[Cite as State v. Rupp, 2010-Ohio-2532.]
                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                           SEVENTH DISTRICT

STATE OF OHIO,                                      )
                                                    )
        PLAINTIFF-APPELLEE,                         )
                                                    )
VS.                                                 )          CASE NO. 09-MA-149
                                                    )
FORREST RUPP,                                       )               OPINION
                                                    )
        DEFENDANT-APPELLANT.                        )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Court of Common
                                                    Pleas of Mahoning County, Ohio
                                                    Case No. 04CR767

JUDGMENT:                                           Affirmed

APPEARANCES:
For Plaintiff-Appellee                              Paul Gains
                                                    Prosecutor
                                                    Ralph M. Rivera
                                                    Assistant Prosecutor
                                                    21 W. Boardman St., 6th Fl.
                                                    Youngstown, Ohio 44503-1426

For Defendant-Appellant                             Melissa M. Prendergast
                                                    Assistant State Public Defender
                                                    250 East Broad Street, Suite 1400
                                                    Columbus, Ohio 43215




JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                    Dated: June 4, 2010
[Cite as State v. Rupp, 2010-Ohio-2532.]
DONOFRIO, J.

        {¶1}     Petitioner-appellant      Forrest    Rupp      appeals     the    denial     of   his
postconviction relief petition by the Mahoning County Common Pleas Court. A jury
convicted Rupp of rape and the court sentenced him to a maximum ten-year term of
imprisonment. The crux of Rupp’s argument below and on appeal is that he was
denied effective assistance of trial counsel.
        {¶2}     On June 17, 2004, Rupp was indicted for two counts of rape in violation
of R.C. 2907.02(A)(2), which entails engaging in sexual conduct with another by
purposely compelling the other to submit by force or threat of force.1 The indictment
alleged that he raped D.F. on March 18, 2004, in Austintown, Ohio.
        {¶3}     On August 22, 2005, the jury trial commenced. Twenty-three-year-old
D.F. testified that she was studying at the house of her classmate from Trumbull
Business College, Amy Smiley. Amy lived on the west side of Youngstown with her
two young children. D.F. had her eight-month-old daughter with her. D.F. testified
that Amy told her that Rupp was on his way over, that he was a lady’s man and that
she should stay away from him. When Rupp arrived, D.F. observed that he was nice
and good-looking. (Tr. 315). They showed each other their tattoos. (Tr. 318).
        {¶4}     When Amy’s babysitter fell through, Rupp volunteered to go to Wal-
Mart with D.F. and her daughter. (Tr. 318).                D.F. followed Rupp to his sister’s
apartment in Austintown where he dropped off his vehicle. D.F. admitted that she let
Rupp kiss her while sitting on a swing at Wal-Mart; however, when he put his hand
on her knee, she removed it and advised him that she “was not like that.” (Tr. 325,
372). Rupp then revealed various troubling facts about his life that made her so
afraid of him that she was tempted to run away from him at the store. (Tr. 326, 372-
373).
        {¶5}     For instance, he told her that he was on parole for helping Martin
Kolisar (the well-known shooter of a bar patron and murderer of a Youngstown police
officer) elude the police during the national manhunt. (Tr. 323) Furthermore, he
disclosed that he had been in prison for shooting a convenience store clerk, that he

1. The underlying facts and procedural history of this case are taken nearly verbatim from this court’s
opinion addressing Rupp’s direct appeal in State v. Rupp, 7th Dist. No. 05 MA 166, 2007-Ohio-1561.
                                                                              -2-


