State v. Carter

[Cite as State v. Carter, 2022-Ohio-1444.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-21-19

v.

TERREZ L. CARTER, OPINION

DEFENDANT-APPELLANT.

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-21-20

v.

TERREZ L. CARTER, OPINION

DEFENDANT-APPELLANT.

Appeals from Allen County Common Pleas Court
Trial Court Nos. CR2018 0275 and CR2018 0187

Judgments Affirmed

Date of Decision: May 2, 2022

APPEARANCES:

William T. Cramer for Appellant

Jana E. Emerick for Appellee
Case Nos. 1-21-19, 1-19-20

SHAW, J.

{¶1} Defendant-appellant, Terrez L. Carter (“Carter”), brings this appeal

from the April 19, 2021 judgment entries of the Allen County Common Pleas Court

sentencing him to an aggregate 36-year prison term. Carter was convicted in trial

court case CR2018 0275 of five counts of rape in violation of R.C. 2907.02(A)(2),

all first degree felonies, and he was convicted in trial court case CR2018 0187 of

possession of cocaine in violation of R.C. 2925.11(A), a first degree felony, and

having weapons while under disability in violation of R.C. 2923.13(A), a third

degree felony. On appeal, Carter argues that the trial court erred by joining the cases

for trial, that the trial court erred by closing the courtroom temporarily to show the

jury a video of one of the rape victims, and that the rape convictions were against

the manifest weight of the evidence.

Background

{¶2} S.S. claimed that Carter raped her orally, anally, and vaginally at

Carter’s residence on April 19, 2018. She claimed that Carter told her she could not

leave until he got what he wanted, and that Carter threatened her, saying he should

beat her and put her in a body bag.1

1
Carter challenged S.S.’s version of events and her credibility, particularly due to her cocaine use and her
prior text exchanges with Carter. These issues will be discussed infra in Carter’s weight of the evidence
challenge.

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Case Nos. 1-21-19, 1-19-20

{¶3} After the incidents, S.S. called her friend and then went to the hospital.

She was evaluated by a Sexual Assault Nurse Examiner (“SANE”). The SANE

observed bruising on S.S.’s leg, neck, and abdomen. The SANE also observed a

four millimeter cut on S.S.’s vaginal wall, skin tears in the vaginal and perianal

region, and redness/swelling of S.S.’s cervix. The SANE testified that she would

not expect to see tearing to that degree with a consensual encounter. Swabs were

collected from S.S. and DNA consistent with Carter was found on the swabs.

{¶4} Although initially reluctant, S.S. told her story to law enforcement.

Subsequently, a search warrant was obtained for Carter’s residence. At Carter’s

residence police located, inter alia, in excess of 60 grams of cocaine and a firearm.

{¶5} S.S. was eventually contacted by another woman, S.H., who claimed

Carter had held her against her will and raped her in 2015.2 S.H. dated Carter for

over a year and had consensual encounters with him; however, around June of 2015,

S.H. detailed an incident that occurred over multiple hours wherein Carter got

physical with her after an argument and forced her to have vaginal, anal, and oral

sex with him, all allegedly while Carter had a firearm.

{¶6} S.H. believed that there might have been some video evidence of the

incident, as she recalled Carter recording the matter. Police checked a SIM card

2
Carter also challenged S.H.’s credibility, particularly given the fact that the week before the trial she spoke
to Carter on the phone and was intoxicated while doing so, despite professing her sobriety initially in her
testimony. Again, these issues will be discussed infra in Carter’s weight of the evidence challenge.

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Case Nos. 1-21-19, 1-19-20

that had been taken during the search of Carter’s residence, and found videos of

S.H. The videos depicted S.H. undressed, stating she did not want to be on video.

Further, on the video, Carter repeatedly told S.H. to “open her legs” and she refused.

At one point Carter says that he is going to “forcefully” open her legs, but he was

not going to “rape her.” (State’s Ex. 61). Later, Carter records himself digitally

penetrating S.H. while she cries. As he performs the act, he says things like S.H.

was crying because she “love [sic] it.” (Id.)

{¶7} On June 13, 2018, Carter was indicted in trial court case CR2018 0187

with possession of cocaine in violation of R.C. 2925.11(A), a first degree felony,

and having weapons while under disability in violation of R.C. 2913.23(A)(3), a

third degree felony.3

{¶8} On July 12, 2018, another indictment was filed against Carter in trial

court case CR2018 0275. He was accused of three counts of rape of S.S. in violation

of R.C. 2907.02(A)(2), all first degree felonies (Counts 1-3), kidnapping of S.S. in

violation of R.C. 2905.01(A)(2), a first degree felony (Count 4), three counts of rape

of S.H. in violation of R.C. 2907.02(A)(2), all first degree felonies and all containing

firearm specifications pursuant to R.C. 2941.145(A) (Counts 5-7), and kidnapping

of S.H. in violation of R.C. 2905.01(A)(2), a first degree felony (Count 8).4

3
The possession of cocaine charge carried an accompanying firearm specification pursuant to R.C.
2941.141(A), but that specification was later dismissed.
4
There were additional counts in the original indictment filed on July 12, 2018, but the additional counts
were ultimately dismissed and the indictment was renumbered into the form cited herein.

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Case Nos. 1-21-19, 1-19-20

{¶9} Carter entered pleas of not guilty to all charges in both indictments.

During the pretrial process, the State moved to consolidate the two cases for trial.

Carter opposed the request and a hearing was held, but ultimately the trial court

granted the State’s request for consolidation in a written entry.

{¶10} Following extensive pretrial motion practice, wherein Carter went

through five attorneys, some appointed, some retained, the cases proceeded to a jury

trial. Both alleged victims testified at trial as well as various law enforcement

officers who investigated the incidents. In addition, the SANE testified as did some

individuals who knew the victims and the defendant. Carter’s trial counsel cross-

examined the witnesses and called multiple witnesses in his case-in-chief, who

testified to, inter alia, S.H.’s drug use and her “toxic” relationship with Carter.

