[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.
Judgment Affirmed
PRESTON and ZIMMERMAN, J.J., concur.
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State v. Rupert
Combined Opinion