[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Carter, Slip Opinion No. 2024-Ohio-1247.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2024-OHIO-1247
THE STATE OF OHIO, APPELLEE, v. CARTER, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Carter, Slip Opinion No. 2024-Ohio-1247.]
Criminal law―Sixth Amendment―Right to face-to-face confrontation―Harmless
error―Trial court erred in allowing witness to testify by video at trial
without making sufficient case-specific findings of necessity, in violation of
defendant’s right to face-to-face confrontation under Confrontation Clause
of Sixth Amendment to United States Constitution―In light of other
evidence presented against defendant at trial, confrontation error was
harmless―Court of appeals’ judgment affirmed.
(No. 2023-0156—Submitted September 27, 2023—Decided April 4, 2024.)
APPEAL from the Court of Appeals for Logan County,
No. 8-22-12, 2022-Ohio-4559.
__________________
SUPREME COURT OF OHIO
DEWINE, J.
{¶ 1} This case involves a criminal defendant’s right to confront the
witnesses against him under the Confrontation Clause of the Sixth Amendment to
the United States Constitution. A jury found Eli Carter guilty of having sexual
relations with his adopted daughter. Eli complains that his right to face-to-face
confrontation was violated because the trial court allowed a witness to testify
remotely by way of video conference.
{¶ 2} We agree that the trial court erred by allowing the remote testimony.
Under United States Supreme Court precedent, a trial judge may only dispense with
the requirement of face-to-face confrontation in narrow circumstances. But the trial
court in this case did not make sufficient findings to establish that such
circumstances existed.
{¶ 3} Our conclusion that the trial court erred by permitting the remote
testimony does not end our inquiry. We also must determine whether the remote
testimony prejudiced Eli. We find that the use of videoconferencing was harmless
error. Based on the other evidence presented at trial, there was no reasonable
possibility that the trial court’s error in allowing the remote testimony contributed
to Eli’s conviction.
I. BACKGROUND
{¶ 4} In 2023, a jury found Eli guilty of two counts of sexual battery of his
adopted daughter, N.C, in violation of R.C. 2907.03(A)(5). The law under which
Eli was convicted criminalizes incest; it is a crime to have sexual conduct with
one’s natural or adopted child, regardless of the child’s age. See id.
A. N.C. is adopted by the Carter family and later reports that Eli had
sexually abused her
{¶ 5} N.C. testified at trial that she grew up in foster care, having been
placed in the system when she was two days old. Over the first 14 years of her life,
she had nearly 40 different placements before she entered the Adriel School in West
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Liberty. Adriel is a residential facility for children who have suffered abuse or
trauma. The institution provides schooling as well as clinical treatment.
{¶ 6} Eli and his wife, Liz, were “teaching parents” at Adriel. They
developed a relationship with N.C., who was a “[g]ood student” and “[e]asy to get
along with.” When N.C. was about 15 or 16 years old, the Carters brought her into
their home as a foster child. They adopted N.C. the next year, in 2007. According
to N.C., being adopted felt “like the dream that I had always wanted * * *. I felt
like I actually had somewhere that I belonged. I was happy.”
{¶ 7} But by N.C.’s account, the dream did not turn out the way she had
hoped. N.C. testified that Eli began to sexually abuse her. At first, she noticed Eli
would stand outside of the bathroom window while she was inside. Eli “played
around a lot”—grabbing the inside of her thigh and squeezing it to the point that it
bruised, ripping off her bra, and giving her “wedgies.” Once the abuse started, it
only got worse. Eli had a “man cave” where he would play video games. N.C.
described an encounter there when Eli put his hands down her pants and rubbed her
vagina. Days later, Eli had intercourse with her for the first time. After that, N.C.
explained, Eli had intercourse with her on many other occasions over the next
several years and forced her to engage in a variety of other sexual acts.
{¶ 8} N.C. testified that sometimes when Eli would touch her
inappropriately, she would push him away, but most of the time she endured the
abuse because she felt she “had to let him do that * * * to sustain being part of that
family.” Indeed, Eli had warned N.C. that if she told anyone about the sexual abuse,
she “wouldn’t have a family anymore.”
{¶ 9} N.C. went away to college at Urbana University in 2008. But, by her
account, the abuse persisted. Eli continued to have sexual relations with N.C. when
she returned home on weekends, in her college dorm room, and in his truck.
{¶ 10} Eventually, N.C. could not endure the abuse anymore and stopped
returning home. And in 2010, she told Liz Carter and Eli’s brother, Travis, about
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what Eli had done. The day after she told Liz, N.C. reported her father’s sexual
abuse to the police. The officer who took the report made an audio recording of
N.C.’s statement and forwarded it to the department’s detectives. But the detective
assigned to the case failed to investigate the allegations.
{¶ 11} In 2017, N.C. contacted the prosecutor’s office about her 2010 police
report and spoke to Detective Dwight Salyer, who had inherited the case from the
detective to whom it was initially assigned. Ultimately, Detective Salyer reopened
the investigation and obtained evidence corroborating N.C.’s account. A grand jury
indicted Eli on three counts of rape and three counts of sexual battery. The
indictment covered three different time periods: (1) December 20, 2006, to
December 19, 2007; (2) December 20, 2007, to December 19, 2008; and (3)
December 20, 2008, to December 19, 2009. It alleged a single count of rape and a
single count of sexual battery for each period.
B. The trial court allows a state witness to testify by video
{¶ 12} Eli’s jury trial began on February 9, 2022. A couple days before
trial, the state moved to allow Michael Mullins to testify by video. Mullins served
as CEO of Adriel School when Eli worked there. The state represented that Mullins
now lived in Minnesota and argued that he should be allowed to testify remotely
because of “the increase in COVID spread and uncertain weather conditions.”
