State v. Rupert ( 2020 )


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  • [Cite as State v. Rupert, 
    2020-Ohio-6893
    .]
    IN THE COURT OF APPEALS OF OHIO
    THIRD APPELLATE DISTRICT
    VAN WERT COUNTY
    STATE OF OHIO,
    PLAINTIFF-APPELLEE,                               CASE NO. 15-20-03
    v.
    THOMAS D. RUPERT,                                         OPINION
    DEFENDANT-APPELLANT.
    Appeal from Van Wert County Common Pleas Court
    Trial Court No. CR-19-01-005
    Judgment Affirmed
    Date of Decision: December 28, 2020
    APPEARANCES:
    Marley C. Nelson for Appellant
    Eva J. Yarger for Appellee
    Case No. 15-20-03
    WILLIAMOWSKI, J.
    {¶1} Defendant-appellant Thomas D. Rupert (“Rupert”) brings this appeal
    from the judgment of the Court of Common Pleas of Van Wert County accepting
    the verdicts of guilty to two counts of gross sexual imposition and sentencing him
    to an aggregate prison term of 60 months. Rupert claims on appeal that the verdicts
    were against the manifest weight of the evidence and that the prosecutor engaged in
    misconduct which prejudiced him. For the reasons set forth below, the judgment is
    affirmed.
    {¶2} On January 3, 2019, the grand jury of Van Wert County indicted Rupert
    on five counts: 1) rape in violation of R.C. 2907.02(A)(1)(b), 2907.02(B), a felony
    of the first degree; 2) gross sexual imposition in violation of R.C. 2907.05(A)(4),
    2907.05(C)(2), a felony of the third degree; 3) gross sexual imposition in violation
    of R.C. 2907.05(A)(1), 2907.05(C)(1), a felony of the fourth degree; 4) sexual
    battery in violation of R.C. 2907.03(A)(5), 2907.03(B), a felony of the third degree;
    and 5) sexual battery in violation of R.C. 2907.03(A)(5), 2907.03(B), a felony of
    the second degree as the victim was less than thirteen years of age. Doc. 2. Rupert
    entered pleas of not guilty to the charges. Doc. 11. A jury trial was held from
    October 28 through October 30, 2019. Doc. 66. The jury returned verdicts of not
    guilty on the rape, as charged in count 1, but found Rupert guilty of the lesser
    included offense of gross sexual imposition, a felony of the third degree. Doc. 64.
    The jury also found Rupert guilty of gross sexual imposition as set forth in count 2.
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    Case No. 15-20-03
    
