Court sides with local judge in doctor's appeal

ST. MARYS - The Ohio Supreme Court on Thursday ruled that local jurors in 2011 were correct in convicting former optometrist Douglas Wine of a lesser crime than his indictment's charge of rape.

Wine's attorney in 2012 filed the appeal after Auglaize County jurors at an October 2011 trial were instructed to consider finding the 55-year-old St. Marys man guilty on "lesser-included offenses" if evidence did not support the more serious charge of rape.

"The sole issue before us is whether a criminal defendant has the right to prevent a trial court from instructing a jury on lesser-included offenses. We hold that a defendant does not have that power," the Supreme Court stated in its judgment entry.

The justices noted current law gives the power to the trial court (judge), after reviewing the evidence, to determine if an instruction to jurors on lesser-included offenses is appropriate. In the local case against Wine, common pleas court judge Frederick Pepple directed the jury to consider lesser offenses.

Wine during the trial nearly three years ago was found guilty of gross sexual imposition, a felony, for sexually assaulting a 69-year-old female while she slept in his home in 2009. The charge later was reduced by a Lima appeals court to sexual imposition, a misdemeanor.

Wine, who is married and has three children, was sentenced to a maximum 60-day jail term. However, the court granted him full credit for time already served in jail while the case was pending. He remains a Tier 1 sex offender and must register his address annually with the local sheriff's office for 15 years.

Wine's attorney, Lorin Zaner, at the 2011 trial presented an "all-or-nothing" defense. In his appeal to the Supreme Court, he argued the lesser-included instructions should not have been given to jurors because neither the defendant nor the prosecution requested it.

Auglaize County Prosecutor Ed Pierce, in his response to the appeal, said Wine's argument conflicts with state law and other cases across the state.

The Supreme Court's ruling this week affirms the current law on lesser-included offenses, according to Pierce.

"We've relied forever that judges were the ones to decide on instructions to jurors," the prosecutor said. "They (Wine and Zaner) wanted to give that right to the defendant."

Pierce said the High Court's judgment has "a far-reaching effect on all 88 counties in Ohio." If the justices had sided with Wine, prosecutors would have been required to ask grand juries to indict defendants on every lesser-offense that may apply, he said.

Pierce said he hopes Thursday's ruling brings some comfort to the victim in this case.

"I hope this brings to an end the justice this victim deserved," he said, adding she was "brave" to come forward and pursue charges against Wine.

Wine's optometry license was revoked in April 2012.