Carter’s counsel repeatedly challenged the credibility of the alleged victims,

painting them as drug users who engaged in consensual encounters with Carter.

{¶11} Ultimately the jury convicted Carter of possession of cocaine and

having weapons while under disability as charged in trial court case CR2018 0187.

With regard to trial court case CR2018 0275, Carter was found guilty of all three

rapes of S.S. (Count 1-3), kidnapping of S.S. (Count 4), two rapes against S.H.

(Counts 5 and 7), and kidnapping of S.H. Carter was acquitted of one rape against

S.H. (Count 6), and he was acquitted of the firearm specifications accompanying

Counts 5 and 7.

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Case Nos. 1-21-19, 1-19-20

{¶12} On April 19, 2021, Carter’s case proceeded to sentencing. In trial

court case CR2018 0187, Carter was sentenced to serve 11 years in prison on the

possession of cocaine charge, and 36 months in prison on the having weapons while

under disability charge, consecutive to each other.

{¶13} In trial court case CR2018 0275, the trial court determined that the

kidnapping charges related to each victim would merge with the rape charges related

to each victim. The State elected to proceed to sentencing on the rape charges.

Carter was then ordered to serve 11 years in prison on each of the five rape

convictions. The three rape convictions against S.S. were ordered to be served

concurrently with each other, and the two rape convictions against S.H. were

ordered to be served concurrently with each other. However, the sentence for the

rape against S.S. and the sentence for the rape against S.H. were ordered to be served

consecutive to each other, and consecutive to the sentence imposed in trial court

case CR2018 0187. Carter was thus sentenced to serve an aggregate 36-year prison

term.

{¶14} Judgment entries memorializing Carter’s convictions were filed April

19, 2021. It is from these judgments that Carter appeals, asserting the following

assignments of error for our review.

Assignment of Error No. 1
Appellant’s due process right to a fair trial was violated by the
prejudicial joinder of multiple offenses for trial.

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Case Nos. 1-21-19, 1-19-20

Assignment of Error No. 2
Appellant’s Sixth Amendment right to a public trial was violated
when the trial court closed the courtroom for a portion of the
evidence.

Assignment of Error No. 3
The weight of the evidence did not support the guilty verdicts
based [S.S.]’s allegations.

Assignment of Error No. 4
The weight of the evidence did not support the guilty verdicts
based on [S.H.]’s allegations.

First Assignment of Error

{¶15} In his first assignment of error, Carter argues that the trial court erred

by permitting a joint trial for both rape victims despite the fact that the alleged rapes

occurred years apart.

Relevant Authority

{¶16} Criminal Rule 8(A) sets forth the circumstances under which multiple

offenses may be joined in a single indictment. Pursuant to that rule, two or more

offenses may be charged in the same indictment if they are “of the same or similar

character, or are based on the same act or transaction, or are based on two or more

acts or transactions connected together or constituting parts of a common scheme or

plan, or are part of a course of criminal conduct.” Crim.R. 8(A).

{¶17} Importantly, “ ‘[t]he law favors joining multiple criminal offenses in

a single trial.’ ” State v. Gordon, 152 Ohio St.3d 528, 2018-Ohio-259, ¶ 18, quoting

State v. Franklin, 62 Ohio St.3d 118, 122 (1991). This is because joinder “conserves

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Case Nos. 1-21-19, 1-19-20

judicial and prosecutorial time, lessens the not inconsiderable expense of multiple

trials, diminishes inconvenience to witnesses, and minimizes the possibility of

incongruous results in successive trials before different juries.” State v. Thomas, 61

Ohio St.2d 223, 225 (1980); State v. Hamblin, 37 Ohio St.3d 153, 157-58 (1988).

{¶18} Notwithstanding the policy favoring joinder, an accused may move

pursuant to Crim.R. 14 to sever counts of an indictment on the grounds that he or

she will be prejudiced by the joinder of multiple offenses. State v. LaMar, 95 Ohio

St.3d 181, 2002-Ohio-2128, ¶ 49. To obtain severance pursuant to Crim.R. 14, the

accused bears “the burden of affirmatively showing that his rights were prejudiced;

he must furnish the trial court with sufficient information so that it can weigh the

considerations favoring joinder against the defendant’s right to a fair trial[.]” State

v. Torres, 66 Ohio St.2d 340, 343 (1981), syllabus.

{¶19} However, the State can “refute a defendant’s claim of prejudicial

joinder” by demonstrating either of the following: (1) that the evidence to be

introduced relative to one offense would be admissible in the trial on the other,

severed offense, pursuant to Evid.R. 404(B) (the “other acts” test); or (2) that,

regardless of the admissibility of such evidence, the evidence relating to each charge

is simple and direct (the “joinder test”). State v. Powell, 8th Dist. Cuyahoga No.

107276, 2019-Ohio-4345, ¶ 74; Franklin at 122. Importantly, the two tests are

disjunctive—the satisfaction of one negates an accused’s claim of prejudice without

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Case Nos. 1-21-19, 1-19-20

consideration of the other. State v. Truss, 10th Dist. Franklin No. 18AP-147, 2019-

Ohio-3579, ¶ 17.

{¶20} Trial courts have considerable latitude in determining whether

severance is warranted and we will not reverse a trial court’s decision to deny

severance absent an abuse of discretion. Id. at ¶ 18. A trial court abuses its

discretion when its ruling is “unreasonable, arbitrary, or unconscionable.” State v.

Adams, 62 Ohio St.2d 151, 157 (1980).

Analysis

{¶21} In this case, the alleged rapes of S.S. and the alleged rapes of S.H.

were included in the same indictment. The State later requested that the indictment

containing the rape charges and the indictment containing the cocaine/weapon

possession charges be joined for trial. Carter opposed the State’s request for joinder

of the two separate cases and he moved to sever the indictment in CR2018 0275,

seeking to have the rape charges related to each alleged victim tried individually.

