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Man who raped neighborhood girl loses appeal

ANNIE YAMSON
Special to the Legal News

Published: October 21, 2014

The 2nd District Court of Appeals recently released an opinion affirming the judgment of the Montgomery County Court of Common Pleas in a rape case.

The defendant, Thomas Zimpfer, appealed his conviction and sentence for three counts of unlawful sexual conduct with a minor and four counts of rape by force or threat of force.

The events leading to Zimpfer’s conviction took place between November 2009 and November 2014.

Case summary states that, in 2003, Zimpfer and his wife Ericka moved into a new residence in the Dayton area along with their two children.

Shortly thereafter, they befriended their neighbors, whose 12-year-old daughter, L.R., developed a close bond with Ericka.

Once she turned 13, L.R. spent a significant amount of time at the Zimpfer residence and she would often baby-sit their youngest child, K.Z.

At trial, L.R. testified that she considered the Zimpfers to be her second family.

Zimpfer would often help L.R. with her schoolwork and she testified that she would confide in him regarding issues with her family and boyfriends.

L.R. told the jury that the first rape occurred when she was 13. She was baby-sitting K.Z., who was napping, when Zimpfer came home from work.

L.R. was upset at the time because she had just broken up with her boyfriend and she began to confide in Zimpfer.

She testified that Zimpfer began asking her questions that were sexual in nature and that he went to the kitchen and brought back a cup filled with alcohol, which she drank.

Zimpfer then unbuttoned L.R.’s pants and began rubbing her vaginal area.

After he digitally penetrated her, L.R. testified that she felt as if she was in shock. She told Zimpfer that she was sick and wanted to go home and he permitted her to leave.

The following summer a similar incident took place. Zimpfer came home while L.R. was baby-sitting and K.Z. was napping.

He led L.R. into his bedroom, undressed her and digitally penetrated her. This time he used a purple sex toy to rape her.

In a third incident, Zimpfer forced L.R. into his bedroom, removed his pants and raped her. L.R. testified that when Zimpfer began having sex with her, she became depressed.

She started dressing in black, dyed her hair black and wore black makeup.

She told the court that she began to cut herself and that Zimpfer knew.

He threatened to tell her parents about the cutting if she ever told anyone about the sexual abuse.

When L.R. was 15, she attempted to resist Zimpfer. However, Zimpfer easily overpowered her and raped her again.

By this point, L.R. had told her boyfriend, D.P., about the abuse. He attempted to convince her to go to the police but she refused because Zimpfer had threatened her and her family.

The final incident occurred when L.R. was 16 years old. She was weeding the Zimpfers’ flowerbeds at Ericka’s request when Zimpfer grabbed her by the arm and pulled her into the house to rape her.

In August of 2012 L.R. finally disclosed the abuse to the police. After a trial by jury, Zimpfer was found guilty and sentenced to an aggregate term of 33 years in prison.

The trial court determined that he was not a sexually violent predator but designated him a Tier III sex offender.

Much of Zimpfer’s direct appeal to the Second District challenged the trial court’s admission of Dr. Brenda Miceli’s expert testimony.

A clinical child psychologist, Miceli testified regarding the behavioral characteristics of children who have been sexually abused.

Reviewing for plain error, the district’s three-judge appellate panel found that Miceli’s testimony was admissible because she did not offer an opinion as to whether or not L.R. was actually abused.

“Instead, Dr. Miceli’s testimony was correctly limited by the trial court to a specialized overview of particular behavioral characteristics of sexually abused children in order to give the jurors a better understanding of those characteristics,” wrote Judge Mary Donovan for the court of appeals.

Judge Donovan further noted that Miceli has an extensive formal education and clinical experience with sexual abuse victims.

Zimpfer went on to argue that Miceli’s testimony was only admitted to bolster L.R.’s testimony. The appellate panel found otherwise.

“There is a distinction between expert testimony that a child witness is telling the truth on the one hand, and on the other hand, evidence which bolsters a child’s credibility insofar as it supports the prosecution’s efforts to prove that a child has been abused,” wrote Judge Donovan. “Expert testimony is admissible as to the latter.”

Finding that Miceli’s testimony was within permissible bounds, the appellate panel went on to overrule Zimpfer’s claims that his convictions were against the manifest weight and sufficiency of the evidence and that he received ineffective assistance of counsel.

It also upheld that trial court’s finding that Zimpfer abused a position of authority.

The judgment of the Montgomery County court was affirmed unanimously with Judges Michael Hall and Jeffrey Welbaum concurring.

The case is cited State v. Zimpfer, 2014-Ohio-4401.

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