{¶ 13} The trial court granted the motion over Eli’s objection. The court
observed that the COVID-19 “pandemic and labor shortages at airlines resulting
from the pandemic” had made “travel by air uncertain on a daily basis.” And it
explained that “[w]eather is unpredictable and could delay or prohibit [Mullins]
from reaching Logan County to testify in person.” Further, it noted that the state
had identified Mullins as “an important witness” and found that his testimony
would be “relevant and admissible as admissions of the [d]efendant.” From these
findings, the trial court determined that “the fact specific circumstances of this
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case” rendered Mullins “unavailable to testify in person” and that the video format
would not hinder the defense’s ability to cross-examine him.
C. The evidence at trial
{¶ 14} The state called N.C. as one of its six witnesses at the in-person trial.
N.C. described the abuse in detail and testified that she endured it to prevent her
return to foster care.
{¶ 15} Lieutenant Scott Marlow testified that in June 2010, N.C. filed a
police report detailing her sexual-abuse allegations and made a recorded statement.
Detective Salyer testified that the detective initially assigned to the case, Detective
Scott Sebring, had notified Children’s Services about the 2010 allegations but did
not otherwise investigate them.
{¶ 16} Detective Salyer explained that he spoke with N.C. in 2017 after she
reached out to his department about her 2010 police report. At Detective Salyer’s
suggestion, N.C. called the Carters from the police station to see if they would talk
about the abuse, but they did not answer.
{¶ 17} Detective Salyer testified that in 2020, he received an inquiry about
Eli from a West Liberty school where Eli had been hired as teacher. This event
prompted Detective Salyer to investigate N.C.’s earlier allegations. After
confirming with N.C. that she still wished to pursue the matter, Detective Salyer
interviewed several persons, including Liz, Liz’s siblings, Travis Carter, and
Mullins. Detective Salyer documented the information he obtained in the
interviews, and stated that it corroborated N.C.’s account.
{¶ 18} Miranda Borland, a Logan County Children’s Services
administrator, testified that a woman called her office in 2010 to report Eli’s sexual
abuse of N.C. Borland recounted that the woman had said that she learned about
the allegations from Travis. Borland said that Travis had also called the agency to
report the abuse. Because N.C. was 20 years old at the time of the reports, and
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SUPREME COURT OF OHIO
because Children’s Services only investigates abuse reports involving minors,
Borland referred the matter to law enforcement but took no further action.
{¶ 19} The state also called Kurt Penhorwood, Eli’s former friend, who
interacted with Eli regularly in Spring 2021. Penhorwood recounted that he had
had “a lot of conversation[s]” with Eli about N.C.’s accusations. According to
Penhorwood, Eli “basically denied it” during those conversations, saying “I didn’t
do what she accused me of.” Penhorwood testified that Liz was present on one
occasion, and she asked Eli, “[A]re you going to tell Kurt the one thing that did
happen?” When Penhorwood asked Eli what he meant by his statement that he did
not do what N.C. had accused him of, Eli responded, “[I]f it was consensual, why
I am getting charged with rape?” Penhorwood testified that this statement made
him feel morally obligated to contact law enforcement, explaining that “if you know
the truth and don’t come forward then you’re just as guilty as someone who would
lie about the truth.”
{¶ 20} Mullins was the state’s only witness to appear by video. He testified
using his cellphone. As the court was testing the video equipment, Mullins revealed
that his phone had captioning software that translated speech to text. Eli’s counsel
objected to the use of this software. The court overruled the objection but instructed
Mullins to rely only on “the verbal communication” and that if he did not
understand anything, he should ask that it be repeated.
{¶ 21} Mullins testified that in 2010, Eli’s brother and sister-in-law—both
of whom also worked at Adriel School at that time—notified him of allegations that
Eli had sexually abused N.C. Mullins then arranged a meeting with Eli in his office.
According to Mullins, Eli “simply walked into the office, made a statement that it
was true, that he did engage in a sexual relationship with [N.C.] but it was
consensual and it was after the age of 18, and he said I resign, and he walked out
of the office.”
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January Term, 2024
{¶ 22} Karen Fowler, a former behavioral-health therapist at Adriel School,
testified that Mullins informed her about the allegations. She testified that
following Mullins’s meeting with Eli, she reached out to N.C. to discuss resources
that were available to assist her.
{¶ 23} The defense called only Eli. He denied N.C.’s allegations and
blamed them on her childhood trauma in foster care, failure to take prescription
medications, and belief that he and Liz owed her money. He said that he had never
been home alone with N.C. Eli also denied having had personal conversations with
Penhorwood about the sexual-abuse allegations. But he admitted to having asked
Penhorwood in the presence of Liz how he could be charged with rape if N.C. had
consented to sexual activity. Eli maintained that this statement did not constitute
an admission that he had engaged in consensual sex with N.C., saying, “I never
admitted to anything.” Rather, he characterized that question as one about the
“legal standard.” He also testified that Mullins “misremembered” their
conversation in Mullins’s office and that he did not admit during the meeting to
having had consensual sex with N.C. Eli said that he did not resign during the
meeting but instead quit several days later so that the allegations would not
negatively impact Adriel School.
D. Eli is convicted, and his convictions are affirmed on appeal
{¶ 24} The jury found Eli guilty of two counts of sexual battery. It found
him not guilty of the three rape charges and not guilty of the sexual battery charge
alleged to have occurred from December 20, 2006, through December 19, 2007.