was not sorry for doing it and that he would do it again. (Tr. 323, 325-326). D.F. also
noted that when her vehicle passed a police officer, Rupp acted nervous and
hurriedly put on his seatbelt. (Tr. 329).
        {¶6}   When she pulled into the apartment complex to drop Rupp off, he
continually put his hand on her leg despite her repeatedly pushing it away and telling
him that she was “not like that” and that she did not want to “do anything.” (Tr. 330-
333).    She opined that it should have been understood from her actions and
protestations that she did not consent to further gropings. (Tr. 334).
        {¶7}   D.F. stated that Rupp then put his hands up her shirt, but she removed
his hands. (Tr. 334). She could not remember if he said anything besides asking her
if he could “touch me just once” to which she responded, “no.” (Tr. 335). When he
started unbuttoning her clothes, she again removed his hands.            However, he
proceeded to put his hand down her pants. (Tr. 336-337).
        {¶8}   The defense notes that D.F. was 5′7″ tall and weighed 170 pounds
apparently in response to any suggestion that Rupp could have lifted her over the
console between bucket seats. (Tr. 338).       However, D.F. admitted that she first
pushed Rupp away when he grabbed her ribs and attempted to pull her over the
console, but she soon complied when he asked her to get on top of him.              She
complied because she feared what Rupp would do to her due to his
contemporaneous statements about his violent past and due to his refusal to abide
by her physical and verbal protestations. (Tr. 339, 424-425, 428, 449-450). She also
testified that Rupp is taller and stronger than her, which the jury could judge for
themselves as well. (Tr. 338). She ended up sitting on his lap where he removed her
pants in spite of her stop commands and pushing. (Tr. 339-340).
        {¶9}   Rupp then switched their positions, putting her on the bottom with the
seat reclined so far that her head was almost touching the baby’s car seat. (Tr. 340-
341, 424). She disclosed that she did not yell because she did not want to wake her
baby and did not want her baby to see her being raped. (Tr. 336-337, 378, 428). She
testified that he did not expressly threaten her at any time during the incident. (Tr.
                                                                              -3-


377, 450). However, she was in fear of aggressively fighting him. She attested that
she did not kick, hit or use any physical violence because she was afraid of what
Rupp would do to her. (Tr. 334, 338-339, 346, 403). D.F. stated, however, that
throughout the encounter, she tried to push Rupp away from her and repeatedly
pulled back and said no and stop to his advances. (Tr. 331-342, 403, 427).
      {¶10} Still, Rupp pulled his pants down and engaged in vaginal intercourse
with her. She disclosed that when he put his penis in her vagina, she again asked
him to stop. (Tr. 341). She did not kiss him back during the sex act. (Tr. 342). D.F.
started crying and was visibly upset. When Rupp stopped, she told him that he made
her “feel like a whore.” He responded that it would be okay, and he moved to the
driver’s seat. She was unsure if he ejaculated. (Tr. 342).
      {¶11} D.F. then testified that Rupp pulled her roughly by the back of the neck
and pushed her head down so she would perform oral sex on him. (Tr. 343-344).
She asked him to stop to no avail. (Tr. 344). She unwillingly performed oral sex on
him for two to five minutes. (Tr. 345, 445). He did not ejaculate. He then instructed
her to kiss his tattooed penis goodbye. (Tr. 345).
      {¶12} D.F. testified that she did not call the police because she was afraid that
Rupp would come after Amy and Amy’s children.            This belief was induced by
arguments that occurred between Rupp and Amy that night after Rupp followed D.F.,
called her, instructed her to pull over, yelled at her for crying on the phone to Amy,
grabbed the phone off her and followed her again. (Tr. 348-358). She stated that
Rupp indirectly threatened her about going to the police. (Tr. 430-431).
      {¶13} The incident occurred late Thursday night. On Saturday, D.F. received
a telephone call at work from someone named Kim claiming to be Rupp’s parole
officer. (Tr. 359-360). This person advised that Rupp informed her of the allegations.
This person asked why D.F. did not scream or yell if the encounter was not
consensual. (Tr. 361). D.F. called the APA on Monday and asked for Rupp’s parole
officer named Kim. She was connected with Rupp’s actual parole officer, a man
named John Granger. (Tr. 362). She eventually told him her story, which started the
                                                                                -4-


investigation in this case.
       {¶14} On Tuesday, D.F. went to the emergency room. On Wednesday, the
parole officer took her statement in person. On Thursday, the parole officer arrested
Rupp, and D.F. gave a statement to the Austintown police. It was brought out at trial
that none of her statements mentioned that Rupp told her about his past. (Tr. 417).
She denied that she learned about his past from Amy prior to leaving the house with
Rupp. (Tr. 453).
       {¶15} However, Amy put in her statement and testified for the state that she
told D.F. what she knew about Rupp before he arrived at her house that evening. (Tr.
477). She thought that she disclosed Rupp’s criminal past and his lack of respect for
women in that he tries to have sex with everyone. (Tr. 480, 500). Amy testified that
she begged D.F. not to go with Rupp and opined that D.F. was very naive. (Tr. 480).
Amy then related that when D.F. arrived back at her house, she was crying and
stating that Rupp would not get off of her despite her telling him no. (Tr. 490-491).
       {¶16} Lastly, Rupp’s parole officer testified as to how he received the phone
call from D.F. and how he took her statement. (Tr. 523-527). He revealed that he
arrested Rupp because the allegations constituted a parole violation. (Tr. 528). He
also said that he encouraged D.F. to go to the police and that she was willing to
testify at the parole violation hearings. (Tr. 528-529).
       {¶17} In closing, the state urged that Rupp should be convicted of two counts
of rape, one for the vaginal penetration and one for the oral sex. (Tr. 544). The state
also urged that the essential question was whether Rupp overcame D.F.'s will by fear
or duress from which they could infer a threat of force, and the court instructed
accordingly. (Tr. 597). The defense objected to this instruction.
       {¶18} On August 26, 2005, the jury returned a guilty verdict on count two but
could not come to an agreement on count one. Thus, a conviction was entered on
count two, and a mistrial was declared on count one. On August 30, 2005, Rupp was
then sentenced to ten years in prison and labeled a sexually oriented offender. Rupp
appealed setting forth seven assignments of error: (1) insufficient evidence; (2)
                                                                                   -5-


