[Cite as State v. Philpot, 2024-Ohio-2596.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2023-07-081
: OPINION - vs - 7/8/2024 :
THOMAS EDWARD PHILPOT, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2022-01-0119
Michael T. Gmoser, Butler County Prosecuting Attorney, and John Heinkel, Assistant Prosecuting Attorney, for appellee.
Engel & Martin, LLC, and Mary K. Martin, for appellant.
PIPER, J.
{¶ 1} Appellant, Thomas Philpot, appeals his convictions in the Butler County
Court of Common Pleas for four counts of rape, nine counts of gross sexual imposition,
and one count of disseminating matter harmful to juveniles. For the reasons detailed
below, we affirm. Butler CA2023-07-081
INDICTMENT
{¶ 2} On February 2, 2022, the Butler County Grand Jury returned a 15-count
indictment against Philpot involving five minor females. The incidents occurred between
January 2012 and March 2017. The victims were either relatives, or the children of
neighbors for whom Philpot acted as a "family friend." In relevant part, the indictment
listed the following counts as to each victim:
L.P. ("Victim 1")
Counts 1-2: Rape of a child under 10 years old (digital penetration)
Counts 3-4: Gross sexual imposition
E.P. ("Victim 2")
Counts 5-6: Gross sexual imposition
Count 7: Disseminating matter harmful to juveniles
K.S. ("Victim 3")
Count 8: Rape of a child under 10 years old (fellatio)1
Counts 9-11: Gross sexual imposition
H.J. ("Victim 4")
Count 12: Rape of a child under 10 years old (digital penetration)
Counts 13-14: Gross sexual imposition
D.J. ("Victim 5")
Count 15: Rape of a child under 10 years old (digital penetration)
Philpot entered a plea of not guilty, and the matter proceeded to a jury trial.
JURY TRIAL
1. This charge was later dropped prior to jury deliberations.
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{¶ 3} A five-day jury trial commenced on April 24, 2023. The victims, as well as
some of their family members testified on behalf of the state. In addition, the state
presented testimony from therapists and social workers from the Mayerson Center for
Safe and Healthy Children ("Mayerson Center"). As will be discussed later, the state was
permitted to show clips from the Mayerson Center interviews.
Victim 1
{¶ 4} Victim 1 knew Philpot as "Tommy," a neighbor and family friend. Victim 1
testified about four times that Philpot sexually abused her when she was between the
ages of four and five. Victim 1 testified that the first time Philpot abused her she was
sitting on a couch in her living room. Philpot came over to her and slid his hand down her
pants and touched her vagina on her skin, both inside and outside of her vagina.
Afterwards, Philpot told Victim 1 not to tell her parents or he would kill them.
{¶ 5} Victim 1 testified that the next time Philpot sexually abused her, she had
been playing hide and seek near Philpot's apartment. Philpot called Victim 1 over to sit
on his lap and proceeded to touch her legs, underwear, and vagina. Victim 1 said Philpot
touched her vagina both on her clothing and on her skin. Victim 1 then testified about a
third incident when Philpot was using a mobility scooter (he was not disabled). Philpot
had her stand in front of him. He then started touching her vagina with his hands, both
outside and inside her vagina. Finally, Victim 1 testified about a fourth time when Philpot
exposed his penis to her in the kitchen and made her touch it.
Victim 2
{¶ 6} Victim 2 and Victim 1 are sisters, so Victim 2 also knew Philpot as the
neighbor and family friend. Victim 2 testified that the first time Philpot abused her she
was six years old, almost seven. She stated that she was in the car, waiting in the Kroger
parking lot, as her mother went in to grab something. Philpot was seated in the front
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passenger seat. Victim 2 testified that she was "play fighting" with Philpot when he
suddenly grabbed her vagina over her clothing. Philpot then told her not to tell her mother.
{¶ 7} Victim 2 testified that the next instance of abuse occurred when she was
sitting on a loveseat in her living room. Victim 2 said that Philpot put his hand in her
pajamas and began moving his hand in a circular motion over her underwear. Victim 2
then testified about a different time she had been in the living room with Philpot. Victim
2 said she asked Philpot if she could play on his phone. Philpot told her that he did not
have any games, but that she could look at his pictures. Philpot then showed her a picture
of his penis.
Victim 3
{¶ 8} Victim 3 testified that Philpot is her uncle and that he used to babysit her.
Victim 3 explained that she was abused between the ages of five and eight. Victim 3
testified that the first time Philpot abused her, she was playing hide and seek with him
and the "punishment" for being found was that he would touch her private areas. Victim
3 testified about how Philpot put his hands down her pants and touched the skin of her
vagina, on the outside, and moved his hands. Afterwards, Philpot told her that he loved
her.
