State v. Carter

[Cite as State v. Carter, 2022-Ohio-4559.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 8-22-12

v.

ELI Y. CARTER, OPINION

DEFENDANT-APPELLANT.

Appeal from Logan County Common Pleas Court
Trial Court No. CR 21 03 0051

Judgment Affirmed

Date of Decision: December 19, 2022

APPEARANCES:

Samuel H. Shamansky for Appellant

Eric C. Stewart for Appellee
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ZIMMERMAN, P.J.

{¶1} Defendant-appellant, Eli Y. Carter (“Carter”), appeals the February 8,

2022 judgment entry of the Logan County Court of Common Pleas, General

Division, granting the State’s request to have a witness testify via a two-way-live-

video-conference call. For the reasons set forth below, we affirm.

{¶2} This case stems from Carter’s sexual abuse of his adopted daughter,

N.C., between the ages of 17-19 and her disclosure of that abuse.1 On March 9,

2021, the Logan County Grand Jury indicted Carter on three counts of rape in

violation of R.C. 2907.02(A)(1), all first-degree felonies and three counts of sexual

battery in violation of R.C. 2907.03(A)(5), (B), all third-degree felonies. Carter

appeared for arraignment on March 12, 2021 and entered not-guilty pleas.

{¶3} On February 7, 2022, the State filed a motion for witnesses to testify

via video, which Carter opposed.2 The trial court granted the State’s motion.3

{¶4} On February 9, 2022, Carter’s jury trial commenced wherein he was

acquitted of the three rape charges (under Counts One, Three, and Five) and the

sexual-battery charge (under Count Two). However, Carter was found guilty of the

sexual-battery charges (under Counts Four and Six).

1
N.C. was 17 years old at the time of her adoption in 2007, 20 at the time of her disclosure in 2010, and 32
at the time of trial in 2022.
2
Two witnesses who had previously resided in Logan and Champaign Counties had since relocated, and at
the time of trial, both witnesses resided out-of-state.
3
Even though the trial court granted the State’s motion, the State only called one of the witnesses at trial.

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{¶5} On March 18, 2022, the trial court held a sentencing hearing and

ordered Carter to serve 30-month prison terms under Counts Four and Six, each, to

be served concurrently to one another.

{¶6} Carter filed a timely notice of appeal and raises one assignment of error

for our review.

Assignment of Error

The trial court erred by permitting Michael Mullins to testify by
remote means utilizing a speech-to-text captioning program in
violation of Appellant’s rights as guaranteed by the Sixth and
Fourteenth Amendments to the United States Constitution,
comparable provisions of the Ohio Constitution, as well as Ohio
law and the Ohio Rules of Evidence.

{¶7} In his sole assignment of error, Carter asserts that he was denied the

right to confront a witness against him in violation of the Sixth Amendment to the

United States Constitution, Section 10, Article 1 of the Ohio Constitution, and the

Rules of Evidence. Specifically, Carter argues that the State did not meet its burden

by demonstrating that video conferencing was justified; that one of the witness’s

testimony was inadmissible because he used unverified software that aided his

testimony; and that he was unfairly prejudiced by the admission of unreliable

testimony.

Standard of Review

{¶8} Generally, a trial court has broad discretion with respect to the

admission of evidence. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶

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37. Accordingly, we will not disturb the trial court’s evidentiary rulings absent an

abuse of discretion that produces a material prejudice to the aggrieved party. State

v. Gipson, 3d Dist. Allen No. 1-15-51, 2016-Ohio-994, ¶ 48, citing State v. Roberts,

9th Dist. Summit No. 21532, 2004-Ohio-962, ¶ 14. An abuse of discretion is more

than an error of judgment; it means that the trial court was unreasonable, arbitrary,

or unconscionable in reaching its ruling. State v. Adams, 62 Ohio St.2d 151, 157

(1980).

{¶9} However, we review evidentiary rulings that implicate the

Confrontation Clause under a de novo standard of review. See State v. Armour, 3d

Dist. Allen Nos. 1-22-05 and 1-22-06, 2022-Ohio-2717, ¶ 37, citing State v.

McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 97. “De novo review is

independent, without deference to the lower court’s decision.” State v. Hudson, 3d

Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶ 27, citing Ohio Bell Tel. Co. v. Pub.

Util. Comm. of Ohio, 64 Ohio St.3d 145, 147 (1992).

Analysis

{¶10} Carter raises three arguments in support of his assignment of error the

first of which implicates the Confrontation Clause.

