Upkins found not guilty of intimidating a witness

By Kimberly Pistone
For the Sidney Daily News

SIDNEY – A Shelby County Common Pleas Court jury found Bruce Upkins, 56, of Sidney, not guilty of intimidation of a witness in a criminal case, a third degree felony, following a one-day trial on Feb. 6.

The case hinged on witness accounts, with no other evidence. The case was about an encounter between Bruce Upkins and a confidential informant (CI) on Nov. 17, 2022. Both the State and the defendant called three witnesses, including the CI, his wife, Detective Mark Brunson of the Sidney Police Department, Lamone Upkins, Amy Swiger, and the defendant.

Both the CI and the defendant agreed that on Nov. 17, 2022, the CI was at the Family Resource Center (FRC) on Vandemark, walking toward Walmart when Bruce, in a red Honda, made a U-turn into the FRC parking lot where he and the CI had a conversation.

The State presented their case first. The CI said Bruce made an abrupt U-turn into the parking lot. The CI said Bruce was driving and Lamone was in the passenger seat, and according to the CI, Bruce said “someone was going to get hurt”, pointed at a gun in his lap, then made a shooting motion with his hand toward the CI and said “I’ll catch you later.” The CI also said Bruce started to get out of his car, but the CI kicked the door shut before running into the FRC. The CI further stated he did not go to the police at this point because he was scared. He did not tell the police about this encounter until April 2023 when he was preparing to testify in a drug trafficking case against Bruce – part of his agreement as a CI doing controlled drug buys with the Sidney Police Department.

The CI’s wife was the next to testify, and she confirmed the CI’s version of events, which she witnessed through the windows while she was in the FRC. She also said that when the CI ran back into the FRC he was panicked and scared.

The next witness to testify was Brunson. Brunson explained the procedure for a CI and confirmed that the CI did several controlled drug buys for the police during summer 2022, for both Bruce and Lamone. Brunson confirmed that he had no contact with the CI between November and April, and that at his meeting in April the CI told him about this encounter because he was scared to testify.

The attorney for the State, Bill Zimmerman, rested their case immediately after lunch. At this point the defense attorney, Ralph Bauer, made a motion for acquittal due to a Code 29 violation, because there was no testimony establishing the crime for which Bruce was accused occurred in Sidney or Shelby County. Zimmerman said the location was stated as being at the FRC on Vandemark and the Walmart was also mentioned and that with these landmarks the jurors could reasonably come to the conclusion that it was in Shelby County. The judge expressed concern about the venue issue, stating that there was no testimony definitively connecting the case to Shelby County as there could be multiple Vandemark Roads. The judge retired to his chambers to ponder this for about 10 minutes. When the judge returned Zimmerman was given another chance to respond to the Code 29 violation charge, and Zimmerman cited a precedent case which established that a venue could be established in an indirect manner with enough information. The judge agreed that the standard was met and said the case could continue.

The first witness after lunch was Lamone. He was assured of his right to remain silent and reminded that anything he said could be used against him in a future case. Lamone proceeded to testify. He said his last interaction with Bruce was before this incident when he and Bruce had a conflict over a woman and they are no longer in contact with each other, he has never been in the red Honda with Bruce.

The next witness was Amy Swiger. Bruce is the father of her 28-year-old son and she said they still hang out and are the best of friends. She does not remember the exact date, but she does remember the incident. She stated that in November 2022 she was with Bruce in the red Honda on Vandemark after leaving Kroger. They realized they forgot something at Kroger and did a U-turn. She said they were flagged down in the FRC parking lot by someone she didn’t recognize. Bruce rolled down his window and the person who flagged them down said he didn’t tell the police, and Bruce said he didn’t think it was him. She further stated that there were no threats made, there was no gun, and no one kicked the car.

Finally, Bruce testified. His testimony about the incident matched what Swiger said, with the addition that they had been at Kroger shopping for her mom. He also said he offered the CI a ride to Walmart, but the CI declined. He stated that the last time he and Lamone were together was four years previously, and that while he sees him on occasion since they are neighbors, they don’t talk.

After Bruce’s testimony the defense rested their case. During closing arguments Zimmerman asked the jury to use common sense and to think about what the CI would gain from this accusation – he had no reason to make up this charge. Bauer pondered why the CI would wait 138 days to report being threatened, especially if being threatened with a gun and that the case boiled down to “The State says, the defense says.” Zimmerman was able to have the last word, reminding the jury that the only person who had anything to gain by lying in this case was Bruce.

The judge gave the jury their final directions, explaining that in order to determine Bruce was guilty, they must be firmly convinced beyond a reasonable doubt that he was guilty, and if they were not firmly convinced they must return a verdict of not guilty.

After about 45 minutes of deliberation, the jury came back with a verdict of not guilty.