{¶ 9} The next incident related by Victim 3 occurred when she was playing with
dolls. Victim 3 explained that Philpot came over and started touching and squeezing her
butt on top of her clothing. A third incident occurred when Philpot pulled his pants down
in front of Victim 3 and made her touch his penis. Victim 3 testified Philpot told her not to
tell anyone or he would kill her.
Victim 4
{¶ 10} Victim 4 testified that she is related to Philpot and that he once lived in her
home. Victim 4 explained that she would sleep with her siblings on a futon located in the
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dining room. Philpot would sleep on the couch in the living room. Victim 4 testified that
one night, when she was five years old, she woke up to Philpot touching her vagina on
top of her clothing.
{¶ 11} Victim 4 testified about another incident when Philpot was babysitting her.
Victim 4 explained that she was in her grandfather's bedroom watching television when
Philpot put his hands in her pants and touched her vagina on the skin, both inside and
outside her vagina. Victim 4 then testified about another incident where Philpot undid his
pants and made her touch his penis.
Victim 5
{¶ 12} Victim 5 and Victim 4 are siblings. Victim 5 testified that she was related to
Philpot and referred to him as her uncle, or "Uncle Tommy." Victim 5 testified about the
family's living arrangements consistent with Victim 4's testimony. Namely, that she slept
on a futon in the dining room with her siblings while Philpot slept in the living room. Victim
5 testified that when she was seven years old, she woke up to Philpot sexually abusing
her. Philpot had pulled her pants down and was touching the inside of her vagina.
Afterwards, Philpot told Victim 5 not to tell her mother.
Evidence from the Mayerson Center interviews
{¶ 13} As relevant here, Victims 1, 3, 4, and 5, were each individually interviewed
by social workers or therapists at the Mayerson Center after they disclosed the abuse.
Following their respective testimonies, the state presented evidence from the interviewers
who conducted those forensic interviews.2 The interviewers were permitted to testify
about the victims' statements made during the interviews as being admissible for
purposes of medical diagnosis or treatment pursuant to Evid.R. 803(4). The state was
2. It is unclear, but it appears Victim 2 was not forensically interviewed.
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also permitted to play clips from the forensic interviews consistent with the same rule.
The full Mayerson Center interviews were not introduced into the record or otherwise
proffered for purposes of appeal. Thus, the full Mayerson Center interviews are not a part
of the record.3
Defense case
{¶ 14} Philpot called two witnesses who provided very limited information. Philpot
called his former landlord who testified that Philpot had been a good tenant in the past.
Philpot also called a cousin to testify. However, the cousin was not permitted to testify
about hearsay statements he heard from Philpot. Philpot's counsel made a proffer that
the line of testimony was related to a claim that the victims were financially motivated
because of their purported knowledge of a settlement related to hernia surgical meshes.
{¶ 15} Philpot testified on his own behalf and denied the allegations made by the
victims. He offered vague testimony about his understanding that there was "several
billion dollars" for people with surgical meshes like him and indicated he was entitled to a
settlement. Philpot maintained that the victims were "colluding" against him.
Verdict
{¶ 16} Following deliberations, the jury returned guilty verdicts on the 14 remaining
counts, after the state had earlier dismissed Count 8. The trial court imposed a prison
term of 15-years-to-life on Count 1, rape of a minor under 10 years old, and another
consecutive prison term of 15-years-to-life on Count 15, also rape of a minor under 10
years old. The trial court imposed concurrent prison terms on the remaining counts.
Philpot now appeals, raising five assignments of error for review.
3. This is relevant because Philpot raises two assignments of error concerning the Mayerson Center interviews. While Philpot complains the full interviews should have been played to the jury, he did not introduce the full interviews or proffer them for purposes of appeal.
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APPEAL
{¶ 17} Assignment of Error No. 1:
{¶ 18} THE CONVICTIONS IN THIS MATTER WERE NOT SUPPORTED BY
SUFFICIENT EVIDENCE.
{¶ 19} Assignment of Error No. 2:
{¶ 20} THE CONVICTIONS IN THIS MATTER WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶ 21} In his first and second assignments of error, Philpot argues his convictions
for gross sexual imposition were not supported by sufficient evidence and were against
the manifest weight of the evidence. Philpot presents no argument as to the sufficiency
and weight of the evidence related to his rape convictions, or the conviction for
disseminating matter harmful to juveniles.