Confrontation Clause

{¶11} “The Confrontation Clause to the Sixth Amendment of the United

States Constitution, made applicable to the states by the Fourteenth Amendment,

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provides that ‘“[i]n all criminal prosecutions, the accused shall enjoy the right * * *

to be confronted with the witnesses against him * * *.”’” State v. Thomas, 3d Dist.

Marion No. 9-19-73, 2020-Ohio-5379, ¶ 17, quoting Crawford v. Washington, 541

U.S. 36, 42, 124 S.Ct. 1354, 1359 (2004), quoting the Confrontation Clause.

Section 10, Article I of the Ohio Constitution provides in its pertinent parts:

In any trial, in any court, the party accused shall be allowed * * * to
meet the witnesses face to face[] * * *; but provision may be made by
law for the taking of the deposition by the accused or by the state, to
be used for or against the accused, of any witness whose attendance
can not be had at the trial, always securing to the accused means and
the opportunity to be present in person and with counsel at the taking
of such deposition, and to examine the witness face to face as fully
and in the same manner as if in court. * * *.

See also Crim.R. 15; R.C. 2945.481. The similar provisions of Section 10, Article

I of the Ohio Constitution “provide[ ] no greater right of confrontation than the Sixth

Amendment * * *.” State v. Self, 56 Ohio St.3d 73, 79 (1990).

{¶12} Even though the United States Supreme Court has interpreted the

Confrontation Clause as reflecting a preference for face-to-face confrontation, it has

explained that the preference “‘must occasionally give way to considerations of

public policy and the necessities of the case.’” State v. Marcinick, 8th Dist.

Cuyahoga No. 89736, 2008-Ohio-3553, ¶ 14, citing Maryland v. Craig, 497 U.S.

836, 849, 110 S.Ct. 3157, 3165 (1990). Thus, the right to confrontation is not

absolute, and the primary concern of the Confrontation Clause is “to ensure the

reliability of evidence against a criminal defendant by subjecting it to rigorous

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testing in the context of an adversary proceeding before the trier of fact.” Maryland

at 845, 110 S.Ct. 3157. In holding that the right to confrontation is not absolute, the

United States Supreme Court detailed the rationale for that right, including: 1) the

giving of testimony under oath; 2) the opportunity for cross-examination; 3) the

ability of the factfinder to observe demeanor evidence; and 4) the reduced risk that

a witness will wrongfully implicate an innocent defendant. Id. at 845-846, 110 S.C.t

3163-3164.

{¶13} Analogously, in interpreting Ohio’s confrontation rights, the Supreme

Court of Ohio has held that, “[e]ven in criminal law, the right to confrontation is not

absolute.” Ohio Ass’n. of Pub. Sch. Employees v. Lakewood City Sch. Dist., 68 Ohio

St.3d 175, 179 (1994). In State v. Self, the Supreme Court of Ohio determined that

R.C. 2907.41, which permitted the use of a child sexual abuse victim’s videotaped

deposition at trial in place of live testimony, does not violate the Ohio or federal

confrontation clauses.4 56 Ohio St.3d at 73, paragraph one of the syllabus. The

court stated that a “literal face-to-face confrontation is not the sine qua non of the

confrontation right.” (Emphasis added.) Id. at 77. The court reasoned:

[t]hough our Constitution uses the specific phrase ‘face to face,’ that
phrase has not been judicially interpreted at its literal extreme. This is
because the purpose of the ‘face to face’ clause of the Ohio
Constitution (as well as the parallel provision of the Sixth
Amendment) is to guarantee the opportunity to cross-examine and the
right to observe the proceeding. Taking the phrase ‘face to face’ to its

4
Although the General Assembly recodified R.C. 2907.41 as R.C. 2945.481 in 1997, for the issues in this
appeal, it is substantially identical to its prior version.

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outer limits, one could argue that a witness who looks away from the
defendant while testifying is not meeting the defendant ‘face to face.’
As we have indicated, a criminal defendant is ordinarily entitled to a
physical confrontation with the accusing witnesses in the courtroom.
Yet, the value which lies at the core of the Confrontation Clauses does
not depend on an ‘eyeball to eyeball’ stare-down. Rather, the
underlying value is grounded upon the opportunity to observe and to
cross-examine. The physical distance between the witness and the
accused, and the particular seating arrangement of the courtroom, are
not at the heart of the confrontation right.