{¶ 25} Eli appealed to the Third District Court of Appeals. He argued that
Mullins’s remote testimony violated his constitutional right to confront the
witnesses against him. 2022-Ohio-4559, ¶ 6-7. The court of appeals rejected
Carter’s arguments and affirmed the trial court’s judgment. Id. at ¶ 31. It noted
that the trial court had found that airline-labor shortages and other causes were
creating unprecedented travel delays. Id. at ¶ 15. The court further stated that even
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SUPREME COURT OF OHIO
if it “were to assume without deciding that the possibility of inclement weather was
insufficient to warrant an exception” for Mullins’s video testimony, “the trial
court’s determinations were justified on a case-specific finding based upon an
important public policy involving the COVID pandemic.” Id. at ¶ 16. Citing
statistics provided by Eli in a trial-court filing, the court of appeals concluded that
Minnesota’s seven-day average for new COVID-19 cases was “more than three
times” that of Ohio’s around the time of trial. (Emphasis in original.) Id. Based
on that conclusion, the court of appeals found it “evident” that the trial court had
“considered the needs of the public and the trial court including all staff, the
attorneys, and most importantly, members of [the] petit jury, from exposure to
COVID.” Id. Thus, it concluded that “the combination of the pandemic and
resultant airline-labor shortages were sufficient bases to justify the trial court’s
determination.” Id. at ¶ 18.
II. ANALYSIS
{¶ 26} We accepted Eli’s appeal on a single proposition of law, which
asserts that “a criminal defendant’s right to due process is violated when a witness
is permitted to testify by remote means utilizing a speech-to-text caption program
in the absence of any important state interest, public policy, or case necessity.” See
169 Ohio St.3d 1489, 2023-Ohio-1149, 206 N.E.3d 735. Although Eli’s
proposition of law refers to his due-process rights, his arguments are based on the
right to face-to-face confrontation. So we will focus on the constitutional
provisions concerning confrontation.
A. Confrontation rights under the Ohio and federal Constitutions
{¶ 27} The Sixth Amendment to the United States Constitution protects the
right of a criminal defendant “to be confronted with the witnesses against him.”
The “primary object” of this provision is to prevent unchallenged testimony from
being used to convict an accused—a safeguard that applies to both federal and state
prosecutions. Mattox v. United States, 156 U.S. 237, 242, 15 S.Ct. 337, 39 L.Ed.
8
January Term, 2024
409 (1895); Crawford v. Washington, 541 U.S. 36, 42, 53-54, 124 S.Ct. 1354, 158
L.Ed.2d 177 (2004). The provision encompasses the rights to have a witness
physically appear in the courtroom, to require the witness to testify under oath, and
to force the witness to be subject to cross-examination. See Maryland v. Craig, 497
U.S. 836, 845-846, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). Importantly, it has
been understood to “guarantee[] the defendant a face-to-face meeting with
witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016,
108 S.Ct. 2798, 101 L.Ed.2d 857 (1988); see also California v. Green, 399 U.S.
149, 157, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (explaining that face-to-face
confrontation “forms the core of the values furthered by the Confrontation
Clause”).
{¶ 28} In Craig, the United States Supreme Court held that the
Confrontation Clause does not guarantee “criminal defendants the absolute right to
a face-to-face meeting with witnesses against them at trial.” (Emphasis in original.)
Craig at 844. At issue in Craig was a Maryland procedure that allowed a child who
was allegedly abused to testify against the accused by one-way closed-circuit
television. Id. at 840. Approving that procedure, the court held that the “central
concern” of the Confrontation Clause is to ensure the reliability of testimony by
“subjecting it to rigorous testing in the context of an adversary proceeding before
the trier of fact.” Id. at 845. The court characterized the clause as “ ‘reflect[ing] a
preference for face-to-face confrontation at trial’ ” (emphasis in original), id. at
849, quoting Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 65 L.Ed.2d 597
(1980), that “ ‘must occasionally give way to considerations of public policy and
the necessities of the case,’ ” id., quoting Mattox at 243. Thus, the court held that
face-face-confrontation could be dispensed with only in limited circumstances
“where denial of such confrontation is necessary to further an important public
policy and only where the reliability of the testimony is otherwise assured.” Id. at
850.
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SUPREME COURT OF OHIO
{¶ 29} The Craig court deemed the state’s interest in protecting child
witnesses from trauma sufficiently important to justify allowing a child-abuse
victim to testify without face-to-face confrontation. Id. at 855. But the finding of
necessity “must of course be a case-specific one.” Id. “The trial court must hear
evidence and determine whether use of the one-way closed circuit television
procedure is necessary to protect the welfare of the particular child witness who
seeks to testify.” Id. Further, measures must be taken to ensure that “the reliability
of the testimony is otherwise assured” at trial. Id. at 850. Specifically, the witness’s
testimony should be subject to cross-examination and delivered under oath before
the trier-of-fact. Id. at 845-846.
{¶ 30} A subsequent decision of the United States Supreme Court casts
some doubt on the holding in Craig. In Crawford, 541 U.S. 36, 124 S.Ct. 1354,
158 L.Ed.2d 177, the court held that the Confrontation Clause prohibited the use of
out-of-court statements that are testimonial in nature. In reaching this holding, the
court relied on the original understanding of the Confrontation Clause, Crawford at
50-51, 53-56, 60-61, and rejected reliance on public-policy concerns and indicia of
reliability in the Confrontation Clause analysis, Crawford at 68 (“we decline to
mine the record in search of indicia of reliability”). The court identified the right
to confront the accused “face to face” as central to the confrontation right. Id. at 43-
45. And although the majority did not refer to Craig, it rejected the interest-
balancing approach employed in that decision. Crawford at 67-68 (“By replacing
categorical constitutional guarantees with open-ended balancing tests, we do
violence to their design”).
{¶ 31} The majority in Crawford did not overrule or even mention Craig.
