2013), and we do the same. But we
also believe that seating a victim next to the prosecutor at the counsel’s table and
identifying her as the state’s representative is such an exceptional scenario that
renders a trial an unreliable vehicle for determining guilt or innocence. See Greer
at ___, 141 S.Ct. at ___, citing Neder v. United States, 527 U.S. 1, 9, 119 S.Ct.
1827, 144 L.Ed.2d 35 (1999). Accordingly, we conclude that the court’s errors of
allowing A.B. to be introduced as the state’s representative and to be seated at the
counsel table with the prosecutor infringed on “ ‘constitutional rights so basic to a
fair trial that their infraction can never be treated as harmless error,’ ” Jones, 160
Ohio St.3d 314, 2020-Ohio-3051, 156 N.E. 3d 872, at ¶ 26, quoting Chapman, 386
U.S. at 23, 87 S.Ct. 824, 17 L.Ed.2d 705. We therefore hold that Montgomery is
entitled to an automatic reversal of his conviction.
IV. CONCLUSION
{¶ 33} “ ‘Fairness of course requires an absence of actual bias * * *. But
our system of law has always endeavored to prevent even the probability of
unfairness.’ ” (Emphasis added.) Lane, 60 Ohio St.2d at 114, 397 N.E.2d 1338,
quoting Murchison, 349 U.S. at 136, 75 S.Ct. 623, 99 L.Ed. 942. To “ ‘perform its
high function in the best way, “justice must satisfy the appearance of justice.” ’ ”
Id. at 114-115, quoting Murchison at 136, quoting Offutt v. United States, 348 U.S.
5. The first dissenting opinion spends a considerable amount of time recounting various details of
the trial proceedings. But because we hold that the errors are structural, a review of the details of
the trial is irrelevant to our analysis. Gonzalez-Lopez at 150.
16
January Term, 2022
11, 14, 75 S.Ct. 11, 99 L.Ed. 11 (1954). We hold that the trial court denied
Montgomery of his constitutional right to a fair trial as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution by permitting the alleged
victim to sit at the prosecutor’s table during the criminal trial and to be designated
and introduced to the jury as the state’s representative. These errors are structural
and require reversal. In so holding, our decision does not infringe on the rights a
victim has under Marsy’s Law and Evid.R. 615, including the right to be present
during criminal proceedings. We reverse the judgment of the Fifth District Court
of Appeals, and we remand the cause to the trial court for a new trial.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and DONNELLY and BRUNNER, JJ., concur.
KENNEDY, J., dissents, with an opinion joined by DEWINE, J.
FISCHER, J., dissents, with an opinion.
_________________
KENNEDY, J., dissenting.
{¶ 34} “[T]here can be no such thing as an error-free, perfect trial, and
* * * the Constitution does not guarantee such a trial.” United States v. Hasting,
461 U.S. 499, 508-509, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). In my view, two
procedural errors occurred in this trial.
{¶ 35} The alleged victim, A.B., has a constitutional right to remain in the
courtroom for all proceedings. See Article 1, Section 10a(A)(2) of the Ohio
Constitution (“Marsy’s Law”). Prior to empaneling the jury, the only open seat in
the courtroom was the seat next to the prosecutor at counsel’s table. The trial court
granted the state’s motion to permit A.B. to sit at the prosecutor’s counsel table
because there was “no other place in the courtroom for her to be during jury
selection.” Therefore, the trial court did not err when it granted the state’s motion
to permit A.B. to sit at the prosecutor’s counsel table during voir dire.
17
SUPREME COURT OF OHIO
{¶ 36} But Marsy’s Law, R.C. 2930.09, and Evid.R. 615(B)(4) do not
authorize the trial court to designate A.B. as the state’s representative. That
designation is limited to an “officer or employee” of the state. Evid.R. 615(B)(2).
Consequently, the trial court’s introduction of A.B. as the state’s representative at
the beginning of jury selection was a trial error.
{¶ 37} The second trial error occurred after the jury was empaneled. Once
the trial court released the remaining prospective jurors, they left the courtroom,
thereby creating a place other than at the prosecutor’s counsel table for A.B. to sit.
But the trial court did not revisit its limited order allowing A.B. to sit at the
prosecutor’s counsel table during jury selection, and Montgomery did not renew
his objection. Because these two trial errors, when reviewed either individually or
cumulatively, do not constitute structural or plain error but are instead harmless, I
would affirm the judgment of the court of appeals. Therefore, I dissent.
Facts and Procedural History
{¶ 38} The majority determines that structural error exists in this case
because it is too difficult to gauge prejudice. But the majority’s discussion of the
case-in-chief and the defense is limited to a single sentence: “Following a three-
day trial, the jury found Montgomery guilty of kidnapping and rape.” Majority
opinion, ¶ 5. When reviewing the trial as a whole, it is evident that Montgomery
was not prejudiced by the trial errors at issue. Here is a more detailed summary of
the trial proceedings.
Pretrial Proceedings
{¶ 39} There were about 47 prospective jurors in the jury pool. Seating in
the trial court was limited. To allow the bailiff to address “the chair situation” in
the courtroom, the prosecutor and defense counsel presented the trial court with
their agreement excusing prospective jurors based on their answers to the jury
questionnaire. Reducing the number of prospective jurors permitted the trial court
to “squeeze in the right number of chairs for the remaining number [of jurors].”
18
January Term, 2022
The prosecutor and defense counsel agreed to excuse three jurors. Without
objection, the trial court excused another juror due to illness. The trial court
addressed pretrial issues.
{¶ 40} The trial court then addressed the issue of who was sitting at the
prosecutor’s counsel table. The prosecutor stated that the state intended to
designate A.B. as the state’s representative. The prosecutor cited Evid.R. 615(B)(3)
and (4) in support of the state’s intent to designate A.B. as its representative and
noted that Article I, Section 10a of the Ohio Constitution and R.C. 2930.09 gave
A.B. the right to be present any time that the defendant was present during the
proceedings. Thereafter, the prosecutor advised the court that A.B. would be called
as the state’s first witness to reduce any prejudicial effect to Montgomery.
{¶ 41} Montgomery objected to referring to A.B. as the state’s
representative because she was the alleged victim and had “no affiliation with the
State of Ohio in any capacity.” And while Montgomery agreed that A.B. could sit
in the courtroom, he argued that seating her at “counsel table would be prejudicial”
to him.
{¶ 42} The trial court asserted that it was a “new era” in Ohio with the
enactment of Marsy’s Law and R.C. 2930.09. The trial court then stated that
“representatives have been designated” and that Marsy’s Law gave A.B. the right
to be present in the courtroom. The trial court continued, “Certainly, logistically,
there’s no other place in the courtroom for her to be during jury selection.” And
given that A.B. would be the state’s first witness, the trial court agreed with the
state that the “potential for prejudice” was greatly reduced. The trial court granted
the state’s request, stating, “[F]or purposes of right now, I am going to grant that,”
but it added that it would review the matter to determine if there was some other
concern that the trial court was not contemplating.
{¶ 43} Later, the state moved for separation of witnesses at trial. The court
granted the motion, adding, “And to the extent that your designated representative
19
SUPREME COURT OF OHIO
is exempted from that, I will grant it in relation to the other witnesses. And, again,
pursuant to my revisiting this, as I have an opportunity once we have selected the
jury.” After addressing other procedural matters, the trial court summoned the
prospective jurors into the courtroom.
Voir Dire Examination
{¶ 44} The trial court discussed preliminary matters with the prospective
jurors and introduced everyone in the courtroom. After introducing the Stark
County prosecutor as counsel for the state, A.B. was introduced as the state’s
representative. The trial court then introduced the other trial participants to the
prospective jurors and provided a brief explanation of the established procedural
rules that the participants were required to follow. Questioning was completed, the
jurors who were hearing the case were chosen, and the remaining prospective jurors
were released by the trial court. The jury was empaneled.
{¶ 45} The prospective jurors released from jury service cleared the
courtroom, thereby providing ample room for A.B. to sit somewhere other than at
the prosecutor’s counsel table for the duration of the trial. However, Montgomery
did not renew his objection, and the trial court did not revisit Montgomery’s
original objection. Montgomery points to no other instance besides when A.B. was
introduced to the prospective jury pool that she was referred to as the state’s
representative. During the trial, the judge, the prosecutor, and the testifying
detective referred to A.B. as the “victim.”
Preliminary Instructions
{¶ 46} After the jury was empaneled, the trial court gave some preliminary
instructions. The trial court outlined the duties of the trial participants, including
those of the jury. The trial court advised the jury that Montgomery was presumed
innocent and that the state had the burden to establish his guilt beyond a reasonable
doubt. Among other instructions, the trial court also advised the jury on the issue
of credibility.
20
January Term, 2022
As jurors, you have the sole and exclusive duty to decide the
credibility of the witnesses who will testify in this case, which
simply means that it is you who must decide whether to believe or
disbelieve a particular witness, and how much weight, if any, to give
the testimony of each witness.
In determining these questions, you will apply the tests of
truthfulness which you apply in your daily lives. These tests include
the appearance of each witness upon the stand; his or her manner of
testifying; the reasonableness of the testimony; the opportunity he
or she had to see, hear and know the things concerning which he or
she testified; his or her accuracy of memory; frankness or lack of it;
intelligence, interest and bias, if any; together with all the facts and
circumstances surrounding the testimony. Applying these tests, you
will assign to the testimony of each witness such weight as you deem
proper.
You are not required to believe the testimony of any witness
simply because he or she was under oath. You may believe or
disbelieve all or part of the testimony of any witness. It is your
province to determine what testimony is worthy of belief and what
testimony is not worthy of belief. The testimony of one witness
believed by you is sufficient to prove any fact.
