State v. Zimpfer , 2014 Ohio 4401 ( 2014 )

[Cite as State v. Zimpfer, 2014-Ohio-4401.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 26062
v. : T.C. NO. 12-CR-3315
THOMAS S. ZIMPFER : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
..........
OPINION
Rendered on the 3rd day of October , 2014.
..........
MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. #0070162, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
GEORGE A. KATCHMER, Atty. Reg. #0005031, 1886 Brock Road NE, Bloomingburg,
Ohio 43106
Attorney for Defendant-Appellant
..........
DONOVAN, J.
{¶ 1} Defendant-appellant Thomas Scott Zimpfer appeals his conviction and
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sentence for three counts of unlawful sexual conduct with a minor, in violation of
2907.04(A), all felonies of the third degree, and four counts of rape (by force or threat of
force), in violation of 2907.02(A)(2), all felonies of the first degree. Zimpfer filed a timely
notice of appeal with this Court on January 22, 2014.
{¶ 2} The events which form the basis for the instant appeal occurred between the
dates of November 18, 2004, and November 18, 2009. On November 23, 2003, Zimpfer,
his wife Ericka, and their two children moved into a residence located in the Dayton area.
Shortly thereafter, Zimpfer and his family met and befriended their neighbors. The
Zimpfers also befriended their neighbors’ twelve-year old daughter, L.R. In particular, L.R.
and Ericka became very close. 1 In exchange for horse riding lessons, L.R. would help
Ericka with her horses and babysit the Zimpfers’ youngest child, K.Z.
{¶ 3} Once she turned thirteen years old, L.R. began spending a significant amount
of time at the Zimpfers’ residence. During the school year, L.R. would go to the Zimpfer
residence after school let out and stay until mid-evening, oftentimes babysitting K.Z. until
Ericka or Zimpfer got home from their respective jobs. While she was on summer vacation,
L.R. testified that she “was there pretty much all day every day.” Tr. 236, Ln. 20-21. The
Zimpfers took L.R. shopping, out to eat, and on vacation. L.R. referred to the Zimpfers as
her “second family.” Tr. 241, Ln. 1.
{¶ 4} In fact, L.R. referred to Zimpfer as her “second dad.” Tr. 241, Ln. 25.
Zimpfer likened L.R. to an “adopted daughter.” Tr. 462, Ln. 5-6. Zimpfer helped L.R. with
her school homework, and she confided in him regarding issues she was having with her
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At the time of trial, L.R. was twenty-one years old.
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parents and boyfriends. L.R. testified that during school breaks when she was babysitting
K.Z., Zimpfer would come home from work between 10:30 a.m. and 1:00 p.m. while K.Z.
was napping.
{¶ 5} A. The First Incident
{¶ 6} L.R. testified that the first rape occurred when she was thirteen years old.
L.R. was on break from school, and she was babysitting K.Z. at the Zimpfer residence.
Zimpfer came home during lunchtime and asked L.R. how she was feeling. L.R. explained
to Zimpfer that she was upset because she had just broken up with her boyfriend. L.R.
testified that Zimpfer was initially very understanding and empathetic. However, at some
point in the conversation, Zimpfer started asking L.R. questions that were sexual in nature.
Specifically, Zimpfer asked L.R. what sexual acts she and her ex-boyfriend had engaged in
together. L.R. told Zimpfer that she and her ex-boyfriend had not engaged in any sexual
acts.
{¶ 7} At this point, Zimpfer went to the kitchen and brought back a cup containing
some sort of alcohol and gave it to L.R. who took a few drinks from the cup. Zimpfer
began rubbing L.R.’s inner thigh and eventually moved to her vaginal area over her clothes.
Zimpfer unbuttoned her pants and began to rub her vaginal area over her underwear. L.R.
testified that she was confused by Zimpfer’s behavior, and she began to feel sick. L.R. told
Zimpfer she was not feeling well, and he brought her into a bathroom in the downstairs
section of the house.
