State v. Carter , 2023 Ohio 915 ( 2023 )

[Cite as State v. Carter, 2023-Ohio-915.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
BELMONT COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
GREG EUGENE CARTER,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 BE 0038
Application to Reopen
BEFORE:
Mark A. Hanni, Carol Ann Robb, David A. D’Apolito, Judges
JUDGMENT:
Denied.
Atty. J. Kevin Flanagan, Belmont County Prosecutor, 52160 National Road, St.
Clairsville, Ohio 43950, for Plaintiff-Appellee and
Greg Eugene Carter, Pro se, #A789-510, 15708 McConnelsville Road, Caldwell, Ohio
43724, Defendant-Appellant.
Dated: March 22, 2023
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PER CURIAM.
{¶1} Defendant-Appellant, Greg Eugene Carter, has filed an application for
reopening his direct appeal from his convictions for five counts of rape. State v. Carter,
7th Dist. Belmont No. 21 BE 0038, 2022-Ohio-3787. For the following reasons, the
application is denied.
{¶2} An application to reopen an appeal must be filed “within ninety days from
journalization of the appellate judgment unless the applicant shows good cause for filing
at a later time.” App.R. 26(B). Our judgment in this case was filed on October 19, 2022.
Appellant filed his application on January 17, 2023. Thus, the application is timely.
{¶3} When considering an application for reopening pursuant to App.R. 26(B),
we must first determine, based upon appellant’s application, affidavits, and portions of the
record before us, whether appellant has set forth a colorable claim of ineffective
assistance of appellate counsel. See e.g. State v. Milburn, 10th Dist. Franklin No. 89AP-
655, 1993 WL 339900 (Aug. 24, 1993); State v. Burge, 88 Ohio App.3d 91, 623 N.E.2d
146 (10th Dist.1993). In order to show ineffective assistance of appellate counsel,
appellant must prove that his counsel was deficient for failing to raise the issues he now
presents and that there was a reasonable probability of success had he presented those
claims on appeal. State v. Goff, 98 Ohio St.3d 327, 2003-Ohio-1017, 784 N.E.2d 700, ¶
5, (explaining that the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984),
test is used to determine if appellate counsel was ineffective).
{¶4} In his direct appeal, Appellant’s counsel raised nine assignments of error:
(1) his convictions were against the manifest weight of the evidence; (2) his convictions
were not supported by the sufficiency of the evidence; (3) the trial court erred in allowing
Leslie Doerfler to testify when her testimony did not comply with Evid.R. 803(4); (4) the
trial court erred in allowing Scott Steele to testify when his testimony did not comply with
Evid.R. 803(4); (5) the trial court erred in not allowing evidence of the victim’s social media
posts; (6) the stationing of deputies near Appellant in the jury’s view prejudiced Appellant;
(7) the imposition of consecutive sentences was contrary to law; (8) the consecutive
sentencing findings were not supported by the record; and (9) the indictment did not
properly charge the fifth count of rape.
Case No. 21 BE 0038
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{¶5} Appellant now asserts his appellate counsel was ineffective for failing to
raise four additional assignments of error.
{¶6} Appellant first asserts his appellate counsel should have argued:
THE STATE DID NOT COMPLY WITH CRIMINAL RULE 16(K) AS IT
PERTAINS TO THE STATE’S “EXPERT” WITNESSES; THE TRIAL
COURT ERRED BY ALLOWING THEM TO BE QUALIFIED AS
“EXPERTS”; AND TRIAL COUNSEL WAS INEFFECTIVE FOR NOT
OBJECTING TO THEIR ADMISSION AS “EXPERTS”.
{¶7} Appellant claims his appellate counsel should have argued that the state
failed to comply with Crim.R. 16(K) by failing to provide him with expert reports from
Doerfler and Steele as to their alleged expert testimony. Crim.R. 16(K) provides:
An expert witness for either side shall prepare a written report summarizing
the expert witness’s testimony, findings, analysis, conclusions, or opinion,
and shall include a summary of the expert’s qualifications. The written
report and summary of qualifications shall be subject to disclosure under
this rule no later than twenty-one days prior to trial, which period may be
modified by the court for good cause shown, which does not prejudice any
other party. Failure to disclose the written report to opposing counsel shall
preclude the expert’s testimony at trial.
{¶8} The trial court qualified both Doerfler and Steele as experts.
{¶9} Defense counsel objected to Doerfler being qualified as an expert as a
sexual assault nurse examiner. (Tr.191). Before the court deemed Doerfler an expert,
defense counsel thoroughly cross-examined her. During one of counsel’s questions, he
noted, “as I see your report, it says[.]” Counsel stated that while he did not dispute that
Doerfler was an expert sexual assault nurse examiner, he took issue with her testifying
as to what the victims disclosed to her based on hearsay. (Tr. 192-193). When arguing
his objection to the court, defense counsel stated, “there are things contained in her report
that are, in fact hearsay, and given the fact that it was not a medical examination * * *
then the exception to the hearsay rule does not apply.” (Tr. 193).
