State v. CarterState v. Carter
Appeal from Logan County Common Pleas Court Trial Court No. CR 21 03 0051
Judgment Affirmed
APPEARANCES:
Samuel H. Shamansky for Appellant
Eric C. Stewart for Appellee
{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
{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).
{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
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,
{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
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
{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
{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
[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
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
{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
{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
{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
{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
{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
{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.
{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
(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.)
{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.
{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
{27} First, the State sought the amendment of the rape charges (under Counts One, Three, and Five) at trial from
{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.
ZIMMERMAN
PRESIDING JUDGE