[Cite as State v. Carter, 2018-Ohio-29.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104653



                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                    ALTON O. CARTER
                                                        DEFENDANT-APPELLANT




                                        JUDGMENT:
                                    APPLICATION DENIED


                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-15-598676-A
                                    Application for Reopening
                                       Motion No. 510259

        RELEASE DATE:                January 2, 2018
FOR APPELLANT

Alton O. Carter, pro se
Inmate No. 683498
Correctional Reception Center
P.O. Box 300
Orient, Ohio 43146


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Katherine E. Mullin
Assistant County Prosecutor
8th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} 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 appeal.

       {¶2} 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).

       {¶3} 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.

Strickland.
       {¶4} Herein, Carter raises one proposed assignment of error in support of his claim

of ineffective assistance of appellate counsel.

       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.

       {¶5} 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.

       {¶6} 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, 2008-Ohio-1934.

       {¶7} 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 support a conviction.” State v. Strong, 10th Dist.
      Franklin No. 09AP-874, 2011-Ohio-1024, ¶ 42.

      Carter contends that the evidence was insufficient to support the kidnapping
      conviction because the “essential element of purpose to engage in sexual
      activity was insufficient as a matter of law.” Carter cites that he was
      acquitted of the rape and attempted rape in support of his claim. But as
      mentioned, the kidnapping statute “punishes certain removal or restraint
      done with a certain purpose and the eventual success or failure of the goal is
      irrelevant.” Taylor, 8th Dist. Cuyahoga No. 100315, 2014-Ohio-3134, ¶
      30. Here, the state presented evidence, namely the victim’s testimony, that
      Carter held her against her will in the garage and made unwelcomed sexual
      advances toward her. That testimony was sufficient to support the
      kidnapping charge and, therefore also the Tier II sexual offender label.

      The eighth assignment of error is overruled.


State v. Carter 8th Dist. Cuyahoga No. 104653, 2017-Ohio-5573, ¶ 69 - 73.

      {¶8} Res judicata prevents this court from once again determining whether

sufficient evidence was adduced at trial to support the kidnapping charge. State v. Tate,
8th Dist. Cuyahoga No. 81682, 2004-Ohio-973. We further find that circumstances do

not render the application of the doctrine of res judicata unjust.

       {¶9} Application denied.




LARRY A. JONES, SR., JUDGE

EILEEN A. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR
