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State v. Zimpfer

Court of Appeals of Ohio, Second District, Montgomery

June 22, 2018

STATE OF OHIO Plaintiff-Appellee
v.
THOMAS S. ZIMPFER Defendant-Appellant

          Criminal Appeal from Common Pleas Court Trial Court Case No. 2012-CR-3315

          MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Attorney for Plaintiff-Appellee.

          THOMAS S. ZIMPFER, Inmate No. 697-427, Defendant-Appellant - Pro Se.

          OPINION

          TUCKER, J.

         {¶ 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.

         I. 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.

         II. Grand Jury Testimony

         {¶ 5} Zimpfer's first assignment of error states as follows:

         THE 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 ...


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