State v. Carter , 2022 Ohio 3787 ( 2022 )

[Cite as State v. Carter, 2022-Ohio-3787.]
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
Criminal Appeal from the
Court of Common Pleas of Belmont County, Ohio
Case No. 2020 CR 0214
BEFORE:
Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Judges.
JUDGMENT:
Affirmed.
Atty. J. Kevin Flanagan, Belmont County Prosecutor and Atty. Daniel P. Fry, Assistant
Prosecutor, 52160 National Road, St. Clairsville, Ohio 43950 for Plaintiff-Appellee and
Atty. Brian A. Smith, 123 South Miller Road, Suite 250, Fairlawn, Ohio 44333 for
Defendant-Appellant.
Dated:
October 19, 2022
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Donofrio, P. J.
{¶1} Defendant-Appellant, Greg Carter, appeals from a Belmont County
Common Pleas Court judgment convicting him of five counts of rape, following a jury trial.
{¶2} L.W. (born in 2007) and S.W. (born in 2009) lived with their mother and
appellant, who was their mother’s boyfriend. In May of 2020, the two girls disclosed to
their father’s girlfriend, whom they refer to as their stepmother, that appellant had been
sexually abusing them. S.W., who was ten at the time, stated that the abuse began when
she was seven years old. L.W., who was 13 at the time, also stated that the abuse began
when she was seven. Stepmother reported the girls’ disclosure to the police.
{¶3} On October 9, 2020, a Belmont County Grand Jury indicted appellant on
four counts of rape in violation of R.C. 2907.02(A)(1)(b)(B), with the specification that he
compelled his victim to submit by force or threat of force, and one count of rape in violation
of R.C .2907.02(A)(2)(B), all first-degree felonies. Appellant entered a not guilty plea.
{¶4} The matter proceeded to a jury trial on September 15, 2021. The jury
heard testimony from the two victims and several other witnesses. It found appellant
guilty as charged in the indictment. The court set the matter for a sentencing hearing.
{¶5} At the sentencing hearing, on the four R.C. 2907.02(A)(1)(b) counts of
rape, the trial court sentenced appellant to 25 years to life on each count to be served
consecutive to each other. On the single R.C. 2907.02(A)(2) count of rape, the court
sentenced him to 11 to 16½ years to be served concurrent with his other sentences.
Thus, the court sentenced appellant to an aggregate sentence of 100 years to life.
{¶6} Appellant filed a timely notice of appeal on October 5, 2021. He now raises
nine assignments of error. We will address appellant’s first and second assignments of
error out of order for ease of discussion.
{¶7} Appellant’s second assignment of error states:
APPELLANT’S CONVICTIONS WERE NOT SUPPORTED BY
SUFFICIENT EVIDENCE.
{¶8} Appellant claims his convictions were not supported by sufficient evidence.
Specifically, he claims plaintiff-appellee, the State of Ohio, failed to prove the dates on
which the offenses occurred except for one of the counts, and that the state failed to prove
Case No. 21 BE 0038
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venue. He asserts the evidence regarding dates and venue was vague and inconclusive.
He argues it did not establish that the offenses occurred at specific times in Belmont
County.
{¶9} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Dickson, 7th Dist. Columbiana No. 12 CO
50, 2013-Ohio-5293, ¶ 10 citing State v. Thompkins, 80 Ohio St.3d 89, 113, 684 N.E.2d
668 (1997). Sufficiency is a test of adequacy. Id. Whether the evidence is legally
sufficient to sustain a verdict is a question of law. Id. In reviewing the record for
sufficiency, the relevant inquiry is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements proven beyond a reasonable doubt. Id., citing State v. Goff, 82 Ohio St.3d 123,
138, 694 N.E.2d 916 (1998). When evaluating the sufficiency of the evidence to prove
the elements, it must be remembered that circumstantial evidence has the same
probative value as direct evidence. Id., citing State v. Jenks, 61 Ohio St.3d 259, 272-273,
574 N.E.2d 492 (1991) (superseded by state constitutional amendment on other
grounds).
{¶10} A sufficiency of the evidence challenge tests the burden of production while
a manifest weight challenge tests the burden of persuasion. Thompkins at 390 (Cook, J.,
concurring). Therefore, when reviewing a sufficiency challenge, the court does not
evaluate witness credibility. State v. Yarbough, 95 Ohio St.3d 516, 543, 2002-Ohio-2126,
747 N.E.2d 216, ¶ 79. Instead, the court looks at whether the evidence is sufficient if
believed. Id. at ¶ 82.
{¶11} The jury convicted appellant of four counts of rape in violation of R.C.
2907.02(A)(1)(b), which provides: “No person shall engage in sexual conduct with
another who is not the spouse of the offender * * * when * * * [t]he other person is less
than thirteen years of age, whether or not the offender knows the age of the other person.”
Additionally, the jury convicted appellant of one count of rape in violation of R.C.
2907.02(A)(2), which provides: “No person shall engage in sexual conduct with another
when the offender purposely compels the other person to submit by force or threat of
force.”