{¶ 8} While L.R. stood in front of the sink in the bathroom, Zimpfer pulled up her
shirt and began rubbing her breasts. Zimpfer then placed his hand inside of L.R.’s
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underwear and penetrated her vagina with his fingers. L.R. testified that she felt like she
was in shock. L.R. told Zimpfer that she was sick and wanted to go home. Zimpfer drove
her home. L.R. did not tell anyone about the sexual assault.
{¶ 9} B. The Second Incident
{¶ 10} Despite being sexually assaulted, L.R. returned to the Zimpfer residence in
order to babysit K.Z. In the spring or summer of 2005, while she was still thirteen years
old, L.R. was watching K.Z. while Ericka and Zimpfer were at work. Once again, Zimpfer
came home while K.Z. was taking a nap. Zimpfer grabbed L.R. by the wrist and pulled her
into his bedroom. L.R. testified that she did not try to resist Zimpfer’s advances because
she believed it would only make things worse. Zimpfer began kissing L.R. on the neck and
ears and rubbing her breasts and vaginal area over her clothes. Zimpfer then removed
L.R.’s pants and penetrated her vagina with his fingers. Zimpfer placed L.R. on the bed and
retrieved a purple sex toy from his dresser. Zimpfer walked back to the bed and penetrated
L.R. vaginally with the sex toy. After he was done, Zimpfer left the house and ostensibly
went back to work.
{¶ 11} C. The Third Incident
{¶ 12} Shortly after the incident involving the sex toy, L.R. was back at the Zimpfer
residence babysitting K.Z. Zimpfer returned home while K.Z. was napping, grabbed L.R.
by the wrist, and led her upstairs to his bedroom. L.R. testified that she did not resist
because “[Zimpfer] was bigger than [her and] he was always going to overpower [her].”
Zimpfer tried to kiss L.R., and then he began rubbing her breasts and vaginal area over her
clothes. Zimpfer removed L.R.’s pants and penetrated her digitally. L.R. testified that
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after penetrating her with his fingers, Zimpfer placed her on the bed, removed his pants, got
on top of her, and penetrated her with his penis. After he was done, Zimpfer left the
residence.
{¶ 13} After Zimpfer began sexually abusing L.R., she started dressing in all black
clothes. L.R. also dyed her hair black, painted her fingernails black, and wore black eye
makeup. Additionally, L.R. began cutting herself. L.R. testified that Zimpfer was aware of
the cutting and would threaten to tell her parents as a means of forcing her to keep the abuse
a secret.
{¶ 14} D. The Fourth Incident
{¶ 15} The next incident occurred when L.R. was fifteen years old. Zimpfer came
home while K.Z. was taking a nap. L.R. testified that Zimpfer took her by the wrist and
tried to pull her upstairs to his bedroom. “[T]ired of being used and mistreated[,]” L.R. told
Zimpfer that she did not want to go upstairs, and attempted to pull away from him. Tr. 260,
Ln. 2-15. When she wrenched her arm away from Zimpfer, however, she hit her head on
the wall and became disoriented. L.R. testified that her attempt to resist made Zimpfer very
angry. Zimpfer immediately took L.R. into his bedroom, took off her pants, removed his
pants, and penetrated her vagina with his penis on the bed. When Zimpfer was done, he got
up, put his pants back on, slammed the bedroom door behind him, and left the house.
{¶ 16} By this point, L.R. had only told one of her female friends and her boyfriend,
D.P., about the sexual abuse, but she made them keep it secret. L.R. had been dating D.P.
since she was fourteen. D.P. attempted to get L.R. to tell the police about the sexual abuse,
but she was afraid to do so because Zimpfer had threatened her and her family.
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{¶ 17} E. The Fifth Incident
{¶ 18} The final incident occurred when L.R. was sixteen. L.R. testified that at
this juncture, she was getting along better with her family and had been going to the Zimpfer
residence very sporadically. However, one day Ericka sent a text message to L.R.’s father
asking if L.R. could come to the residence and weed the flowerbeds. L.R.’s father sent her
to the Zimpfers at Ericka’s request.