It did, however, overrule Roberts regarding testimonial statements, Crawford at 60-
64, 68, a case that Craig heavily relied on to justify its holding, see Craig, 497 U.S.
at 845, 849-850, 110 S.Ct. 3157, 111 L.Ed.2d 666. Numerous courts and
commentators have noted the inherent tension between Craig and Crawford. See,
10
January Term, 2024
e.g., United States v. Cox, 871 F.3d 479, 492 (6th Cir.2017) (Sutton, J., concurring)
(“these two opinions would give Janus a run for his money”); Campbell v.
Commonwealth, 671 S.W.3d 153, 160 (Ky.2023) (noting “the contradiction
between Craig and Crawford”); Cook, Why the Original Meaning of the
Confrontation Clause Governs the Admissibility of Video Testimony at Criminal
Trials, N.Y.U. Proceedings (Apr. 20, 2023), https://proceedings.nyumootcourt.org
/2023/04/why-the-original-meaning-of-the-confrontation-clause-governs-the-
admissibility-of-video-testimony-at-criminal-trials/ (accessed Feb. 8, 2024)
[https://perma.cc/FU8S-9C9V]. And at least one state supreme court has
determined that in light of the tension between the two cases, it will apply Craig
only to the specific facts it decided—namely, the remote testimony of a child
victim. People v. Jemison, 505 Mich. 352, 365, 952 N.W.2d 394 (2020).
{¶ 32} In his briefing to this court, Eli also cites the Ohio Constitution.
Article I, Section 10 of the Ohio Constitution contains confrontation language
different from that of the federal guarantee. The Ohio provision provides that a
criminal defendant “shall be allowed * * * to meet the witnesses face to face.” Id.
We have recognized that face-to-face confrontation allows an accused to cross-
examine and observe a witness under oath before the jury. See Summons v. State,
5 Ohio St. 325, 341 (1856) (“When the accused has been allowed to confront, or
meet face to face, all the witnesses called to testify against him on the trial, the
constitutional requirement has been complied with”); see also Steven H. Steinglass
& Gino J. Scarselli, The Ohio State Constitution 146 (2d Ed.2022).
{¶ 33} One might argue that because of its explicit textual recognition of
the right to face-to-face confrontation, the Ohio provision provides rights to the
accused greater than those recognized by the United States Supreme Court in Craig
regarding the federal guarantee. But in 1980, this court dismissed the proposition
that “the Ohio constitutional provision is more demanding of a face-to-face
confrontation than that of the United States Constitution.” State v. Madison, 64
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Ohio St.2d 322, 330, 415 N.E.2d 272 (1980). And in 1990, this court held that
Article I, Section 10 “provides no greater right of confrontation than the Sixth
Amendment,” State v. Self, 56 Ohio St.3d 73, 79, 564 N.E.2d 446 (1990), and noted
that our interpretation of the Ohio provision “paralleled” the United States Supreme
Court’s interpretation of the federal guarantee, id. at 78. Accord State v. McKelton,
148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 170, fn. 8; but see Arnold
v. Cleveland, 67 Ohio St.3d 35, 616 N.E.2d 163 (1993), paragraph one of the
syllabus (“The Ohio Constitution is a document of independent force” and—subject
to the Supremacy Clause—we are “unrestricted” in interpreting it independently
from the United States Constitution); Madison at 333 (Brown, J., dissenting)
(observing that Article I, Section 10 “give[s] a defendant greater rights to
confrontation and cross-examination” than the Sixth Amendment). Self followed
the United States Supreme Court’s precedent in Craig and upheld the use of a
videotaped deposition of a child sexual-abuse victim based on case-specific
findings of necessity. Self at 77-81.
{¶ 34} Eli has not asked us to revisit our decision to interpret Article I,
Section 10 in lockstep with the United States Supreme Court’s interpretation of the
Sixth Amendment. Instead, he relies almost exclusively on federal Sixth
Amendment case law. Because neither party has argued for an independent reading
of Article I, Section 10, we are constrained to review Eli’s argument under the
federal standard. See State v. Burroughs, 169 Ohio St.3d 79, 2022-Ohio-2146, 202
N.E.3d 611, ¶ 11.
B. The trial court erred by allowing Mullins to testify remotely
{¶ 35} We need not resolve the tension between the United States Supreme
Court’s decisions in Crawford and Craig to decide this case. We are bound to
follow the holdings of the high court on issues of federal constitutional law, and we
leave to that court “the prerogative of overruling its own decisions,” Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104
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January Term, 2024
L.Ed.2d 526 (1989). Further, even under the interest-balancing framework
established in Craig, the trial court erred by allowing Mullins to testify without
affording Eli the benefit of face-to-face confrontation.
{¶ 36} Craig requires a “case-specific finding” based on evidence presented
by the parties that an exception to face-to-face confrontation is “necessary to further
an important state interest” or “public policy” objective. Craig, 497 U.S. at 850,
852, 855, 110 S.Ct. 3157, 111 L.Ed.2d 666; see also In re H.P.P., 8th Dist.
Cuyahoga Nos. 108860 and 108861, 2020-Ohio-3974, ¶ 21-22; State v. Marcinick,
8th Dist. Cuyahoga No. 89736, 2008-Ohio-3553, ¶ 14. Here, the trial court’s
findings were inadequate.
{¶ 37} The trial court found Mullins “unavailable” to testify in person due
to “unpredictable” winter weather and “uncertain” airline schedules that “could
delay or prohibit” travel from Minnesota to Ohio. The state sought permission for
Mullins to testify by video “[b]ecause of the increase in COVID spread and
uncertain weather conditions.” We agree with Eli that these findings at most recite
potential weather-related inconveniences that could have hindered travel but did
not necessarily prevent Mullins from testifying in person. After all, the record does
not rule out the possibility that Mullins could have booked an on-time flight to
testify at trial. The trial court heard no evidence about winter weather patterns,
delayed flights, aviation reports (concerning Ohio or Minnesota), road conditions,
or airline-staffing shortages. Compare State v. Howard, 2020-Ohio-3819, 156
N.E.3d 433, ¶ 58-59 (2d Dist.) (testimony about airline schedules supported trial
court’s finding that a witness was unavailable to testify in person); see also State v.