{¶ 47} After the judge finished giving these instructions, the state and
defense counsel gave opening statements. Despite the trial court’s original
statement that its ruling on A.B.’s status as representative of the state and her ability
to sit at the prosecutor’s counsel table was “for now” and the trial court’s later
statement that it would revisit the issue of A.B.’s not being subject to the separation
21
SUPREME COURT OF OHIO
of witnesses after the jury was empaneled, the trial court did not revisit those issues
on the record, and Montgomery did not renew his objection.
Opening Statements
{¶ 48} The prosecutor told the jury that Montgomery had been charged with
one count of kidnapping and one count of rape. He then informed the jurors that
they would have a “hard decision” to make at the end of the trial: they would need
to decide whether they believed the testimony of A.B. and the physical evidence
that corroborated her story. The prosecutor also told the jurors that if they believed
A.B., there would be sufficient evidence to find Montgomery guilty of kidnapping
and rape.
{¶ 49} The prosecutor then stated that he wished that he could tell the jury
that A.B. was Mother Teresa, but he could not. He told them that she had not
graduated from high school, that she was unmarried with three kids, that she lived
in the projects, and that she smoked marijuana. The prosecutor continued, noting
that at the time of the kidnapping and rape, she was engaged to a man who was
completing a prison sentence for his role in a shooting. The prosecutor asked the
jury to examine everything A.B. did and did not do on the day of the kidnapping
and rape and to decide, at the end of the trial, whether she was telling the truth. He
told the jury that there would be no doubt that A.B. and Montgomery had engaged
in sexual intercourse but that the question the jury faced was whether the victim
was a “willing participant.” He reminded the jury that in the end, “it [would] come
down to the judgment of the 12 of [them]” whether A.B. was telling the truth.
{¶ 50} Defense counsel told the jury that the allegations against
Montgomery were false and that A.B., for her own “selfish agenda,” created an
“implausible story of kidnapping and rape, fashioned from lies which she told to
others.” Defense counsel stated that the only evidence that the jury would hear in
support of the charges was A.B.’s testimony and that no other evidence supported
22
January Term, 2022
A.B.’s accusations of kidnapping and rape. Defense counsel asserted that there was
evidence that would show that A.B.’s claims were false and that she was a liar.
Testimony at Trial
{¶ 51} The state presented four witnesses: A.B.; Loralee Bidlingmaier, a
Sexual-Assault Nursing Examiner (“SANE”) from the Mercy Medical Center in
Canton; Detective Joseph Mongold of the city of Canton Police Department; and
Samuel Troyer of the Ohio Bureau of Criminal Investigation (“BCI”).
{¶ 52} Montgomery is the brother of A.B.’s father’s wife and lived in
A.B.’s father’s basement. A.B. testified that in the fall of 2017, Montgomery began
spending time with her at her home. She stated that she just wanted to be friends
with Montgomery. One reason given by A.B. for just staying friends was that his
sister was married to her dad. At that time, A.B. had a boyfriend who was
incarcerated but who was to be released from prison in 2018. She testified that each
referred to the other as “fiancé.” Nonetheless, Montgomery pursued a romantic
relationship and gave the victim rides to work, money, and marijuana.
{¶ 53} In December 2017, A.B. discovered that Montgomery had created a
fake Facebook page in her boyfriend’s name and that he had threatened to tell her
boyfriend that she was having sex with him and with other people. A.B. testified
that she then stopped texting Montgomery or spending time with him.
{¶ 54} A.B. testified that on March 15, 2018, she spent the night at her
father’s house. The next morning, her father and his family left early to go to
Florida, leaving A.B. alone in the house with Montgomery. She said that she woke
up when Montgomery “literally barged in the room * * * yelling, ‘What the F are
you here for, why are you here?’ ” He then punched her in the mouth as she tried
to get up. She testified that her nose “was bleeding a little bit” near her nose ring,
which was hanging out. Montgomery allowed her to use the bathroom, but he stood
in the doorway. He then took her to the basement, where he went through her
phone, declined incoming calls, threatened her with “punishment,” and forced her
23
SUPREME COURT OF OHIO
to clean the dog kennel. He then took her upstairs to the bathroom and had vaginal
intercourse with her in the shower before carrying her to a couch in the room where
she had slept and began having sex with her a second time. She testified that she
was crying and that he asked her if she wanted him to stop and she said yes. He
stopped. He gave her a towel, washed her clothes, cooked her a meal, apologized,
and then released her later that day. A.B. drove to her sister’s house; the two
women then drove to an uncle’s house, where the sister dialed 9-1-1 and A.B.
reported the rape. Her sister then dropped A.B. at the hospital, where A.B. had a
sexual-assault examination and gave a statement to police.
{¶ 55} On cross-examination, defense counsel attempted to impeach A.B.
and questioned her at length regarding how Montgomery had punched her; her text
messages, emails, and interactions with Montgomery in November 2017, four
months before the rape; and her anger at him in December 2017 for creating a fake
Facebook account in her boyfriend’s name and threatening to tell her boyfriend she
was having sex with Montgomery and other people. Defense counsel also
challenged discrepancies between her testimony and her statement to police as well
as what she did between leaving her father’s house and going to her sister’s home.
{¶ 56} Bidlingmaier testified that A.B. came to the hospital reporting that
she had been sexually assaulted. The nurse testified that A.B. was “very upset [and]
very tearful” and was wringing her hands. A.B. reported to the nurse that she had
been punched in the face and had pain on the right side of her face and a throbbing
headache. Bidlingmaier stated that A.B. had a ruptured vessel in the white part of
her eye, a laceration on her lip, and a red mark on her neck. A vaginal examination
was performed and swabs were taken for the collection of medical evidence. The
collection kit was given to police.
{¶ 57} Detective Mongold responded to the Mercy Medical Center and
spoke with A.B. while she was being treated for her injuries. The detective testified
24
January Term, 2022
that “[s]he appeared to have some injuries to her face” and that she was crying and
upset while they spoke.
{¶ 58} A.B. told the detective that the assault had occurred at her father’s
residence. The detective obtained consent from A.B.’s father to enter his house.
Detective Mongold, with a detective from the Crime Scene Unit, searched a first-
floor bedroom in the back of the house and a bathroom. In the bathroom trash can,
the detectives found a tissue with “possible blood,” which was photographed and
secured as evidence. The discovery of the tissue was consistent with information
that the police had received that A.B. had used a tissue to clean herself off on the
day of the sexual assault.
{¶ 59} The detective testified that during the investigation, he acquired a
DNA swab from Montgomery. After the collection of the DNA sample, it was
sealed and secured pursuant to departmental policies and submitted as evidence.
{¶ 60} Troyer was employed in a BCI laboratory. He testified that DNA on
the swab taken from Montgomery was consistent with DNA from swabs taken from
A.B. at the hospital.
{¶ 61} With the admission of the state’s evidence, the state rested.
{¶ 62} The defense called five witnesses: A.B.’s sister, N.J.; A.B.’s father;
A.B.’s paternal grandmother; A.B.’s paternal grandfather; and J.G., who sometimes
lived in a van parked in front of A.B.’s father’s house.
{¶ 63} N.J. testified that in the mid-evening hours of the day of the sexual
assault, A.B. called her and “was crying, sobbing,” and incomprehensible. N.J.
said that she met A.B. outside of N.J.’s home and A.B. was scared and shaking.
N.J. told her sister to calm down, but “she seemed really scared.” Eventually, A.B.
told her that Montgomery “punched her out her sleep” and forced her to have sex.
N.J. testified that she panicked, called her father in Florida, and “told him that
[Montgomery] punched [A.B.] and that he forced his self on her.” N.J. said that
she and A.B. drove to their uncle’s house and then called the police. N.J. described
25
SUPREME COURT OF OHIO
the 9-1-1 call: “[A.B.] was * * * sobbing and stuff like that so still kind of couldn’t
really understand. But as much as I remember, she told them that she had been
raped, assaulted, and she gave them * * * Theo Montgomery’s name and told them
to meet her at Mercy [Hospital].” N.J. then drove A.B. to Mercy.
{¶ 64} A.B.’s father testified that he believed that Montgomery and A.B.
were “seeing each other here and there” and “shooting it regular, doing it.”
Montgomery would text A.B.’s father before Montgomery would visit A.B. at her
home. A.B.’s father also testified that when he initially spoke to A.B., she was
crying and said Montgomery had punched her but she did not say that she had been
raped. After speaking to Montgomery, he called A.B. and asked, “Tell me the truth,
did you guys have sex? * * * She said, Yeah. After he punched me, that’s when
he jumped on top of me.”
{¶ 65} A.B.’s grandmother testified that she received a call from A.B.
during the evening hours the day of the sexual assault and that A.B. “sounded like
something was wrong.” She testified, “[S]he said Theo something, but she was a
little excited and she didn’t get into what went on. Then the next thing she gave
the phone to her sister [N.J.].” In response to that call, she and her husband went
to their son’s home. They entered the home, but nothing appeared to be out of
place.
{¶ 66} A.B.’s grandmother testified that she and her husband met the
detective at their son’s house the next day. She said that she was certain that there
was no blood on the floor in the television room or the hallway leading back to the
family room. She said that she did see a tissue with blood on it in the bathroom
trash can.
{¶ 67} A.B.’s grandfather also testified. He testified that he did not talk to
A.B. when she called his wife. After his wife got off the phone, she told him they
needed to go to A.B.’s father’s house because something had happened to A.B. He
told her he was “not going nowhere because [he] knew how [his] granddaughter
26
January Term, 2022
[was].” He testified that he also got a phone call from his son, who asked him to
go to the house to meet police.