Case No. 21 BE 0038
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{¶12} Venue is not a material element of the offense charged, but it is a fact that
the state must prove in criminal prosecutions unless waived by the defendant. State v.
Headley, 6 Ohio St.3d 475, 477, 453 N.E.2d 716 (1983). R.C. 2901.12(A) provides: “The
trial of a criminal case in this state shall be held in a court having jurisdiction of the subject
matter, and in the territory of which the offense or any element of the offense was
committed.” Evidence that the crime was committed in the relevant county adequately
establishes venue. State v. El-Amin, 6th Dist. Lucas No. L-05-1286, 2007-Ohio-3949, ¶
16.
{¶13} Because specific dates and times are not elements of the offenses
charged, indictments that charge sexual offenses against children do not need to specify
the exact date of the alleged abuse if the state establishes that the offense was committed
within the time frame alleged. State v. Palmer, 7th Dist. Mahoning No. 19 MA 0108, 2021-
Ohio-4639, ¶ 19. Additionally, there is no issue with the provision of a date range where
the rape victim is a child, especially when the victim lives with the perpetrator. State v.
Miller, 7th Dist. Mahoning No. 17 MA 0120, 2018-Ohio-3430, 118 N.E.3d 1094, ¶ 23.
{¶14} The indictment here alleged the offenses occurred between January 1,
2017 and May 16, 2020, in Belmont County.
{¶15} In this case, mother testified that she and the girls, along with appellant,
moved to Indiana Street in Martins Ferry in Belmont County, Ohio in September or
October 2016. (Tr. 262-263). L.W. was nine years old at the time and S.W. was seven.
(Tr. 263). In June or July 2017, they moved to South 8th Street, also in Martins Ferry in
Belmont County. (Tr. 264-265). In November 2019, the family began to stay at the
Salvation Army in Bellaire, Ohio because their trailer in Martins Ferry had no heat. (Tr.
266-267). But they still stayed at the Martins Ferry trailer during this time too. (Tr. 267-
268). In April of 2020, the family moved to Oil City RV, a camper site near the mall in
Belmont County. (Tr. 269, 277). The girls lived in this camper during the time of mother’s
pregnancy with her third child, up until Mother’s Day of 2020. (Tr. 270, 273).
{¶16} S.W. testified that appellant put his penis between her legs and in her
mouth on multiple occasions while they were living in the house on Indiana Street. (Tr.
341-342). She testified that appellant also did this at the South 8th Street address and at
Case No. 21 BE 0038
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the camper. (Tr. 343). She stated that the last time appellant did this was the Friday
before Mother’s Day 2020, at the Oil City campground. (Tr. 349).
{¶17} L.W. testified that appellant put his penis inside her vagina while they were
living on Indiana Street. (Tr. 374-375). She stated that appellant also did this to her while
they were living on South 8th Street. (Tr. 375). And appellant did this to her while they
were living at the camper. (Tr. 375).
{¶18} Taken as a whole, mother’s testimony, S.W.’s testimony, and L.W.’s
testimony establishes venue. The testimony as a whole also establishes the offenses
were committed within the time frame alleged in the indictment. Mother’s testimony
established that from September/October 2016 through May 2020, the family, including
appellant, lived at various residences, all in Belmont County, Ohio. S.W. and L.W.
testified that appellant raped them at each of these residences. When their testimony is
read together and when construing the evidence in the light most favorable to the
prosecution, as we are required to do in a sufficiency of the evidence review, the evidence
establishes that appellant raped both of the victims in Belmont County, Ohio during the
time period alleged in the indictment. Thus, the jury’s verdict is supported by sufficient
evidence.
{¶19} Accordingly, appellant’s second assignment of error is without merit and
is overruled.
{¶20} Appellant’s first assignment of error states:
APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶21} Here appellant asserts his convictions were against the manifest weight of
the evidence. He argues there was no physical evidence to support the convictions. He
also asserts the victims’ allegations were vague and did not establish when the offenses
took place. Additionally, appellant takes issue with L.W.’s credibility. He claims she had
greater knowledge of sexual terminology and sexual acts than the state’s witnesses
testified to. In support, he points to a copy of L.W.’s social media posts. The trial court
did not allow this exhibit into evidence. He also points to evidence that L.W. may have
had intercourse with a stepbrother and another person. (Tr. 290-292, 283-284, 386).
Case No. 21 BE 0038
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{¶22} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and all
reasonable inferences and determine whether, in resolving conflicts in the evidence, the
jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. Thompkins, 78 Ohio St.3d 380.
“Weight of the evidence concerns ‘the inclination of the greater amount of credible
evidence, offered in a trial, to support one side of the issue rather than the other.’” Id.(Emphasis sic.). In making its determination, a reviewing court is not required to view the
evidence in a light most favorable to the prosecution but may consider and weigh all of
the evidence produced at trial. Id. at 390.