{¶ 19} D.P. asked her not to go to the Zimpfer residence that day, but L.R. testified
that she believed if she refused, she would arouse suspicion. L.R. drove her car over to the
Zimpfer residence and parked very close to the flowerbeds. L.R. testified that she did not
observe any of the vehicles that Zimpfer drove. Accordingly, L.R. assumed no one was
home and she would be safe. Zimpfer, however, emerged from the house while L.R. was
weeding, grabbed her by the arm, and pulled her into the house. L.R. attempted to fight him
off, but Zimpfer overpowered her. He removed her pants, pushed her up against the
sectional sofa in the living room, and penetrated her vagina with his penis. Thereafter, L.R.
pulled her pants up, ran outside the house, and retrieved her phone. L.R. sent a text to D.P.
in which she asked him to come and help her. Zimpfer remained in the house.
{¶ 20} Upon arriving at the Zimpfer residence, D.P. located L.R. near the
flowerbeds. D.P. testified that L.R. seemed very upset and was acting uncharacteristically
emotional. At this point, D.P. went to house and beat on the front door. Zimpfer did not
come to the door, nor did he come outside while L.R. and D.P. were still there. L.R.
finished the weeding because she did not want Ericka to be suspicious regarding why the job
was not done. L.R. and D.P. eventually left and went back to her house.
[Cite as State v. Zimpfer, 2014-Ohio-4401.]
{¶ 21} L.R. disclosed Zimpfer’s sexual abuse to the police in August of 2012. On
February 1, 2013, Zimpfer was indicted for one count of unlawful sexual conduct with a
minor and one count of rape. On August 1, 2013, in “Reindictment B,” Zimpfer was
charged with four additional counts of rape, each of which were accompanied by a sexually
violent predator specification. On August 26, 2013, in “Reindictment C,” Zimpfer was
charged with two additional counts of unlawful sexual conduct with a minor. The State
later nolled the single rape count charged in the “Direct” indictment filed on February 1,
2013.
{¶ 22} After the State filed its witness list, Zimpfer objected to the prosecution
calling Dr. Brenda J. Miceli and moved the trial court to exclude her testimony. The trial
court scheduled a Daubert hearing on October 20, 2013, in order to determine the
admissibility of Dr. Miceli’s testimony. In an order issued on September 24, 2013, the trial
court overruled Zimpfer’s objection, vacated the scheduled Daubert hearing, and set forth
parameters for the admissibility of Dr. Miceli’s testimony.
{¶ 23} On October 16, 2013, Zimpfer filed a waiver of jury trial only with respect
to the sexually violent predator specifications. After a jury trial which began on October 22,
2013, and ended on October 24, 2013, Zimpfer was found guilty of four counts of rape (by
force or threat of force) and three counts of unlawful sexual conduct with a minor. The
court held a bench trial on January 9, 2014, regarding the four sexually violent predator
specifications. In a judgment entry issued on January 16, 2014, the trial court found
Zimpfer not guilty of all of the specifications.
{¶ 24} On January 17, 2014, the trial court sentenced Zimpfer to an aggregate
prison term of thirty-three years. Zimpfer was also designated as a Tier III sex
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offender/child victim offender.
{¶ 25} It is from this judgment that Zimpfer now appeals.
{¶ 26} Zimpfer’s first assignment of error is as follows:
{¶ 27} “AN EXPERT WITNESS MUST DERIVE HER OPINION FROM FACTS
OR DATA OF THE PARTICULAR CASE UPON WHICH THE EXPERT BASES AN
OPINION OR INFERENCE OTHERWISE SUCH TESTIMONY VIOLATES EVID. R.
403.”
{¶ 28} In his first assignment, Zimpfer contends that the trial court erred by
admitting the expert testimony of Dr. Brenda J. Miceli, a clinical child psychologist, who
testified at trial regarding the behavioral characteristics of children who have been sexually
abused. Specifically, Zimpfer argues that Dr. Miceli’s testimony was not admissible under
either Evid. R. 703 or 705, and was only presented by the State to bolster L.R.’s credibility
with the jury.