improper jury instructions; (3) inadmissible other acts evidence; (4) inadmissible
hearsay evidence; (5) prosecutorial misconduct; (6) speedy trial violation; and (7)
cumulative error. This court rejected each of those arguments and affirmed Rupp’s
conviction. State v. Rupp, 7th Dist. No. 05 MA 166, 2007-Ohio-1561, appeal not
allowed by 114 Ohio St.3d 1512, 872 N.E.2d 953, 2007-Ohio-4285.
       {¶19} During the pendency of his direct appeal, Rupp filed a petition for
postconviction relief in the trial court setting forth one claim – ineffective assistance of
trial counsel.   Rupp alleged that his trial counsel was ineffective for failing to
adequately investigate the case and call two witnesses who he believes would have
damaged his accuser’s credibility and for advising him not to testify in his own
defense. The court held an evidentiary hearing and, on June 18, 2008, denied the
petition. Rupp appealed and this court, by agreement of the parties, remanded the
case to the trial court with instructions to make a more detailed findings of fact and
conclusions of law.
       {¶20} On August 6, 2008, the trial court issued an amended judgment entry
again denying the petition.     The trial court reasoned that one of the witnesses’
testimony would have been duplicative and the other would have constituted
inadmissible hearsay. Furthermore, the court found that trial counsel’s decision not
to call the witnesses was a tactical decision which is given deference and presumed
competent. Concerning Rupp’s argument that his trial counsel was ineffective for
advising him not to testify at trial, the trial court reasoned again that it was a tactical
decision and that Rupp never took any overt action to bring to the court’s attention
his desire to testify. This appeal followed.
       {¶21} Rupp raises two assignments of error. They are sufficiently similar that
they can be addressed together. They state, respectively:
       {¶22} “Mr. Rupp was denied his state and federal constitutional rights at trial,
and the trial court erred when it denied Mr. Rupp postconviction relief. (July 24, 2008
Judgment Entry).”
       {¶23} “Petitioner Forrest Rupp was deprived of his right to the effective
                                                                                 -6-


assistance of trial counsel under the Ohio and United States Constitutions when trial
counsel failed to present a defense, despite having subpoenaed crucial defense
witnesses to testify on Mr. Rupp’s behalf.”
         {¶24} Rupp argues that his trial counsel was ineffective for failing to fully
investigate the case, discuss the case more thoroughly with defense witnesses, and
to present a defense including those witnesses. In terms of prejudice, Rupp points to
the fact that the jury deliberated over ten hours and was unable to reach a verdict on
one of the two counts.
         {¶25} Rupp argues that his trial counsel subpoenaed, but failed to call to
testify, two witnesses who would have attacked D.F.’s and Amy’s credibility or
impeached their testimony. The first is Jacob Kuzan (Kuzan) who was also a friend
of Amy’s and was at her apartment that night. After leaving Rupp at his apartment
but before she returned to Amy’s apartment, D.F. called Amy. She did not tell Amy
about the rape, but Amy claimed that the victim sounded scared and was screaming
and yelling over the phone. Instead, Rupp claims that Kuzan described a different
scene.     Kuzan testified that while Amy was talking with D.F. on the phone he
overhead Amy exclaim, “Don’t tell me you had sex with him?” (06/18/2008
Postconviction Evidentiary Hearing Tr. 9, hereinafter P.C. Tr. 9.) When D.F. and
Rupp returned to Amy’s apartment and Amy told Kuzan to take Rupp home, Kuzan
dismissed Amy’s reaction as her just being “dramatic.” (P.C. Tr. 8.)
         {¶26} A day or two following the incident, Kuzan was again at Amy’s
apartment when she was on the phone with D.F.. Amy put Kuzan on the phone with
D.F. so that she could tell him what happened with Rupp. (P.C. Tr. 10.) Although
unable to recall the particulars of the conversation, Kuzan testified that he specifically
remembered D.F. admitting to him that she had not been raped. (P.C. Tr. 10.) Rupp
contends that this would damage D.F.’s credibility because she denied having the
phone conversation with Kuzan on cross-examination, but on redirect remembered
the conversation and denied she told him that she had not been raped. (Trial Tr. 395-
296, 440.)
                                                                               -7-