Johnson, 195 Ohio App.3d 59, 2011-Ohio-3143, 958 N.E.2d 977, ¶ 61-64 (1st
Dist.) (trial court found that witness intimidation by the defendant’s friends and
family made video testimony necessary to preserve reliability of testimony of
certain witnesses). Nor did the state present an affidavit from Mullins explaining
why he could not travel. The trial court’s simple observation that winter weather
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is “unpredictable” was not a “case-specific finding of necessity,” (emphasis added)
Craig at 860, because erratic weather patterns and the delays they cause are equally
relevant to any trial involving nonlocal witnesses.
{¶ 38} Further, the record does not establish that allowing Mullins to testify
remotely advanced an important state interest. The trial court noted that the state
had identified Mullins as an important witness. But surely, being an important
witness cannot by itself satisfy the “important state interest” requirement. See id.
at 852. If it did, the exception to face-to-face confrontation would swallow the rule.
{¶ 39} In Craig and Self, the important state interest at stake was protecting
a vulnerable child victim from severe emotional trauma. Craig, 497 U.S. at 852-
853, 110 S.Ct. 3157, 111 L.Ed.2d 666; Self, 56 Ohio St.3d at 80-81, 564 N.E.2d
446. Quite simply, avoiding travel delays and inconvenience does not constitute a
state interest anywhere near the same magnitude as that involved in Craig and Self.
{¶ 40} The Third District took a different approach. It determined that the
public-policy interest in mitigating the spread of COVID-19 justified allowing
Mullins to testify by video. See 2022-Ohio-4559 at ¶ 16-19. The court of appeals
did not identify any findings suggesting that Mullins had a heightened risk of
contracting COVID-19 but instead pointed to the potential risk to the attorneys,
jurors, and court staff of infection. The state asks us to affirm this ruling, arguing
that surging COVID-19 cases across the United States in January and February
2022 justified Mullins’s remote testimony as a matter of public policy. But this
argument misapprehends what we must decide. The question is not whether a spike
in COVID-19 amounted to a public-policy concern generally but whether requiring
Mullins to testify in person would have presented a danger sufficient to override
Eli’s right to face-to-face confrontation.
{¶ 41} Here, the trial court made no specific findings regarding the risk of
infecting court attendees with COVID-19 had Mullins appeared at trial. The court
of appeals relied on data purportedly reflecting that “Minnesota’s seven-day
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average was more than three times the Ohio Covid-case average” to conclude that
the risk of infection warranted the video testimony. (Emphasis deleted.) Id. at ¶ 16.
But this data alone does not establish that requiring Mullins to testify in person
would have measurably increased the danger to trial participants.
{¶ 42} First, we note that the entire jury trial took place in in the courtroom,
except for Mullins’s testimony. To say that the trial court’s “duty to protect those
who come and go from the courthouse,” id. at ¶ 17, somehow required Mullins to
testify by video but did not also require the entire trial to be conducted remotely or
any other countermeasures like masking or social distancing seems far-fetched.
{¶ 43} Second, nothing in the record establishes that Mullins posed a unique
threat to anyone else in the courtroom other than that he would be traveling from
Minnesota. No evidence suggests that he had the virus at the time of trial, that he
had been exposed to it, or that he was unvaccinated. Rising COVID-19 cases in
Minnesota is too general an observation to support a case-specific finding that
requiring Mullins to testify in person would jeopardize the health of anyone
involved with the trial.
{¶ 44} Third, by the time that Eli’s trial began in 2022, vaccines against
COVID-19 had been available for over a year. These vaccines mitigated at least
some of the public-policy concerns associated with the virus. See Office of the
Governor, COVID-19 Update: Vaccinations Begin in Ohio (Dec. 14, 2020),
https://governor.ohio.gov/media/news-and-media/covid19-update-12142020
(acce-ssed Feb. 8, 2024); compare United States v. Broadfield, 5 F.4th 801, 803
(7th Cir.2021) (vaccine availability “makes it impossible to conclude that the risk
of COVID-19 is an ‘extraordinary and compelling’ reason for immediate release”);
United States v. Traylor, 16 F.4th 485, 487 (6th Cir.2021) (same).
{¶ 45} Thus, we conclude that the lower courts’ generalized concerns about
COVID-19 risks and travel delays did not constitute a “case-specific finding of
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necessity,” Craig, 497 U.S. at 860, 110 S.Ct. 3157, 111 L.Ed.2d 666, sufficient to
abridge Eli’s right to face-to-face confrontation.1
C. The trial court’s error was harmless given the remaining evidence at trial
{¶ 46} Our determination that the trial court erred in admitting the remote
testimony does not end our inquiry. We must also determine whether the trial
court’s error was harmless. Delaware v. Van Arsdall, 475 U.S. 673, 674, 106 S.Ct.
1431, 89 L.Ed.2d 674 (1986) (“While we agree that the trial court’s ruling was
contrary to the mandate of the Confrontation Clause of the Sixth Amendment, we
conclude that the Supreme Court of Delaware was wrong when it declined to
consider whether that ruling was harmless in the context of the trial as a whole”);
Coy, 487 U.S. at 1021-1022, 108 S.Ct. 2798, 101 L.Ed.2d 857 (denial of face-to-
face confrontation is subject to harmless-error review).