{¶ 68} He said that he and his wife went to A.B.’s father’s home, entered,
and waited for police. The house was not in disarray, and there was no blood
anywhere. He allowed the detective access to two areas, a first-floor bedroom,
which he called a TV room, and the bathroom. When the detective attempted to go
downstairs to the basement, A.B.’s grandfather told him, “No, you can’t go down
in the basement.” According to A.B.’s grandfather, the detective said that
Montgomery lived in the basement and he needed to go downstairs. A.B.’s
grandfather told the detective, “I’m not going to stand here and argue with you
about going downstairs.”
{¶ 69} A.B.’s grandfather testified that his son returned home the next day,
and A.B.’s grandfather went back to his son’s house. While he was there, his
granddaughters came to the house. He said that he looked at A.B. “real closely”
and asked her where the “marks” on her face were, thinking that “if all of this
happened,” she would have had more visible injuries.
{¶ 70} J.G. was the final witness for the defense. He testified that he saw
A.B. and Montgomery walk peacefully out of the house after the sexual assault and
that he did not see any injuries on her face. He said that he was about 15 to 20 feet
away from the two when they left the house.
{¶ 71} With the admission of the defendant’s exhibits, the defense rested.
Jury Instructions
{¶ 72} The trial court then proceeded to give jury instructions, first restating
that the defendant was presumed innocent and that the state had the burden to prove
that the defendant was guilty beyond a reasonable doubt. On the issue of
credibility, the trial court repeated the preliminary instructions that were given
when the jury was empaneled and then added:
27
SUPREME COURT OF OHIO
You should not decide any issue of fact merely on the basis
of the number of witnesses who testify on each side of the issue.
Rather, the final test in judging evidence should be the force and
weight of the evidence, regardless of the number of witnesses on
each side of an issue.
A discrepancy in a witness’ testimony or between his or her
testimony and that of another, if there are any, does not necessarily
mean you should disbelieve the witness, as people commonly forget
facts or recollect them erroneously after the passage of time. You
are certainly all aware of the fact that two persons who are witnesses
to an incident may often see or hear it differently. In considering a
discrepancy in a witness’ testimony, you should consider whether
such discrepancy concerns an important fact or a trivial one.
If you conclude that a witness has willfully lied in his
testimony as to a material fact, you may distrust all of his or her
testimony, and you would then have the right to reject all of his or
her testimony unless, after all the testimony, you believe that the
probability of truth favors his or her testimony in other particulars.”
Closing Arguments
{¶ 73} The prosecutor reminded the jurors that at the beginning of the trial,
he told them that they would hear from A.B. and that they would have to decide
whether they found her testimony credible. He asserted that if they did find her
testimony credible, every element of the crimes of kidnapping and rape had been
established. He argued that more than just A.B.’s testimony established the
elements of the crimes: the testimony of the SANE that the injuries on A.B.’s face
were consistent with being punched in the face and Mongold’s testimony that he
found a tissue right where A.B. said it would be provided corroborating evidence.
28
January Term, 2022
{¶ 74} Defense counsel argued that A.B.’s accusations were false and
unsupported by any corroborating evidence. Defense counsel also pointed out that
the jury had heard evidence exposing A.B.’s “falsehoods and lies.” Defense
counsel, relying on numerous nonsexual text messages between A.B. and
Montgomery over a two-day period in early November 2017, more than four
months before the rape, contended that the two had had a consensual sexual
relationship. Counsel suggested that A.B. had fabricated the rape because she was
angry about Montgomery making the fake Facebook account in December and then
threatening to tell her boyfriend she was having sex with other people. And defense
counsel asserted that she faked her own injuries by hitting herself in the mouth
while driving away from her father’s house after the alleged rape.
{¶ 75} The jury found Montgomery guilty of kidnapping and rape but
acquitted him of the sexual-motivation specification attached to the kidnapping
count. The trial court found him guilty of the repeat-violent-offender specification
and imposed an aggregate ten-year sentence. The court of appeals affirmed the
convictions.
{¶ 76} This court accepted Montgomery’s appeal. Montgomery argued in
one proposition of law that he had been denied his right to a fair trial, because A.B.
was allowed to be designated as the state’s representative and sit at the prosecutor’s
table throughout the trial. To overturn Montgomery’s conviction and remand the
matter for a new trial, this court must find that these errors, either individually or
cumulatively, denied Montgomery of a right to a fair trial. In my view, they did
not.
Law and Analysis
Plain, Harmless, and Structural Error
{¶ 77} “ ‘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
29
SUPREME COURT OF OHIO
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 a defendant forfeits
the right to assert an error on appeal, an appellate court applies a plain-error
standard of review. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38
N.E.3d 860, ¶ 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.
{¶ 78} In contrast, when a defendant objects to an error at trial, an appellate
court applies a harmless-error standard of review. State v. Perry, 101 Ohio St.3d
118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 15. Under the harmless-error 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,” State v. Jones, 160 Ohio St.3d 314,
2020-Ohio-3051, 156 N.E.3d 872, ¶ 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 a conviction when
the state is unable to meet its burden. Perry at ¶ 15.
{¶ 79} “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.
30
January Term, 2022
Massachusetts, ___ U.S. ___, ___, 137 S.Ct. 1899, 1907-1908, 198 L.Ed.2d 420(2017); Perry at ¶ 17.
{¶ 80} 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 Fischer.) 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). Structural error is
traditionally approached categorically, and, as such, it is not susceptible to
harmless-error review no matter the facts of the case. Neder v. United States, 527
U.S. 1, 14, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); Jones at ¶ 2, 20. “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.
{¶ 81} 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). Structural error is “ ‘highly exceptional.’ ” Greer v. United States, ___
U.S. ___, ___, 141 S.Ct. 2090, 2100, 210 L.Ed.2d 121 (2021), quoting United
States v. Davila, 569 U.S. 597, 611, 133 S.Ct. 2139, 186 L.Ed.2d 139 (2013).
{¶ 82} The Supreme Court has explained that “a constitutional error is
either structural or it is not.” Neder at 14. Under this “traditional categorical
approach to structural errors,” id., once a constitutional error is recognized as
structural, it is a structural error in all cases, regardless of the facts of a specific case
31
SUPREME COURT OF OHIO
or the amount of evidence against the accused, id. (rejecting “a case-by-case
approach that is more consistent with our traditional harmless-error inquiry”).
When a preserved structural error is shown, a conviction is reversed even when the
evidence of guilt is overwhelming. See United States v. Dominguez Benitez, 542
U.S. 74, 84, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004), fn. 10; United States v.
Trujillo, 960 F.3d 1196, 1201 (10th Cir.2020).
{¶ 83} The denial of an accused’s Sixth Amendment right to an impartial
jury is structural error and is not subject to harmless-error review. Rivera v. Illinois,
556 U.S. 148, 161, 129 S.Ct. 1446, 173 L.Ed.2d 320 (2009), citing Gomez v. United
States, 490 U.S. 858, 876, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). An impartial
jury consists of “jurors who will conscientiously apply the law and find the facts,”
Wainwright v. Witt, 469 U.S. 412, 423, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), and
“render a verdict based on the evidence presented in court,” Irvin v. Dowd, 366 U.S.
717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). A juror exhibits partiality, for
example, if he or she expresses fixed opinions of the defendant’s guilt based on
pretrial publicity, id. at 727-728, or has a close familial relationship with a party or
some other personal interest in the outcome of the trial, United States v. Torres, 128
F.3d 38, 45 (2d Cir.1997). See also Hall v. Banc One Mgt. Corp., 114 Ohio St.3d
484, 2007-Ohio-4640, 873 N.E.2d 290, ¶ 28 (noting circumstances that disqualify
a jury); R.C. 2313.17 (setting forth challenges for cause).
{¶ 84} So, when an accused is represented by counsel and tried by an
impartial judge and jury, it is presumed that all other constitutional errors may be
found harmless beyond a reasonable doubt. Jones, 160 Ohio St.3d 314, 2020-Ohio-
3051, 156 N.E.3d 872, at ¶ 19. Montgomery does not argue that the trial judge or
any of the jurors who sat on the panel were biased against him, either presumptively
or in fact. Rather, Montgomery suggests that structural error occurred when the
trial court permitted A.B. to sit at the prosecutor’s counsel table as the state’s
representative. However, he fails to develop that argument beyond the mere
32
January Term, 2022
assertion that “[g]iven the weighty Constitutional issues at stake, this Court could
find structural error when an alleged victim sits at counsel table.” The question
whether the trial court committed structural error therefore is not properly before
this court. It has not been sufficiently presented and briefed, and we should not
address it in the first instance. See Quarterman, 140 Ohio St.3d 464, 2014-Ohio-
4034, 19 N.E.3d 900, at ¶ 20. Nevertheless, the majority does so and in doing so
issues a decision that is unprecedented.
{¶ 85} Montgomery’s core argument is that the trial court violated his right
to a fair trial because the prosecutor impermissibly vouched for the victim’s
credibility. As the Seventh Circuit Court of Appeals has explained, “a prosecutor
may not vouch personally for the credibility of a witness because it ‘threatens to
undermine the jury’s role as independent factfinder[ ] * * * by placing the prestige
of the government behind the witness.’ * * * The same threat arises if the
Government places the prestige of the court behind the witness.” (Brackets and
first ellipsis sic.) United States v. Jackson, 898 F.3d 760, 765 (7th Cir.2018),
quoting United States v. Renteria, 106 F.3d 765, 767 (7th Cir.1997).
{¶ 86} Impermissible vouching, either explicit or implicit, by a prosecutor
may implicate the Sixth Amendment right to an impartial jury. See United States
v. Lopez, 590 F.3d 1238, 1255-1256 (11th Cir.2009). However, impermissible
vouching does not rise to the level of structural error. Instead, the United States
Supreme Court has explained that a reviewing court may reverse a conviction based
on an error in failing to address the prosecutor’s improper vouching “only after
concluding that the error was not harmless.” United States v. Young, 470 U.S. 1,
13, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), fn. 10. Young remains good law. See,
e.g., United States v. Gonzalez, 905 F.3d 165, 202 (3d Cir.2018); United States v.
