Court News Ohio
Court News Ohio
Court News Ohio

Video Testimony in Sex Crime Case Unconstitutional, But Not Enough to Overturn Conviction

Image showing an empty jury box in a courtroom. Several monitors are mounted in front of jurors' seats.

Court ruled the jury should not have heard from a witness via videoconference, but the testimony did not impact the outcome of the trial.

Image showing an empty jury box in a courtroom. Several monitors are mounted in front of jurors' seats.

Court ruled the jury should not have heard from a witness via videoconference, but the testimony did not impact the outcome of the trial.

The Supreme Court of Ohio today upheld the sexual battery conviction of a Logan County man, finding that the impermissible videoconference testimony from a witness did not impact the outcome of the trial.

The Supreme Court ruled that Eli Carter’s constitutional right to confront witnesses against him had been violated when the trial court allowed his former boss to testify remotely from Minnesota during the 2022 trial. But the Court found that in-person testimony by the victim and other witnesses established beyond a reasonable doubt that Carter was guilty of sexually abusing his adopted daughter.

Writing for the Court majority, Justice R. Patrick DeWine explained that the U.S. Supreme Court has permitted trial testimony by video in certain circumstances. But the trial court in this case failed to make the required “case-specific findings” to allow the Minnesota man to testify remotely, Justice DeWine wrote. The Court deemed this error “harmless” because the man’s testimony only reinforced the other overwhelming evidence of Carter’s guilt.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, Michael P. Donnelly, and Joseph T. Deters joined Justice DeWine’s opinion. Justices Melody Stewart and Jennifer Brunner concurred in judgment only.

Justice Fischer wrote a separate concurring opinion agreeing with the majority opinion that Carter’s confrontation claim was appropriately analyzed under the Sixth Amendment because Carter did not sufficiently argue a separate confrontation claim under the Ohio Constitution. Justice Fischer urged parties to challenge, and for the Court to reconsider in a future case, the Court’s precedent interpreting the confrontation provisions in the U.S. and Ohio constitutions as guaranteeing the same rights. He stated the language of the federal and state confrontation clauses differ significantly and emphasized that the Court is under no duty to read the two provisions in lock step.

Justices Donnelly and Deters joined Justice Fischer’s concurrence.

Adopted Foster Child Reported Abuse
A woman identified in court records as “N.C.” entered foster care when she was two days old. By the time she reached age 14, she had been placed in nearly 40 different homes. She then entered the Adriel School in West Liberty, which is a residential facility for children suffering from trauma.

Eli Carter and his wife, Liz, were “teaching parents” at the school. Carter’s brother Travis also worked there. The Carters developed a relationship with N.C., and when she was 15 or 16, they took her in as their foster child. They adopted her in 2007.

Shortly after the adoption, N.C. claimed Carter started to sexually abuse her. She said that Carter had sexual intercourse with her while she was a teenager. N.C. later testified that she sometimes pushed Carter away, but mostly endured the abuse because she felt that she had to. She stated that Carter warned her that if she told anyone, “she wouldn’t have a family anymore.”

N.C. went to college in 2008, but the abuse persisted when she returned home on weekends. She said that she also had sex with Carter in her college dorm and in his truck.

N.C. stopped returning home in 2010 and told her adoptive mother and her uncle that Carter had abused her. Eventually, N.C. reported the sexual abuse to a Bellefontaine police officer, who forwarded her statement and an audio recording of the report to the department’s detective unit. The case was not investigated at that time.

Years Later, Department Reinvestigates Claim
In 2017, N.C. contacted the Logan County Prosecutor’s Office about her 2010 police report, but was redirected to Bellefontaine police. Detective Dwight Salyer inherited the case and reopened it. According to him, the original investigating officer had notified the county children’s services agency about the allegations but did not otherwise investigate them. That agency had also received reports from Travis Carter and another Adriel School employee in 2010 about N.C. being sexually abused by her stepdad. However, children’s services closed the case because N.C. was 20 years old when she reported the abuse, and the agency only investigates the abuse of minors. Instead, the agency referred the matter to law enforcement.

Detective Salyer obtained evidence corroborating N.C.’s account, and a grand jury indicted Carter on three counts of rape and three counts of sexual battery.

Trial Witness Allowed to Testify Remotely
A few days before the start of Carter’s February 2022 trial, the prosecutor asked the trial court to allow Michael Mullins to testify by video. Mullins, who was in his 70s, was the chief executive officer of the Adriel School while N.C. was a student and Carter worked there. The retired Mullins lived in Minnesota, and the prosecutor argued he should be allowed to testify by video because of the “increase in COVID spread and uncertain weather conditions.”

Carter objected to the remote testimony, but the trial court noted that the COVID-19 pandemic and airline labor shortages made travel by air uncertain, and that unpredictable weather could prevent Mullins from testifying in person. The prosecutor identified Mullins as “an important witness.” The trial court allowed Mullins to testify and ruled that the two-way video format would not hinder Carter’s defense attorney from cross-examining Mullins.

