dissenting:
In Proposition I Bartell claims that his conviction must be reversed because the trial court admitted a videotape of the child-victim’s out-of-court statements. The videotape was admitted pursuant to 22 O.S.Supp.1986, § 752, which was declared unconstitutional in Burke v. State, 820 P.2d 1344 (Okl.Cr.1991), cert. denied, — U.S. -, 112 S.Ct. 2940, 119 L.Ed.2d 565 (1992). I agree with the majority that admission of this videotape constitutes plain error, but because I disagree with the finding that the error was harmless, I dissent.
I welcome the majority’s extensive explanation of the standard of review for constitutional error which was recently discussed in Simpson v. State, 876 P.2d 690 (Okl.Cr.1994).1 As the majority’s detañed analysis of relevant Supreme Court cases makes clear, violations of the Confrontation Clause amounting to trial error (as opposed to structural defects that rob the trial of its validity) may be subject to harmless-error analysis. This Court may thus conduct a harmless-error analysis in eases where a videotape has been improperly admitted under § 752 and Burke. In every such case the State must be able to prove beyond a reasonable doubt that the error complained of did not contribute to the conviction. It is in the application of this analysis that I part from the majority opinion.
While the majority does not explicitly so state, it is clear that the unconstitutional admission of the videotape here was plain error. The majority notes that Bartell had the opportunity to confront and cross-examine the chüd-victim at trial, that the chüd-victim’s mother, grandmother, and doctor testified as to what the chüd told them, that testimony showed the chüd’s change of attitude, and evidence showed Bartell had an opportunity to commit the crime. In concluding that this “overwhelming evidence” renders admission of the videotape harmless, the majority disregards the substance of the Burke opinion and wholly fails to discuss the harmful effects of the videotape.
The question here is not whether Bartell was able to confront and cross-examine the chüd-victim at trial, but whether such opportunities were avaüable for the videotaped statement. Burke, 820 P.2d at 1348. They were not. Use of the videotape allowed the State to improperly bolster the chüd-vietim’s evidence by “essentially presenting] its principal witness twice.” Burke, id. As in Burke, the chüd-victim testified and was cross-examined but her testimony was not impeached. In addition the State three times asked the jury in closing argument to remember the chüd-vietim’s statements on the videotape. The majority mischaracter-izes the other witnesses’ testimony as “mirroring” that of the chüd when the adults’ evidence was actually clearer and more coherent. Not unsurprisingly, the chüd’s testimony gave a consistent account of the crime but was vague as to detaüs. Whüe the child-victim was certain who had committed the crime, she was unable to identify Bartell in court (identification was proved through other witnesses).
Any harmless-error analysis must include both the admissible evidence against a defendant and the harm in fact caused by the error. Other evidence was presented against Bartell. However, the State had the opportunity to improperly bolster the testimony of *103their principal witness and took advantage of that opportunity in argument. In the videotape the jury saw and heard the child-victim respond to questions with an uncontradicted and unexamined account of the crime. I cannot say beyond a reasonable doubt that this evidence did not contribute to the verdict. I would reverse Bartell’s conviction and remand for a new trial.
. I am puzzled by the second paragraph of footnote 4 in the majority opinion. This is indeed a direct appeal from a trial held in a district court of Oklahoma, and any reference to either state or federal habeas corpus provisions is irrelevant. The majority’s cite to Brecht v. Abrahamson, -U.S. -, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), which concerns the proper standard for federal habeas corpus relief, is inapposite as well as unnecessary.