ST. MARYS — Douglas Wine has filed a motion seeking to get his appeal heard by Ohio’s highest court.
On Friday, Wine’s attorney, Lorin Zaner, filed a motion requesting justices from the Ohio Supreme Court take up his case on appeal from the Third District Court of Appeals in Lima. Earlier this year, appeals court judges in Lima reduced Wine’s conviction of gross sexual imposition, a fourth-degree felony, to a third-degree misdemeanor of sexual imposition and ordered the matter remanded to Auglaize County Common Pleas Court. A hearing date has yet to be scheduled on the matter.
Zaner later filed a motion asking the judges to reconsider their decision and order an acquittal in the case. The appeals court judges denied the request in August.
In his filing to the Supreme Court, Zaner outlined four arguments, including the court of appeals abused its discretion and violated Wine’s right to be tried by a jury of his peers when it reversed a criminal conviction to a lesser-included offense that was not considered by a jury, and that sexual imposition is not a lesser-included offense of rape, and as such, Wine cannot be convicted on the charge if he was tried on the rape charge.
“This court should accept review of this case and determine that the right to a trial by jury does not allow the district court of appeals to become trier-of-facts and enter judgments of conviction for a charge which the jury never considered,” Zaner wrote. “The rules established by the Third District would allow the state to overcharge defendants and daisy-chain lesser-included offenses to eventually obtain a conviction by the judiciary rather than by a jury of peers and to a lesser-included charge never considered by the jury.”
Zaner also called into question the use of lesser-included offenses.
“This court should accept review of this case and determine that lesser-included charges cannot be daisy-chained, especially when the charge for conviction was never considered by the jury,” Zaner wrote. “This court should clearly state that a defendant can only be convicted of a lesser-included offense if it is a lesser-included charge to a charge in the indictment.”
Wine was initially indicted on rape. During a jury trial, he was found not guilty of rape and the lesser offense of sexual battery. However, he was found guilty of gross sexual imposition. The jury received instructions before beginning their deliberations that they could consider the lesser-included offenses.
Zaner also has a motion pending in front of Auglaize County Common Pleas Court Judge Frederick Pepple requesting the vacation of Wine’s conviction, the setting aside of Wine’s classification as a sexually oriented offender and ordering a new trial. Zaner filed the motion based upon claims of ineffective assistance of counsel during Wine’s jury trial on the part of Wine’s initial attorney. No ruling has been issued on the motion and no hearing date has been scheduled.
Auglaize County Prosecuting Attorney Ed Pierce will be given an opportunity to respond to the motion. It could take several months before justices decide on whether or not to accept the case.