{¶22} In a written entry, the trial court granted the State’s joinder request and

denied Carter’s severance request based on the following reasoning:

Here, after reviewing the discovery filed electronically in the
respective cases, the statements of defendant and the Bill of
Particulars, the Court finds that the facts of the charged offenses
in the respective cases are relatively straightforward and relate to
alleged uncomplicated factual allegations of rape, kidnapping,
possession of drugs and having weapons while under disability.
The charges are either of the same or similar character (the rapes
& kidnappings), and/or are based upon two or more acts or

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Case Nos. 1-21-19, 1-19-20

transactions connected together or part of an alleged common
scheme or course of criminal conduct to engage in rapes,
kidnapping and drug/weapon possession in Allen County. The
Court will instruct the jury to consider all counts separately and
uninfluenced by their decision on other counts [OJI-CR 425.07].
A jury is believed “capable of segregating the proof on multiple
charges when the evidence as to each of the charges is
uncomplicated.” State v. Brooks, 44 Ohio St.3d 185, 193 (1989).
Defendant has not demonstrated sufficient information to show
joinder violates his right to a fair trial.

(CR2018 0275 Doc. No. 74). Following the trial court’s ruling, Carter’s cases

proceeded to trial on the rapes of both alleged victims and the possession/weapon

charges in CR2018 0187.

{¶23} Carter argues that the trial court abused its discretion by denying his

request to sever the indictment. Specifically, he contends that, “Both alleged [rape]

victims had serious credibility issues, but by trying them together, the separate

allegations served to bolster each other through corroboration.” (Appt.’s Br. at 17).

Carter argues that the multiple incidents that were prejudicially joined for trial

would not have been admissible in separate trials on each individual rape incident

under Evid.R. 404(B). Further, he claims that the evidence of each incident was not

separate and distinct.

{¶24} Importantly, as noted above, the two tests for refuting an accused’s

claim of prejudice regarding joinder are disjunctive. Thus, “[i]f the state can meet

the joinder test, it need not meet the stricter ‘other acts’ test.” State v. Johnson, 88

Ohio St.3d 95, 109 (2000). Generally, “Evidence meets the simple-and-direct

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Case Nos. 1-21-19, 1-19-20

standard [of the joinder test] if it is straightforward and uncomplicated enough that

the jury can segregate the proof required for each offense.” State v. Parham, 10th

Dist. Franklin No. 16AP-826, 2019-Ohio-358, ¶ 27, citing State v. Clinton, 153

Ohio St.3d 422, 2017-Ohio-9423, ¶ 52.

{¶25} In State v. Woodruff, 1st Dist. Hamilton No. C-140256, 2015-Ohio-

2422, ¶ 14-15, the First District Court of Appeals analyzed a challenge similar to

Carter’s and found the evidence to be simple and direct on the following basis:

As we understand the second part of the joinder test, the focus is
not on the emotional impact of the evidence but on the potential
for juror confusion. We cannot presume that just because
evidence may garner a strong emotional response that jurors are
incapable of segregating the evidence in their minds.

Applying the traditional standard, Mr. Woodruff was not
prejudiced by joinder because the evidence of each offense was
separate and distinct. B.W. testified about one discrete incident
with Woodruff, while K.C. was able to describe at least three
incidents. The girls were very clear about where the incidents had
occurred and what Woodruff had done. The evidence of the
offenses involving the four photographs was likewise separate and
uncomplicated. The jury could segregate proof for each offense.
Further, the court instructed the jury to consider each count
separately. The court did not abuse its discretion in denying
Woodruff’s motion for severance.

{¶26} Here, similar to the Woodruff case, the jury was presented with S.S.’s

testimony regarding her 2018 rapes, and S.H.’s testimony regarding her 2015 rapes.

The evidence detailed where the incidents occurred and what Carter had purportedly

done. There is no indication that the jury was unable to segregate proof in this

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Case Nos. 1-21-19, 1-19-20

matter, or that the testimony was anything other than simple and direct. Notably,

similar to the holding in Woodruff, Ohio Appellate Courts have repeatedly found no

abuse of discretion where sexual assault charges against different victims were

joined for trial after determining that the evidence of each case was separate and

distinct. See State v. Gideon, 3d Dist. Allen Nos. 1-18-27, 1-18-28, 1-18-29, 2021-

Ohio-1863, ¶ 13; State v. Ashcraft, 12th Dist. Butler No. CA2008-12-305, 2009-

Ohio-5281, ¶ 27; State v. Echols, 8th Dist. Cuyahoga No. 102504, 2015-Ohio-5138,

¶ 15.

{¶27} Moreover, the jury acquitted Carter of one count of rape against S.H.,

finding that the State had not proven beyond a reasonable doubt that Carter engaged

in the anal rape of S.H. as alleged by the State. Carter was also acquitted of multiple

firearm specifications. Courts have held that an acquittal on one charge reflects the

jury’s ability to segregate the proof in each case, further establishing that evidence

in this matter was simple and direct. State v. Powell, 8th Dist. Cuyahoga No.

107276, 2019-Ohio-4345, ¶ 78, citing State v. Lee, 8th Dist. Cuyahoga No. 104682,

2017-Ohio-1449, ¶ 19 (the evidence was “simple and direct” as reflected by the jury

acquitting the defendant of offenses relating to one of the several shootings); State

v. Bonneau, 8th Dist. Cuyahoga No. 97565, 2012-Ohio-3258, ¶ 22 (the jury’s not

guilty verdict as to the counts relating to one victim and its guilty verdicts as to the

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Case Nos. 1-21-19, 1-19-20

counts relating to another demonstrated that the jury was able to separate the

evidence and considered each victim separately).

{¶28} Notwithstanding the acquittals, the jury also was explicitly instructed

in this case to consider each count and the evidence applicable to each count

separately, and uninfluenced by the verdict related to any other count. For all these

reasons we cannot find that the trial court abused its discretion in this case.

