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Attorney Seeks Acquittal

July 6, 2012

ST. MARYS — The attorney for Douglas Wine filed a motion on Thursday asking judges from the Third District Court of Appeals in Lima to order a judgment of acquittal in his case.

Last month, appeals court judges 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. The judges ruled the state failed to provide sufficient evidence Wine compelled the victim to submit to the sexual contact by force or threat of force — which is required under the Ohio Revised Code regarding gross sexual imposition.

In his filing, Lorin Zaner asked the judges to reconsider their decision and made four assignments of error. The assignments included a request for the judges to order a judgment of acquittal.

Zaner argued sexual imposition is a lesser offense of gross sexual imposition, but not of rape. 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.

"Sexual imposition is a lesser-included to gross sexual imposition," Zaner wrote. "However, sexual imposition has long been determined by this district court of appeals to not be a lesser-included offense to rape ... There is no precedent for daisy-chaining lesser-included offenses to a charge in an indictment when the eventual finding of guilt is based on non-lesser included offense to the indicted charge."

Zaner also noted the appeals court judges should have issued a judgment of acquittal based upon the language of the Ohio Revised Code.

"This court clearly determined that the force element was not established at trial," Zaner wrote. "On a motion for acquittal, Rule 29A states the court shall order an entry of acquittal if the evidence is insufficient to sustain a conviction. Shall is not a discretionary term ... In the instant case, the trial court should have granted the Crim. R. 29 motion and entered a judgment of acquittal."
 

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