Case No. 21 BE 0038
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{¶10} Defense counsel did not object to the trial court qualifying Steele as an
expert relative to forensic interviews. But during cross-examination of Steele, defense
counsel referred to Steele’s “notes.” (Tr. 421).
{¶11} Appellant’s claims that his trial counsel did not have reports from Doerfler
and Steele are contradicted by the record. Likewise, Appellant’s claim that his trial
counsel failed to object to the trial court deeming Doerfler as an expert is not supported
by the record. Thus, there was no basis on which his appellate counsel could have raised
an assignment of error asserting error in this regard.
{¶12} Second, Appellant argues his appellate counsel should have argued:
THE TRIAL COURT ABUSED ITS DISCRETION IN NOT REIGNING IN
THE PROSECUTOR’S PERSISTENT BADGERING OF APPELLANT
DURING CROSS-EXAMINATION AND TRIAL COUNSEL WAS
INEFFECTIVE FOR FAILING TO MOVE FOR A MISTRIAL BASED ON
THE SAME.
{¶13} Despite what the proposed assignment of error states, Appellant asserts his
appellate counsel should have argued that the cumulative effect of the prosecutor’s
inflammatory statements during opening statements and closing arguments resulted in
reversible error. He concedes that the comments were not reversible standing alone.
Specifically, Appellant argues his appellate counsel should have raised as error the
prosecutor’s comments during opening statements that Appellant “took advantage of two
children, two girls who were left in his care and custody, while their mother, his then
girlfriend, went to work” and that he “is guilty of horrendous acts.” (Tr. 164, 170). He also
argues his appellate counsel should have raised as error the prosecutor’s comment
during closing arguments that he is a “child sex abuser, he is a rapist.” (Tr. 604).
{¶14} Before opening statements, the trial court admonished the jury that, “nothing
the attorneys have said or say is evidence. The opening arguments are not evidence.”
(Tr. 152).
{¶15} Defense counsel did not object to any of these statements. Given the lack
of objection at trial, appellate counsel could only argue plain error. Given the
overwhelming evidence of Appellant’s guilt in this case, plain error could not be
Case No. 21 BE 0038
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demonstrated. Thus, appellate counsel was not ineffective for failing to raise this
assignment of error.
{¶16} Third, Appellant argues his appellate counsel should have argued:
APPELLANT WAS DENIED DUE PROCESS BY THE REPEATED AND
PERSISTENT ACTS OF PROSECUTORIAL MISCONDUCT BY THE
STATE.
{¶17} Appellant claims here that his appellate counsel should have argued that
the prosecutor badgered him on the witness stand.
{¶18} While Appellant makes this claim, he does not offer a single example of the
prosecutor’s alleged acts of misconduct or how the alleged acts prejudiced him.
{¶19} When we are presented with only the Appellant’s statement in his brief and
no information on how Appellant suffered prejudice, an application to reopen must be
denied. See State v. Sweet, 72 Ohio St.3d 375, 376, 650 N.E.2d 450 (1995).
{¶20} Finally, Appellant argues his appellate counsel should have argued:
TRIAL COUNSEL FAILED TO PRESENT AN EXPERT WITNESS TO
CONTRADICT [the] STATE’S MEDICAL “EXPERT” AND FAILED TO
CHALLENGE [the] STATE’S MEDICAL “EXPERT” REGARDING “HYMEN”
TESTIMONY DURING CROSS-EXAMINATION.
{¶21} Appellant argues his counsel should have consulted with and then
presented a medical expert to testify as to the “significance” of the testimony by the sexual
assault nurse examiner.
{¶22} Doerfler conducted a physical examination of both victims. She did not find
any physical signs of injury to S.W.’s genitalia, but Doerfler testified that this did not mean
that there had not been an earlier injury that had healed by the time she conducted her
examination. (Tr. 214-215). Doerfler also found L.W.’s physical exam to be a normal
exam. (Tr. 229).
{¶23} Appellant presents nothing in support of his argument, such as an affidavit,
other than his bare assertions. We will not presume that appellate counsel did not consult
an expert in this case and then decide not to have the expert testify. Nor will we presume
Case No. 21 BE 0038
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an expert would have been helpful to the defense. Thus, appellate counsel was not
ineffective for failing to raise this assignment of error.
{¶24} For the reasons stated herein, Appellant’s application to reopen his appeal
is hereby denied.
JUDGE MARK A. HANNI
JUDGE CAROL ANN ROBB
JUDGE DAVID A. D’APOLITO
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 21 BE 0038