Farmer, 770 F.3d 1363, 1369 (10th Cir.2014); Woodfox v. Cain, 609 F.3d 774, 805
(5th Cir.2010). Moreover, federal courts recognize that vouching is generally not
a constitutional error. E.g., United States v. Lee, 612 F.3d 170, 195 (3d Cir.2010),
33
SUPREME COURT OF OHIO
fn. 30; United States v. Harlow, 444 F.3d 1255, 1266 (10th Cir.2006). And the
existence of a constitutional error is a prerequisite for recognizing structural error,
as we recently explained in Jones, 160 Ohio St.3d 314, 2020-Ohio-3051, 156
N.E.3d 872, at ¶ 22.
{¶ 87} The majority, however, carries Montgomery’s structural-error
argument a step forward, asserting that “[t]he Fourteenth Amendment provides
added protection for a fair trial in its equal-protection and due-process clauses.”
Majority opinion at ¶ 8. But the Supreme Court has explained that “[b]eyond the
specific guarantees enumerated in the Bill of Rights, the Due Process Clause has
limited operation.” Dowling v. United States, 493 U.S. 342, 352, 110 S.Ct. 668,
107 L.Ed.2d 708 (1990). And it has therefore rejected the view that the Fourteenth
Amendment affords greater protection of any right that is expressly enumerated in
the Bill of Rights. E.g., Sattazahn v. Pennsylvania, 537 U.S. 101, 116, 123 S.Ct.
732, 742, 154 L.Ed.2d 588 (2003) (“We decline petitioner’s invitation to hold that
the Due Process Clause provides greater double-jeopardy protection than does the
Double Jeopardy Clause”); Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078,
89 L.Ed.2d 251 (1986) (“the Due Process Clause affords [a prison inmate] no
greater protection than does the Cruel and Unusual Punishments Clause”). Rather,
“if a Bill of Rights protection is incorporated, there is no daylight between the
federal and state conduct it prohibits or requires.” Timbs v. Indiana, ___ U.S. ___,
___, 139 S.Ct. 682, 687, 203 L.Ed.2d 11 (2019).
{¶ 88} The majority points to language in Estelle v. Williams, 425 U.S. 501,
503, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), that states that in implementing the
presumption of innocence, “courts must be alert to factors that may undermine the
fairness of the fact-finding process. In the administration of criminal justice, courts
must carefully guard against dilution of the principle that guilt is to be established
by probative evidence and beyond a reasonable doubt.” While I do not disagree
with this statement, as far as it goes, the facts of Estelle are distinguishable from
34
January Term, 2022
this case. Estelle involved an accused who appeared at trial in jail clothes. The
court held that although the accused could not be compelled to go to trial in jail
clothes because it could impair the presumption of innocence, the accused could
nonetheless forfeit any error by failing to object. Id. at 512-513. The existence of
“factors that may undermine the fairness of the fact-finding process,” id. at 503, did
not create per se reversible error, id. at 504.
{¶ 89} In a similar vein, the Supreme Court more recently recognized that
“[v]isible shackling [of the accused] undermines the presumption of innocence and
the related fairness of the factfinding process.” Deck v. Missouri, 544 U.S. 622,
630, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). But even though the court regarded
the practice as inherently prejudicial, it nonetheless applied harmless-error review,
expressly holding that “[t]he State must prove ‘beyond a reasonable doubt that the
[shackling] error complained of did not contribute to the verdict obtained.’ ” (First
brackets added; second brackets added in Deck.) Id. at 635, quoting Chapman, 386
U.S. at 24, 87 S.Ct. 824, 17 L.Ed.2d 705. Appearing in shackles has at least the
same impact on jurors as seating the victim at the prosecutor’s counsel table as the
state’s representative, yet the court declined to treat the shackling error as
automatically requiring reversal.
{¶ 90} Moreover, the majority’s structural-error analysis is not consistent
with any of the three rationales for recognizing structural error articulated by the
Supreme Court in Weaver. The first rationale is that “the right at issue is not
designed to protect the defendant from erroneous conviction but instead protects
some other interest.” Weaver, ___ U.S. at ___, 137 S.Ct. at 1908, 198 L.Ed.2d 420.
That rationale does not apply, because the majority’s new rule is expressly aimed
at the reliability of the trial for determining guilt. The majority points to no other
weighty constitutional interest in play here.
{¶ 91} The second rationale is that “the effects of the error are simply too
hard to measure” and “the government will, as a result, find it almost impossible to
35
SUPREME COURT OF OHIO
show that the error was ‘harmless beyond a reasonable doubt.’ ” Id., quoting
Chapman at 24. The majority asserts that this rationale applies, but it gives no
reason beyond its own unsupported assertion. There is a difference between it
being difficult for the state to prove the error harmless in a particular case and it
being almost impossible to prove the error harmless in all cases involving the same
error, as is required for structural error.
{¶ 92} As was his right, Montgomery did not testify. Therefore, A.B.’s
version of the kidnapping and rape is the only version that the jury heard. As set
forth above, the jury heard the testimony of other witnesses—including
professionals who interacted with A.B. after the kidnapping and rape—who
supported A.B.’s credibility because their testimony corroborated her testimony.
None of the defense witnesses were in the father’s home at the time of the
kidnapping and rape, and none testified as to the reliability of a different account
of what had happened. The only testimony that they could give was their assertions
that they did not believe A.B.’s story. But by law, the determination of credibility
rested within the sole exclusive discretion of the trier of fact, the jury.
{¶ 93} Seating A.B. at the prosecutor’s counsel table as the state’s
representative is not categorically prejudicial. It is not difficult to imagine
circumstances in which the evidence of guilt could be so overwhelming that the
state could prove this type of error harmless, such as when the accused confesses
to the offense or there is additional evidence of guilt such as a video recording. And
because it is possible to conclude that the error is either harmless or is not, it is not
categorically structural error.
{¶ 94} The last rationale for the structural-error rule is that “the error always
results in fundamental unfairness.” Id. Tellingly, the majority musters no authority
or analysis showing that allowing A.B. to sit at the prosecutor’s counsel table as the
state’s representative is structural error because it will “ ‘necessarily render a
criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or
36
January Term, 2022
innocence.’ ” (Emphasis added in Neder.) Greer, ___ U.S. at ___, 141 S.Ct. at
2100, 210 L.Ed.2d 121, quoting Neder, 527 U.S. at 9, 119 S.Ct. 1827, 144 L.Ed.2d
35. Nor can it. A one-time comment that A.B. was the state’s representative prior
to voir dire, followed by allowing the victim to sit at the prosecutor’s counsel table
throughout the trial, does not “ ‘deprive defendants of “basic protections” without
which “a criminal [proceeding] cannot reliably serve its function as a vehicle for
determination of guilt or innocence.” ’ ” (Brackets added in Greer.) Id., quoting
Neder at 8-9, quoting Rose v. Clark, 478 U.S. 570, 577-578, 106 S.Ct. 3101, 92
L.Ed.2d 460 (1986).
{¶ 95} There is simply no rationale for the majority’s holding that A.B.’s
presence at the prosecutor’s counsel table and introduction during voir dire as the
state’s representative constituted structural error. And other state courts that have
found error in cases in which victims, or victims’ family members, were seated at
counsel table have not held that the error was structural. In those other states, the
courts considered whether the trial court had erred in its interpretation of a rule or
constitutional provision relating to victims’ rights or courtroom conduct and then
determined whether the error was prejudicial. In Mask v. State, 314 Ark. 25, 869
S.W.2d 1, 2 (1993), for instance, the Arkansas Supreme Court determined that the
trial court had misinterpreted Ark.R.Evid. 616, which states that the victim of a
crime has the right to be present during any hearing. The court held that the rule
did not give the victim the right to sit at counsel table with the prosecutor. The
court then determined whether the defendant was prejudiced by the error. The court
held that the trial court’s treatment of witnesses was, in effect, commenting on the
evidence. The court also looked to the defendant’s maximum sentences as an
element of prejudice.
{¶ 96} In Fuselier v. State, 468 So.2d 45, 47 (Miss.1985), the Mississippi
Supreme Court reversed the defendant’s conviction when it determined that “a
substantial number of errors occurred during his trial.” One of those errors was the
37
SUPREME COURT OF OHIO
presence of the victim’s daughter within the rail near the prosecutor’s counsel table
during the trial, which the court found inconsistent with Rule 501 of the Mississippi
Uniform Criminal Rules of Circuit Court Practice and that “it constituted an
inflammatory and prejudicial element.” Id. at 53. But in reversing the conviction,
the court did not find that the error was structural and accorded no greater weight
to the error than the other trial errors it determined had occurred.
{¶ 97} In its one-paragraph decision in Walker v. State, 132 Ga.App. 476,
208 S.E.2d 350 (1974), an intermediate appellate court held that the trial judge had
abused his discretion in allowing the mother of the deceased victim of the crime to
sit at the table of the prosecution. The court did not find structural error but rather
held that the presence of the mother “during the trial of one accused of murdering
her son surely must have had an impact on the jury and we cannot say it was not
harmful and prejudicial to the defendant’s right to have a fair trial.” Id.{¶ 98} Finally, in Hall v. State, 579 So.2d 329, 330 (Fla.App.1991), a
Florida court of appeals found reversible error in the prosecution’s use of a
peremptory challenge of jurors and in its interpretation of Article I, Section 16(b)
of the Florida Constitution, which addresses victims’ rights. The court held that
the provision did not permit victims or their families to “actively participate in the
conduct of the trial by sitting at counsel table or being introduced to the jury.” Hall
at 331. But the court made no mention of structural error.
