¶1dissenting.
¶2{¶ 37} I respectfully dissent from the majority’s view that the harmless-error rule applies to the resolution of assignment of error I.
¶3{¶ 38} The majority does not address the issue of the refusal of the trial court to grant a continuance to resolve the Fifth Amendment issues of Crawford’s testimony.
¶4{¶ 39} The purpose of the continuance was to secure independent legal counsel for Crawford so she could be advised of the consequences of testifying about her involvement in the incident. The trial court denied this request, given its prior diatribe about the lateness of the request.
¶5{¶ 40} Generally, a denial of a continuance is viewed under the abuse-of-discretion standard, which is a determination as to whether the trial court’s decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217, 5 OBR 481, 450 N.E.2d 1140. This court is required to balance this standard against appellant’s constitutionally guaranteed rights to compulsory and due process. The Sixth Amendment to the United States Constitution establishes a defendant’s right to compulsory process. It provides, “In all criminal prosecutions, the *604accused shall enjoy the right … to have compulsory process for obtaining witnesses in his favor … Article I, Section 10 of the Ohio Constitution similarly affords a defendant the right to compulsory process. “Compulsory process enables a defendant to present his or her defense by means of subpoenaing witnesses on his or her behalf and by requiring subpoenaed witnesses to produce books, papers, documents, or other evidence.” State v. Buhrman (Sept. 12, 1997), Greene App. No. 96 CA 145, 1997 WL 566154, *7. The essence of “due process of law” under the Fifth Amendment to the United States Constitution is “fair play.” The absolute fundamentals of due process are jurisdiction, adequate notice, and a fair hearing.
¶6{¶ 41} I would balance these issues in a vacuum, not knowing whether Crawford, after being counseled, would have waived her right against self-incrimination. Also, we cannot determine Crawford’s credibility, as that is within the province of the triers of fact. State v. Jamison (1990), 49 Ohio St.3d 182, 552 N.E.2d 180, certiorari denied (1990), 498 U.S. 881, 111 S.Ct. 228, 112 L.Ed.2d 183.
¶7{¶ 42} In balancing these factors, I would find that appellant’s right to compulsory process trumps the trial court’s discretion to deny the continuance of the nonjury trial. The continuance would not have inconvenienced any of the state’s witnesses, as they had testified at the previous hearing held on May 16, 2008. In fact, the May 16, 2008 hearing was interrupted by a sua sponte continuance by the trial court:
¶8{¶ 43} Second, appellant took the witness stand during her case-in-chief. This was done after the trial court’s denial of the Crawford testimony on a continuance. I would find that placing appellant in this untenable position was tantamount to forcing her to testify against herself. Because appellant’s choice to testify was a substantial right, I would find that it is unjust to employ the harmless standard.
¶9{¶ 44} I would reverse the conviction and remand the matter for a new trial.