{¶23} Only when “it is patently apparent that the factfinder lost its way,” should
an appellate court overturn the jury verdict. Id. citing State v. Woullard, 158 Ohio App.3d
31, 2001-Ohio-3395, 813 N.E.2d 964 (2d Dist.). If a conviction is against the manifest
weight of the evidence, a new trial is to be ordered. Thompkins at 387. “No judgment
resulting from a trial by jury shall be reversed on the weight of the evidence except by the
concurrence of all three judges hearing the cause.” State v. Miller, 96 Ohio St.3d 384,
2002-Ohio-4931, 775 N.E.2d 498, ¶ 36 quoting Ohio Constitution, Article IV, Section
3(B)(3).
{¶24} In conducting a manifest weight of the evidence review, we must consider
all of the evidence presented at trial.
{¶25} Leslie Doerfler is a sexual assault nurse examiner or SANE. She examined
the victims on July 7, 2020. She testified that both victims were very uncomfortable talking
about what happened with appellant. (Tr. 224-225).
{¶26} Regarding S.W., Doerfler testified that S.W. reported to her that appellant
put his penis in her “private part” more than once. (Tr. 208). S.W. also reported that
appellant put his penis in her mouth. (Tr. 208). S.W., who was ten years old at the time,
told Doerfler the abuse started when she was seven. (Tr. 205-206). She also told
Doerfler that she eventually told her stepmother about what was happening. (Tr. 209).
Doerfler testified that because of the time that had passed since the last incident, she did
not collect physical evidence from S.W. with a rape kit. (Tr. 210-211). Doerfler did
conduct a physical examination of S.W. (Tr. 214). She did not find any physical signs of
Case No. 21 BE 0038
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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).
{¶27} Regarding L.W., Doerfler testified that L.W. reported to her that appellant
had penetrated her vagina with his penis, his finger, and an unidentified object. (Tr. 226).
L.W. reported this happened 40-50 times beginning when she was seven years old and
continuing until she was 13. (Tr. 223, 226). She reported that appellant also sent her
“creepy pictures.” (Tr. 226). Doerfler also conducted a physical examination of L.W. and
found it to be a normal exam. (Tr. 229).
{¶28} The victim’s mother testified next. In addition to her testimony set out
above regarding where the family lived, mother testified that stepmother told her that the
children disclosed that appellant had been abusing them. (Tr. 275-276). She admitted
that at first she had a “shadow of doubt” about what the girls said. (Tr. 282). But she no
longer had any doubts about what they disclosed. (Tr. 282-283).
{¶29} Mother testified that on a few occasions she witnessed inappropriate
conduct between appellant and L.W. One time she reprimanded appellant because L.W.
was sitting on the couch with her legs draped over appellant. (Tr. 279). Another time she
noticed appellant had his hand between L.W.’s legs while she was lying on the bed;
however, his hand was not touching L.W. (Tr. 280).
{¶30} Stepmother testified that the girls were staying with her and father following
mother giving birth to her third child. (Tr. 309). When it was approaching the time for
appellant to pick them up, stepmother noticed S.W. was “flying off the handle,” stomping
around, and slamming doors for no apparent reason. (Tr. 310). She asked S.W. a few
times what was wrong and at first S.W. would not tell her. (Tr. 310). Eventually, after a
trip to the grocery store, S.W. told stepmother that appellant was sexually abusing her.
(Tr. 310-311). S.W. told stepmother that appellant had also touched L.W. inappropriately.
(Tr. 311). Stepmother then asked L.W. how many times appellant had touched her
inappropriately. (Tr. 311). L.W. covered up her head and did not answer. (Tr. 312).
Stepmother told father about what she had learned. (Tr. 316). They informed mother and
she asked them to keep the girls with them. (Tr. 316-317). Stepmother stated that she
later took the girls to report what had happened to the police. (Tr. 317).
Case No. 21 BE 0038
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{¶31} In addition to her testimony set out above, S.W. testified that she did not
tell her stepmother or father what was going on sooner because she did not know that
what was happening was “exactly bad.” (Tr. 338). She stated that “it became a regular
thing in my life.” (Tr. 344). S.W. testified that she told her stepmother after her baby
brother was born because she did not want her little brother involved in these things. (Tr.
338-339). S.W. testified that appellant would have her take her clothes off, he would take
his clothes off, and he would put his penis into her. (Tr. 341-342). She stated that it hurt
and she would try to close her legs or run to the bathroom. (Tr. 342, 345). S.W. stated
this occurred when her mother was at work or at the store. (Tr. 342). During this time,
appellant would be babysitting her. (Tr. 342-343).
{¶32} In addition to her testimony set out above, L.W. testified her stepmother
told her what S.W. had disclosed and asked her if appellant had done anything to her.
(Tr. 370). She stated that she became “sheepish” and “quiet.” (Tr. 370). L.W. testified
that she eventually told stepmother that appellant had been raping her. (Tr. 370-371).
She stated that appellant was sometimes forceful with her by grabbing her head. (Tr.
375). She testified that she did not tell anyone what appellant was doing to her because
she made a promise to appellant not to tell anyone. (Tr. 376-377). L.W. stated that she
was close to appellant. (Tr. 376). She stated she had discussed what was happening
with S.W. (Tr. 377-378). L.W. also testified that appellant showed her a pornographic
video involving her mother. (Tr. 377).