{¶29} Given that we have determined that the trial court did not abuse its

discretion by finding that the “joinder test” was met here, we need not proceed to

address the “other acts” argument with regard to the rape charges being presented

in the same trial. However, to the extent that the “other acts” argument is related to

the drug/weapon charges in CR2018 0187 being joined with the rape charges in

CR2018 0275, the trial court specifically determined that the drugs and firearm were

only uncovered during the investigation of S.S.’s rape. In addition, both victims

admitted to being drug users, tying drugs to the rapes. The trial court found that

these issues made the drug charge admissible in the rape trials, and we can find no

abuse of discretion with that determination.

{¶30} Finally, as with the sexual assault charges, the evidence was also

simple and direct related to the drug and firearm possession, as emphasized by the

jury’s acquittals on some charges, in particular firearm specification acquittals. For

all of these reasons, Carter’s first assignment of error is overruled.

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Case Nos. 1-21-19, 1-19-20

Second Assignment of Error

{¶31} In his second assignment of error, Carter argues that the trial court

erred by closing the courtroom to spectators briefly while State’s Ex. 61 was played

for the jury. He argues that this closure violated his right to a public trial.

Relevant Authority

{¶32} The Sixth Amendment to the U.S. Constitution and Article I, Section

10 of the Ohio Constitution guarantee the right to a public trial. State v. Lane, 60

Ohio St.2d 112, 119 (1979). “The right to a public trial is rudimentary in our judicial

system, but, as with most rights, it is not absolute * * *.” Id. at 121. However, it is

within the authority of a trial court to order the closure of the proceedings in limited

instances. State v. Evans, 9th Dist. Lorain No. 07CA009274, 2008-Ohio-4295, ¶

15. In those limited instances the right to a public trial:

must yield to other interests, such as those essential to the
administration of justice. A trial judge has authority to exercise
control over the proceedings and the discretion to impose control
over the proceedings. Nonetheless, the abridgement of a
defendant’s right to a public trial may occur only when necessary,
and any closure must be narrowly drawn and applied sparingly.

State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, ¶ 51.

{¶33} When a trial court orders a partial closure of proceedings, there must

be a “substantial reason” to justify the closure. Id. at ¶ 53. In addition, “‘the closure

must be no broader than necessary to protect that interest, the trial court must

consider reasonable alternatives to closing the proceeding, and it must make

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Case Nos. 1-21-19, 1-19-20

findings adequate to support the closure.’” Id. at ¶ 52, quoting Waller v. Georgia,

467 U.S. 39, 48, 104 S.Ct. 2210.

{¶34} When a trial court does exclude spectators from the courtroom, we

review the trial court’s decision under an abuse of discretion standard. State v.

Howse, 9th Dist. Lorain No. 12CA010251, 2012-Ohio-6106, ¶ 6. Importantly,

however, the violation of the right to a public trial is considered structural error and

not subject to harmless-error analysis. State v. Drummond, 111 Ohio St.3d 14,

2006-Ohio-5084, ¶ 50, citing Waller at fn. 9 (1984). A structural error is a “defect

affecting the framework within which the trial proceeds, rather than simply an error

in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246

(1991).

Analysis

{¶35} In this case, prior to the brief courtroom closure, S.H. was testifying

regarding the 2015 incidents wherein her liberty was restrained and she was sexually

assaulted by Carter. S.H. testified that during the incident, Carter used a video

camera and recorded himself digitally penetrating her. She told Carter that she did

not want to be on film but Carter filmed her anyway. She testified that Carter

“fingered” her on the film, that she did not consent to it, but she allowed him to do

it because she wanted him to calm down.

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Case Nos. 1-21-19, 1-19-20

{¶36} Following this testimony, the State sought to play the video recording

that S.H. referenced. The State requested that the courtroom be cleared of everyone

but the jury, the prosecution, and the defendant due to the graphic and sensitive

nature of the videos. Carter objected to the courtroom closure, claiming it was a

public trial.

{¶37} The trial court ultimately granted the State’s request for temporary

closure of the courtroom, noting Carter’s objection. The court reasoned that

because of the nature of the videotapes, and the record should
reflect the Court has already seen these before the hearing,
because of the nature the Court is going to have the Courtroom
cleared other than the jurors, obviously, who will stay in. Once
the videos are played we’ll probably be taking a break shortly
thereafter and then everybody else can come into the Courtroom.
So, other than the jurors the Court would order that because of
the sensitive nature and the graphic nature of the videos that the
Courtroom will be cleared. So, everybody audience, please –
counsel’s staff can stay.

(Tr. at 500-501).

{¶38} After the trial court’s ruling, the record reflects that “the general

public” was cleared from the courtroom. Thereafter the State played three video

clips from State’s Exhibit 61, which were contained on a flash drive. No questions

were asked while the videos were played.

{¶39} After the video clips were played, the trial court took a recess and the

trial reconvened with the public in attendance. The prosecutor then resumed asking

S.H. questions about the videos that were viewed in the absence of the public.

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Case Nos. 1-21-19, 1-19-20

{¶40} Carter now contends that the trial court abused its discretion by

ordering the temporary courtroom closure because the State did not show a

substantial reason for closure, because the trial court did not narrowly tailor the

closure and consider alternative remedies, and because the trial court did not make

adequate findings to support the closure.

{¶41} Contrary to Carter’s arguments, the State mentioned the sensitive

nature of the videos, providing reasoning for a partial, temporary closure. The trial

court itself had viewed the videos, and found them to be sensitive and graphic.

Moreover, the trial court limited the closure to only the time wherein the videos

were being played. The trial court thus effectively addressed the appropriate factors

in this matter when making its determination on partial, temporary courtroom

closure and for this reason alone we could find no abuse of discretion.

{¶42} However, we would emphasize again that no questions were asked of

S.H. while the videos were being played and while the public was briefly excluded

from the courtroom. S.H. was questioned about the events on the video both before

and after the courtroom closure, but not during. Thus spectators were not prevented

from hearing any of S.H.’s testimony.5

5
As these were video clips being played for a jury in a courtroom, it is not even clear to what degree spectators
would have been able to see or hear the video clips since we do not know how the clips were being shown to
the jurors.