{¶ 47} The United States Supreme Court has explained that “before a
federal constitutional error can be held harmless, the court must be able to declare
a belief that it was harmless beyond a reasonable doubt.” Chapman v. California,
386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We have deemed
Confrontation Clause violations harmless when “ ‘the remaining evidence, standing
alone, constitutes overwhelming proof of [the] defendant’s guilt.’ ” (Brackets
added in Hood.) State v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, 984 N.E.2d
1057, ¶ 43, quoting State v. Williams, 6 Ohio St.3d 281, 452 N.E.2d 1323 (1983),
paragraph six of the syllabus. Overwhelming proof becomes readily apparent when
“the allegedly inadmissible statements * * * at most tend[] to corroborate certain
details” of the state’s case-in-chief. Schneble v. Florida, 405 U.S. 427, 431, 92
S.Ct. 1056, 31 L.Ed.2d 340 (1972). Accordingly, the admission of purely
cumulative evidence in violation of the Sixth Amendment amounts to harmless
1. Because we conclude that the trial court erred by admitting Mullins’s remote testimony, we need
not consider Eli’s additional argument that the trial court erred by not requiring that Mullins turn
off the speech-to-text captioning on his phone.
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error. See Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d
284 (1969); State v. Smith, 49 Ohio St.3d 137, 143, 551 N.E.2d 190 (1990) (“Unless
there is a reasonable possibility that the improperly admitted evidence contributed
to the conviction, reversal is not required”).
{¶ 48} Here, the jury found Eli guilty of two counts of sexual battery
because it concluded that he had engaged in sexual conduct with his daughter. See
R.C. 2907.03(A)(5). “Sexual conduct” includes “vaginal intercourse between a
male and female” or “the insertion, however slight,” of any body part “into the
vaginal * * * opening of another.” R.C. 2907.01(A). The statute makes no
exception for the child’s consent or the child’s age. See State v. Lowe, 112 Ohio
St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 15; R.C. 2907.03(A)(5).
{¶ 49} Stripping away Mullins’s testimony, the remaining evidence at trial
overwhelmingly supports Eli’s sexual-battery convictions. N.C.’s in-person trial
testimony, in which she vividly recounted the sexual conduct Eli made her endure,
comprised the crux of the state’s case. Her description of the abuse that she suffered
easily satisfied the statutory definition of sexual conduct. She also explained that
the abuse began around 2007 and continued well into 2009. And Eli’s attorney
subjected her to rigorous cross-examination.
{¶ 50} Lieutenant Marlow, Detective Salyer, and Borland all offered trial
testimony corroborating important details of N.C.’s account. The testimony of the
law-enforcement officials demonstrated that N.C. consistently alleged that Eli had
sexually abused her, from the time that she first contacted authorities in 2010
through Eli’s trial.
{¶ 51} Evidence that Eli claimed that he had engaged in consensual sexual
relations with N.C. was provided through the trial testimony of Eli’s former friend,
Penhorwood. Penhorwood testified that when he confronted Eli about the
allegations, Eli responded, “[I]f it was consensual, why am I getting charged with
rape?”—a statement that Penhorwood understood as an admission that compelled
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him to contact law enforcement. In his trial testimony, Eli offered contradictory
explanations. He testified that he had never talked to Penhorwood about the
allegations. But he also admitted that he had asked Penhorwood, “If [he] had
consensual relation[s] * * * with [N.C.], how could they charge [him] with rape?”
And while he claimed that Penhorwood had been wrong to take that question as an
admission, he offered no explanation for asking his friend a supposedly
hypothetical question about the legal standard for a sex crime.
{¶ 52} Like Penhorwood, Mullins also said that Eli had admitted to having
had consensual sexual relations with N.C. But given the other evidence at trial—
particularly N.C.’s testimony, the corroborating details provided by other
witnesses, and Penhorwood’s testimony—we conclude that there is no reasonable
possibility that Mullins’s testimony contributed anything to the jury’s findings of
guilt that it could not have gleaned from other witnesses. See Schneble, 405 U.S.
at 431, 92 S.Ct. 1056, 31 L.Ed.2d 340.
{¶ 53} We overrule Eli’s proposition of law because the remaining evidence
at trial overwhelmingly proved his guilt. The trial court’s decision to allow Mullins
to testify by video was harmless error.
III. CONCLUSION
{¶ 54} Applying the United States Supreme Court’s decision in Craig, 497
U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666, we conclude that the trial court erred
in allowing a witness to testify by video without making sufficient case-specific
findings of necessity, in violation of Eli’s right to face-to-face confrontation
guaranteed by the Confrontation Clause of the Sixth Amendment to the United
States Constitution. But in light of the other evidence presented against Eli at trial,
this error was harmless. We affirm the judgment of the Third District Court of
Appeals, albeit on different grounds than those relied upon by that court.
Judgment affirmed.
KENNEDY, C.J., and DONNELLY and DETERS, JJ., concur.
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January Term, 2024
FISCHER, J., concurs, with an opinion joined by DONNELLY and DETERS, JJ.
STEWART and BRUNNER, JJ., concur in judgment only.
_________________
FISCHER, J., concurring.
{¶ 55} I fully agree with the majority opinion that the trial court erred by
allowing Michael Mullins to testify remotely in the trial of appellant, Eli Carter,
and that this error was harmless. Therefore, I concur in the majority opinion.
{¶ 56} I write separately, however, to address this court’s precedent
interpreting the Confrontation Clause of Article I, Section 10 of the Ohio
Constitution. In an appropriate case, we should revisit our conclusions that the
Ohio Constitution’s Confrontation Clause must be interpreted in lockstep with the
Confrontation Clause of the Sixth Amendment to the United States Constitution.