{¶33} Scott Steele is a forensic interviewer at Harmony House Children’s
Advocacy Center. He interviewed both children. Videos of the interviews were played
for the jury. (Tr. 411, 417; State’s Exs. 4, 5). In the interviews, the children stated that
appellant orally and vaginally raped them repeatedly over the course of several years.
{¶34} Appellant testified in his defense. He denied all of the allegations against
him. (Tr. 537). He specifically denied having any type of sexual contact with either S.W.
or L.W. (Tr. 537-538).
{¶35} The jury’s verdict was not against the manifest weight of the evidence.
While there was no physical evidence establishing appellant raped the children, both
children testified unequivocally that appellant orally and vaginally raped them repeatedly
over the course of several years.
Case No. 21 BE 0038
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{¶36} Both children and appellant testified in this case. Whether to believe
appellant or to believe the children was a matter of credibility for the jury to determine.
Although an appellate court is permitted to independently weigh the credibility of the
witnesses when determining whether a conviction is against the manifest weight of the
evidence, we must give deference to the fact finder's determination of witnesses’
credibility. State v. Jackson, 7th Dist. Jefferson No. 09-JE-13, 2009-Ohio-6407, at ¶ 18.
The policy underlying this presumption is that the trier of fact is in the best position to view
the witnesses and observe their demeanor, gestures, and voice inflections, and use these
observations in weighing the credibility of the proffered testimony. Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). In this case, the jury clearly
found the children’s testimony to be more credible than appellant’s testimony.
{¶37} Moreover, the “evidence” appellant points to in support of his position was
not admitted by the trial court. Appellant sought to introduce evidence of L.W.’s social
media posts and evidence that she may have had sexual relations with a stepbrother and
another person. But this evidence was not presented to the jury and, therefore, cannot
be considered in a manifest weight of the evidence challenge. (Tr. 290-292, 283-284,
386).
{¶38} Thus, we cannot conclude that the jury clearly lost its way in finding
appellant guilty of rape.
{¶39} Accordingly, appellant’s second assignment of error is without merit and
is overruled.
{¶40} Appellant’s third assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING
LESLIE DOERFLER TO TESTIFY, WHERE THE STATEMENTS TO
WHICH SHE TESTIFIED DID NOT CONSTITUTE STATEMENTS FOR
PURPOSE OF MEDICAL DIAGNOSIS OR TREATMENT UNDER EVID.R.
803(4).
{¶41} Appellant contends that the trial court should not have allowed Doerfler to
testify as to statements made by S.W. and L.W. because her testimony did not comply
with Evid.R. 803(4) as statements for the purpose of medical diagnosis or treatment. He
Case No. 21 BE 0038
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asserts the statements by the children to Doerfler were for the purpose of a criminal
investigation. He points to Doerfler’s testimony that she conducted a forensic
examination, she was acting as a forensic examiner, and her report stated that it was “not
part of a medical record.” Additionally, he notes that she got her referral from Harmony
House.
{¶42} A trial court has broad discretion in determining whether to admit or
exclude evidence and its decision will not be reversed absent an abuse of discretion.
State v. Mays, 108 Ohio App.3d 598, 617, 671 N.E.2d 553 (8th Dist.1996). Abuse of
discretion means that the trial court's decision was unreasonable, arbitrary, or
unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶43} Appellant contends here that Doerfler’s testimony regarding what S.W.
and L.W. told her was hearsay. Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted. Evid.R. 801(C). Hearsay is generally not admissible at trial. Evid.R.
802.
{¶44} Certain statements are not excluded by the hearsay rule, however, even
when the declarant is available as a witness. Evid.R. 803. These include, “[s]tatements
made for purposes of medical diagnosis or treatment and describing medical history, or
past or present symptoms, pain, or sensations, or the inception or general character of
the cause or external source thereof insofar as reasonably pertinent to diagnosis or
treatment.” Evid.R. 803(4).
{¶45} In this case, Doerfler testified that in taking S.W.’s medical history, S.W.
reported to her that appellant put his penis in her private part more than once and also
put his penis in her mouth. (Tr. 208). Doerfler testified that in taking L.W.’s medical
history, L.W. reported appellant had penetrated her vagina with his penis, his finger, and
an unidentified object. (Tr. 226).
{¶46} Doerfler testified that she is a sexual assault nurse examiner. (Tr. 177-
178). This involves being a registered nurse specially trained in evidence collection and
sexual growth and development. (Tr. 179-180). She oversees all of the care provided to
sexual assault patients at Southeastern Ohio Regional Medical Center. (Tr. 177-178).
Doerfler testified that in this case she was working as a forensic examiner and also
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working under the direction of a medical doctor. (Tr. 187-188). She consulted with the
emergency room doctor on this case and it was her intent to provide medical care and
treatment to both S.W. and L.W. (Tr. 188-189). She stated that she also provides
evidence to law enforcement in cases such as this. (Tr. 191).