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Case Nos. 1-21-19, 1-19-20

{¶43} While closure of courtrooms to the public, and particularly the media,

should only be done in very limited circumstances, Ohio Appellate Courts have

upheld closures for such issues as safety concerns for a witness. State v. Bragg,

10th Dist. Franklin No. 05AP-100, 2006-Ohio-1903, ¶ 29.6 Here, the trial court

narrowly tailored a courtroom closure for a very small portion of the trial, which

included no actual testimony. Under the specific facts and circumstances of this

case, we cannot find that the trial court abused its discretion. Therefore, Carter’s

second assignment of error is overruled.

Third Assignment of Error

{¶44} In Carter’s third assignment of error, he argues that his convictions

related to S.S. were against the manifest weight of the evidence.

Standard of Review

{¶45} In reviewing whether a verdict was against the manifest weight of the

evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting

testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. In doing

so, this Court must review the entire record, weigh the evidence and all of the

reasonable inferences, consider the credibility of witnesses and determine whether

in resolving conflicts in the evidence, the factfinder “clearly lost its way and created

6
Although this was not necessarily a safety concern, we cannot find that the trial court abused its discretion
by determining that privacy was a valid concern.

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Case Nos. 1-21-19, 1-19-20

such a manifest miscarriage of justice that the conviction must be reversed and a

new trial ordered.” Id.

{¶46} Nevertheless, a reviewing court must allow the trier-of-fact

appropriate discretion on matters relating to the credibility of the witnesses. State

v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight

standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against

the conviction,’ should an appellate court overturn the trial court’s judgment.” State

v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter,

131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.

Controlling Statutes

{¶47} Carter was convicted of three counts of rape of S.S. in violation of

R.C. 2907.02(A)(2), which reads, “No person shall engage in sexual conduct with

another when the offender purposely compels the other person to submit by force

or threat of force.”

{¶48} The jury also found Carter guilty of Kidnapping in violation of R.C.

2905.01(A)(2), which reads:

(A) No person, by force, threat, or deception, or, in the case of a
victim under the age of thirteen or mentally incompetent, by any
means, shall remove another from the place where the other
person is found or restrain the liberty of the other person, for any
of the following purposes:

***

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Case Nos. 1-21-19, 1-19-20

(2) To facilitate the commission of any felony or flight
thereafter[.]7

Testimony Regarding the Rapes and Kidnapping of S.S.

{¶49} S.S. testified that she met Carter through a mutual friend a few months

before April of 2018. S.S. knew Carter as “Peanut” and she testified that she would

go to Carter’s residence to do drugs, specifically cocaine. She testified that she

exchanged text messages and Facebook messages with Carter but she had never had

any consensual sexual relations with him.

{¶50} S.S. testified that on the morning of April 19, 2018, she went to

Carter’s residence and bought some cocaine off of him. She testified that she hung

out with Carter that day, watching television downstairs, but that they eventually

went upstairs to his bedroom together to watch television. She testified that there

was a bigger television upstairs and people hung out there because his room was

“big enough.” (Tr. at 283). She testified that she had been upstairs to watch

television there on a few occasions.

{¶51} S.S. testified that she sat at the foot of Carter’s bed and that Carter sat

at the head of the bed. S.S. testified that there was a futon in the room but it was

covered in clothes so the bed was really the only place to sit. At one point, S.S.

7
The kidnapping charge was merged with the rape for purposes of sentencing, thus technically Carter does
not have a final conviction and sentence on the kidnapping charge. State v. Adkins, 3d Dist. Allen No. 1-19-
71, 2020-Ohio-6799, ¶ 40. However, if we reversed the rape convictions for any reason, the kidnapping
could be reinstated assuming the charge was still supported by the evidence. As it stands, however, we
generally do not have to address the weight of evidence with regard to the kidnapping counts that were
merged pursuant to sentencing. Id.

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Case Nos. 1-21-19, 1-19-20

testified that Carter asked if she wanted to “do anything,” intimating something

sexual, and S.S. responded that she did not. (Tr. at 286). Carter then went

downstairs, and S.S. testified that when Carter came back upstairs he was acting

different, “being mean” and “giving [her] weird looks.” (Id. at 291). She testified

she had never seen Carter act like that before, like something was really bothering

him.

{¶52} S.S. testified that Carter grabbed her hair and pulled her back and said

that “he should beat the fuck out of [her] * * * and put [her] in a body bag.” (Tr. at

292-293). S.S. testified that Carter then struck her in her face. Next, S.S. indicated

that Carter held her down and penetrated her anal cavity with his penis against her

will. She testified that Carter also forced her to perform oral sex on him, and that

Carter forced his penis into her vagina. She testified that she tried to resist and that

she screamed. She indicated that she screamed so loud that she thought Carter’s

mom could hear her from the neighboring duplex because Carter’s mother called

three times in quick succession during the assault.

{¶53} S.S. testified that during the incidents Carter held the back of her head

by her hair and pulled some of her hair out. She testified that Carter was much

bigger than her and there was nothing she could do because he controlled “every

movement [she] could make.” (Tr. at 296). She testified that Carter said she could

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Case Nos. 1-21-19, 1-19-20

not leave until Carter got what he wanted. She testified that Carter ejaculated inside

of her.

{¶54} S.S. testified that Carter eventually let her get up and put her clothes

on. She testified that she then ran downstairs to the back door, which she commonly

used to enter and leave from the residence. She testified that the door was locked

from the inside, and that a key was normally inside the lock so she could get out but

the key was not in the lock. S.S. testified that she left through the front door but

before she did Carter asked her if he was ever going to see her again.

{¶55} After leaving Carter’s residence, S.S. picked up her child from daycare

then called her friend. S.S.’s friend encouraged her to go to the hospital, which S.S.

then did.