{¶ 29} Initially, we note that Zimpfer’s counsel objected to the admission of Dr.
Miceli’s testimony on the basis that it was not qualified under Evid. R. 702(B) and the test
enunciated by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). On appeal, however, Zimpfer’s
brief asserts a new argument for excluding Dr. Miceli’s testimony, one that was not raised
before the trial court. Accordingly, Zimpfer has waived all but plain error in regards to the
admission of Dr. Miceli’s testimony. An appellate court has the discretion to notice plain
error under Crim. R. 52(B) “with the utmost caution, under exceptional circumstances, and
only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372
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N.E2d 804 (1978), ¶ 3 of the syllabus. Plain error does not exist unless, but for the error, the
outcome of the proceedings would have been different. State v. Moreland, 50 Ohio St.3d 58,
552 N.E.2d 894 (1990).
{¶ 30} “[T]he Ohio Supreme Court has found that testimony from a psychologist
on the behavioral characteristics of sexually abused children is admissible, see State v.
Stowers (1998), 81 Ohio St.3d 260, 262, 690 N.E.2d 881, and so have we. [State v.Bell, 176
Ohio App.3d 378, 2008-Ohio-2578, 891 N.E.2d 1280 (2d Dist.)].” State v. Rosas, 2d Dist.
Montgomery No. 22424, 2009-Ohio-1404, ¶ 41. “What an expert may not do is offer a
direct opinion on whether a child is telling the truth. State v. Boston (1989), 46 Ohio St.3d
108, 545 N.E.2d 1220.” Id., ¶ 42. We review the admission of expert testimony under an
abuse of discretion standard of review. See Bell. In Bell, Dr. Miceli was retained by the
State “to testify regarding the wide range of behaviors that sexually abused children may
exhibit, including internalizing behaviors, externalizing behaviors, and sexualized
behaviors.” Dr. Miceli did not opine on whether the victims were sexually abused by the
defendant, and this Court concluded that the trial court did not abuse its discretion in
admitting the testimony as follows:
Dr. Miceli simply offered her opinions regarding the wide range of
behavioral characteristics displayed by minor victims of sexual abuse. The
law clearly permits this kind of expert testimony, and Dr. Miceli did not go
beyond permissible boundaries and opine whether these children were in fact
abused by Bell. A thorough review of Dr. Miceli’s expert testimony
establishes that she possessed specialized knowledge that could aid a trier of
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fact in assessing whether the children actually suffered sexual abuse.
Bell, ¶ 57.
{¶ 31} In support of his argument that Dr. Miceli’s testimony was inadmissible,
Zimpfer cites to former Justice Alice Robie Resnick’s dissent in Stowers wherein she
asserted that an expert witness’ testimony regarding whether the behavior of an alleged
victim of child abuse is consistent with the behavior observed in sexually abused children
“should be inadmissible until it is scientifically established that there are proven and
accepted behavioral characteristics of a standard child-sexual-abuse victim.” Id. at 264.
{¶ 32} The difficulty with this argument is that represents a minority position and is
not the law in the State of Ohio. In the instant case, Dr. Miceli permissbly testified
regarding some of the behaviors that sexually abused children may exhibit, including the
tendency to delay the reporting of sexual abuse, as was the case here. Dr. Miceli also
offered testimony regarding the tendency of children who have been sexually abused to only
provide partial reports of the alleged abuse which is permissible under Stowers and its
progeny.
{¶ 33} Similar to the defendant in State v. Cox, 2d Dist. Montgomery No. 25477,
2013-Ohio-4941, ¶ 53, Zimpfer argues that Dr. Miceli failed to disclose the facts and data
used as a basis for her opinion, as required by Evidence Rule 705. Dr. Miceli, however, did
not offer an opinion as to whether L.R. had, in fact, been abused. Instead, Dr. Miceli’s
testimony was correctly limited by the trial court to a specialized overview of particular
behavioral characteristics of sexually abused children in order to give the jurors a better
understanding of those characteristics. Accordingly, Dr. Miceli’s testimony regarding the
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behavioral characteristics displayed by minor victims of sexual abuse was admissible to aid
the jury in assessing whether L.R. actually suffered sexual abuse at the hands of Zimpfer.
