Wednesday, May 16th, 2012
Court to rule in ex-optometrist's case
By Shelley Grieshop
LIMA - An attorney and county prosecutor squared off Tuesday in an appeals court to argue last fall's sexual assault conviction of former St. Marys optometrist Douglas Wine.
The panel of three appeals court judges listened, asked several questions of both parties but did not rule or give a time-frame when a decision would be issued. The judges could uphold or overturn Wine's 15-month prison sentence handed down in Auglaize County Common Pleas Court.
Jurors in October found Wine, 52, guilty of gross sexual imposition, following a four-day trial. At sentencing he was labeled a Tier 1 sexual predator. The victim was a 69-year-old female relative who told authorities she was assaulted by Wine in a bedroom in his home in 2009.
In February - shortly after the appeals case was filed - the Third District Court judges ordered Wine released from prison while the case was reviewed. He attended Tuesday's hearing but did not speak on his own behalf during the 40-minute session. Also present in court was his wife, Clarinda, and a few other supporters.
Wine's attorney, Loren Zaner of Toledo, and Auglaize County Prosecutor Ed Pierce each were given 15 minutes to argue the case. The session ended with a two-minute rebuttal by Zaner.
Although Zaner listed eight "assignments of error" in his written appeal, he focused on only a few due to the time constraint. Most of the discussion by both sides was based on a privately-administered polygraph exam given to Wine before he was indicted by an Auglaize County grand jury. Portions of the videotaped exam were used as evidence by the prosecution at trial.
Zaner told the appeals court judges that Wine's attorney at trial, Ritchie Hollenbaugh, provided inefficient counsel. He should have brought in an expert to debate the statements made by his client during the polygraph, he said.
Zaner also objected to the actions of Auglaize County Judge Frederick Pepple who instructed jurors they could find Wine guilty of a "lesser included" charge if they found him not guilty of the indictment charge of rape.
Appeals court Judge Stephen Shaw said a statement made by Wine about the victim during the polygraph - "I'm not going to say she's lying" - may have opened the door to lesser charges.
"That didn't open the door because he (Wine) didn't admit to anything," he said.
Pierce later told the judges that when Hollenbaugh asked the victim at trial about details of the sexual assault he invoked the possibility of lesser charges.
"You can't have it both ways," Pierce said.
Zaner also told judges that Pierce provided insufficient evidence at trial to prove "force" was used during the alleged assault. Pierce countered by citing court law that states "any force, any means" is sufficient, even though the victim in the case was asleep when the assault began.
Zaner also charged Pierce with misconduct during the trial by providing a personal opinion of the victim. Pierce asked jurors to consider why the victim would lie about the incident, and he stated she was not a liar. Pierce did not directly respond to the accusation.
After the appeals session concluded, Zaner told the newspaper he was "hopeful" about the judge's ruling. Pierce responded that he was confident there were no errors committed at trial and the judgment in Auglaize County would be affirmed.
Wine also was indicted last summer on six counts related to an alleged rape and molestation of a girl younger than 13. The charges carried a maximum sentence of life in prison. In January, Pierce dismissed all charges based on evidence "as it now exists."
In mid-April, the Ohio State Board of Optometry revoked Wine's optometry license based on his felony conviction. He formerly treated patients at optometry offices in St. Marys and Oakwood.