{¶ 99} The courts in these cases essentially performed harmless-error
analysis. “Harmless-error analysis * * * presupposes a trial, at which the
defendant, represented by counsel, may present evidence and argument before an
impartial judge and jury.” Clark, 478 U.S. at 578, 106 S.Ct. 3101, 92 L.Ed.2d 460.
Here, Montgomery was represented by counsel. There is no indication that either
the judge or the jury harbored any bias against him, and the judge instructed the
jury that Montgomery is presumed innocent and that the state must prove guilt
beyond a reasonable doubt.
38
January Term, 2022
{¶ 100} Moreover, contrary to the majority’s determination, this case is
highly distinguishable from State v. Lane, 60 Ohio St.2d 112, 397 N.E.2d 1338(1979). In Lane, this court held that conducting a criminal trial within a maximum-
security penitentiary for a crime that had been committed in the penitentiary is
fundamentally unfair. Id. at 117-119. Such a trial, we explained, denies the accused
of the fundamental right to a public trial, id. at paragraph two of the syllabus, and
inherently erodes the impartiality of the juror and the accused’s right to compulsory
process, id. at 117-119. Introducing A.B. once as the state’s representative during
voir dire and permitting her to sit at the prosecutor’s counsel table for the duration
of the trial pales in comparison.
{¶ 101} I agree that as a general proposition of law, it is error for the trial
court to seat the victim at the prosecutor’s counsel table as the state’s representative
during the criminal trial, but I do not believe that the error implicates any of those
basic trial rights that are not susceptible to harmless-error review if they are denied.
See United States v. Valencia-Riascos, 696 F.3d 938, 942 (9th Cir.2012) (applying
harmless-error review to order allowing a victim, a law-enforcement officer, to sit
at counsel’s table as the representative of the government); United States v.
Charles, 456 F.3d 249, 258-259 (1st Cir.2006) (same); Hatfield v. Commonwealth,
250 S.W.3d 590, 595 (Ky.2008) (error in allowing a victim’s grandfather to remain
at the prosecutor’s table is subject to harmless-error review); Hernandez v. State,
716 N.E.2d 948, 951 (Ind.1999) (trial court did not err in allowing the victim to sit
at the prosecutor’s table as an essential witness).
{¶ 102} Therefore, I disagree with the second dissenting opinion’s position
that there is a common-law rule that allows the state to designate the victim as the
state’s representative and to have the victim sit with the prosecutor at counsel table
for the duration of the trial. The Second District Court of Appeals, in State v.
Bryant, 105 Ohio App. 452, 454, 152 N.E.2d 678 (2d Dist.1957), stated that “[i]t
was the province of the prosecuting attorney to make the choice of the person to
39
SUPREME COURT OF OHIO
assist him in the development of the case for the state.” However, a single
intermediate-appellate-court decision from the 1950s is too thin a reed to support
the existence of a common-law rule. Even if any common-law rule did once exist
that allowed the state to seat the victim at the prosecutor’s counsel table and to
designate the victim as the state’s representative in a criminal case, that rule has
since been abrogated. R.C. 2930.09 and Evid.R. 615(B)(4) permit the victim to be
present during a trial of the assailant unless the exclusion of the victim is necessary
to protect the accused’s right to a fair trial. Yet neither the plain language of the
statute nor the rule permits the victim to sit at the prosecutor’s counsel table. And
although Evid.R. 615(B)(3) might contemplate the victim’s sitting at the
prosecutor’s counsel table to assist the prosecutor in presenting the case, the
prosecutor lacks the total discretion that the appellate court in Bryant suggested
exists. Instead, Evid.R. 615(B)(3) applies only to those witnesses who are shown
to be essential to the presentation of the case. The state did not make that showing
here.
{¶ 103} Lastly, while Marsy’s Law permits the victim of a crime to remain
in the courtroom for all proceedings, the plain language of the provision does not
afford the victim the right to sit at the prosecutor’s counsel table during the criminal
trial or to be designated the state’s representative. See Article 1, Section 10a(A)(2)
of the Ohio Constitution.
{¶ 104} Because Montgomery objected to the prosecutor’s introduction of
A.B. as the state’s representative before voir dire, harmless-error review applies to
that error. And regardless of whether we conceptualize the error in this case as
involving constitutional or nonconstitutional rights, our review is essentially the
same: Has the state demonstrated that the error was harmless beyond a reasonable
doubt? See Chapman, 386 U.S. at 24, 87 S.Ct. 824, 17 L.Ed.2d 705; State v.
Boaston, 160 Ohio St.3d 46, 2020-Ohio-1061, 153 N.E.3d 44, ¶ 63. But see State
40
January Term, 2022
v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 55-75
(Kennedy, J., dissenting).
{¶ 105} The judge’s ruling on the issue of A.B. sitting at the prosecutor’s
counsel table was not definitive at the time she made it. Montgomery did not renew
his objection at any point during the trial after the jury was empaneled. His failure
to renew his objection means that the issue of A.B.’s presence at the prosecutor’s
counsel table should be reviewed under a plain-error standard. Even so, because
the error was so inconsequential in the context of the entire trial, it is harmless
beyond a reasonable doubt.
Harmless-error review
{¶ 106} Although there is no bright-line rule to determine whether the
prosecutor’s explicit or implicit vouching affected the outcome of the trial, the
United States Court of Appeals for the Ninth Circuit has developed a multifactor
test that is useful in gauging prejudice to the accused. Those factors include
“the form of vouching; how much the vouching implies that the
prosecutor has extra-record knowledge of or the capacity to monitor
the witness’s truthfulness; any inference that the court is monitoring
the witness’s veracity; the degree of personal opinion asserted; the
timing of the vouching; the extent to which the witness’s credibility
was attacked; the specificity and timing of a curative instruction; the
importance of the witness’s testimony and the vouching to the case
overall.”
United States v. Ruiz, 710 F.3d 1077, 1085 (9th Cir.2013), quoting United States v.
Necoechea, 986 F.2d 1273, 1278 (9th Cir.1993).
{¶ 107} It is arguable whether the trial court erred when it permitted A.B.
to sit at the prosecutor’s counsel table during voir dire. It is undisputed that A.B.
41
SUPREME COURT OF OHIO
had a right to be present in the courtroom at every stage of the criminal trial. The
judge stated that the seat at the prosecutor’s counsel table was the only seat
available for A.B. during voir dire. Regardless, the trial court did err in introducing
A.B. as the state’s representative. At the time of the trial court’s initial ruling, and
later when the state sought a separation of witnesses, the trial court indicated that it
would revisit the issue of where A.B. was seated, but it did not, and Montgomery
failed to renew his objection after the jury was impaneled. A.B. was the first
witness called, so there is no concern that she relied on the testimony of other
witnesses when she testified.
{¶ 108} In regard to the Ruiz factors, the trial court introduced A.B. as the
state’s representative once during the opening moments of voir dire. Further, any
vouching was implicit, not explicit. The prosecutor did not make any express
comment staking his professional position or reputation on A.B.’s credibility. Nor
did he express any personal opinion about her truthfulness. Rather, the victim was
simply introduced, and for all that the record shows, she sat quietly at the
prosecutor’s counsel table. Therefore, one can only speculate that a juror would
take that to mean that A.B. should be believed because the state said so; any
connection between A.B.’s believability and introducing her as the state’s
representative and seating her at the prosecutor’s counsel table is tenuous at best.
Moreover, the prosecutor did not imply that he had extrinsic evidence of A.B.’s
credibility or that the state and the trial court would be monitoring her veracity
during the trial.
{¶ 109} The limited nature of any implicit vouching had no substantial
effect on the outcome of the trial. A.B.’s testimony was important. She testified
that she did not consent to having sex with Montgomery. But that was not the only
proof in the case. The state presented evidence corroborating her testimony that he
had assaulted her, including other witnesses’ testimony, recorded cellphone calls,
and pictures of her cut lip and other bodily injuries as well as the tissue found in
42
January Term, 2022
her father’s bathroom. Multiple witnesses described A.B. as sobbing and
emotionally upset after she left Montgomery’s residence. This evidence is
sufficient to prove Montgomery’s guilt beyond a reasonable doubt.
{¶ 110} Lastly, the defense did attack A.B.’s credibility. It contended that
Montgomery and A.B. had been having a consensual sexual relationship, relying
on numerous nonsexual text messages between them over a two-day period in early
November 2017, more than four months before the rape. Defense counsel
suggested that A.B. fabricated the rape allegation because in December 2017, three
months before the rape, Montgomery had made a fake Facebook account in her
boyfriend’s name and had threatened to tell her boyfriend she was having sex with
Montgomery and other people. He essentially argued that she had consensual sex
with Montgomery on March 16, 2018, but that she was still mad enough at him
from his actions in December to falsely accuse him of kidnapping and rape. Then,
according to defense counsel, she faked her own injuries by hitting herself in the
mouth while driving away from her father’s house after the rape.
{¶ 111} The defense also relied on the absence of blood throughout the
father’s house as well as testimony of A.B.’s family members that she did not look
injured when they first saw her. However, the police did recover the tissue
containing possible blood, and they were refused access to the basement to search
for additional evidence. The SANE who examined A.B. after the assault testified
that her injuries were consistent with being punched in the mouth and the detective
testified that A.B. had injuries on her face. J.G. was the only defense witness to see
A.B. between the time she left her father’s house and arrived at her sister’s
residence, and he admitted that he saw her only from 15 to 20 feet away. The
defense also relied on A.B.’s father’s testimony that he knew she and Montgomery
were “doing it,” knowledge that was based on Montgomery’s texting or calling him
when he went over to her home “just in case something happens or whatever.” Yet
her father did not know what day these communications occurred, and A.B.