(Internal citation and footnote omitted.) Id. at 79. The Supreme Court of Ohio

concluded that, “[w]hile closed-circuit television and videotape recording did not

exist when the Ohio (or federal) Constitution was written and adopted, these new

technologies, when employed in accord with R.C. 2907.41, provide a means for

the defendant to exercise the right of cross-examination and to observe the

proceedings against him with the same particularity as if he and the witness were

in the same room.” Id. Since Self, other Ohio courts have authorized the

presentation of testimony via cloud-based-video-conferencing platforms, through

Skype and Zoom, under limited circumstances. See State v. Banks, 1st Dist.

Hamilton No. C-200395, 2021-Ohio-4330, ¶ 14-26; State v. Castonguay, 2nd Dist.

Darke No. 2021-CA-2, 2021-Ohio-3116, ¶ 33-42.

{¶14} To determine whether an alternative to physical face-to-face

confrontation is warranted, Ohio courts have employed a two-prong test set forth in

Self. Banks at ¶ 22; State v. Howard, 2d Dist. 28314, 2020-Ohio-3819, ¶ 53;

Castonguay at ¶ 35. When deciding whether an exception to the Confrontation

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Clause is warranted, those appellate courts have concluded that a trial court must

first consider whether the procedure is “justified, on a case-specific finding, based

on important state interests, public policies, or necessities of the case and[,] * * *

[second ensure whether the procedure] satisf[ies] the other three elements of

confrontation[:] oath, cross-examination, and observation of the witness’

demeanor.” Id. at ¶ 22, quoting Howard at ¶ 53, citing Marcinick, 2008-Ohio-3553,

at ¶ 14. Hence, we begin by addressing whether or not the “necessities of the case”

justified an alternative to face-to-face confrontation.

{¶15} Prior to trial, the State requested the trial court to permit Mullins to

testify remotely because he resided in Minnesota. Due to spikes in the number of

reported Covid cases and the potential for bad weather (in Minnesota and Ohio) at

the time of trial, the State argued for the witness to testify remotely. In rendering

its decision on the State’s motion, the trial court noted that live-video testimony was

more commonplace than it was prior to the pandemic. The trial court further noted

that, in addition to the Covid pandemic, airline-labor shortages (resulting from the

pandemic) and other causes were creating unprecedented travel delays resulting in

mass cancellations of airline flights.

{¶16} Here, even if we were to assume without deciding that the possibility

of inclement weather was insufficient to warrant an exception for Mullins’s video-

conferenced testimony, we nevertheless conclude that the trial court’s

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determinations were justified on a case-specific finding based upon an important

public policy involving the Covid pandemic. Indeed, Carter’s memorandum contra

to the State’s motion detailed Kentucky’s, Minnesota’s, and Ohio’s Covid-case data

for a seven-day average. (See Doc. No. 75). That data reflected that Minnesota’s

seven-day average was more than three times the Ohio Covid-case average. (Id.).

Thus, it is evident to us that the trial court considered the needs of the public and

the trial court including all staff, the attorneys, and most importantly, members of

petit jury, from exposure to Covid. Banks at ¶ 24 (holding that “[p]reventing the

spread of C[ovid] is an important public policy that may warrant an exception to

face-to-face confrontation under appropriate circumstances.”), citing United States

v. Donziger, S.D.N.Y. Nos. 19-CR-561 and 11-CV-691, 2020 WL 5152162, *2

(Aug. 31, 2020).

{¶17} In addition to the foregoing, we recognize this is not an issue of

witness convenience, but rather, the trial court’s duty to protect those who come and

go from the courthouse and to maintain the orderly administration of trial

proceedings. See also State v. Owen, 3d Dist. Union No. 14-92-34, 1993 WL

128177, *3 (Apr. 26, 1993), citing Crim.R. 1(B); State v. Harding, 3d Dist. Marion

No. 9-93-8, 1993 WL 312905, *3 (Aug. 9, 1993).

{¶18} Since we reached the conclusion that the combination of the pandemic

and resultant airline-labor shortages were sufficient bases to justify the trial court’s

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determination, we leave the question of whether the possibility of inclement weather

is independently sufficient to warrant an exception to a criminal defendant’s right

to confrontation for another day.

{¶19} Accordingly, we conclude that under the specific facts and

circumstances of this case, the use of two-way-live-video-conferencing allowing

Mullins to testify from out-of-state, did not violate Carter’s right to confrontation.