I. Reviewing the confrontation issue under the Sixth Amendment is
appropriate because Carter did not sufficiently raise a confrontation claim
under the Ohio Constitution
{¶ 57} In challenging his convictions, Carter has argued that the trial court
violated his due-process rights by permitting Mullins to testify remotely by video
using a speech-to-text captioning program. Carter argues more specifically that
Mullins’s testimony violated his confrontation rights under both the Sixth
Amendment to the United States Constitution and Article I, Section 10 of the Ohio
Constitution. He relies primarily on Sixth Amendment caselaw—understandably,
because this court has interpreted Article I, Section 10 of the Ohio Constitution to
guarantee the same right to confrontation as that guaranteed under the Sixth
Amendment. See State v. Self, 56 Ohio St.3d 73, 79, 564 N.E.2d 446 (1990) (“Our
interpretation of Section 10, Article I has paralleled the United States Supreme
Court’s interpretation of the Sixth Amendment”); State v. Madison, 64 Ohio St.2d
322, 330, 415 N.E.2d 272 (1980) (rejecting the proposition that Article I, Section
10 of the Ohio Constitution is “more demanding of a face-to-face confrontation
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than the United States Constitution”). Because Carter has not asked us to revisit
this precedent, and because his arguments rely almost exclusively on Sixth
Amendment caselaw, the majority opinion appropriately declines to revisit our
previous interpretation of the right to confrontation under Article I, Section 10. See
Stolz v. J & B Steel Erectors, Inc., 155 Ohio St.3d 567, 2018-Ohio-5088, 122
N.E.3d 1228, ¶ 44 (Fischer, J., concurring) (noting that it is proper that the court
“does not conduct an analysis of unraised arguments”).
{¶ 58} While Carter’s failure to develop a detailed claim under the
Confrontation Clause of Article I, Section 10 of the Ohio Constitution precludes
our review of that issue, it is hard to lay the blame solely on his shoulders. This
court’s recalcitrance to interpret Article I, Section 10 in accordance with its plain
text and history likely gives litigants the impression that the thorough development
of such a claim would be a fool’s errand. This court has seen time and again that
its precedent and approach interpreting the Ohio Constitution in lockstep with the
United States Constitution discourages some litigants from vigorously arguing
claims under the Ohio Constitution. See, e.g., State v. Hackett, 164 Ohio St.3d 74,
2020-Ohio-6699, 172 N.E.3d 75, ¶ 25 (Fischer, J., concurring). In the future,
parties should not hesitate to raise and vigorously argue claims under the Ohio
Constitution, especially if this court has not analyzed the relevant constitutional
provision in light of its plain text, history, and tradition. Likewise, this court should
not shirk its responsibility as the final arbiter of Ohio law, including the Ohio
Constitution.
II. We should revisit Self and Madison in an appropriate case
{¶ 59} The Ohio Constitution is a “document of independent force.” Arnold
v. Cleveland, 67 Ohio St.3d 35, 42, 616 N.E.2d 163 (1993); State v. Mole, 149 Ohio
St.3d 215, 2016-Ohio-5124, 74 N.E.3d 368, ¶ 14 (lead opinion). The independent
force of state constitutions serves an important function in our federalist system.
See, e.g., Brennan, State Constitutions and the Protection of Individual Rights, 90
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January Term, 2024
Harv.L.Rev. 489, 491 (1977) (observing that the protections provided by state
constitutions often extend “beyond those required by the [United States] Supreme
Court’s interpretation of federal law”). As long as a given reading of the Ohio
Constitution provides “at least as much protection” as the United States
Constitution demands, federal precedent does not constrain this court’s
interpretation of the Ohio Constitution. Arnold at 42. The Ohio Constitution may,
in certain circumstances, provide greater rights than those afforded by the United
States Constitution. See Mole at ¶ 20-21.
{¶ 60} Both the United States Constitution and the Ohio Constitution
guarantee an Ohio criminal defendant the right to confront the witnesses against
him. The Sixth Amendment to the United States Constitution guarantees a criminal
defendant the right “to be confronted with the witnesses against him.” Article I,
Section 10 of the Ohio Constitution guarantees a criminal defendant the right “to
meet the witnesses face to face.”
{¶ 61} Despite significant textual differences between the Confrontation
Clause of the Sixth Amendment and the Confrontation Clause of Article I, Section
10, this court has interpreted the two clauses in lockstep. Self, 56 Ohio St.3d at 79,
564 N.E.2d 446; Madison, 64 Ohio St.2d at 330-331, 415 N.E.2d 272. This court
has declined to interpret Article I, Section 10’s guarantee of a criminal defendant’s
right to confront the witnesses against him “face to face” at its “literal extreme,”
Self at 79, citing Madison at 332-334 (Brown, J., dissenting). Consequently, in Self,
this court interpreted Article I, Section 10 in a manner “parallel” to the Sixth
Amendment and looked to federal law for an interpretation of both provisions
without looking to the text, history, and tradition of Article I, Section 10. See Self
at 79.
{¶ 62} This sort of upward delegation does a tremendous disservice to the
Ohio Constitution. See Sherman v. Ohio Pub. Emps. Retirement Sys., 163 Ohio
St.3d 258, 2020-Ohio-4960, 169 N.E.3d 602, ¶ 37 (Fischer, J., concurring in
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SUPREME COURT OF OHIO
judgment only). Contrary to what our precedent indicates, “we are not bound to
walk in lockstep with the federal courts when it comes to our interpretation of the
Ohio Constitution.” State v. Smith, 162 Ohio St.3d 353, 2020-Ohio-4441, 165
N.E.3d 1123, ¶ 28. The United States Supreme Court has affirmed on numerous
occasions the notion that a state’s constitution may provide greater constitutional
protection than that required by the federal Constitution. See, e.g., Cooper v.