{¶56} At the hospital S.S. was seen by a SANE. The SANE conducted an

examination of S.S. and found “multiple skin tears around the vaginal orifice and

perianal, around the anus.” (Tr. at 375). She found that there was redness and

swelling of the cervix itself, and that there was a four millimeter laceration on the

right side of the vaginal wall. The SANE testified that the laceration was significant

and indicated some force was used, and that she would not expect to see tearing like

that with consensual sex.

{¶57} The SANE also noted bruising on the outside of S.S.’s right leg,

around the neck and over the abdomen. There were also scratches by S.S.’s

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Case Nos. 1-21-19, 1-19-20

collarbone, scratches by the groin area, and scratches and bruises down her legs.

The SANE collected DNA swabs and other evidence. DNA consistent with Carter

was found on the swabs taken from S.S.

{¶58} A Lima Police Officer was dispatched to the hospital and he spoke

with S.S. He indicated that S.S. was initially very afraid of the perpetrator but

eventually she told him her story. He also indicated that S.S. did not want to

mention her drug use and she was reluctant to do so. Photographs of the bruising

on S.S. were taken, along with a picture of S.S.’s missing hair.

{¶59} Through cross-examination at trial, Carter’s attorney attacked S.S.’s

credibility and also suggested that she was infatuated with Carter. Text messages

between S.S. and Carter prior to the incident were introduced into evidence

including what appeared to be the first text message between the two wherein S.S.

was the one who reached out to Carter.

{¶60} Over time, some of the text messages between S.S. and Carter turned

somewhat sexual in nature. One text message from S.S. stated, “I smell like you”

and Carter responded “you gave me blue balls[.]” (Def. Ex. A-26). S.S. replied

“I’m sorrrrry[.]” (Id.)

{¶61} On a later date Carter sent a text message to S.S. stating, “I can’t keep

us a secret no longer now lol,” and S.S. responded, “Yes u can” and “not funny.”

(Def. Ex. A-91). Carter replied, “I’m sorry I just can’t” and “I have to tell the world

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Case Nos. 1-21-19, 1-19-20

I’m a Put It on Facebook.” (Id.) Other text messages were introduced wherein S.S.

repeatedly told Carter to contact her or call her and there was one where S.S. told

Carter that he should “run back to Katie.” (Def. Ex. A-119).

{¶62} On another occasion, in the week prior to the alleged incident, S.S.

sent a text message to Carter asking him if he was “mad bc I didn’t give you head[?]”

(Def. Ex. A-113).

{¶63} In the early morning hours before the incident, text messages were

exchanged between S.S. and Carter wherein Carter stated, “These pillows taking

your place seems like you’re still here,” and S.S. responded, “Aww, I wish I was. I

didn’t want to leave.” (Tr. at 328). She also added, “They probably even smell like

me a little bit.” (Id.) Carter responded “The one I’m lying on do a little bit” and

S.S. said, “Good.” (Id.)

{¶64} Notably, there were no text messages entered into evidence that

occurred after the alleged incident, if any were exchanged at all.

{¶65} On cross-examination S.S. ultimately acknowledged that she liked

Carter “as more than a friend” and she admitted that she did not tell officers. (Tr.

at 325). She also acknowledged that at one point she texted Carter that she was with

her mom and “she don’t know I go for black guys.” (Id.. at 330). Further, she also

acknowledged that she had a boyfriend and that her boyfriend had been physically

abusive with her in the past.

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Case Nos. 1-21-19, 1-19-20

Analysis

{¶66} Carter argues that his convictions related to S.S. were against the

manifest weight of the evidence because he contends that S.S. lacked credibility due

to lying to police and due to the fact that she seemed to be keeping the relationship

she had with Carter a secret from her mother and boyfriend. Further, Carter argues

that S.S.’s claim that she went upstairs simply “to watch television” was not credible

given that there was a large functioning television downstairs. Carter claims that

S.S. appeared to be attempting to conceal the more likely source of her injuries—

her jealous/angry boyfriend.

{¶67} Undoubtedly S.S.’s credibility is a central issue in this case. However,

while there were potential issues with her credibility such as her drug use, her

omissions in her statements to police, and her texts with Carter, all of these issues

were put before the jury. The jury was able to see and hear S.S.’s explanations and

evaluate her in person. A reviewing court must allow the trier-of-fact appropriate

discretion on matters relating to the credibility of the witnesses. State v. DeHass,

10 Ohio St.2d 230, 231 (1967). The trier-of-fact is best able “to view the witnesses

and observe their demeanor, gestures, and voice inflections, and use

these observations in weighing the credibility of the proffered testimony.” State v.

Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24. The jury may take note of any

inconsistencies and resolve them accordingly, “believ[ing] all, part, or none of a

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Case Nos. 1-21-19, 1-19-20

witness’s testimony.” State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-

Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964).

{¶68} We will not second-guess the jury’s determination in this matter in

finding that the State had established beyond a reasonable doubt that Carter

committed the crimes alleged against S.S. “When there exist two fairly reasonable

views of the evidence or two conflicting versions of events, neither of which is

unbelievable, it is not [this court’s] province to choose which [version] we

believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002 WL 407847, 2

(Mar. 13, 2002), citing State v. Gore, 131 Ohio App.3d 197, 201 (7th Dist.1999).

Carter’s convictions are not against the manifest weight of the evidence merely

because the jury rejected the defense’s theory of consensual sex and found the

State’s version of the events to be more believable. State v. Ford, 8th Dist. Cuyahoga

No. 107541, 2019-Ohio-2570, ¶ 79

{¶69} Moreover, while S.S.’s credibility was key in this matter, there was

some corroborating evidence to S.S.’s story. Carter’s DNA was found on the swabs

taken from S.S. There were bruises on S.S.’s body and pictures were taken of those

injuries. Most notably, however, the SANE specifically testified that the four

millimeter laceration in S.S.’s vagina indicated force and that she would not have

expected to see those injuries during a consensual encounter.