See State v. Weber, 2d Dist. Montgomery No. 25508, 2013-Ohio-3172.
{¶ 34} Further, we note that in the judgment entry overruling Zimpfer’s objection to
Dr. Miceli’s testimony, vacating the Daubert hearing, and setting forth the parameters for
the admissibility of her expert testimony, the trial court ordered the State to provide a written
report to defense counsel pursuant to Crim. R. 16(K) only if it intended to question Dr.
Miceli regarding the particular facts of the instant case. As previously stated, Dr. Miceli did
not offer any testimony about L.R.’s conduct in particular. Dr. Miceli simply testified
regarding the common behavioral characteristics of children who have been sexually abused.
Significantly, during Dr. Miceli’s cross-examination, defense counsel acknowledged that
the State provided him with a “summary of information” on which the expert based a portion
of her testimony concerning the general characteristics of the sexually abused children.
{¶ 35} With respect to Dr. Miceli’s extensive credentials, we stated the following in
Cox:
There is little doubt that Dr. Micelli possesses extensive formal
education and broad, deep experience with sexually abused children. Her
testimony here establishes this, and we have previously so found. See State v.
Bell, 176 Ohio App.3d 378, 2008-Ohio-2578 (recognizing Dr. Micelli’s
extensive experience with sexually abused children). After examining the
record, we find nothing that would call into question the reliability of her
testimony. Her testimony on the behavioral characteristics of
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sexually-abused children has a reliable basis in the knowledge and experience
of the field of psychology, which she has acquired from the classroom and the
clinic.
Id. at ¶ 54.
{¶ 36} Zimpfer also asserts that the State called Dr. Miceli to testify solely to
bolster L.R.’s testimony. As we previously found in Cox, there is a distinction “between
expert testimony that a child witness is telling the truth,” on the one hand, and on the other
hand, “evidence which bolsters a child’s credibility insofar as it supports the prosecution’s
efforts to prove that a child has been abused.” Id. at ¶ 55, citing Stowers, at 262. Expert
testimony is admissible as to the latter. This is evidence that provides “additional support
for the truth of the facts testified to by the child, or which assists the fact finder in assessing
the child’s veracity.” Id. (emphasis added in original). Such testimony “does not usurp the
role of the jury, but rather gives information to a jury which helps it make an educated
determination.” Id. Here, as in Cox, Dr. Miceli’s testimony is within permissible bounds.
She testified about the behavioral characteristics of sexually abused children in an effort to
educate the jury regarding delayed and partial reporting of sexual abuse by children. Thus,
the trial court did not err, plainly or otherwise, when it admitted the testimony of Dr. Miceli.
{¶ 37} Zimpfer’s first assignment of error is overruled.
{¶ 38} Because they are interrelated, Zimpfer’s second and fourth assignments of
error are as follows:
{¶ 39} “THE STATE PRESENTED INSUFFICIENT EVIDENCE OF FORCE BY
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AN AUTHORITY FIGURE TO SUSTAIN CONVICTIONS FOR RAPE BY FORCE OR
THREAT OF FORCE.”
{¶ 40} “THE JURY ERRED IN CONVICTING THE APPELLANT OF RAPE BY
FORCE BY AN AUTHORITY FIGURE AND MUST BE REVERSED BECAUSE THEY
ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶ 41} In his second assignment, Zimpfer argues that insufficient evidence was
adduced at trial to sustain his convictions for rape by force or threat of force. In his fourth
assignment, Zimpfer contends that his convictions for rape by force or threat of force are
against the manifest weight of the evidence.
{¶ 42} Initially, we note that Zimpfer preserved his insufficiency argument by
making an unsuccessful Crim. R. 29 motion for acquittal at the close of evidence at trial.