California, 386 U.S. 58, 62, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) (noting that states
may “impose higher standards on searches and seizures than required by the Federal
Constitution”); Nichols v. United States, 511 U.S. 738, 748, 114 S.Ct. 1921, 128
L.Ed.2d 745 (1994), fn. 12 (“Of course States may decide, based on their own
constitutions or public policy, that counsel should be available for all indigent
defendants charged with misdemeanors”).
{¶ 63} Indeed, this court’s reflexive adoption of the federal courts’
interpretation of the Confrontation Clause of the Sixth Amendment to the United
States Constitution as the sole interpretation of the Confrontation Clause of Article
I, Section 10 of the Ohio Constitution pays too little attention to the significant
textual and historical differences between the United States and Ohio Constitutions.
See State v. Long, 163 Ohio St.3d 179, 2020-Ohio-5363, 168 N.E.3d 1163, ¶ 45
(DeWine, J., dissenting) (stating that this court “has routinely lumped [the speedy-
trial provisions of the federal and Ohio Constitutions] together and resolved both
using federal standards, without any consideration of the text or history of the state
provision”). These differences warrant closer scrutiny.
{¶ 64} The Ohio Constitution is “a fundamental law,” Alexander Hamilton,
The Federalist No. 78, at 466 (Clinton Rossiter Ed.1961) (“A constitution is, in fact,
and must be regarded by the judges as, a fundamental law”). As judges, it is our
province to ascertain its meaning. Id. Our interpretation of the Ohio Constitution
must look to the text, history, and tradition of the provision at issue. Smith at ¶ 29;
see State v. Weber, 163 Ohio St.3d 125, 2020-Ohio-6832, 168 N.E.3d 468, ¶ 122-
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January Term, 2024
123 (Fischer, J., dissenting); id. at ¶ 109 (DeWine, J., concurring in judgment only).
This court failed to conduct such an analysis in Self and Madison. As a result, this
court failed to recognize that Ohio has “a different confrontation clause, written in
a different time with a different backdrop, and invoking different language.” State
v. Banks, 1st Dist. Hamilton Nos. C-200395 and C-200396, 2021-Ohio-4330, ¶ 51
(Bergeron, J., concurring).
{¶ 65} This court previously acknowledged the importance of the unique
language contained in Ohio’s Confrontation Clause. See, e.g., Summons v. State, 5
Ohio St. 325, 341 (1856) (“The requirement that the accused shall be confronted,
on his trial, by the witnesses against him, has sole reference to the personal presence
of the witnesses”); Griffin v. State, 34 Ohio St. 299, 304 (1878) (“There is no doubt
that the prisoner had a constitutional right ([Article I, Section 10]) to appear in court
at his trial, and defend in person and by counsel, and to meet the witnesses face to
face before an impartial jury”); Madison, 64 Ohio St.2d at 332-333, 415 N.E.2d
272 (Brown, J., dissenting) (observing that the Confrontation Clause of Article I,
Section 10 is “much more detailed than the Confrontation Clause contained within
the Sixth Amendment” and “must be read to give a defendant greater rights to
confrontation * * * than that given under the federal constitution”). Additionally,
other states whose constitutions include “face to face” language in their
confrontation clauses have found that their constitutions provide greater
confrontation rights than those provided by the Sixth Amendment. See, e.g., Brady
v. State, 575 N.E.2d 981, 987 (Ind.1991) (holding that although the “face to face”
language in the Confrontation Clause of the Indiana Constitution “has much the
same meaning and history as that employed in the Sixth Amendment, it has a
special concreteness and is more detailed”).
{¶ 66} Put simply, words have meaning. When otherwise analogous
provisions of the Ohio Constitution and the federal Constitution differ in their text,
this court should not mechanically read them as perfectly equivalent. We do the
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SUPREME COURT OF OHIO
citizens of Ohio a disservice when we do so, especially when the language used in
the provisions differs as greatly as it does in the confrontation provisions here. In
an appropriate case, we should revisit our decisions in Self and Madison and
analyze the Confrontation Clause of Article I, Section 10 of the Ohio Constitution
in accordance with its plain text, history, and tradition. See Smith, 162 Ohio St.3d
353, 2020-Ohio-4441, 165 N.E.3d 1123, at ¶ 29; Weber at ¶ 122-123 (Fischer, J.,
dissenting); id. at ¶ 109 (DeWine, J., concurring in judgment only).
III. Conclusion
{¶ 67} Because Carter did not develop a confrontation claim under the Ohio
Constitution, the majority opinion appropriately limits its analysis of Carter’s
proposition of law to the Confrontation Clause of the Sixth Amendment to the
United States Constitution. I agree with the majority opinion that any Sixth
Amendment violation resulting from the trial court’s admission of Mullins’s
testimony constitutes harmless error. Thus, I respectfully concur in the majority
opinion.
{¶ 68} I write separately to encourage parties to raise and develop
confrontation claims under the Ohio Constitution. In a future case, this court should
reexamine the path adopted in Self and Madison and interpret the Confrontation
Clause of Article I, Section 10 of the Ohio Constitution in a manner that considers
its textual and historical differences from the Confrontation Clause of the Sixth
Amendment to the United States Constitution.
DONNELLY and DETERS, JJ., concur in the foregoing opinion.
_________________
Eric C. Stewart, Logan County Prosecuting Attorney, for appellee.
Samuel H. Shamansky Co., L.P.A., Samuel H. Shamansky, and Donald L.
Regensburger, for appellant.
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January Term, 2024
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Daniel
T. Van and Kristen Hatcher, Assistant Prosecuting Attorneys, urging affirmance
for amicus curiae, Ohio Prosecuting Attorneys Association.
_________________
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