State v. Carter

238 N.E.3d 87

174 Ohio St.3d 619

2024-Ohio-1247

The STATE of Ohio, Appellee, v.CARTER, Appellant.

No. 2023-0156

Supreme Court of Ohio.

Submitted September 27, 2023

Decided April 4, 2024

Appeal from the Court of Appeals for Logan County, No. 8-22-12, 2022-Ohio-4559.

Eric C. Stewart, Logan County Prosecuting Attorney, for appellee.

Samuel H. Shamansky Co., L.P.A., Samuel H. Shamansky, and Donald L. Regensburger, Columbus, for appellant.

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.

DeWine, J.

₆₁₉{¶ } 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.

₆₂₀{¶ } 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.

{¶ } 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

{¶ } 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

{¶ } 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 Liberty. Adriel is a residential facility for children who have suffered abuse or trauma. The institution provides schooling as well as clinical treatment.

{¶ } 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."

{¶ } 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, ₆₂₁N.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.

{¶ } 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."

{¶ } 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.

{¶ } 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 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.

{¶ } 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

{¶ } 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."

{¶ } 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 ₆₂₂findings, the trial court determined that "the fact specific circumstances of this 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

{¶ } 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.

{¶ } 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.

{¶ } 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.

{¶ } 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.

{¶ } 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 because Children’s Services only investigates abuse reports involving minors, Borland referred the matter to law enforcement but took no further action.

{¶ } 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 am I getting charged with rape?" Penhorwood testified that this statement ₆₂₃made 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."

{¶ } 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...