Thursday, November 7th, 2013
By Shelley Grieshop
Ohio Supreme Court hears case against former optometrist
  COLUMBUS - The Ohio Supreme Court on Wednesday was asked to rule whether jurors in 2011 had the right to convict former St. Marys optometrist Douglas Wine of a lesser crime than his indictment charge of rape.
The high court justices aren't expected to hand down a judgment in the case for several weeks. The issue could set precedent for other cases statewide.
The Supreme Court must decide if a criminal defendant is entitled to an all-or-nothing defense, and can prevent the court from instructing jurors to consider lesser-included offenses.      Auglaize County jurors during a trial in October 2011 found Wine, 53, guilty of gross sexual imposition for sexually assaulting a 69-year-old female relative while she slept in his home in 2009. The charge was reduced by an appeals court to sexual imposition, a misdemeanor that carries a maximum 60-day jail sentence and a $500 fine.
A sentencing date has not been set because of the pending appeal.
Although neither the prosecution or the defense requested it, Judge Frederick Pepple during the 2011 trial instructed jurors to consider a lesser-included felony (a less serious charge) than the indictment if evidence was inadequate to support the indictment charge of rape.
"What makes this case unique ... it (lesser-included offenses) was not requested by either party," Justice Maureen O'Connor noted during the 30-minute session Wednesday at the Moyer Judicial Center in Columbus. "Can this be viewed as the judge being impartial ... helping out the state's position?"
Wine's attorney, Lorin Zaner, replied that lesser-included instructions should not have been given to the jurors since neither side requested it. If the jury had been told to either convict or acquit his client on the rape charge, they would have chosen the latter, he said.
"It allowed the jury to make a compromised decision," Zaner said. "Dr. Wine would have been acquitted, and that's what we're asking in this case."
Zaner contended the defendant has the right to decide if a jury can consider lesser-included offenses to reach a conviction.
"It's our position the defendant should be the one who decides how (he) wants to try the case," he said.
Justice Terrence O'Donnell quickly disagreed.
"It's not the defendant's case, it belongs to the parties and the court's in charge of that," he said. "Once the evidence is presented in the courtroom, doesn't the court have the obligation to ensure (jury) instructions that go to the jurors are in conformity with what the evidence is in the case, not what it could have been or might have been, but what it actually is? Isn't that the role of the judge?"
"The question," O'Donnell continued, "is does the state of Ohio ... have the right to ask the judge for lesser included instructions?"
Zaner said the state (prosecutor), the defendant and the court have that right, but agreed the final decision lies with the judge.
The state's oral argument was given by Auglaize County Prosecutor Ed Pierce and Eric Murphy, state solicitor for the Attorney General's office.
"We think the defendant's argument is unprecedented and conflicts with law and numerous cases in and out of Ohio," Murphy said.
Murphy and Pierce argued that local court judges by statute solely have the authority to decide whether lesser-included offenses can be considered by jurors.
"The statute does not provide anywhere that the right resides with the defendant," Murphy said.
O'Connor questioned whether the jury's consideration of a lesser crime could unfairly "surprise" a defendant and force a change of strategy during the trial.  
"Counsel knows (that all charges) include potential lesser included offenses," Murphy said. "An indictment puts you on notice of greater offenses and lesser included (offenses)."
Pierce, during his five-minute presentation, agreed with Murphy's analogy.
"Many times as a case proceeds, that evidence changes ... there are surprises that come up in trials," he said. "And that's why discretion is given to the trial judge to instruct based on that evidence."
Pierce began to detail the evidence in the local case to stress his point when O'Donnell interrupted him.
"Mr. Pierce, as you know we're not really concerned with the outcome of your case," he said. "We're going to write some law in this case that's going to apply to 730 judges across our state and the issue of when and how lesser-included are submitted and whether or not the defendant has a veto power is really our issue."
Both parties and the justices discussed case law that currently explains how lesser-included offenses weigh in during trials. O'Donnell asked Pierce if he believes the law needs corrected.
"I believe (it) has been misread ... It needs to be changed so it cannot be misinterpreted again, as in this case," Pierce said.
Wine, who is married and has three children, was stripped of his optometry license in April 2012 and remains out of jail on his own recognizance while the case is under appeal.
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