{¶47} The trial court did not abuse its discretion in allowing Doerfler to testify as
to the statements S.W. and L.W. made to her in the course of gathering their medical
history. Doerfler is a sexual assault nurse examiner whose job it was to examine the
children and provide them with medical care and treatment. The children made these
statements to Doerfler in the course of their examination for the purpose of describing
their medical history.
{¶48} Accordingly, appellant’s third assignment of error is without merit and is
overruled.
{¶49} Appellant’s fourth assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING
SCOTT STEELE TO TESTIFY, WHERE THE STATEMENTS TO WHICH
HE TESTIFIED DID NOT CONSTITUTE STATEMENTS FOR THE
PURPOSE OF MEDICAL DIAGNOSIS OR TREATMENT UNDER EVID.R.
803(4).
{¶50} Similarly to his third assignment of error, appellant contends that the trial
court should not have allowed Steele to testify as to statements by S.W. and L.W.
because his testimony did not comply with Evid.R. 803(4) as being for the purpose of
medical diagnosis or treatment. He argues that Steele did not present any evidence of
medical credentials, training, or experience. Nor did he present any evidence that he
interviewed the children as part of a medical diagnosis or treatment.
{¶51} As was the case with the previous assignment of error, we review the trial
court’s decision to admit or exclude evidence for abuse of discretion. Mays, 108 Ohio
App.3d at 617.
{¶52} Steele is a forensic interviewer at Harmony House Children’s Advocacy
Center. At Harmony House the goal is to reduce the amount of trauma a child might go
through if they are talking about something difficult. (Tr. 396). Steele interviews children
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and the interviews are observed by law enforcement and children’s services so that the
children do not have to endure multiple interviews. (Tr. 396). Steele also makes referrals
for medical treatment and counseling. (Tr. 396-397).
{¶53} Contrary to appellant’s assertion, Steele did not testify as to any
statements S.W. or L.W. made to him. He simply provided information regarding what he
does and how the interview process works. Then videos of each of the girls’ interviews
were played for the jury. Steele never testified as to what S.W. or L.W. reported to him.
And both girls had testified at trial. Thus, the trial court did not abuse its discretion in
allowing Steele’s testimony.
{¶54} Accordingly, appellant’s fourth assignment of error is without merit and is
overruled.
{¶55} Appellant’s fifth assignment of error states:
THE TRIAL COURT ABUSED ITS DISCRETION IN EXCLUDING
EVIDENCE OF L.W.’S SOCIAL MEDIA POSTS.
{¶56} Appellant argues the trial court should have allowed him to present
evidence of L.W.’s social media posts. Counsel sought to introduce Defense Exhibit A,
which was a copy of numerous social media messages by L.W. referencing sexual acts,
sexual terminology, and sexual activity between her and her stepbrother. The trial court
granted the state’s objection to the evidence citing Ohio’s rape shield law and its prior
order excluding any evidence of sexual contact between L.W. and her stepbrother. (Tr.
247).
{¶57} Appellant points out that earlier in the trial Doerfler and Steele testified that
L.W. did not have the terminology to refer to sexual areas of the body, which implied that
she was naïve when it came to such matters. He argues that he wished to use L.W.’s
social media posts to impeach her credibility. Appellant contends that L.W.’s knowledge
of sexual matters, as it related to her credibility, was a material fact that justified admitting
the social media posts. Because this case hinged on L.W.’s (and S.W.’s) credibility,
appellant asserts the court abused its discretion in not allowing the social media posts.
{¶58} Once again, we review the trial court’s ruling on the admission or exclusion
of evidence for abuse of discretion. Mays, 108 Ohio App.3d at 617.
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{¶59} Ohio’s rape shield law, provides in part:
Evidence of specific instances of the victim's sexual activity, opinion
evidence of the victim's sexual activity, and reputation evidence of the
victim's sexual activity shall not be admitted under this section unless it
involves evidence of the origin of semen, pregnancy, or disease, or the
victim's past sexual activity with the offender, and only to the extent that the
court finds that the evidence is material to a fact at issue in the case and
that its inflammatory or prejudicial nature does not outweigh its probative
value.
R.C. 2907.02(D).
{¶60} The evidence appellant sought to introduce of L.W.’s social media posts
did not involve “evidence of the origin of semen, pregnancy, or disease, or the victim's
past sexual activity with the offender.” Thus, the trial court did not abuse its discretion in
excluding it based on the rape shield act.
{¶61} Moreover, L.W. testified at trial. Therefore, as the state argued, appellant
had the opportunity to cross examine her on her knowledge of sexual terminology and
expose any potential issues with her credibility on this subject. Yet appellant chose not
to cross examine her on this matter.
{¶62} Accordingly, appellant’s fifth assignment of error is without merit and is
overruled.
{¶63} Appellant’s sixth assignment of error states:
THE TRIAL COURT’S DECISION TO STATION TWO DEPUTIES
SURROUNDING APPELLANT, IN VIEW OF JURORS, DURING THE
FIRST DAY OF TRIAL PREJUDICED APPELLANT, IN VIOLATION OF HIS
RIGHT TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND
ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.