{¶ 22} The concepts of sufficiency of the evidence and weight of the evidence are
legally distinct. State v. Wright, 2014-Ohio-985, ¶ 10 (12th Dist.). Nonetheless, as this
court has observed, a finding that a conviction is supported by the manifest weight of the
evidence is also dispositive of the issue of sufficiency. State v. Jones, 2013-Ohio-150, ¶
19 (12th Dist.). "Because sufficiency is required to take a case to the jury, a finding that
a conviction is supported by the weight of the evidence must necessarily include a finding
of sufficiency." State v. Hart, 2012-Ohio-1896, ¶ 43 (12th Dist.).
{¶ 23} A manifest weight challenge scrutinizes the proclivity of the greater amount
of credible evidence, offered at a trial, to support one side of the issue over another. State
v. Barnett, 2012-Ohio-2372, ¶ 14 (12th Dist.). In assessing whether a conviction is
against the manifest weight of the evidence, a reviewing court examines the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of the
witnesses, and determines whether, in resolving conflicts in the evidence, the trier of fact
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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. Morgan, 2014-Ohio-2472, ¶ 34 (12th
Dist.).
{¶ 24} Philpot was convicted of nine counts of gross sexual imposition in violation
of R.C. 2907.05(A)(4), which prohibits sexual contact with another who is less than 13
years old. Sexual contact is "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).
{¶ 25} Philpot argues there was no testimony "from anyone that the touching was
for the purpose of sexually arousing or gratifying either person." He states that Victim 1,
who was between the ages of four and five, never testified that Philpot was sexually
aroused. He then highlights portions of her testimony, for example, that Victim 1 testified
that the touching made her feel "uncomfortable." He makes the same general argument
for all the victims, i.e., that there was no evidence the touching was done for the purpose
of sexual arousal or gratification.
{¶ 26} However, contrary to his argument otherwise, there is no requirement that
there be direct testimony regarding sexual arousal or gratification. State v. English, 2014-
Ohio-441, ¶ 69 (12th Dist.). Whether the touching was done for the purpose of sexual
arousal or gratification is a question of fact to be inferred "from the type, nature, and
circumstances of the contact." State v. Williams, 2013-Ohio-3410, ¶ 33 (12th Dist.).
{¶ 27} After reviewing the record, we find the jury could reasonably conclude that
Philpot's actions were done for the purpose of sexual arousal or gratification. The victims
testified about each instance in which Philpot touched their erogenous zones or had them
touch his penis and the jury was free to infer what his motivation was in making physical
contact with them. State v. Long, 2020-Ohio-2678, ¶ 23 (12th Dist.). In this case, the
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touching occurred at times when the victims were away from other adults, largely isolated
or when other people were asleep. Philpot would touch the victims or make them touch
him and tell them to keep it a secret. Such evidence supports an inference that Philpot's
actions were for the purpose of sexually arousing or gratifying himself as contemplated
by R.C. 2907.01(B). State v. Gesell, 2006-Ohio-3621, ¶ 23-26 (12th Dist.).
{¶ 28} We note that although Philpot does not challenge his rape convictions, he
makes general reference to Victim 5's testimony. He states Victim 5 "testified that during
the alleged incidents of touching that the only alleged comment made by [Philpot] was for
her not to tell." However, Philpot fails to mention that he was convicted of rape for the act
perpetrated against Victim 5. Rape, as defined in R.C. 2907.02, does not include an
element requiring that the act be done for the purpose of sexual arousal or gratification.
Here, Philpot's act of digitally penetrating Victim 5's vagina is sufficient to complete the
act of rape. State v. Zamora, 2023-Ohio-1847, ¶ 9 (12th Dist.). The same goes for
Philpot's convictions for rape involving Victim 1 and Victim 4. As Philpot makes no other
arguments, we find his convictions are supported by the weight of the evidence and are
not against the manifest weight of the evidence. State v. Kettles, 2023-Ohio-4024, ¶ 19
(12th Dist.) (courts only address issues properly raised and argued). Philpot's first and
second assignments of error are overruled.
{¶ 29} Assignment of Error No. 3:
{¶ 30} THE TRIAL COURT ERRED BY ALLOWING IMPERMISSIBLE HEARSAY
INTO THE RECORD.
{¶ 31} In his third assignment of error, Philpot argues that the trial court erred by
allowing impermissible hearsay. However, Philpot does not identify which statements he
believes were improper. He only indicates that the statements were made during the
Mayerson Center interviews.
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{¶ 32} It is not this court's responsibility to identify the testimony and evidence to
determine which statements Philpot finds objectionable. App.R. 16(A)(7) requires an
appellant's brief to include an argument containing the appellant's contentions with
respect to each assignment of error presented for review and "the reasons in support of
the contentions, with citations to the authorities, statutes, and parts of the record on which
appellant relies." App.R. 12(A)(2) provides that an appellate court "may disregard an
assignment of error presented for review if the party raising it fails to identify in the record
the error on which the assignment of error is based or fails to argue the assignment
separately in the brief, as required under App.R. 16(A)." State v. Bowling, 2024-Ohio-
1638, ¶ 3 (12th Dist.).