43
SUPREME COURT OF OHIO
admitted that Montgomery had been over to her home in the fall of 2017 but only
as a friend. And although the defense pointed to numerous text messages between
the two over a two-day period in early November 2017, more than four months
before the rape, none of the messages established that they had had a sexual
relationship. And even if they were in a relationship, that does not by itself disprove
that Montgomery kidnapped and raped A.B. Therefore, not only does the defense
theory of the case strain credibility, it is supported by little if any evidence.
{¶ 112} Defense counsel also sought to impeach A.B. based on
discrepancies between her testimony and her statement to police and questioned her
extensively on why it took approximately 30 minutes for her to drive the short
distance from her father’s house to her sister’s home. But in the end, the jury could
reasonably have found that A.B. and her sister were credible and that other
witnesses were either mistaken or not credible. And no reasonable juror could
believe Montgomery’s theory that A.B. engaged in consensual sex but then
fabricated the kidnapping and rape charges because of events that had occurred
months earlier.
{¶ 113} Therefore, there is simply no reasonable possibility that the trial
court’s error in introducing her once as the state’s representative at the start of voir
dire tipped the scales and contributed to Montgomery’s convictions. The jurors
were instructed multiple times that Montgomery was presumed innocent and that
they could not find him guilty unless they found that he had committed the crimes
beyond a reasonable doubt. And the jurors were capable of fulfilling that duty,
since they acquitted Montgomery of the sexual-motivation specification
accompanying the kidnapping charge. Any error is harmless beyond a reasonable
doubt.
Plain-error review
{¶ 114} Montgomery forfeited any challenge to A.B. remaining seated at
the prosecutor’s counsel table after the jury was empaneled. After the trial court
44
January Term, 2022
overruled his initial objection to the state’s request, the trial court said it would
reassess the issue before trial. Again, when the state made a request for the
separation of witnesses, the court said that it would reassess A.B.’s status regarding
witness separation after the jury was empaneled. But the trial court never revisited
that issue on the record. Because Montgomery failed to renew his objection, plain-
error review applies in assessing that error, and reversal for plain error is
appropriate only if the accused demonstrates that but for the error, the outcome of
the trial would have been otherwise, Quarterman, 140 Ohio St.3d 464, 2014-Ohio-
4034, 19 N.E.3d 900, at ¶ 16. It is not possible to conclude that the outcome of the
trial would have been different had A.B. been sitting elsewhere in the courtroom,
given the depth of the case against Montgomery and the fantastical defense theory.
Seating A.B. at the counsel table is a nonfactor, when compared with the
importance of the consistency of her testimony, her response to ineffectual cross-
examination, and the presence of witnesses who supported A.B.’s version of events
by describing their perceptions of her emotional state and physical injuries
immediately after the crime. In fact, the error would not meet even the harmless-
error standard, since it was harmless beyond a reasonable doubt.
{¶ 115} Although the individual errors standing alone did not deprive
Montgomery of a fair trial, this court in State v. DeMarco, 31 Ohio St.3d 191, 509
N.E.2d 1256 (1987), paragraph two of the syllabus, recognized the doctrine of
cumulative error. Under this doctrine, a conviction will be reversed when the
cumulative effect of the trial errors deprives a defendant of a fair trial even though
each of the numerous instances of trial-court error does not individually constitute
cause for reversal. Id. at 196-197; see also State v. Hunter, 131 Ohio St.3d 67,
2011-Ohio-6524, 960 N.E.2d 955, ¶ 132; State v. Garner, 74 Ohio St.3d 49, 64,
656 N.E.2d 623 (1995).
{¶ 116} However, the doctrine of cumulative error is not applicable in this
case, because as set forth above, none of the trial errors committed in this case,
45
SUPREME COURT OF OHIO
when considered either individually or cumulatively, resulted in prejudice.
Montgomery received a fair trial.
{¶ 117} Again, the jury was able to consider the credibility of A.B., the
SANE, the detective, and A.B.’s family members as well as the defense’s theory of
the case. They were instructed on the presumption of innocence and the state’s
burden to prove Montgomery’s guilt beyond a reasonable doubt. There is no
indication from this record that but for A.B.’s one-time introduction as the state’s
representative and her remaining seated at the prosecutor’s counsel table during the
trial that Montgomery would not have been convicted. And even if Montgomery
had preserved his objection to the victim’s continued presence at the prosecutor’s
counsel table, there is no reasonable possibility that any error contributed to his
convictions.
Conclusion
{¶ 118} Montgomery “is entitled to a fair trial but not a perfect one.”
Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 97 L.Ed. 593 (1953).
There is no indication that either of the trial errors, either individually or
cumulatively, affected the outcome of this case. But based on the majority’s
opinion, anytime an appellate court determines that the prejudicial effect of a trial
error is too hard to gauge, the error will rise to the level of structural error. That is
far too low a bar for structural error, which the United States Supreme Court has
categorized as “ ‘highly exceptional.’ ” Greer, ___ U.S. at ___, 141 S.Ct. at 2100,
210 L.Ed.2d 121, quoting Davila, 569 U.S. at 611, 133 S.Ct. 2139, 186 L.Ed.2d
139. The errors in this case are susceptible to harmless-error review, did not
prejudice the substantial rights of the defendant, and did not impinge upon his right
to a fair trial under the Sixth Amendment.
{¶ 119} For these reasons, I would affirm the judgment of the court of
appeals. Because the majority does not, I dissent.
DEWINE, J., concurs in the foregoing opinion.
46
January Term, 2022
_________________
FISCHER, J., dissenting.
{¶ 120} The majority opinion concludes that appellant Theodis
Montgomery’s constitutional right to a fair trial was violated when the trial court
permitted the state to designate the victim as its representative and seat her with the
prosecutor during trial. The majority opinion determines that this was structural
error. Because I believe that there was no error, let alone structural error, I must
respectfully dissent.
The trial court has discretion to permit the state to choose its representative
{¶ 121} In this case, the court must answer whether the prosecutor may
request that the victim serve as its representative at a criminal trial and be seated at
the prosecutor’s table and whether the trial court has the discretion to grant that
request. The majority opinion improperly concludes that the state has no right to
choose anyone except an employee of the state or a member of law enforcement as
its representative to sit at the prosecutor’s table and that the trial court erred when
it granted the state’s request for the victim to serve as its representative. These
conclusions are incorrect, because there is no law—constitutional or statutory—
prohibiting the state from choosing its representative and the common law supports
such a request.
Marsy’s Law does not give the victim the right to sit with the prosecutor at
trial
{¶ 122} The majority opinion properly concludes that Marsy’s Law, Ohio
Constitution, Article I, Section 10a, does not give the victim the right to sit with the
prosecutor at trial. The Ohio Constitution specifically provides that all prosecutions
are carried on in the name of and by the authority of the state of Ohio. Article IV,
Section 20, Ohio Constitution. And under Article I, Section 10a(A)(2) and (9) of
the Ohio Constitution, the victim has the right to be present in the courtroom and
to confer with the state upon request. Nowhere in Marsy’s Law does the victim
47
SUPREME COURT OF OHIO
have the right to sit with the prosecutor during trial, and we will not construe the
Ohio Constitution to provide such a right. When the meaning of a constitutional
provision is clear, this court will not look beyond that provision. Toledo City
School Dist. Bd. of Edn. v. State Bd. of Edn., 146 Ohio St.3d 356, 2016-Ohio-2806,
56 N.E.3d 950, ¶ 16.
{¶ 123} To conclude that Marsy’s Law gives a victim the right to sit with
the prosecutor at trial would be to read a right into the Ohio Constitution that does
not exist. Such a reading would construe the Constitution in a manner contrary to
its plain language. See Hall v. State, 579 So.2d 329, 331 (Fla.App.1991) (declining
to construe a provision of the Florida Constitution that granted certain rights to
victims to permit those victims or their families to actively participate in the trial
by sitting at counsel table or being introduced to the jury); see also L.T. v. State,
296 So.3d 490, 498 (Fla.App.2020) (because explicit text did not direct a departure
from the traditional common-law approach to criminal justice, the court declined
to interpret Florida’s version of Marsy’s Law as implicitly giving a victim a right
to demand party status in a juvenile proceeding). Thus, I agree with the conclusion
in the majority opinion that Marsy’s Law does not apply here.
Evid.R. 615(B) does not limit the state’s ability to request that the victim
serve as its representative
{¶ 124} “Courts have inherent powers derived from common law that assist
in exercising their enumerated judicial powers, such as managing their cases and
courtrooms.” United States v. Spellissy, 374 Fed.Appx. 898, 900 (11th Cir.2010);
see also Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d
27 (1991). These powers are not absolute—they must be exercised with restraint
and discretion. Chambers at 44. One inherent power of the judiciary is the power
to permit the state to choose a representative to be present throughout the
proceedings and aid the prosecutor at trial. See State v. Lewis, 70 Ohio App.3d 624,
640, 591 N.E.2d 854 (4th Dist.1990) (“The state may choose a representative to be
48
January Term, 2022
present throughout the proceedings”). The state may also choose as its
representative the victim of the crime, so long as it is not done for an improper
purpose. See State v. Bryant, 105 Ohio App. 452, 454, 152 N.E.2d 678 (2d
Dist.1957); Hughes v. State, 126 Tenn. 40, 81-82, 148 S.W. 543 (1912); State v.
Shaw, 96 Idaho 897, 901, 539 P.2d 250 (1975).
{¶ 125} However, the majority opinion improperly concludes that Evid.R.