    Id.
     The jury found Rupert not guilty of counts 3, 4, and 5. 
    Id.
     The trial court
    accepted the jury verdicts on October 31, 2019. Doc. 66. A sentencing hearing was
    held on January 10, 2020. Doc. 71. The trial court ordered that Rupert serve a
    prison term of 30 months on each count and that the sentences be served consecutive
    to each other. 
    Id.
     Rupert appeals from this judgment and raises the following
    assignments of error on appeal.
    First Assignment of Error
    [Rupert’s] convictions were against the manifest weight of the
    evidence in violation of his rights to due process and a fair trial.
    Second Assignment of Error
    Prosecutorial misconduct denied [Rupert] a fair trial and due
    process of law.
    Manifest Weight of the Evidence
    {¶3} In the first assignment of error, Rupert claims that his conviction was
    against the manifest weight of the evidence. When reviewing a judgment to
    determine if it is against the manifest weight of the evidence, an appellate court
    “review[s] the entire record, weighs the evidence and all reasonable inferences,
    considers the credibility of witnesses and determines 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.” State v.
    Mendoza, 
    137 Ohio App.3d 336
    , 
    738 N.E.2d 822
     (3d Dist. 2000). See, also, State
    v. Thompkins, 
    78 Ohio St.3d 380
    , 387, 
    678 N.E.2d 541
     (1997). A new trial should
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    Case No. 15-20-03
    be granted only in the exceptional case in which the evidence weighs heavily against
    conviction. Thompkins at 387, 
    678 N.E.2d 541
    . Although the appellate court acts
    as a “thirteenth juror,” due deference to the findings made by the fact-finder must
    still be given. State v. Moorer, 3d Dist. Seneca No. 13–12–22, 
    2013-Ohio-650
    , ¶
    29.
    {¶4} Here, Rupert claims that the testimony of the victims was inconsistent
    and unreliable. The jury convicted Rupert of two counts of gross sexual imposition
    in violation of R.C. 2907.05, which provides in pertinent part as follows.
    (A) No person shall have sexual contact with another, not the
    spouse of the offender; cause another, not the spouse of the
    offender, to have sexual contact with the offender; or cause two
    or more other persons to have sexual contact when any of the
    following applies:
    ***
    (4) The other person, or one of the other persons, is less than
    thirteen years of age, whether or not the offender knows the age
    of that person.
    There is no dispute in this case that the two victims were under the age of 13 at the
    time of the offenses. Thus, the only question is whether there was credible evidence
    that Rupert had sexual contact with the victims. Sexual contact is defined as “any
    touching of an erogenous zone of another, including without limitation the thigh,
    genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose
    of sexually arousing or gratifying either person.” R.C. 2907.01(B).
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    Case No. 15-20-03
    {¶5} T.R., the victim of the actions making up Count 2, testified that on
    multiple occasions, Rupert would grab her hand and force her to touch her breasts,
    her vaginal area, or his “private area.” Tr. 121. She also testified that Rupert would
    touch her vaginal area, breasts, and butt. Tr. 121. She indicated that most of the
    touching occurred over her clothing, but that there were two instances where he
    touched her vaginal area under her clothing. Tr. 128, 146-47. Rupert argues that
    this testimony is not credible because there were discrepancies in her testimony.
    The jury is the sole judge of the weight of the evidence and the
    credibility of witnesses. It may believe or disbelieve any witness
    or accept part of what a witness says and reject the rest. In
    reaching its verdict, the jury should consider the demeanor of the
    witness and the manner in which he testifies, his connection or
    relationship with the prosecution or the defendant, and his
    interest, if any, in the outcome.
    State v. Antill, 
    176 Ohio St. 61
    , 67, 
    197 N.E.2d 548
     (1964). “The choice between
    credible witnesses and their conflicting testimony rests solely with the finder of fact
    and an appellate court may not substitute its own judgment for that of the finder of
    fact.” State v. Kruse, 3d Dist. Union No. 14-16-15, 
    2017-Ohio-5667
    , ¶ 66 quoting
    State v. Awan, 
    22 Ohio St.3d 120
    , 123, 
    489 N.E.2d 277
     (1986). Here, the alleged
    inconsistencies were before the jury and it had the opportunity to weigh the evidence
    presented. The jury clearly took its task seriously as it found Rupert not guilty of
    Counts 3 and 4 which were also based upon T.R.’s testimony.
    {¶6} E.B., who was the victim of the actions in Count 1, testified that she
    was lying on the bed in Rupert’s bedroom watching tv when he came in and laid on
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    Case No. 15-20-03
    the bed behind her. Tr. 168-69. E.B. then testified that Rupert reached his arm over
    her and started touching her vagina inside her pants, but on the outside of her
    underwear. Tr. 169-70. According to E.B., Rupert was rubbing the outside of her
    vaginal area, but did not go inside of her. Tr. 171. Rupert argues this testimony
    lacks credibility because on redirect, she indicated that his finger went in. However,
    as discussed above, the jury was given the opportunity to hear all of the evidence,
    including the inconsistencies and determine what was credible. The jury was not
    required to believe all of the testimony. The jury evidently chose to believe the
    testimony given on direct because it found Rupert not guilty of rape, but guilty of
    the lesser included offense of gross sexual imposition. The jury also found him not
    guilty of sexual battery as it related to E.B. Viewing all the evidence as a whole, we
    cannot say that the evidence weighs heavily against conviction or that the jury
    clearly lost its way and created a manifest miscarriage of justice.           The first
    assignment of error is overruled.
    Prosecutorial Misconduct
    {¶7} Rupert argues in the second assignment of error that he was denied a
    fair trial when the prosecutor accused him of committing perjury. We note initially
    that Barnes failed to object to the statement during the trial, so our review is limited
    to one of plain error. State v. Dixon, 
    152 Ohio App.3d 760
    , 
    2003-Ohio-2250
    , ¶ 26,
    