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Case Nos. 1-21-19, 1-19-20

{¶70} After reviewing the record we cannot find that the jury clearly lost its

way or created a manifest miscarriage of justice by convicting Carter of the crimes

related to S.S. She clearly testified to Carter restraining her liberty while he

forcefully penetrated her anus, mouth, and vagina with his penis. Her injuries were

consistent with her testimony. For all of these reasons, Carter’s third assignment of

error is overruled.

Fourth Assignment of Error

{¶71} In Carter’s fourth assignment of error, he argues that his rape and

kidnapping convictions related to S.H. were against the manifest weight of the

evidence.

Evidence Regarding the Rapes and Kidnapping of S.H.8

{¶72} S.H. testified that she was friends with Carter and that they dated for

over a year back around 2015. S.H. indicated that in 2015 she used cocaine at parties

and that she got the cocaine from Carter. S.H. testified that in their early days of

dating, Carter was caring, loving, and protective.

{¶73} However, S.H. testified regarding an incident that occurred around

June of 2015 wherein Carter was violent, restrained her liberty, and raped her. S.H.

testified that Carter had a party in June of 2015 and at one point, S.H. went upstairs

with a male and a female named Sarah to “snort powder.” (Tr. at 471). S.H. testified

8
The same statutes and standard of review from the third assignment of error are applicable to the fourth
assignment of error.

-27-
Case Nos. 1-21-19, 1-19-20

that she locked the door to Carter’s bedroom to get away from her brother because

he was being annoying that evening.

{¶74} According to S.H., Carter came upstairs shortly thereafter and banged

on the bedroom door because it was locked. S.H. testified that Carter was angry

because the three individuals were locked in his bedroom together. Further, S.H.

testified that when she opened the door for Carter, Sarah had her shirt pulled

partially up because she was showing the male scars from cancer surgery.

{¶75} All of the individuals went back downstairs and S.H. testified that the

party continued until everyone left. S.H. testified that she got intoxicated to the

point of being “messed up.” (Tr. at 474).

{¶76} After the other individuals at the party left, S.H. and Carter went

upstairs to Carter’s bedroom. S.H. testified that Carter wanted her to “give him

head” but she could not because her mouth was too dry from drug use. (Id.) She

told him she could not do it. S.H. testified that Carter was angry and that he slapped

her. She testified that he had never done anything like that before. She testified that

she then tried to “give him head” even though she did not want to because she was

upset. (Id. at 475). Eventually she stopped and Carter was angry with her for not

finishing the act.

{¶77} S.H. testified that in his anger Carter broke her phone. He also told

her to take her clothes off. She felt like she did not have a choice in the matter

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Case Nos. 1-21-19, 1-19-20

because she did not want to make him more angry. S.H. testified that Carter had a

gun and he let her know that he had it but she did not recall Carter pointing it at her.

{¶78} S.H. testified that at one point Carter cut off a chunk of her hair without

her permission. She asked him to stop but he laughed. S.H. testified that she tried

to leave but Carter would not let her and he would not let her put her clothes on.

Carter even followed her to the bathroom and stood in the doorway while she

urinated.

{¶79} S.H. testified that hours passed and she was not permitted to sleep.

Later, they went downstairs to the kitchen and Carter ate lasagna. S.H. believed at

that point that she was wearing one of Carter’s t-shirts.

{¶80} Eventually she testified that Carter took her to the house where her

friend Sarah was staying because Carter wanted to ask Sarah about what happened

in his bedroom while the door was locked during the party. On the way, S.H.

testified that Carter rolled stop signs and that when she would reach for the door

handle he would tell her “don’t do it.” (Tr. at 490).

{¶81} S.H. testified that Sarah was sleeping when they arrived. S.H. claimed

that Carter put S.H. and Sarah up against a wall and was “going off” asking what

was happening up in his room behind the locked door. (Id. at 492). S.H. testified

that Carter was putting the gun in their faces. After Sarah explained that nothing

sexual had happened in the bedroom at the party, Carter took S.H. back to his house.

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Case Nos. 1-21-19, 1-19-20

{¶82} S.H. testified that they went upstairs to Carter’s room wherein Carter

forced her to perform oral sex. She testified that at one point Carter tried to put the

gun inside of her “butt” and “vagina,” but Carter was unsuccessful in putting the

gun in her “butt.” (Tr. at 495).

{¶83} S.H. testified that Carter pulled out a video camera and started

recording her. During the 2018 search of Carter’s residence, video clips were

recovered of S.H. that she believed were from the incident in question. Three clips

were played for the jury, totaling just over twelve minutes. In the first clip, S.H. is

asking Carter not to record her. Carter says he wants to in order to make “memories”

in case he did not see her anymore. (State’s Ex. 61).

{¶84} On the second clip, Carter repeatedly tells S.H. to “open them legs up”

because he wanted to see her vagina. (State’s Ex. 61). S.H. kept her legs firmly

closed and Carter said “do what I say.” (Id.) S.H. questioned Carter, saying he must

like having women do what he tells them.

{¶85} At another point, Carter tells S.H. he is going to forcefully open her

legs, but he was not going “to rape her” and she could not call that “rape.” (Id.)

S.H. could be heard stating she did not want to do that. Carter continued to

repeatedly tell S.H. to open her legs and S.H. refused.

{¶86} On the third video S.H. is visibly and audibly crying while Carter

touches her vagina and digitally penetrates her by spreading her labia. Carter says

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Case Nos. 1-21-19, 1-19-20

things like “you guys know why she’s crying, ‘cus she love it.” (State’s Ex. 61).

He also tells her that they get to relive the moment. Eventually he says she does not

want to do anything else on camera so he ends the video.

{¶87} S.H. testified that after the camera was put away she engaged in

vaginal, anal, and oral sex with Carter. She testified that she felt like she did not

have a choice but to engage in the sexual acts.

{¶88} S.H. testified that she was eventually allowed to leave Carter’s

residence to pick up her daughter, ending the long ordeal. S.H. acknowledged that

she stayed in a relationship with Carter even after the ordeal, but she stated Carter

never forced any sexual acts on her again.

{¶89} On direct examination, S.H. acknowledged multiple credibility issues.