{¶ 33} Moreover, Philpot's argument is poorly constructed, listing only conclusory
assertions that this court cannot verify without reviewing the full Mayerson Center
interviews, which were not introduced or proffered below. Furthermore, because the
victims testified in this case, any statements they made during the forensic interviews
were most likely cumulative, and their admission would have been harmless even if they
had been admitted in error. Stated differently, Philpot neither identified nor argued an
unfair prejudice which would compel this court to reverse any of his convictions. State v.
Smith, 2020-Ohio-4008, ¶ 46 (12th Dist.). Therefore, Philpot's third assignment of error
is overruled.
{¶ 34} Assignment of Error No. 4:
{¶ 35} ALTERNATIVELY, THE TRIAL COURT ERRED IN NOT ALLOWING THE
FULL MAYERSON INTERVIEW [sic] TO BE PLAYED.
{¶ 36} Philpot's fourth assignment of error argues the trial court erred by not
admitting the full Mayerson Center interviews. He claims that "[i]f parts of the Mayerson
interview [sic] are admissible as an exception to the hearsay rule, all the Mayerson
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interview [sic] should come in."
{¶ 37} However, Philpot misstates the law. Evid.R. 106, known as the "rule of
completeness," provides that "[w]hen a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require the introduction at that time of any
other part or any other writing or recorded statement which is otherwise admissible and
which ought in fairness to be considered contemporaneously with it." (Emphasis added.)
"The overriding purpose of the rule is to prevent one party from taking statements out of
context and distorting them." State v. Arrington, 2012-Ohio-5009, ¶ 11 (12th Dist.).
{¶ 38} Philpot does not address the Evid.R. 106 requirement that the portions of
the interviews not presented to the jury were "otherwise admissible." As relevant here,
the supreme court has clearly stated that only portions of these types of forensic
interviews are admissible when offered under the hearsay exception for medical
diagnosis and treatment. State v. Arnold, 2010-Ohio-2742, ¶ 44; State v. Smith, 2020-
Ohio-4008, ¶ 42-46 (12th Dist.). Philpot does not identify which statements would be
"otherwise admissible," and therefore it is appropriate to dismiss this argument for the
same reason identified in the third assignment of error, namely App.R. 12(A)(2) and
App.R. 16(A). Philpot's fourth assignment of error is overruled.
{¶ 39} Assignment of Error No. 5:
{¶ 40} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 41} Philpot's fifth assignment of error argues that he received ineffective
assistance of counsel. To prevail on an ineffective assistance of counsel claim, an
appellant must establish (1) that trial counsel's performance was deficient; and (2) that
such deficiency prejudiced the defense to the point of depriving the appellant of a fair trial.
State v. Vore, 2013-Ohio-1490, ¶ 14 (12th Dist.). Failure of either prong is fatal to any
claim of ineffective assistance of counsel. State v. Clarke, 2016-Ohio-7187, ¶ 49 (12th
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{¶ 42} First, Philpot asserts that his counsel rendered ineffective assistance by not
developing a case that the victims fabricated their stories because he was potentially
entitled to money from a settlement due to hernia mesh implants. However, Philpot
assumes, without support, that the victims would have testified they were aware Philpot
was the potential recipient of this settlement. Moreover, the extent and scope of
examination or cross-examination clearly fall within the ambit of trial strategy, and
debatable trial tactics do not establish ineffective assistance of counsel. State v.
Cooperstein, 2019-Ohio-4724, ¶ 29 (12th Dist.).
{¶ 43} Finally, Philpot raises a hodgepodge of other arguments—his counsel was
ineffective for not calling other witnesses and for not objecting properly. He also argues
his counsel was ineffective for purportedly withdrawing an objection. 4 These arguments
are vague, conclusory, and unsupported by the record. Philpot does not even identify
any other witnesses his trial counsel should have called. Philpot further raises an
unsubstantiated argument that a juror in his case attended a pretrial hearing. We find
these arguments to be unpersuasive.
{¶ 44} Based on our review of the entire record, we find that Philpot did not receive
ineffective assistance of counsel. Accordingly, Philpot's fifth assignment of error is without
merit and overruled.
{¶ 45} Judgment affirmed.
S. POWELL, P.J., and M. POWELL, J., concur.
4. Philpot does not indicate where an objection was withdrawn. He cites to two portions in the record: (1) a time when he was personally addressing the court, and (2) his allocution during the sentencing hearing. At neither point, did Philpot's counsel withdraw an objection. App.R. 12(A)(2); App.R. 16(A).
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