    790 N.E.2d 349
     (3d Dist.). “The test for prosecutorial misconduct is whether the
    remarks were improper and, if so, whether they prejudicially affected the accused's
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    Case No. 15-20-03
    substantial rights.” State v. Liles, 3d Dist. Allen No. 1–14–61, 
    2015-Ohio-3093
    , ¶
    31, citing State v. Smith, 
    14 Ohio St.3d 13
    , 14, 
    470 N.E.2d 883
     (1984). Prejudice is
    shown when there is a reasonable probability that but for the improper remark by
    the prosecutor, the result of the trial would have been different. State v. Stevens, 3d
    Dist. Allen No. 1-14-58, 
    2016-Ohio-446
    , ¶ 53, 
    58 N.E.3d 584
    .              “Not every
    intemperate remark by counsel can be a basis for reversal.” State v. Landrum, 
    53 Ohio St.3d 107
    , 112, 
    559 N.E.2d 710
     (1990).
    The touchstone of analysis “ * * * is the fairness of the trial, not
    the culpability of the prosecutor. * * * ” Smith v. Phillips, 
    455 U.S. 209
    , 219, 
    102 S.Ct. 940
    , 947, 
    71 L.Ed.2d 78
    , (1982). The
    Constitution does not guarantee an “error free, perfect trial * *
    *.” United States v. Hasting, 
    461 U.S. 499
    , 508, 
    103 S.Ct. 1974
    ,
    1980, 
    76 L.Ed.2d 96
    , (1983).
    
    Id.
    {¶8} Barnes’ argument is based upon one comment made by the prosecutor
    during closing arguments. Specifically, after discussing the testimony of the victims
    and their relationship with Barnes, the prosecutor inferred that Barnes had lied
    during his testimony. The prosecutor’s statement was “if a person will abuse a child,
    what’s a little perjury.” Tr. 498. This Court does not find accusations that a witness,
    including the defendant, has committed perjury in a case to be proper. “Such
    statements function as backhanded impeachment as well as attempted witness
    intimidation and express the prosecutor’s personal belief or opinion as to the
    credibility of the witness, which is improper.” State v. Halley, 
    93 Ohio App.3d 71
    ,
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    Case No. 15-20-03
    79, 
    637 N.E.2d 937
     (10th Dist. 1994). However, the fact that the prosecutor made
    one isolated remark during closing argument does not automatically make the trial
    unfair. A review of the closing argument as a whole does not show that the error
    was prevalent throughout the closing argument. Throughout the closing argument,
    the prosecutor repeatedly stated “if” you believe or “if” you find, inferring properly
    that it was up to the jury to determine the facts. See e.g. Tr. 484, 485, 488, and 489.
    The jury was properly instructed that statements made by counsel during closing
    argument were not evidence. Tr. 516. The trial court also told the jurors that they
    were the “sole judge of the facts, the credibility of the witnesses and the weight of
    the evidence.” Tr. 516. Given all of this along with the evidence presented at the
    trial, this Court does not find that the single inappropriate statement by the
    prosecutor in this case was prejudicial. Thus, the second assignment of error is
    overruled.
    {¶9} Having found no error prejudicial to the appellant in the particulars
    assigned and argued, the judgment of the Court of Common Pleas of Van Wert
    County is affirmed.
    Judgment Affirmed
    PRESTON and ZIMMERMAN, J.J., concur.
    -8-
    

Document Info

Docket Number: 15-20-03

Judges: Willamowski

Filed Date: 12/28/2020

Precedential Status: Precedential

Modified Date: 12/28/2020