{¶64} At the conclusion of the first day of trial, defense counsel brought up an
issue with the trial court. Counsel stated that there were two deputies seated within three
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to four feet of appellant. (Tr. 293). Counsel worried that it sent an impression to the jury
that appellant was a “dangerous human being” and they needed to be protected from him.
(Tr. 293). Counsel also felt that his conversations with appellant were not kept private
because the deputies were too close. (Tr. 293). He proposed having the deputies moved
to different areas of the courtroom. (Tr. 294). The prosecutor had no objection to defense
counsel’s proposal. (Tr. 295). The court then granted defense counsel’s request. (Tr.
295).
{¶65} Appellant now argues that he was prejudiced because the jury viewed the
deputies in close proximity to him for the first day of trial.
{¶66} In addressing whether security officers at a trial is inherently prejudicial,
the United States Supreme Court stated:
The chief feature that distinguishes the use of identifiable security
officers from courtroom practices we might find inherently prejudicial is the
wider range of inferences that a juror might reasonably draw from the
officers' presence. While shackling and prison clothes are unmistakable
indications of the need to separate a defendant from the community at large,
the presence of guards at a defendant's trial need not be interpreted as a
sign that he is particularly dangerous or culpable. Jurors may just as easily
believe that the officers are there to guard against disruptions emanating
from outside the courtroom or to ensure that tense courtroom exchanges
do not erupt into violence. Indeed, it is entirely possible that jurors will not
infer anything at all from the presence of the guards. If they are placed at
some distance from the accused, security officers may well be perceived
more as elements of an impressive drama than as reminders of the
defendant's special status. Our society has become inured to the presence
of armed guards in most public places; they are doubtless taken for granted
so long as their numbers or weaponry do not suggest particular official
concern or alarm. See Hardee v. Kuhlman, 581 F.2d 330, 332 (CA2 1978).
To be sure, it is possible that the sight of a security force within the
courtroom might under certain conditions “create the impression in the
Case No. 21 BE 0038
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minds of the jury that the defendant is dangerous or untrustworthy.”
Kennedy v. Cardwell, 487 F.2d 101, 108 (CA6 1973), cert. denied, 416 U.S.
959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974). However, “reason, principle,
and common human experience,” Williams, supra, 425 U.S., at 504, 96
S.Ct., at 1693, counsel against a presumption that any use of identifiable
security guards in the courtroom is inherently prejudicial. In view of the
variety of ways in which such guards can be deployed, we believe that a
case-by-case approach is more appropriate.
Holbrook v. Flynn, 475 U.S. 560, 569, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986).
{¶67} In this case, appellant was not prejudiced by the two deputies sitting near
him during the first day of the three-day trial. Courts in several similar cases have
determined the appellants were not denied fair trials by the close presence of deputies
during trial.
{¶68} In State v. Hill, 7th Dist. Columbiana No. 90-C-56, 1992 WL 356182 (Nov
25, 1992), this court held that in the absence of an affirmative demonstration of prejudice,
we would not reverse the appellant's conviction based on his allegation that the jury was
prejudiced by the presence of three sheriff's deputies sitting immediately behind his table
throughout the trial. In an Eighth District case, the appellate court found that the use of
uniformed deputies to escort the appellant to the witness stand was not so inherently
prejudicial that the appellant was denied his right to a fair trial. State v. Mitchell, 8th Dist.
Cuyahoga No. 56575, 1995 WL 527599 (Sept. 7, 1995). And the Ninth District has
determined that having two deputies in the courtroom, one stationed near the appellant,
was unlikely to be construed by the jury as a sign of anything other than a normal concern
for courtroom safety. State v. Gall, 9th Dist. Lorain No. 18CA011445, 2019-Ohio-4907.
{¶69} In this case, two uniformed deputies were seated near appellant during
the first day of trial. For the second and third days of trial, on appellant’s request, the
deputies moved to different areas of the courtroom. Appellant has not pointed to any
evidence that he was prejudiced by the deputies’ presence near him on the first day of
trial. Based on the case law, we will not assume appellant was prejudiced in this case.
{¶70} Accordingly, appellant’s sixth assignment of error is without merit and is
overruled.
Case No. 21 BE 0038
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{¶71} Appellant’s seventh assignment of error states:
THE TRIAL COURT’S IMPOSITION OF CONSECUTIVE
SENTENCES UNDER R.C. 2929.14(C)(4) WAS CONTRARY TO LAW.
{¶72} Appellant claims the court should not have imposed consecutive
sentences. It asserts that while the trial court made the statutorily-mandated consecutive
sentencing findings at the sentencing hearing, the court failed to include those findings in
the sentencing judgment entry.
