[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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Case No. 21 BE 0038

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. 89AP655, 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. 
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Case No. 21 BE 0038

{¶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).
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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 
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Case No. 21 BE 0038

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 
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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.