615(B)(2) prevents the state from choosing anyone except law enforcement or an
employee of the state to serve as its representative and thus concludes that a victim
could not serve as the state’s representative at trial. At common law, a trial court
had discretion regarding the sequestration of witnesses, see In re Unauthorized
Practice of Law in Cuyahoga Cty., 175 Ohio St. 149, 154, 192 N.E.2d 54 (1963) (a
trial court does not abuse its discretion in regard to sequestration when it excluded
a witness who was only technically a party). Evid.R. 615 eliminated that discretion,
but the rule did not address the trial court’s discretionary authority to permit the
state to select its representative at trial. The majority opinion sets forth a tortured
reading of the rule; it creates a fictitious boundary that limits the state’s ability to
choose its representative by concluding that “Evid.R. 615(B)(2) may be viewed as
implicitly and logically limiting the state’s selection of a representative to a person
who is an officer or employee of the state.” Majority opinion, ¶ 17.
{¶ 126} The majority opinion opines that under the second exception in
Evid.R. 615(B), the prosecutor may select only an employee or officer of the state
to serve as its representative at trial. There is absolutely no support for this in the
plain language of the rule. Evid.R. 615 deals solely with the separation and
exclusion of witnesses. Evid.R. 615(A) requires the exclusion of witnesses in
specified circumstances to maintain the integrity of the witnesses’ testimony. And
Evid.R. 615(B) lists those persons who are exempt from exclusion: (1) a party who
is a natural person, (2) an officer or employee of a party that is not a natural person
who is designated by that party’s attorney, (3) a person whose presence is shown
49
SUPREME COURT OF OHIO
by a party to be essential to the presentation of the party’s cause, and (4) in a
criminal proceeding, an alleged victim of the charged offense. No plausible reading
of this rule supports or even suggests the idea that this rule limits the state’s ability
to request a victim to serve as its representative or that the trial court lacks discretion
to grant such a request.
{¶ 127} In addition to there being no support for the majority opinion’s
position in the plain language of the rule, the history of Evid.R. 615 also contradicts
the majority opinion’s position. As mentioned earlier, at common law and prior to
the adoption of the Rules of Evidence, the trial courts had broad discretion to
control witness sequestration. See In re Unauthorized Practice of Law in Cuyahoga
Cty. at 154. That power was limited upon the creation of Fed.R.Evid. 615 and
Evid.R. 615. The purpose of both Fed.R.Evid. 615 and Evid.R. 615 is to require a
trial court to sequester witnesses as a means to discourage fabrication, inaccuracy,
and collusion among witnesses when there has been a request to do so. Fed.R.Evid.
614, 1972 Proposed Rules Advisory Committee’s Notes (sequestering witnesses
was recognized as a means of discouraging and exposing fabrication, inaccuracy,
and collusion); 1980 Staff Note, Evid.R. 615 (Rule 615 is identical to Fed.R.Evid.
615). The exceptions granted in the rules for the sequestration of witnesses are
rooted in the understanding that some witnesses should be able to remain in the
courtroom to assist in presenting the case. Notes of the Committee on the Judiciary,
Sen.Rep. No. 93-1277, at 7072-7073 (1974). The rule allows prosecutors to exempt
investigative agents from sequestration orders. 1 Giannelli, Gilligan,
Imwinkelrield, Lederer, and Richter, Courtroom Criminal Evidence, Section 104
(2020). While the rule may have been written to exclude a witness from
sequestration to be a party’s representative, the rule does not limit who the state
may appoint as its representative or the trial court’s discretion to grant that request.
Indeed, the drafters of the rule acknowledged that one of the witnesses exempted
from sequestration could be the one most helpful to the state. See Notes of the
50
January Term, 2022
Committee on the Judiciary, Sen.Rep. No. 93-1277, at 7072-7073 (1974). If the
state did not have a right to designate an agent, it would be disadvantaged compared
to individual litigants. Capra & Richter, “The” Rule: Modernizing the Potent, but
Overlooked, Rule of Witness Sequestration, 63 Wm. & Mary L.Rev. 1, 48 (2021).
{¶ 128} The majority opinion maintains that it is not the role of the judiciary
to enlarge Evid.R. 615(B). I wholly agree. Therefore, I must heartily disagree with
the majority opinion’s expansive reading of Evid.R. 615(B) and its conclusion that
it limits the state’s ability to request that the victim serve as its representative at
trial.
The common law supports the state’s right to choose its representative
{¶ 129} The plain language of Marsy’s Law and Evid.R. 615 demonstrates
that neither of these provisions gives a victim the right to sit with the prosecutor at
trial, nor do the provisions give the state the authority to choose its representative.
But the lack of a written law authorizing the state to choose its representative does
not mean that the state is prohibited from doing so. The majority opinion fails to
recognize that the ability of the state to choose a representative and the trial court’s
discretion to grant that request is well rooted in the common law. When the
legislature is silent, a court looks to the common law. See Clackamas
Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 447, 123 S.Ct. 1673, 155
L.Ed.2d 615 (2003).
{¶ 130} While the majority opinion cites cases from several states that have
rejected the premise that the state can designate the victim as its representative, it
fails to recognize that there is support in Ohio that the state may choose anyone,
including a deceased victim’s wife, to serve as the state’s representative so long as
the person’s presence is not used in an inappropriate manner. See State v. Bryant,
105 Ohio App. at 454, 152 N.E.2d 678; see also Lewis, 70 Ohio App.3d at 640, 591
N.E.2d 854 (“The state may choose a representative to be present throughout the
proceedings”). In Bryant, the Second District Court of Appeals stated that it is “the
51
SUPREME COURT OF OHIO
province of the prosecuting attorney to make the choice of the person to assist him
in the development of the case for the state.” Id. While Bryant may be only one
example, the majority opinion has pointed to no cases in Ohio in which the opposite
conclusion was reached.
{¶ 131} The existence of this common-law rule is supported by the
Supreme Court of Tennessee’s decision in Hughes, 126 Tenn. 40, 148 S.W. 543.
In that case, the Tennessee Supreme Court rejected a defendant’s argument that it
was prejudicial for a widow, whose husband had been killed by the defendant, to
remain in the courtroom, sitting beside the attorney general, when the defendant
had been acquitted of the crime involving the woman’s husband and there was no
evidence that the woman was placed by the attorney general for the purpose of
influencing the jury. Id. at 81-82. And the Idaho Supreme Court held a similar
view in Shaw, 96 Idaho at 900, 539 P.2d 250. In Shaw, the complaining witness
was seated at counsel’s table with the prosecuting attorney. The court noted that
witnesses should not ordinarily be seated at counsel table unless there was a
showing that the witness was needed to help counsel, but whether that person was
permitted to remain was left to the discretion of the trial court. These cases
demonstrate that under the common law, the state may choose the victim to serve
as its representative, at the discretion of the trial court.
{¶ 132} The first dissenting opinion maintains that even if a common-law
rule existed as identified by Bryant, that rule has since been abrogated by R.C.
2930.09 and Evid.R. 615(B)(4). But this conclusion misinterprets the issue. R.C.
2930.09 sets forth a victim’s right to be present in the courtroom, and Evid.R.
615(B)(4) allows for the victim to be excluded from sequestration orders. Neither
rule addresses the state’s ability to request that the victim serve as its representative
and the trial court’s discretion to grant that request. The victim’s rights at trial and
the state’s rights at trial are two separate things. Simply because the victim is not
given the right by rule or statute to sit with the prosecutor does not mean that the
52
January Term, 2022
state does not have the right to ask the victim to serve as its representative and to
have the victim sit next to the prosecutor at trial.
{¶ 133} The majority opinion holds that permitting the victim to sit with the
prosecutor as the state’s representative at trial violated Montgomery’s right to a fair
trial by eroding his presumption of innocence. But the majority opinion does not
explain how seating the victim with the prosecutor does so, beyond making broad
generalizations about fairness. The majority opinion makes a sweeping conclusion
that the placement of the victim with the prosecutor somehow turned the prosecutor
into the victim’s private counsel. This is speculative and is without support.
{¶ 134} We must recognize that there are cases in which trial counsel may
need assistance. A court has discretion to determine whether a witness may provide
that assistance. See United States v. Charles, 456 F.3d 249, 259 (1st Cir.2006).
Courts have consistently permitted the state to choose a member of law
enforcement, including one who will testify against the defendant, to serve as the
state’s representative to assist with the prosecution of the case. See United States
v. Martin, 920 F.2d 393, 397 (6th Cir.1990) (holding that a law-enforcement agent
was permitted to remain in the courtroom even when other witnesses were
sequestered); Powell v. United States, 208 F.2d 618, 619 (6th Cir.1953); United
States v. Wells, 437 F.2d 1144, 1146 (6th Cir.1971) (FBI agent seated at counsel
table to assist a government attorney could testify even though other witnesses were
excluded); State v. Fuller, 1st Dist. Hamilton No. C-960753, 1997 WL 598404, *1
(a representative of the law-enforcement agency handling a case may remain in the
courtroom despite an order to separate witnesses). This is so even when that law-
enforcement officer was a victim in the case. See Charles at 259. While it may be
uncommon for the state to choose a victim who is not a member of law enforcement
to serve as its representative, the state may do so under the common law at the
discretion of the trial court. An officer who sits with the prosecutor and a victim
who sits with the prosecutor present the same challenges. The idea is that the state
53
SUPREME COURT OF OHIO
may choose a representative who can aid in its prosecution of the case. This is why
it is imperative that we recognize this as a decision that lies within the sound
discretion of the trial court.
{¶ 135} Simply because there is not a written law authorizing or prohibiting
the state from selecting its representative does not mean the state may not do so at
the trial court’s discretion. See Charles at 259; Shaw, 96 Idaho at 901, 539 P.2d
250. The trial court’s decision to permit the state to designate the victim as its
representative should be reviewed for an abuse of discretion. “ ‘ “Abuse of
discretion” ’ * * * implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d
1140 (1983), quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144(1980). Montgomery has not demonstrated that the trial court’s decision was
unreasonable, arbitrary, or unconscionable.
