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Thursday, February 16th, 2012

Defense accuses prosecutor, judge of improper actions

Former optometrist

By Shelley Grieshop
ST. MARYS - An attorney for former optometrist Douglas Wine - found guilty of sexual assault last fall - says misconduct by the county prosecutor and poor decisions by the judge at trial resulted in an unfair conviction.
Toledo attorney Lorin Zaner on Tuesday filed a 108-page brief in Auglaize County Common Pleas Court citing eight "assignments of error" at the trial in October. The document is being filed with the Third District Court of Appeals in Lima in an effort to overturn Wine's conviction for gross sexual imposition.
Wine, of St. Marys, in December was ordered to serve a 15-month prison sentence. Last week the appeals court granted him release from prison on bond while the appeal is reviewed. As of this morning, Wine remained behind bars awaiting completion of paperwork, Zaner said.
Wine, 52, had faced a maximum of 18 months in prison for sexually assaulting an elderly female relative in his home in 2009. A jury acquitted him of the indictment charge of rape but found him guilty of the lesser charge of gross sexual imposition, a fourth-degree felony. He was labeled a Tier 1 sexual predator.
In the appeal brief, Zaner claims county prosecutor Ed Pierce prejudiced the jury during closing statements of the trial by providing a personal opinion of the victim. Pierce asked jurors to consider why the 69-year-old woman would lie about the incident and stated she was not a liar.
"It is inappropriate for the prosecutor to vouch for the integrity of his witness," Zaner wrote.
He also claimed Judge Frederick Pepple used poor discretion when he instructed the jury they could choose lesser-included criminal charges of gross sexual imposition or sexual battery if the evidence presented didn't warrant a conviction for rape.
"The judge abused his discretion as lesser-included offenses were unwarranted," Zaner stated in the brief.
The remaining assignments of error include ineffective counsel by trial defense attorney Ritchie Hollenbaugh, the judge's denial of Hollenbaugh's motion for acquittal during the trial, and allowance of the two lesser-included offenses for consideration by jurors. Hollenbaugh was not prepared to defend his client against those charges, Zaner added.
Zaner also claims the court should not have allowed as evidence a privately-administered and edited polygraph exam given to Wine prior to his indictment. The attorney notes that Wine was coerced by his wife, Clarinda, and the polygrapher into making statements during the exam, which made the evidence irrelevant and unfairly prejudiced and misled the jury.
Zaner also states that jurors should not have been allowed to play the videotaped polygraph session during deliberations because it placed unfair emphasis on Wine's testimony.
In his conclusion, Zaner wrote: "(Wine) was denied due process and a fair trial based on the individual assignments of error, as well as the cumulative effect of the multitude of errors in this case when viewed in the context of the entire trial."
Zaner said the evidence in the case was "anything but overwhelming" and the injustices endured "should be grounds for reversal."
Pierce will be given an opportunity to respond to Zaner's brief before oral arguments are heard by the appeals court. The entire process is expected to take several months.
In late July, Wine was indicted on six counts involving the alleged rape and molestation of a girl younger than 13. The charges carried a maximum sentence of life in prison. Last month, Pierce dismissed all charges based on evidence "as it now exists."
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