State v. Rupert

2020 Ohio 6893

• Court: Ohio Court of Appeals
• Decided: December 28, 2020
• Docket: 15-20-03
• Status: Published

Opinion

[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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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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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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{¶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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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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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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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.

PRESTON and ZIMMERMAN, J.J., concur.

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