{¶ 136} Here, the prosecutor requested that the victim, A.B., serve as the
state’s representative and be permitted to sit at the state’s counsel table throughout
the trial. The request was made pursuant to Evid.R. 615(B)(3) and (4)—the
provisions that state that the rule does not authorize the exclusion of (1) a person
shown by a party to be essential to the presentation of the case and (2) the alleged
victim of the crime. The prosecutor noted that A.B. was the victim and that he
intended to call her as his first witness to avoid any issues with regard to prejudicing
the defendant. Montgomery objected on the basis that doing so would be
prejudicial, but he did not explain how it would do so. The trial court granted the
state’s motion, relying on the victim’s rights set out in Marsy’s Law and R.C.
Chapter 2930, over Montgomery’s objection. While the trial court’s reliance on
Marsy’s Law was error, the common law permits this decision, and the decision
was not unreasonable.
{¶ 137} The state’s choice to have the victim serve as its representative was
not for an impermissible purpose but was to aid in its prosecution and to permit her
54
January Term, 2022
to participate in the case, as evidenced by its motion under Evid.R. 615(B)(3) and
(4). Indeed, the victim was the state’s first witness, and it was her account to tell.
Additionally, Montgomery’s witnesses were the victim’s own family members—
the victim would certainly be the best person to aid the prosecution in their cross-
examination. And there was no evidence that A.B. ever acted improperly during
the proceedings. Because A.B. was in the best position to help the state develop its
case, the trial court’s decision to permit her to serve as the state’s representative
was not an abuse of discretion.
{¶ 138} Because the majority opinion ignores the common law and twists
the rules of evidence to restrict the state’s ability to choose a representative, limiting
its choice only to law enforcement or a state employee, I must dissent. Rather, I
would find that a common-law right exists in Ohio that allows the state to choose
its representative at trial at the discretion of the trial court.
Even if the trial court’s decision was error, it does not rise to the level of
structural error
{¶ 139} The majority opinion concludes that the trial court’s decision
granting the state’s request to designate the victim as the state’s representative and
seat her at counsel’s table was structural error. As I have expressed above, I do not
believe that there was any error in this case. But even assuming arguendo that the
trial court did err, the error does not rise to the level of structural error.
{¶ 140} There are two types of constitutional errors that may occur in a
criminal proceeding: (1) trial errors and (2) structural errors. State v. Fisher, 99
Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 9. A trial error is an “ ‘error
which occurred during the presentation of the case to the jury, and which may
therefore be quantitatively assessed in the context of other evidence presented to
determine whether its admission was harmless beyond a reasonable doubt.’ ” Id.,quoting Arizona v. Fulminate, 499 U.S. 279, 307-308, 111 S.Ct. 1246, 113 L.Ed.2d
302 (1991). A trial error is subject to a harmless-error analysis. Fisher at ¶ 9.
55
SUPREME COURT OF OHIO
Structural error, however, cannot be analyzed under harmless-error standards
because that type of error affects “ ‘the framework within which the trial proceeds,
rather than simply [being] an error in the trial process itself.’ ” (Brackets added in
Fisher.) Id., quoting Fulminate at 310. Structural errors “are ‘so fundamental that
they obviate the necessity for a reviewing court to do a harmless-error analysis.’ ”
State v. Jones, 160 Ohio St.3d 314, 2020-Ohio-3051, 156 N.E.3d 872, ¶ 20, quoting
State v. Hill, 92 Ohio St.3d 191, 199, 749 N.E.2d 274 (2001). If structural error
exists, the judgment must be reversed.
{¶ 141} Structural error has been “recognized only in a limited set of
circumstances involving fundamental constitutional changes, 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 a defendant’s guilt must be proved beyond a reasonable doubt.” Jones at
¶ 22. The relevant question is whether the error deprives the accused of a
constitutional right so basic to a fair trial that the infraction can never be treated as
harmless error. Id. at ¶ 26.
{¶ 142} Montgomery argues that by designating the victim as the state’s
representative and allowing her to sit at the state’s counsel table, the trial court and
the state essentially vouched for her credibility, causing prejudicial error. As
illustrated clearly in the first dissenting opinion, any vouching that occurred due to
the trial court’s decision to allow the victim to sit with the state and serve as its
representative was very limited. The first dissenting opinion correctly notes that
the prosecutor did not comment on the victim’s credibility or express any personal
opinion about her truthfulness. Further, I agree with the first dissenting opinion
that any connection between A.B.’s believability and introducing her as the state’s
representative and seating her with the state is tenuous at best.
{¶ 143} It is difficult to see how under the facts of this case, the jury would
interpret the victim’s credibility any differently than if she had merely sat right
56
January Term, 2022
behind the prosecutor’s table instead of beside the prosecutor at trial. The state
brought the charges against Montgomery; if the state had believed that it could not
prove his guilt beyond a reasonable doubt, it would not have brought the charges.
See C.K. v. State, 145 Ohio St.3d 322, 2015-Ohio-3421, 49 N.E.3d 1218, ¶ 16
(prosecutors are under no duty to file charges as soon as probable cause exists if
they are not yet satisfied that they will be able to establish the defendant’s guilt
beyond a reasonable doubt); ABA Criminal Justice Standards For the Prosecution
Function (4th Edition), reprinted in Rotunda and Dzienkowski, Legal Ethics-The
Lawyer’s Deskbook on Professional Responsibility, Appx. J (2021-2022), 3-1.4(b)
(a prosecutor should not make a statement of law or fact, or offer evidence, that he
or she believes is untrue to a court), 3-4.3(a) (a prosecutor should file criminal
charges only if he or she reasonably believes that the charges are supported by
probable cause and that admissible evidence will support a conviction beyond a
reasonable doubt), and 3-4.3(d) (a prosecutor should not file criminal charges if he
or she believes the defendant is innocent, no matter the state of the evidence). In a
“he said, she said” case, the state’s presentation of the victim’s testimony tells the
jury that the state believes the victim. The jurors know that the state must believe
the story, often based on testimony of the state’s witnesses, that it presents to prove
its case.
{¶ 144} In proving Montgomery’s guilt beyond a reasonable doubt, the
state must believe A.B.’s assertion that the sexual encounter between Montgomery
and herself was not consensual. Having A.B. sit with the state at its table in this
case does not provide her with more credibility, because it is apparent to the jury
that the state already believed her story when it brought charges against
Montgomery.
{¶ 145} Additionally, credibility is not enhanced merely because the victim
sits by the prosecutor to present the same testimony that she would have presented
if she were sitting behind the prosecutor’s table. If a witness’s credibility could be
57
SUPREME COURT OF OHIO
enhanced by sitting beside the prosecutor as the state’s representative, then an
appearance of enhanced credibility would be present in every case in which a police
officer who is a victim serves as the state’s representative and in every case in which
a lead investigator serves as the state’s representative. No court has found prejudice
in those cases, and the same rationale applies here. The victim did not have
increased credibility, and her placement at counsel’s table did not somehow
encourage the jury to believe that the prosecutor was acting as A.B.’s attorney.
Therefore, seating A.B. next to the prosecutor did not enhance her credibility here.
While this may not be true in every case, it certainly is here.
{¶ 146} And the idea that the trial court implicitly expressed an opinion on
the victim’s credibility by simply allowing the state to designate her as its
representative and to seat her at the prosecutor’s table is without support. While
the Supreme Court of Arkansas may hold that opinion, see Mask v. State, 314 Ark.
25, 31, 869 S.W.2d 1 (1993), that opinion is certainly not universal. Other courts
permit the state to designate the victim as the state’s representative when there is a
need to do so, see Shaw, 96 Idaho at 901, 539 P.2d 250, or so long as it is not done
for an inadmissible purpose, see Bryant, 105 Ohio App. at 454, 152 N.E.2d 678.
The trial court approved the state’s designation of its representative and allowed
her to sit at the prosecutor’s table and nothing more. The request did not affect
Montgomery’s access to a fair trial or erode the presumption of his innocence.
{¶ 147} If the trial court’s decision was error, it certainly was not structural
error. As observed by the first dissenting opinion, no other state court has found
this type of decision to be structural error. The trial court’s decision to allow the
victim to serve as the state’s representative and sit at the prosecutor’s table would
be an error only in the trial process itself, not a violation that permeates the entire
trial. See Jones, 160 Ohio St.3d 314, 2020-Ohio-3051, 156 N.E.3d 872, at ¶ 26.
The majority opinion expands structural error in a manner that I cannot condone.
58
January Term, 2022
{¶ 148} While I believe that the trial court had the discretion to allow the
state to choose the victim as its representative, assuming arguendo that it did not, I
agree with the first dissenting opinion that any error related to trial court’s
allowance of this seating situation during voir dire would have been harmless error.
And I agree with the first dissenting opinion that Montgomery forfeited his
objection by not raising it at the time of trial and that he has not demonstrated plain
error because he has not shown that but for A.B.’s one-time introduction as the
state’s representative and her remaining seated at the prosecutor’s table, he would
not have been convicted. The evidence in this case overwhelmingly supports the
victim’s version of events.
Conclusion
{¶ 149} To clear a broader path of cases that may be subject to structural
error, the majority opinion wields Lady Justice’s sword to cut away the state’s right
to select a representative to aid it throughout criminal proceedings. I do not believe
that the case law supports this policy determination. If the people wish to limit the
state’s authority to select a representative at trial, then the General Assembly should
be the branch to do so. This court should be hesitant to expand constitutional rights
in such a manner. Because I would find that there was no error in allowing the state
to choose A.B. to serve as its representative in this case, I must respectfully dissent.
_________________
Kyle D. Stone, Stark County Prosecuting Attorney, and Kristen W. Beard,
Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Addison M. Spriggs, Assistant
Public Defender, for appellant.
Russell S. Bensing, urging reversal for amicus curiae, Ohio Association of
Criminal Defense Lawyers.
_________________
59