{¶73} When reviewing a felony sentence, an appellate court must uphold the
sentence unless the evidence clearly and convincingly does not support the trial court's
findings under the applicable sentencing statutes or the sentence is otherwise contrary to
law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. This
court discussed the Ohio Supreme Court's most recent comments on felony sentencing
review and Marcum:
The Ohio Supreme Court recently addressed review of felony sentences in
State v. Jones, ––– Ohio St.3d ––––, 2020-Ohio-6729, ––– N.E.3d ––––.
The Jones Court clarified the standard of review for felony sentences that
was previously announced in Marcum. Marcum held “that R.C.
2953.08(G)(2)(a) compels appellate courts to modify or vacate sentences if
they find by clear and convincing evidence that the record does not support
any relevant findings under ‘division (B) or (D) of section 2929.13, division
(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of
the Revised Code.’ ” Marcum, supra, ¶ 22. The Jones Court did not overrule
Marcum but clarified dicta to reflect that “[n]othing in R.C. 2953.08(G)(2)
permits an appellate court to independently weigh the evidence in the
record and substitute its judgment for that of the trial court concerning the
sentence that best reflects compliance with R.C. 2929.11 and 2929.12.”
Jones, supra, at ¶ 42.
State v. McGarry, 7th Dist. Belmont No. 19 BE 0049, 2021-Ohio-1281, ¶ 18.
Case No. 21 BE 0038
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{¶74} In this case, the trial court sentenced appellant to 25 years to life on each
of the four R.C. 2907.02(A)(1)(b) counts of rape to be served consecutive to each other.
On the single R.C. 2907.02(A)(2) count of rape, the court sentenced him to 11 to 16½
years to be served concurrent with his other sentences.
{¶75} As to the issue of consecutive sentences, R.C. 2929.14(C)(4) requires a
trial court to make specific findings:
(4) If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender's conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
{¶76} It has been held that although the trial court is not required to recite the
statute verbatim or utter “magic” or “talismanic” words, there must be an indication that
the court found (1) that consecutive sentences are necessary to protect the public from
future crime or to punish the offender, (2) that consecutive sentences are not
Case No. 21 BE 0038
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disproportionate to the seriousness of the offender's conduct and to the danger posed to
the public, and (3) one of the findings described in R.C. 2929.14(C)(4)(a), (b), or (c). State
v. Bellard, 7th Dist. Mahoning No. 12-MA-97, 2013-Ohio-2956, ¶ 17. The court need not
give its reasons for making those findings however. State v. Power, 7th Dist. Columbiana
No. 12 CO 14, 2013-Ohio-4254, ¶ 38. A trial court must make the consecutive sentence
findings at the sentencing hearing and must additionally incorporate the findings into the
sentencing entry. State v. Williams, 7th Dist. Mahoning No. 13-MA-125, 2015-Ohio-4100,
¶ 33-34, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶
37.
{¶77} As appellant concedes, the trial court made each of the required
consecutive sentencing findings at the sentencing hearing. The court found that
consecutive service was necessary to protect the public from future crime and to punish
appellant. (Sentencing Tr. 11). It found that consecutive sentences are not
disproportionate to the seriousness of appellant’s conduct and to the danger he poses to
the public. (Sentencing Tr. 11). And the court found that appellant’s history of criminal
conduct demonstrates that consecutive sentences are necessary to protect the public
from future crime from appellant. (Sentencing Tr. 11). Additionally, it found that at least
two of the multiple offenses were committed as a part of one or more courses of conduct
and the harm caused to L.W. and S.W. was great or unusual. (Sentencing Tr. 12).
{¶78} Appellant notes that the court found at the sentencing hearing that his
history of criminal conduct demonstrated that consecutive sentences were necessary to
protect the public from future crime from him. (Sentencing Tr. 11). But he asserts the
court did not make this finding in its judgment entry. Appellant is mistaken.
{¶79} In the sentencing judgment entry, the court found that consecutive
sentences (1) were necessary to protect the public from future crime and to punish
appellant and (2) were not disproportionate to the seriousness of appellant’s conduct and
the danger he posed to the public. It then found that: “[T]he imposition of consecutive
sentences is reasonable and appropriate because the offender has an established pattern
of criminal and drug related activity, evidenced by his prior convictions. Therefore, the
Court finds that Defendant poses a great risk of committing future crimes and finds that
Case No. 21 BE 0038
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consecutive sentences are necessary to protect the public from future crime.” Thus, the
trial court did incorporate this necessary finding into the sentencing judgment entry.
{¶80} Accordingly, appellant’s seventh assignment of error is without merit and
is overruled.
{¶81} Appellant’s eighth assignment of error states:
THE RECORD DOES NOT SUPPORT THE TRIAL COURT’S
FINDINGS UNDER R.C. 2929.14(C)(4).
{¶82} Here appellant claims the trial court’s consecutive sentencing findings
were not supported by the record. He points out that he had a minimal criminal record
before this case with no felony convictions and no sex offense convictions. Additionally,
he points out that his offenses carry high mandatory minimum sentences of 25 years to
life. Given the fact that he was 53 years old at the time of sentencing, appellant argues
that even if the court ran his sentences concurrently he would not be eligible for parole
until he was 78.
