Mathias, J.
Keesha R. Johnson was convicted in Marion Superior Court of Class A misdemeanor criminal recklessness. Johnson appeals her conviction and raises one issue for our review: whether she was denied her federal and state constitutional rights to confront her accusers face-to-face because the witnesses wore face masks during her trial.
We affirm.
…
Johnson argues that the Marion County Court’s Executive Order was “a generic county-wide order and fails to satisfy the case-specific finding of necessity required by” the Coy Court. Appellant’s Br. at 19. And Johnson asserts that the trial court “was not only free to disregard the [E]xecutive [C]ommittee’s order, it was required to do so in order to safeguard Johnson’s constitutional right to confrontation.”
…
In our consideration of the issue presented we observe that the COVID-19 pandemic has created significant challenges for our court system. And “[s]temming the spread of COVID-19” has been an “unquestionably . . . compelling interest.” Roman Cath. Diocese of Brooklyn v. Cuomo, 208 L. Ed. 2d 206, 141 S. Ct. 63, 67 (2020). Wearing masks protects both the person wearing the mask and others present in the same room. Jurisdictions that have addressed similarly raised confrontation claims have determined that defendants’ confrontation rights were not violated when courts allowed or required the use of facial-coverings due to COVID-19. See e.g., State v. Modtland, 970 N.W.2d 711, 718-19 (Minn. Ct. App. 2022); People v. Lopez, 75 Cal. App. 5th 227, 233 (2022);United States v. Tagliaferro, 531 F. Supp. 3d 844 (S.D.N.Y. 2021); State v. Jesenya O., 493 P.3d 418, 432 (N.M. Ct. App. 2021).
Johnson acknowledges the importance of preventing the spread of COVID-19 but argues that the trial court was required to make a case-specific finding of necessity that the opaque masks were required over clear face shields, which the court did not do. Instead, the trial court found that it was required to follow the Executive Committee’s order. The trial court personally agreed with Johnson that face shields would provide sufficient protection but did not agree with Johnson that the court’s personal opinion trumped the Executive Committee order.
…
However, our supreme court also concluded that the trial court’s failure to enter case-specific findings was harmless. Id. at 365. A trial court’s error is harmless when “its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.” Ind. Appellate Rule 66(A). The court noted that B.N. was present throughout her commitment hearing and actively participated in that hearing. B.N., 199 N.E.3d at 365. Moreover, she was able to confer with counsel in a separate virtual room. Id. In addition, “the record reveal[ed] that B.N.’s counsel skillfully objected to witness testimony and vigorously cross-examined each of [the opposing] witnesses. And those witnesses provided ample evidence supporting the trial court’s decision to impose a regular commitment.” Id. Our supreme court concluded “the probable impact of the court’s error—in light of B.N.’s active participation during the virtual hearing, the lack of technological issues which may have adversely impacted her, and counsel’s zealous advocacy—was sufficiently minor such that we conclude it did not affect B.N.’s substantial rights.” Id.
Following our supreme court’s B.N. decision, we would be hard-pressed to conclude that the trial court’s absence of a case-specific finding here was adequate. Coy and Craig were decided in the pre-pandemic era, and, in a vacuum, one might reasonably conclude that the trial court’s determination here that it was required to follow the Executive Committee’s order relating to masks was sufficient given the compelling interests in preventing the spread of COVID-19. But in B.N., our supreme court specifically rejected that a general reference to the COVID-19 pandemic was a sufficient finding of good cause. Id. at 364. Although that case involved the administrative rule governing remote proceedings, it would be unreasonable to conclude that the same reasoning does not apply with even greater force to a defendant’s constitutional right to confrontation.
But, as our supreme court concluded in B.N., here the court’s error in failing to make case-specific findings of necessity was harmless. In this case, the witnesses and the defendant testified in open court. All witnesses were placed under oath and subject to cross-examination. The jury was able to assess witness credibility by viewing the witnesses’ body language and overall demeanor. The jurors were also able to see the witnesses’ eyes and hear the tone of their voices.
Finally, Johnson admitted that she fired her gun twice. At least one shot was fired over Shanetra’s head. Both bullets penetrated the walls of the neighboring home. Johnson’s own testimony is sufficient to sustain her conviction for criminal recklessness. See Ind. Code § 35-42-2-2.
For these reasons, and most importantly, because the witnesses testified in open court in Johnson’s presence, the jury was able to observe their demeanor and body language, and because the witnesses were subject to cross-examination, we conclude that the trial court’s error by failing to make a case-specific finding of necessity was harmless.
…
Violations of the Indiana Constitution’s Confrontation Clause are also reviewed under a harmless error standard. See Torres v. State, 673 N.E.2d 472, 474 n.1 (Ind. 1996); Brady, 575 N.E.2d at 989. Importantly, unlike the defendant in Brady, Johnson was still able to look at the masked witnesses in the eye and observe their demeanor and body language, as was the trier of fact. The witnesses were placed under oath and subject to cross examination. Finally, Johnson admitted that she fired her gun twice and the bullets penetrated the walls of the neighboring home. Johnson’s own testimony is sufficient to sustain her conviction for criminal recklessness. See Ind. Code § 35-42-2-2
For these reasons, we conclude that the violation of Johnson’s Article 1, Section 13 right to confrontation was harmless.
Under the facts and circumstances of this case, the trial court violated Johnson’s federal and state constitutional rights of confrontation when the court required the witnesses to wear masks while testifying. However, the violations of Johnson’s constitutional rights of confrontation were harmless. We therefore affirm her conviction for Class A misdemeanor criminal recklessness.
Affirmed.
Robb, J., and Vaidik, J., concur.