Here, Mullins’s two-way-live-video-conference call preserved the reliability

elements of confrontation given that he testified under oath; he was subject to cross-

examination; and, the jury and Carter could observe his demeanor while testifying.

We find no error in admitting this testimony. Hence, there is no merit to the first

portion of Carter’s argument.

{¶20} Next, we turn the second portion of Carter’s argument wherein he

asserts that Mullins’s remote testimony should have been inadmissible under the

Rules of Evidence. Specifically, he argues that Mullins’s use of closed-captioning

software on his cellphone should have disqualified him as a witness under Evid.R.

601.5 Further, Carter asserts that because the defense was unable to see or verify

5
Mullins, a hearing-impaired witness, testified on behalf of the State in its case-in-chief. Mullins has a
cochlear implant in one ear and wears a hearing aid in the other. “A cochlear implant is a small electronic
device that is placed inside a [hearing-impaired person’s] ear and provides him or her with a sense of sound.”
Dombroski v. WellPoint, Inc., 119 Ohio St.3d 506, 2008-Ohio-4827, ¶ 4, fn. 1. A “[h]earing aid”, on the
other hand, is defined in the Revised Code as “any wearable instrument or device designed or offered for the
purpose of aiding or compensating for impaired human hearing, including all attachments, accessories, and
parts thereof, except batteries and cords.” R.C. 4747.01(A). Simply put, a hearing aid is a small electronic
device (with a microphone, amplifier, and speaker) that can be worn in or behind the ear receiving sound,
converting the sound waves to electrical signals and amplifying them sending them to the hearing-impaired
person’s ear through the speaker in the device.

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the closed captioning on Mullins’s cellphone screen that the admission of his

testimony is contrary to law since the closed captioning involved the interpretation

of the questions posed.

{¶21} We review Carter’s assertions under an abuse of discretion standard

of review since the decision to appoint or not to appoint an interpreter and

evidentiary determinations are both within the sound discretion of the trial court.

See State v. Muhire, 2d Dist. Montgomery No. 29164, 2022-Ohio-3078, ¶ 27; State

v. Flores, 10th Dist. Franklin No. 19AP-405, 2020-Ohio-593, ¶ 11; State v. Castro,

2d Dist. Montgomery No. 14398, 1995 WL 558782, *4 (Sept. 20, 1995) citing State

v. Saah, 67 Ohio App.3d 86, 95 (8th Dist.1990). See also Conway, 109 Ohio St.3d

412, 2006-Ohio-2815, at ¶ 62; Gipson, 2016-Ohio-994, at ¶ 48, citing Roberts,

2004-Ohio-962, at ¶ 14.

{¶22} We begin by addressing Carter’s arguments regarding the Rules of

Evidence. Evid.R. 601(A) provides that “[e]very person is competent to be a

witness except as otherwise provided in these rules. Relevant to the facts presented,

Evid.R. 601(B)(1) states “[a] person is disqualified to testify as a witness when the

[trial] court determines” that he or she is “[i]ncapable of expressing himself or

herself concerning the matter as to be understood, either directly or through

interpretation by one who can understand him or her[.]” Despite Carter’s assertions,

Evid.R. 601(B)(1) has no application herein. That is, the facts do not support that

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Mullins suffered from any speech-related issue as a result of his hearing impairment.

Specifically, the record supports that he is hearing impaired, not speech impaired.

Consequently, we find that there is no evidence in the record that Mullins was

incapable of expressing himself in response to the questions asked.

{¶23} Next, we turn to Carter’s argument related to the Revised Code that

also implicate the Rules of Evidence and Rules of Superintendence. See Evid.R.

604; Sup. R. 88. R.C. 2311.14 provides in its pertinent parts

(A)(1) Whenever because of a hearing, speech, or other impairment a
party to or witness in a legal proceeding cannot readily understand or
communicate, the court shall appoint a qualified interpreter to assist
such person.

(2) This section is not limited to a person who speaks a language other
than English. It also applies to the language and descriptions of any
person with a developmental disability who cannot be reasonably
understood, or who cannot understand questioning, without the aid of
an interpreter. The interpreter may aid the parties in formulating
methods of questioning the person with a developmental disability
and in interpreting the answers of the person.

(B) Before entering upon official duties, the interpreter shall take an
oath that the interpreter will make a true interpretation of the
proceedings to the party or witness, and that the interpreter will truly
repeat the statements made by such party or witness to the court, to
the best of the interpreter’s ability. If the interpreter is appointed to
assist a person with a developmental disability as described in division
(A)(2) of this section, the oath also shall include an oath that the
interpreter will not prompt, lead, suggest, or otherwise improperly
influence the testimony of the witness or party.

