Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court Trial Court Case No.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No.
0069384, Assistant Prosecuting Attorney, Attorney for
S. ZIMPFER, Inmate No. 697-427, Defendant-Appellant - Pro Se.
1} Defendant-appellant Thomas Zimpfer appeals from a
decision of the Montgomery County Court of Common Pleas
denying his motions for discovery and the production of grand
jury testimony. For the reasons that follow, we affirm the
judgment of the trial court.
Facts and Procedural History
2} In 2014, Zimpfer was convicted of three counts of
unlawful sexual conduct with a minor and four counts of rape
(by force or threat of force). He was sentenced to a prison
term of 33 years and designated a Tier III sex offender/child
victim offender. Following an appeal, we affirmed the
conviction and sentence. State v. Zimpfer, 2d Dist.
Montgomery No. 26062, 2014-Ohio-4401. While his direct appeal
was pending, Zimpfer filed a petition for post-conviction
relief which the trial court denied. We affirmed the trial
court's denial in State v. Zimpfer, 2d Dist.
Montgomery No. 26857, 2016-Ohio-7330. Zimpfer filed two
separate applications seeking to reopen both appeals. This
court denied both applications. Zimpfer also filed in the
trial court a motion for production of documents seeking to
have the Montgomery County Clerk of Courts provide him with a
copy of all documents related to his case. The motion was
denied by the trial court and Zimpfer appealed. We dismissed
his appeal as untimely. The Ohio Supreme Court did not allow
an appeal of our dismissal. State v. Zimpfer, 152
Ohio St.3d 1411, 2018-Ohio-723, 92 N.E.3d 881 (Table).
3} Beginning in March 2017, Zimpfer filed, pro se, a
series of motions in the trial court. On March 3, 2017, he
filed a motion to unseal grand jury testimony. In his motion,
Zimpfer appeared to request all transcripts of the grand jury
testimony related to his case. He claimed that he needed the
transcripts to demonstrate that the victim was inconsistent
in her testimony, that she committed perjury, and that the
dates in the indictment did not align with the testimony of
the victim and her boyfriend. On March 24, he filed a motion
for discovery seeking to have the Montgomery County
Prosecutor's Office produce "all material in their
possession relating" to his case. On April 6, 2017,
Zimpfer filed a motion seeking to compel his trial attorney
to provide him with a complete copy of his case file. On the
same date, he filed an identical motion directed at the
attorney who represented him with regard to his petition for
post-conviction relief. On July 5, 2017, he filed a motion
for contempt and default judgment against the
Prosecutor's Office for failing to comply with his
discovery request. On July 19, Zimpfer filed a motion for
contempt and default judgment against his trial attorney for
failing to comply with his request for his file. On July 31,
he filed an identical motion regarding the attorney
representing him on his petition for post-conviction relief.
The trial court denied all of the motions in a single entry
filed August 14, 2017.
4} Zimpfer appeals.
Grand Jury Testimony
5} Zimpfer's first assignment of error states as
TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED
APPELLANT'S MOTION TO UNSEAL GRAND JURY TESTIMONY.
6} Zimpfer contends that the trial court should have
granted his motion for production of the grand jury testimony
as he showed a particularized need for the transcripts.
7} Crim.R. 6(E) expressly provides that grand jury
matters may not be disclosed except "when so directed by
the court preliminary to or in conjunction with a judicial
proceeding." A criminal defendant is not entitled to
inspect grand jury transcripts "unless the ends of
justice require it and there is a showing by the defense that
a particularized need for disclosure exists which outweighs
the need for secrecy." State v. Greer, 66 Ohio
St.2d 139, 420 N.E.2d 982 (1981), paragraph two of the
syllabus. Whether a particularized need for disclosure of the
grand jury testimony has been established is a question of
fact. Id. at paragraph three of the syllabus. A
particularized need for disclosure of grand jury testimony
can be shown "where from a consideration of all the
surrounding circumstances, it is probable that the failure to
disclose the grand jury testimony will deprive the defendant
of a fair adjudication of the allegations placed in issue by
the witness' trial testimony." Id. If the
defendant establishes a particularized need for certain ...