Court of Appeals of Ohio, Eighth District, Cuyahoga
County Court of Common Pleas Case No. CR-15-598676-A
Application for Reopening Motion No. 510259
APPELLANT Alton O. Carter, pro se.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
JOURNAL ENTRY AND OPINION
A. JONES, SR., JUDGE.
Alton O. Carter has filed a timely application for reopening
pursuant to App.R. 26(B). Carter is attempting to reopen the
appellate judgment that was rendered in State v.
Carter, 8th Dist. Cuyahoga No. 104653, 2017-Ohio-5573,
that affirmed his conviction for the offenses of assault and
kidnapping. We decline to reopen Carter's original
In order to establish a claim of ineffective assistance of
appellate counsel, Carter is required to establish that the
performance of his appellate counsel was deficient and the
deficiency resulted in prejudice. Strickland v.
Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984); State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110
S.Ct. 3258, 111 L.Ed.2d 767 (1990).
In Strickland, the United States Supreme Court held
that a court's scrutiny of an attorney's work must be
highly deferential. The court further stated that it is all
too tempting for a defendant to second-guess his attorney
after conviction and that it would be too easy for a court to
conclude that a specific act or omission was deficient,
especially when examining the matter in hindsight. Thus, a
court must indulge in a strong presumption that counsel's
conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.
Herein, Carter raises one proposed assignment of error in
support of his claim of ineffective assistance of appellate
Appellant was convicted of kidnapping under R.C.
2905.01(A)(4), when the evidence was insufficient as a matter
of law to sustain the conviction.
Carter, through his single proposed assignment of error,
argues that sufficient evidence was not adduced at trial to
support his conviction for the offense of kidnapping.
Specifically, Carter argues that the essential element of
"purpose to engage in sexual activity" was
insufficient as a matter of law to support his conviction for
the offense of kidnapping.
The principles of res judicata may be applied to bar the
further litigation of issues that were raised previously or
could have been raised previously in an appeal. State v.
Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967). Claims
of ineffective assistance of appellate counsel in an
application for reopening may be barred from further review
by the doctrine of res judicata unless circumstances render
the application of the doctrine unjust. State v.
Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992);
State v. Logan, 8th Dist. Cuyahoga No. 88472,
Herein, this court has already determined that sufficient
evidence was adduced at trial to support Carter's
conviction for the offense of kidnapping.
In his eighth assignment of error, Carter contends that the
evidence was insufficient to support the kidnapping
conviction and, thus, by extension, the Tier II sex offender
label. We disagree. Sufficiency of the evidence is a legal
standard that tests whether the evidence is legally adequate
to support a verdict. State v. Thompkins, 78 Ohio
St.3d 380, 386, 1997 Ohio 52, 678 N.E.2d 541 (1997). In
determining whether the evidence is legally sufficient to
support a conviction, "'[t]he relevant inquiry is
whether, after viewing the evidence in a light most favorable
to the prosecution, any rational trier of fact could have
found the essential elements of the crime proven beyond a
reasonable doubt.'" State v. Robinson, 124
Ohio St.3d 76, 2009-Ohio-5937, 919 N.E.2d 190, ¶ 34,
quoting State v. Jenks, 61 Ohio St.3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus. A verdict
will not be disturbed unless, after viewing the evidence in a
light most favorable to the prosecution, it is apparent that
reasonable minds could not reach the conclusion reached by
the trier of fact. State v. Treesh, 90 Ohio St.3d
460, 484, 2001-Ohio-4, 739 N.E.2d 749 (2001).
In a sufficiency of the evidence inquiry, appellate courts do
not assess whether the prosecution's evidence is to be
believed but whether, if believed, the evidence supports the
conviction. State v. Yarbrough,95 Ohio St.3d 227,
2002-Ohio-2126, 767 N.E.2d 216, ¶ 79-80 (evaluation of
witness credibility not proper on review for sufficiency of
evidence). Further, the testimony of "one witness, if
believed by the jury, is enough to ...