Mullins testified that in 2010, Travis Carter notified him about the sexual abuse allegations that N.C. had made against his brother. So, Mullins called Eli Carter to his office for a meeting. He told the jury that Carter essentially admitted to the allegations, but that his sexual encounters with N.C. were consensual and did not occur until after N.C. had turned 18. According to Mullins, Carter then resigned from his teaching position at Adriel School and walked out of the meeting.

Other Witnesses Testified
Investigating officers, the head of children’s services, Liz and Travis Carter, and others testified about N.C.’s reported abuse. N.C. also took the stand.

Additionally, Kurt Penhorwood, a former friend of Carter’s, testified that in 2021 he had several conversations with Carter about N.C.’s accusations. In one instance, with Liz Carter present, Penhorwood stated that Carter denied the claims. But Carter stated to Penhorwood, “[I]f it was consensual, why am I getting charged with rape?” Penhorwood then reported the conversation to police.

Carter testified in his own defense and denied the allegations. N.C. was 32 at the time of the trial, and Carter said her sexual assault claims arose from her childhood trauma in foster care, failure to take prescription medications, and a false belief that he and his wife owed her money.

Carter denied admitting to Penhorwood that he had consensual sex with N.C. Instead, he explained, he was only posing a question about the “legal standard.” Carter said that Mullins “misremembered” the conversation, and he did not admit to having sex with N.C.

The jury found Carter guilty as to two of the three counts of sexual battery and not guilty as to the rape charges. Carter appealed the conviction to the Third District Court of Appeals, arguing that Mullins’ remote testimony violated his constitutional rights. The court of appeals affirmed Carter’s conviction, and he appealed to the Supreme Court.

Supreme Court Analyzed Constitutional Protections
Justice DeWine explained that Carter was convicted of sexual battery under R.C. 2907.03(A)(5). That law criminalizes incest for having sexual conduct with one’s natural or adopted child, regardless of the child’s age.

Justice DeWine wrote that the Sixth Amendment to the U.S. Constitution protects the right of a criminal defendant “to be confronted with the witnesses against him.” The primary purpose of the provision is to prevent unchallenged testimony from being used to convict the accused. The provision generally requires a witness to appear in person, testify under oath, and be subjected to cross-examination, the opinion stated.

Justice DeWine also noted that the Ohio Constitution provides that the accused “shall be allowed …* to meet the witnesses face to face.”  He noted that one might assume 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 … regarding the federal guarantee.”  But previous decisions of the Ohio Supreme Court held otherwise.

And because Carter had not raised an argument for an independent interpretation of the Ohio Constitution, the Court was constrained to review Carter’s claim only under the federal constitutional standard. The U.S. Supreme Court has held the “confrontation clause” of the Sixth Amendment does not guarantee the accused an absolute right to confront the witnesses against them face-to-face, the opinion explained. For example, the U.S. Supreme Court once found that allowing a child who was allegedly abused to testify by closed circuit television did not violate the accused’s Sixth Amendment rights.

Face-to-face confrontation can be denied in limited circumstances where a court makes “case-specific findings” based on evidence that remote testimony is “necessary to further an important state interest,” or “public policy” objectives consistent with federal precedent, the opinion stated.

Carter argued that the trial court should not have let Mullins testify remotely. The Supreme Court agreed, noting that while the trial court raised concerns about travel, it heard no evidence about any airline-staffing shortages or weather delays that might have prevented Mullins from traveling to Ohio. The trial court expressed concern about COVID-19 exposure, but the Supreme Court noted that the rest of the trial took place in-person more than a year after COVID-19 vaccines became available.

The opinion stated that while the prosecutor deemed Mullins an “important witness,” that view alone did not establish that an “important state interest” required the remote appearance. The Court found that allowing remote testimony to avoid travel delays and inconvenience did not compare to the important state interest in the cases where remote testimony protected a vulnerable young child from the emotional trauma of testifying in court.

The opinion stated that Mullins’ testimony violated Carter’s rights to confront witnesses, but Carter’s conviction would not be overturned if the failure to require that Mullins testify in person was harmless error. The Court explained that the error would be considered harmless if the remaining evidence, standing alone, would provide overwhelming proof of Carter’s guilt.

The opinion noted that the jury only convicted Carter of sexual battery, which constitutes sex with a child, regardless of age. Because several witnesses corroborated N.C.’s claims that she endured sexual abuse by Carter, and Carter told Penhorwood he had consensual sex with N.C, the Court  concluded that this evidence—taken without Mullins’ testimony—was enough to convict Carter of the sexual battery charges and affirmed his conviction.

2023-0156. State v. Carter, Slip Opinion No. 2024-Ohio-1247.

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