At the beginning of her testimony, S.H. claimed she had been sober for six months;

however, before her direct examination concluded she acknowledged that she lied,

stating that she had relapsed the week before the trial and she had talked to Carter

on the phone. She testified that in spite of everything she still loved Carter.

{¶90} S.H. also acknowledged an incident near the end of her relationship

with Carter wherein she became enraged and repeatedly rammed her vehicle into

Carter’s vehicle. S.H. was charged because of the incident.

{¶91} The State also presented the testimony of Sarah, S.H.’s friend. Sarah

testified regarding the incident wherein Carter came over and woke her up to ask

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Case Nos. 1-21-19, 1-19-20

about what happened in his locked bedroom. Sarah testified that S.H. was selling

cocaine to the male in the locked room for privacy. Sarah testified that she showed

the male her cancer scars because the male was talking about a family member with

cancer. Sarah testified she did not remember Carter coming up to the room.

{¶92} Sarah testified that in the early morning hours following the party she

was awakened because S.H. and Carter were at the residence where Sarah was

staying. Sarah testified that Carter was upset and he had a gun with him. Sarah

testified that Carter wanted to know if S.H. had cheated on Carter in the bedroom

because the door was locked. After confirming that Sarah was sure about her story,

Carter and S.H. left.

{¶93} Throughout the evidence presented, S.H.’s credibility was challenged

from multiple angles. Defense counsel elicited testimony that S.H. and Carter’s

relationship was “toxic.” Defense counsel also elicited inconsistent statements from

S.H. wherein, inter alia, she had said before that Carter was in a rage during the

ordeal, but at trial she stated he was calm during the situation. She also had initially

told the detective that Carter tore her clothes off but later said Carter asked her to

take her clothes off.

{¶94} In his case-in-chief, Carter called witnesses who testified that S.H. was

a jealous woman. Witnesses also stated that S.H. had never mentioned any rape

incident, contrary to her testimony. One witness testified that S.H. told him that

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Case Nos. 1-21-19, 1-19-20

S.H. had the police on speed dial and that she was lying about the incident. Another

witness testified that he heard Carter speaking to S.H. on the phone while S.H. was

high the weekend before the trial. At that time, the witness stated that S.H. said if

Carter gave S.H. his “whole wallet,” and some cocaine, S.H. would change her

testimony to say she was just role playing. (Tr. at 761).

{¶95} When the case was submitted to the jury, Carter was found guilty of

the oral and vaginal rape of S.H., and the kidnapping of S.H. He was acquitted of

the anal rape of S.H., and he was acquitted of the firearm specifications.

Analysis

{¶96} Carter contends that S.H.’s testimony has even less support than S.S.’s

testimony because there was no physical evidence available. He also contends that

the inconsistencies in S.H.’s testimony, and the fact that she apparently tried to

solicit money or drugs from Carter shortly before the trial destroyed her credibility.

{¶97} As we stated in the previous assignment of error, a reviewing court

must allow the trier-of-fact appropriate discretion on matters relating to the

credibility of the witnesses. State v. DeHass, 10 Ohio St.2d 230, 231 (1967). The

trier of fact is best able “to view the witnesses and observe their demeanor, gestures,

and voice inflections, and use these observations in weighing the credibility of the

proffered testimony.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 24.

The jury may take note of any inconsistencies and resolve them accordingly,

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Case Nos. 1-21-19, 1-19-20

“believ[ing] all, part, or none of a witness’s testimony.” State v. Raver, 10th Dist.

Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St.

61, 67 (1964).

{¶98} Thus while defense counsel pointed out multiple inconsistencies with

S.H.’s testimony, the jury was free to believe all, part, or none of her claims. In

fact, the jury evidently did not believe her claim of anal rape, at least to the level of

beyond a reasonable doubt, showing that the jury was discerning in its deliberations.

{¶99} Moreover, while Carter claims there is significantly less evidence

related to his charges against S.H., the video clips would show otherwise. One of

the videos actually shows Carter digitally penetrating S.H. while she is crying, after

she had repeatedly told him she did not want to open her legs or be on camera. A

jury could have determined that this act alone could have satisfied the vaginal rape

against S.H. in Count 5.9 But S.H. also testified to vaginal intercourse that occurred

after the video in question.

{¶100} Further, although Sarah’s testimony did not entirely corroborate

S.H.’s testimony, it did corroborate the testimony in parts, such as the drug incident

9
“The insertion need only be slight to be considered vaginal penetration.” State v. McCoy, 3d Dist. Marion
No. 9-18-23, 2020-Ohio-4511, ¶ 72; see also State v. Lucas, 2d Dist. Montgomery No. 18644, 2001 WL
1103288, *3 (Sept. 21, 2001) (“It is sufficient if the evidence shows that the force of the object caused the
outer lips of the victim's vagina, the labia, to spread.”); State v. D.H., 10th Dist. Franklin No. 16AP-501,
2018-Ohio-559, ¶ 40 (“Thus, any force which causes the labia to spread apart, and allows the slightest
insertion of any object or part of the body into the vaginal opening, amounts to sexual conduct under R.C.
2907.01(A).”).

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Case Nos. 1-21-19, 1-19-20

in Carter’s bedroom behind a locked door, and Carter bringing S.H. to Sarah’s

residence in the early morning hours to ask about the incident. Thus parts of the

story remained consistent across multiple witnesses.

{¶101} In sum, while the evidence was in conflict, we cannot find that this

is a case where the jury clearly lost its way or created a manifest miscarriage of

justice. S.H.’s testimony and the video clips in State’s Exhibit 61 support the jury’s

guilty findings of two counts of rape and one count of kidnapping related to victim

S.H. Therefore, Carter’s fourth assignment of error is overruled.

Conclusion

{¶102} For the foregoing reasons Carter’s assignments of error are overruled

and the judgments and sentences of the Allen County Common Pleas Court are

affirmed.

Judgments Affirmed

ZIMMERMAN, P.J. and MILLER, J., concur.

/jlr

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