* * *.

(Emphasis added.) R.C. 2311.14(A)(1)-(2), (B). See also Evid.R. 604; Sup. R. 88.

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{¶24} Importantly, the record before us is not clear on this issue and since

we cannot see Mullins while testifying at trial, we are confined to a static transcript.

To us, Mullins’s level of hearing impairment was not documented in the record nor

is there evidence in the record that Mullins utilized the closed captioning on his

cellphone while testifying. Moreover, even if we assume without deciding that he

did use the closed-captioning feature, Carter suffered no prejudice because Mullins

was instructed by the trial court that he must rely on the verbal questions posed and

not the closed captioning when formulating his answers. (Feb. 10, 2022 Tr., Vol.

II, at 201-206). The trial court further instructed Mullins that if he did not hear the

question or did not understand the question that he was required to ask the trial court

or the attorneys to repeat the question. Id.

{¶25} In our review, the record supports that Mullins was responsive during

his testimony and never requested clarification of the questions he was asked.

Moreover, the record is void of any objections from the defense asserting that

Mullins was reading questions, rather than, listening to the questions posed. Hence,

Carter cannot establish that Mullins could not readily understand the questions

posed without the aid of an interpreter nor can he establish that Mullins used closed

captioning while testifying.6 Therefore, this portion of his argument is without

merit.

6
Nevertheless, even if we had reached different conclusions, Sup. R. 88 requires the trial court to give
primary consideration to the method of interpretation chosen by a witness (in need of a sign language

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{¶26} In his third argument, Carter synthesizes his prior two arguments and

asserts that he is unfairly prejudiced by the admission of Mullins’s testimony (under

Evid.R. 403(A)) since the verdicts support that the jury relied heavily on this

testimony to convict Carter of the two of the sexual-battery charges while acquitting

him of the remaining sexual-battery charge and the rapes. We disagree.

{¶27} First, the State sought the amendment of the rape charges (under

Counts One, Three, and Five) at trial from R.C. 2907.02(A)(1) to R.C.

2907.02(A)(2) deleting the relational element “who is not the spouse of the

offender” and adding “purposely compels the other person to submit by force or

threat of force”. (Feb. 10, 2022 Tr., Vol. II, at 190-193). Notwithstanding Carter’s

testimony (at trial) that he did not sexually abuse N.C., the State also presented

testimony from Kurt Penhorwood that Carter perceived his sexual relationship with

N.C. as consensual. (Id. at 158, 213-214, 224-225, 251). Hence, the jury simply

could have believed that N.C. and Carter were engaging in a consensual-sexual

relationship. Indeed, sexual battery under R.C. 2907.03(A)(5) is designed to protect

children from adults in positions of authority, and designed to protect the family

unit and relationships by criminalizing incest. State v. Lowe, 112 Ohio St.3d 507,

2007-Ohio-606, ¶ 10 and ¶ 25 (“This reasoning applies not only to minor children,

but to adult children as well. Moreover, parents do not cease being parents–whether

interpreter) in accordance with 28 C.F.R. 35.160(b)(2), which includes “closed captioning, including real-
time captioning”. Sup. R. 88(B)(2); 28 CFR 35.104; 28 C.F.R. 35.160(b)(2).

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natural parents, stepparents, or adoptive parents–when their minor child reaches the

age of majority”).

{¶28} Secondly, Carter’s arguments are predicated on evidentiary weight

and witness-credibility determinations, which are reserved for the trier of fact (i.e.,

the jury) and are misplaced under this assignment of error since Carter did not argue

that his sexual-battery convictions were against the manifest weight of the evidence.

{¶29} Lastly, we note that all evidence presented by the State is prejudicial

to a criminal defendant since it is offered to prove his or her guilt. See State v.

Skates, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶ 107. Because we determined that

the State met its burden by demonstrating that Mullins’s two-way-live-video-

conferencing testimony was justified and that the record supports that Mullins relied

upon the questions he heard and not the closed-captioning software, we will not say

that the probative value of Mullins’s testimony as to Carter’s statement is

substantially outweighed by the danger of unfair prejudice. Thus, this portion of

Carter’s argument is without merit.

{¶30} Accordingly, Carter’s assignment of error is overruled.

{¶31} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

Judgment Affirmed

MILLER and SHAW, J.J., concur.

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