Crim. R. 29(A) states that a court shall order an entry of judgment of acquittal if the
evidence is insufficient to sustain a conviction for the charged offense. “Reviewing the
denial of a Crim. R. 29 motion therefore requires an appellate court to use the same standard
as is used to review a sufficiency of the evidence claim.” State v. Witcher, 6th Dist. Lucas
No. L-06-1039, 2007-Ohio-3960. “In reviewing a claim of insufficient evidence, ‘[t]he
relevant inquiry is whether, after reviewing 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.’ ” (Citations omitted). State v. Crowley, 2d Dist. Clark
No. 2007 CA 99, 2008-Ohio-4636, ¶ 12.
{¶ 43} “A challenge to the sufficiency of the evidence differs from a challenge to
the manifest weight of the evidence.” State v. McKnight, 107 Ohio St.3d 101,112,
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2005-Ohio-6046, 837 N.E.2d 315. “A claim that a jury verdict is against the manifest
weight of the evidence involves a different test. ‘The court, reviewing 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. The discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.’ ” Id.{¶ 44} The credibility of the witnesses and the weight to be given to their testimony
are matters for the trier of facts to resolve. State v. DeHass, 10 Ohio St.2d 230, 231, 227
N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the
witnesses, the cautious exercise of the discretionary power of a court of appeals to find that a
judgment is against the manifest weight of the evidence requires that substantial deference
be extended to the factfinder’s determinations of credibility. The decision whether, and to
what extent, to credit the testimony of particular witnesses is within the peculiar competence
of the factfinder, who has seen and heard the witness.” State v. Lawson, 2d Dist.
Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997).
{¶ 45} This court will not substitute its judgment for that of the trier of facts on the
issue of witness credibility unless it is patently apparent that the trier of fact lost its way in
arriving at its verdict. State v. Bradley, 2d Dist. Champaign No. 97-CA-03, 1997 WL
691510 (Oct. 24, 1997).
{¶ 46} Zimpfer was convicted of four counts rape in violation of R.C.
2907.02(A)(2), in that he engaged in sexual conduct with another, purposely compelling the
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other person to submit by force or threat of force. The force element is defined as follows:
“ ‘ Force’ means any violence, compulsion, or constraint physically exerted by any means
upon or against a person or thing.” R.C. 2901.01(A)(1). Force or the threat of force “can be
inferred from the circumstances surrounding sexual conduct.” State v. Schaim, 65 Ohio St.3d
51, 600 N.E.2d 661 (1992), at ¶ 1 of the syllabus. In order to make a finding of force under
R.C. 2907.02, “some amount of force must be proven beyond that force inherent in the crime
itself.” State v. Dye, 82 Ohio St.3d 323, 327, 695 N.E.2d 763 (1998). In State v. Eskridge,
38 Ohio St. 3d 56, 526 N.E.2d 304 (1988), the Ohio Supreme Court held that the force and
violence necessary to commit the crime of rape depends upon the age, size and strength of
the parties and their relation to each other. “As long as it can be shown that the rape
victim’s will was overcome by fear or duress, the forcible element of rape can be
established.” Id. Therefore, the context of the rape will also affect our inferences regarding
the additional element of force or threats of force.
{¶ 47} Upon review, the record establishes that Zimpfer assumed a role of parental
authority over L.R. In fact, L.R. viewed Zimpfer as her “second dad.” Zimpfer testified
that he thought of L.R. as his “adopted daughter.” Zimpfer further stated that he wanted
“the same stuff for [L.R.] that [he] wanted for [his] kids.” With the filial obligation of
obedience to a parent, the same degree of force and violence is not required upon a person of
tender years as would be required were the parties more equal in age, size and strength.
Eskridge, at 58. In situations involving the sexual assault of a child by a parent, the force
used need not be overt and physically brutal, but can be subtle and psychological. As long
as it is shown that the rape victim’s will was overcome by fear or duress, the force element
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of rape is established. Id. The youth and vulnerability of children, coupled with the power
inherent in a parent’s position of authority, creates a unique situation of dominance and
control in which explicit threats and displays of force are not necessary to effect the abuser’s
purpose. Id. This same reasoning also applies with equal force when a child is sexually
abused by a non-parent who is in a position of authority, such as a stepfather or babysitter.