       {¶27} Rupp also maintains that Kuzan would have testified at trial that when
he and Kuzan left Amy’s apartment, he told him that he thought he could see things
progressing with D.F. and that he seemed normal and was not nervous, confused, or
angry. (P.C. Tr. 11-12.)
       {¶28} The second witness that Rupp alleges his counsel failed to call to testify
is Bill Markovich (Markovich). Markovich knew Rupp. When he went to the parking
lot to retrieve his wallet, he observed Rupp and D.F. engaged in intercourse in the
car. Rupp contends that Markovich’s description of what he saw contrasted with that
of D.F.’s. Because the rape occurred in such a “public” place, Rupp argues that his
counsel should have investigated the matter further to determine if there were other
witnesses who observed Rupp and D.F. in her car.
       {¶29} Lastly, Rupp asserts that he wanted to testify at trial to tell his side of
the story. He states that he was not concerned about his criminal history because
the state had already exposed that to the jury and that if he would have testified he
could have explained the circumstances under which he obtained those convictions.
       {¶30} To prove an allegation of ineffective assistance of counsel, a petitioner
must satisfy a two-prong test: (1) counsel’s performance fell below an objective
standard of reasonable representation and (2) resulting prejudice. Strickland v.
Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v.
Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus.
Deficient performance means counsel’s errors were so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.
State v. Calhoun (1999), 86 Ohio St.3d 279, 289, 714 N.E.2d 905, citing Strickland,
466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. To show deficient performance
prejudiced the defense, the defendant must prove that, but for counsel’s errors, the
result of the trial would have been different. Bradley, 42 Ohio St.3d at paragraph
three of the syllabus.
       {¶31} When presenting an ineffective assistance of counsel claim, the
petitioner has a difficult burden to overcome since in Ohio counsel is presumed to be
                                                                                  -8-


competent. Calhoun, 86 Ohio St.3d at 289, 714 N.E.2d 905. “There is a wide range
of reasonable professional assistance, and the challenged action is typically
presumed to be sound trial strategy.” State v. Drummond, 7th Dist. No. 05 MA 197,
2006-Ohio-7078, at ¶16, citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80
L.Ed.2d 674.
       {¶32} Ultimately, a trial court’s decision granting or denying a petition for
postconviction relief “should be upheld absent an abuse of discretion; a reviewing
court should not overrule the trial court’s finding on a petition for postconviction relief
that is supported by competent and credible evidence.” State v. Gondor, 112 Ohio
St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, at ¶58.
       {¶33} In this case, it does not appear that Rupp’s trial counsel was ineffective.
Although Rupp believes Kuzan and Markovich would have damaged D.F.’s and
Amy’s credibility, Kuzan and Markovich each had credibility issues of their own.
Kuzan has convictions for drug abuse and drug paraphernalia and Markovich has a
conviction for aggravated robbery. (P.C. Tr. 14, 34.) It is not clear whether Rupp’s
trial counsel was aware of these convictions.
       {¶34} As it relates to Kuzan’s testimony, the issue of whether D.F. denied that
the rape occurred to Kuzan was sufficiently addressed at trial. Rupp’s trial counsel
questioned D.F.:
       {¶35} “Q      You had a telephone conversation with Jake [Kuzan] a couple of
days after March 18th, 2005, didn’t you?
       {¶36} “A      I don’t remember that conversation.
       {¶37} “Q      Okay.     You don’t ever remember talking to Jake over the
telephone?
       {¶38} “A      No.” (Trial Tr. 396-397.)
       {¶39} Later, D.F. recalled the conversation:
       {¶40} “Q      Do you remember telling the detective that you had a phone
conversation with Jake Kuzan and that he advised you just to drop it?
       {¶41} “A      Yes.
                                                                               -9-