{¶83} As set out above, we must uphold appellant’s sentences unless the
evidence clearly and convincingly does not support the trial court's findings under R.C.
2929.14(C)(4). R.C. 2953.08(G)(2)(a); Jones, 2020-Ohio-6729, at ¶ 28; Marcum, 2016-
Ohio-1002, at ¶ 1.
{¶84} Appellant’s presentence investigation (PSI) report, gives much support for
appellant’s sentence. Pursuant R.C. 2952.03(D)(1), a PSI is not a public record and
remains confidential; however, it may be used by trial and appellate courts for purposes
of sentencing and appellate review of that sentence. State v. Little, 7th Dist. Mahoning
No. 10 MA 145, 2011-Ohio-4256, ¶ 27, fn. 1.
{¶85} Given the PSI, in addition to the fact that appellant was convicted of
repeatedly raping two children who looked to him as the stepfather, we cannot conclude
that the evidence clearly and convincingly does not support the court’s findings.
Additionally, there is no indication that appellant’s sentence is otherwise contrary to law.
{¶86} Accordingly, appellant’s eighth assignment of error is without merit and is
overruled.
{¶87} Appellant’s ninth assignment of error states:
Case No. 21 BE 0038
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APPELLANT’S INDICTMENT WAS VOID WITH RESPECT TO
COUNT FIVE OF THE INDICTMENT BECAUSE THE INDICTMENT WAS
INSUFFICIENT TO CHARGE APPELLANT WITH THE OFFENSE, IN
VIOLATION OF APPELLANT’S PROTECTIONS AGAINST DOUBLE
JEOPARDY AND RIGHT TO DUE PROCESS UNDER THE FIFTH, SIXTH,
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION.
{¶88} In his final assignment of error, appellant asserts that his indictment did
not properly charge him on the fifth count of rape. He claims that Count Five only lists,
“Rape, O.R.C. § 2907.02(A)(2)(B), F1.” He asserts Count Five does not set forth the
name or identity of the alleged victim, the specific acts, or the date or date range on which
the offense allegedly occurred. Appellant claims he was prejudiced by these defects.
Without a specific date and victim, appellant argues, he could not adequately prepare a
defense to this charge.
{¶89} The Ohio Supreme Court has explained the purpose of an indictment:
An individual accused of a felony is entitled to an indictment setting forth the
“nature and cause of the accusation” pursuant to Section 10, Article I of the
Ohio Constitution and the Sixth Amendment to the United States
Constitution. The purpose of an indictment is twofold. By compelling the
government to aver all material facts constituting the essential elements of
an offense, an accused is afforded with adequate notice and an opportunity
to defend. See Redmond v. State (1878), 35 Ohio St. 81, 82–83; Holt v.
State (1923), 107 Ohio St. 307, 140 N.E. 349. An indictment, by identifying
and defining the offense, also enables an accused to protect himself from
any future prosecutions for the same offense. See Harris v. State (1932),
125 Ohio St. 257, 181 N.E. 104.
State v. Sellards, 17 Ohio St.3d 169, 170, 478 N.E.2d 781 (1985).
{¶90} Pursuant to R.C. 2941.03 an indictment is sufficient if it can be understood:
Case No. 21 BE 0038
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(A) That it is entitled in a court having authority to receive it, though the
name of the court is not stated;
(B) If it is an indictment, that it was found by a grand jury of the county in
which the court was held * * *;
(C) That the defendant is named, or, if his name cannot be discovered, that
he is described by a fictitious name, with a statement that his true name is
unknown to the jury or prosecuting attorney, but no name shall be stated in
addition to one necessary to identify the accused;
(D) That an offense was committed at some place within the jurisdiction of
the court, except where the act, though done without the local jurisdiction of
the county, is triable therein;
(E) That the offense was committed at some time prior to the time of finding
of the indictment or filing of the information.
{¶91} Appellant is mistaken here as to the contents of the indictment. As to
Count Five, the indictment states:
The JURORS OF THE GRAND JURY of the State of Oho, within and
for the body of the County aforesaid, on their oaths, in the name and by the
authority of the State of Ohio, do find and present that on or about the 1st
day of January, 2017 through the 16th day of May, 2020 at Belmont County,
Ohio,
***
COUNT V: On or about January 2, 2020 through May 16, 2020, the
defendant did engage in sexual conduct with L.W. when Greg Carter
purposely compelled her to submit by force or threat of force. All in violation
of Ohio Revised Code Section §2907.02(A)(2)(B) F-1.
Case No. 21 BE 0038
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{¶92} Thus, in addition to meeting the R.C. 2941.03 requirements, Count Five
also notified appellant of the alleged victim, the date range for the alleged offense, and
the nature of the offense.
{¶93} Accordingly, appellant’s ninth assignment of error is without merit and is
overruled.
{¶94} For the reasons stated above, the trial court’s judgment is hereby affirmed.
Robb, J., concurs.
D’Apolito, J., concurs.
Case No. 21 BE 0038
[Cite as State v. Carter, 2022-Ohio-3787.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be taxed against
the Appellant.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.