State v. Marrs, 2d Dist. Montgomery No. 18903, 2002-Ohio-3300.
{¶ 48} L.R. testified that all of the rapes occurred at the Zimpfer residence. L.R.
also testified that Zimpfer ordered her not to tell anyone about the abuse. Zimpfer
threatened L.R. and her family. Zimpfer also threatened to tell her parents about her cutting
herself. L.R. believed Zimpfer would act upon his threats. Furthermore, there were times
during the sexual abuse when L.R. told Zimpfer to stop or tried to push him away to no
avail. Zimpfer simply ignored L.R. and continued the sexual abuse. L.R. testified that she
felt powerless against Zimpfer, that he was going to do what he wanted to do and there was
nothing she could do about it. We note that Zimpfer was approximately six feet tall and
weighed two-hundred and forty pounds. L.R. was only thirteen, fifteen, and sixteen years
old when the rapes occurred. Zimpfer was significantly bigger and stronger than L.R.
Zimpfer overpowered L.R. by pulling her into the rooms where the rapes occurred, removing
her clothing, and physically positioning his body against/over hers.
{¶ 49} Construing the evidence presented in a light most favorable to the State, as
we must, we conclude that a rational trier of fact could find all of the essential elements of
the crimes of rape to have been proven beyond a reasonable doubt, including that Zimpfer
compelled L.R. to submit by force or threat of force. Zimpfer’s rape convictions are
17
therefore supported by legally sufficient evidence.
{¶ 50} Finally, ZImpfer’s convictions are not against the manifest weight of the
evidence. The credibility of the witnesses and the weight to be given their testimony were
matters for the jury to resolve. The jury did not lose its way simply because it chose to
believe the testimony of the victim, L.R., who testified at length regarding Zimpfer forcing
her to submit to multiple instances of digital and penile rape, as well as the offense wherein
he inserted a sex toy into her vagina. Having reviewed the entire record, we cannot clearly
find that the evidence weighs heavily against conviction, or that a manifest miscarriage of
justice has occurred.
{¶ 51} Zimpfer’s second and fourth assignments of error are overruled.
{¶ 52} Zimpfer’s third assignment of error is as follows:
{¶ 53} “BECAUSE THE STATE PRESENTED INSUFFICIENT EVIDENCE OF
FORCE BY AN AUTHORITY FIGURE TO SUSTAIN CONVICTIONS FOR RAPE BY
FORCE OR THREAT OF FORCE THE COURT ERRED IN GIVING AN INSTRUCTION
CONCERNING THE STATUS AS AN AUTHORITY FIGURE AND THE
INSTRUCTION GIVEN BY THE COURT WAS CONFUSING TO THE JURY.”
{¶ 54} First, it is uncontroverted that Zimpfer occupied the status of authority figure
in relation to L.R. In light of our disposition with respect to Zimpfer’s second assignment
of error on sufficiency of the evidence, with regard to force and the evidence of Zimpfer’s
status as an authority figure, the third assignment of error is overruled.
{¶ 55} Zimpfer’s fifth assignment of error is as follows:
{¶ 56} “THE APPELLANT WAS DENIED A FAIR TRIAL DUE TO THE
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INEFFECTIVENESS OF COUNSEL.”
{¶ 57} In his fifth assignment, Zimpfer contends that he received ineffective
assistance of counsel at trial. Specifically, Zimpfer argues that counsel was deficient for
failing to object to the admission of Dr. Miceli’s testimony pursuant to Evidence Rules 702,
703, 705, and 403. Zimpfer argues that his counsel was also ineffective for failing to object
to the jury instruction the trial court gave pertaining to his status as an authority figure.