       {¶42} “Q       Okay. Do you remember that phone conversation now?
       {¶43} “A       I do, but I can’t remember everything that was said.
       {¶44} “* * *
       {¶45} “Q       * * * Did you ever tell Jacob Kuzan that you weren’t raped?
       {¶46} “A       No.” (Trial Tr. 439-440.)
       {¶47} Thus, the jurors were aware that D.F. may have denied that a rape
occurred to Kuzan. As for the phone conversation Kuzan overheard between D.F.
and Amy shortly after the rape, Kuzan’s characterization of that conversation would
not have done anything to help Rupp’s case. Even if Amy had exclaimed “You didn’t
have sex with him did you?” to D.F., that would not have carried much import. The
jurors heard testimony from Amy herself that she told D.F. what she knew about
Rupp and his criminal past before he arrived at the apartment that evening.
Furthermore, even if D.F. had denied that the rape occurred to Amy in that phone
conversation, there was plenty of evidence that D.F. was not the “most forthcoming
victim-witness.” State v. Rupp, 7th Dist. No. 05 MA 166, 2007-Ohio-1561, at ¶55.
       {¶48} Markovich’s testimony would have been even less helpful.            At the
evidentiary hearing, Markovich testified that he observed Rupp and D.F. having sex
in the car when he went to the parking lot for his wallet.         Although not stated
expressly, Rupp’s implicit assertion is that Markovich’s testimony would have
provided evidence that the sex was consensual. But, all Markovich was witness to
was a sex act. As this court stressed in Rupp’s direct appeal, “force or threat of force
can be inferred where the defendant purposely compelled the victim to submit by
employing certain objective actions that can be found to overcome the will of the
victim by fear or duress.” Id. at ¶43. In addition to some evidence that Rupp used
actual force by ignoring D.F.’s protestations, there was sufficient evidence in this
case to prove that Rupp had overcome D.F.’s will by saying things to her that put her
in fear.   Also, this court noted that “D.F. was not required to exit her vehicle to
escape, especially where her baby was strapped into a car seat in the back seat.” Id.
at ¶55. Markovich was not a witness to the actions that Rupp used to overcome
                                                                                  - 10 -


D.F.’s will.
       {¶49} Lastly, we turn to Rupp’s claim that his counsel was ineffective for
advising him not to testify. A criminal defendant has a fundamental right to testify on
his own behalf if he wishes. State v. Bey (1999), 85 Ohio St.3d 487, 499, 709 N.E.2d
484.    However, the right is waivable and the decision of whether to have the
defendant testify is also an important “tactical decision.” Id. It is well recognized that
the decision remains within the purview of trial strategy. State v. Carpenter, 6th Dist.
No. E-00-033, 2002-Ohio-2266, ¶ 68; State v. Mabry (Oct. 9, 1996), 9th Dist. No.
2514-M. The advice provided by a criminal defense lawyer to their client regarding
the decision to testify has been characterized as “a paradigm of the type of tactical
decision that cannot be challenged as evidence of ineffective assistance.” State v.
Winchester, 8th Dist. No. 79739, 2002-Ohio-2130, ¶12.            Additionally, the right to
testify on one’s own behalf must be juxtaposed with the right against self-
incrimination. As this court has observed, “[w]ithout any indication in the record to
the contrary, we must assume that appellant knowingly exercised his privilege
against self-incrimination.” State v. Carter (1996), 115 Ohio App.3d 770, 776, 686
N.E.2d 329 (7th Dist.). As the trial court observed in this case, there is no indication
that Rupp brought his desire to testify to the trial court’s attention.
       {¶50} In sum, Kuzan and Markovich’s questionable testimony would have
added little to Rupp’s defense and their credibility could have easily been attacked.
Rupp’s trial counsel thoroughly cross-examined D.F. and effectively attempted to
attack her credibility. But ultimately, the final credibility determination remained with
the jury. Much of Kuzan and Markovich’s testimony would have been duplicative of
what Rupp’s counsel achieved at trial without them. The decision whether to call a
witness, including the defendant himself as a witness, “falls within the purview of trial
tactics and, therefore, is not subject to second-guessing by an appellate court.” State
v. Taravella, 7th Dist. No. 02 HA 542, 2003-Ohio-4880, at ¶31. Furthermore, Rupp
never notified the trial court of his desire to testify. Rupp’s trial counsel’s decisions
did not amount to anything more than tactical or strategy, and did not amount to
                                                                            - 11 -


ineffectiveness of counsel.
         {¶51} Accordingly, Rupp’s first and second assignments of error are without
merit.
         {¶52} The judgment of the trial court is hereby affirmed.


Waite, J., concurs.

DeGenaro, J., concurs.
