LIMA — The case involving a St. Marys optometrist is now in the hands of judges from the Third District Court of Appeals.
Attorneys on both sides argued their stances during oral arguments in the appeal case of Douglas J. Wine Tuesday morning. Wine was convicted last year of gross sexual imposition following a jury trial. Jurors found Wine not guilty of rape and sexual battery. He was sentenced to 15 months in prison on the fourth-degree felony charge. He faced a maximum of 18 months in prison.
In February, judges from the Third District Court of Appeals in Lima stayed Wine’s sentence pending his appeal. Judges allowed Wine out on an appeal bond as his case progresses through the court system.
Lorin Zaner, Wine’s attorney, argued several points during his address to the three judges. Zaner argued portions of a pre and post-test interview related to an independent polygraph Wine submitted to should have been excluded from his trial. Wine submitted to the polygraph at the behest of his wife and before any law enforcement involvement. Auglaize County Prosecuting Attorney Ed Pierce showed a portion of the interviews during the trial.
Zaner also argued there was not enough evidence presented at the trial to sustain a conviction. Zaner said Wine received ineffective assistance of counsel during his criminal proceedings and accused the prosecutor of misconduct stemming from his closing arguments.
“There was no evidence of any force or any threats, any coercion,” Zaner said. “There was some testimony that the alleged victim has some fear, but that’s not the issue. The issue is what did the appellant do to force the situation in order to constitute gross sexual imposition. It is our position that there is no evidence.”
Zaner also attacked the inclusion of lesser included offenses. Wine was indicted on one count of rape, but the jury was permitted to consider lesser included offenses during their deliberations.
“The appellant objected to the lesser included offenses,” Zaner said.
Judge Stephen Shaw asked Zaner a few questions regarding the independent polygraph Wine submitted to on his own. Zaner affirmed the polygraph was conducted outside the presence of law enforcement officials. Zaner also argued the pre and post-interview questions should have been excluded because he believed the sessions encompassed and were a part of the polygraph test.
“It’s not as if there is a pretest interview and there’s a polygraph and maybe a day or two later there’s a post-test interview,” Zaner said. “It all happened as part and parcel of the same thing.”
Pierce addressed the polygraph during his opening remarks. Pierce reiterated the test was conducted independently and before any law enforcement involvement in the case. He also noted he conceded the results of the polygraph were not admissible and the word “polygraph” was never used during the trial.
“The only time the word ‘polygraph’ is ever mentioned is in that motion because the state conceded, we can’t use the results of the polygraph, we can’t even mention there was a polygraph done,” Pierce said. “And both defense counsel and state painstakingly went through the investigation ... There was no mention any place in the record, before the jury, of any hint or inclination of polygraph. Appellant argues in his brief that there was ... But there is nothing.”
Pierce also rejected claims of ineffective counsel.
“Counsel in this case, (was) very qualified, very competent counsel,” Pierce said. “(He) had a mountain to overcome because he had tremendously inconsistent statements so he played the best card he could.”
A decision on the case is expected to take several months.