{¶ 58} “We review the alleged instances of ineffective assistance of trial counsel
under the two prong analysis set forth in Strickland v. Washington (1984), 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674, and adopted by the Supreme Court of Ohio in State v. Bradley
(1989), 42 Ohio St.3d 136, * * *. Pursuant to those cases, trial counsel is entitled to a
strong presumption that his or her conduct falls within the wide range of reasonable
assistance. Strickland, 466 U.S. at 688. To reverse a conviction based on ineffective
assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an
objective standard of reasonableness and that his errors were serious enough to create a
reasonable probability that, but for the errors, the result of the trial would have been
different. Id. Hindsight is not permitted to distort the assessment of what was reasonable in
light of counsel’s perspective at the time, and a debatable decision concerning trial strategy
cannot form the basis of a finding of ineffective assistance of counsel.” (Internal citation
omitted). State v. Mitchell, 2d Dist. Montgomery No. 21957, 2008-Ohio-493, ¶ 31.
{¶ 59} As discussed in the first assignment, Dr. Miceli’s testimony was admissible
under Evid. R. 702 and was not introduced to impermissibly bolster L.R.’s testimony.
19
Moreover, we note that trial counsel did file a pre-trial motion to exclude Dr. Miceli’s
testimony on September 19, 2012. Evid. R. 703 and 705 were not violated because Dr.
Miceli’s testimony was properly limited, and she offered no opinion as to the truth of L.R.’s
assertions. See State v. Cox, 2d Dist. Montgomery No. 25477, 2013-Ohio-4941, ¶ 62.
Given the strong presumption that counsel’s performance constituted reasonable assistance,
Zimpfer’s trial counsel was not required to perform a futile act. State v. Lodge, 2d Dist.
Greene No. 2004CA43, 2005-Ohio-1908. Moreover, Zimpfer has failed to demonstrate that
there is a reasonable probability that but for his counsel’s failure to object at trial to Dr.
Miceli’s testimony under Evid. R. 703, 705, and 403, the result of the case would have been
any different.
{¶ 60} At the conclusion of Zimpfer’s second assignment of error, we found that
there was sufficient evidence adduced during trial to sustain his convictions for rape by force
or threat of force. Moreover, we specifically found that the evidence established that
Zimpfer assumed a role of parental authority over L.R. Accordingly, trial counsel’s failure
to object to the court’s instruction regarding his status as an authority figure to L.R. does not
amount to ineffective assistance.
{¶ 61} Zimpfer’s fifth assignment of error is overruled.
{¶ 62} Zimpfer’s sixth and final assignment of error is as follows:
{¶ 63} “CUMULATIVE ERRORS DEPRIVED THE APPELLANT OF A FAIR
TRIAL.”
{¶ 64} “[S]eparately harmless errors may violate a defendant’s right to a fair trial
when the errors are considered together. State v. Madrigal, 87 Ohio St.3d 378,
20
2000-Ohio-448, 721 N.E.2d 52. In order to find ‘cumulative error’ present, we must first
find that multiple errors were committed at trial. Id. at 398, 721 N.E.2d 52. We must then
find a reasonable probability that the outcome of the trial would have been different but for
the combination of the separately harmless errors. State v. Thomas, Clark App. No.
2000-CA-43, 2001-Ohio-1353.” State v. Kelly, 2d Dist. Greene No. 2004-CA-20,
2005-Ohio-305, ¶ 33. “Where no individual, prejudicial error has been shown, there can be
no cumulative error. State v. Blankenship (1995), 102 Ohio App.3d 534, 557, 657 N.E.2d
559.” State v. Jones, 2d Dist. Montgomery No. 20349, 2005-Ohio-1208, ¶ 66.
{¶ 65} In light of our foregoing analysis, we find that Zimpfer has failed to establish
that any errors occurred in the instant case. State v. Moreland, 50 Ohio St.3d 58, 69, 552
N.E.2d 894, 905 (1990). Thus, we fail to see how the absence of error can constitute
cumulative error. Id.{¶ 66} Zimpfer’s sixth and final assignment of error is overruled.
{¶ 67} All of Zimpfer’s assignments of error having been overruled, the judgment
of the trial court is affirmed.
..........
HALL, J., and WELBAUM, J., concur.
Copies mailed to:
Mathias H. Heck
Kirsten A. Brandt
George A. Katchmer
Hon. Steven K. Dankof