State v. Lindsay

[Cite as State v. Lindsay, 2019-Ohio-5283.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2019 CA 0059
WENDELL R. LINDSAY
Defendant-Appellant O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Richland County Court of
Common Pleas, Case No. 2010-CR-0419
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 19, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP WENDELL R. LINDSAY, PRO SE
Prosecuting Attorney Inmate No. A591-512
Richland County, Ohio North Central Correctional Institution
P.O. Box 1812
JOSEPH C. SNYDER Marion, Ohio 43302
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2019 CA 0059 2
Hoffman, P.J.
{¶1} Defendant-appellant Wendell Lindsay appeals the June 10, 2019 judgment
entry entered by the Richland County Court of Common Pleas, which overruled his motion
for new trial. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 4, 2010, the ten-year-old victim approached her guidance
counselor at school and told her “my mother's boyfriend has been raping me.” (T. 197).
During the investigation into the sexual assault, the victim disclosed her mother's
boyfriend, Appellant, had come into the room she shared with her younger sister on the
morning of March 4, 2010, pulled down her underwear, and stuck his tongue in her vagina.
(T. at 198; 269). This was not the first time a sexual incident had occurred. The victim told
the social worker who interviewed her Appellant had placed his mouth on her vagina
approximately six times and penetrated her vagina with his penis a total of seven times.
(T. at 271).
{¶3} After the disclosures, the victim's father took her to the hospital for a sexual
assault examination. The nurse who performed the exam found physical evidence
consistent with the victim's allegations. As part of the examination, swabs were taken of
the victim's pubic area and the underwear she was wearing at the time of the examination
were collected. DNA collected from the underwear and the pubic area of the victim was
consistent with Appellant's DNA.
{¶4} The Richland County Grand Jury indicted Appellant on five counts of rape,
five counts of sexual battery, and five counts of gross sexual imposition. Following the
jury trial, Appellant was convicted of one count of rape, one count of sexual battery, and
Richland County, Case No. 2019 CA 0059 3
one count of gross sexual imposition. The jury returned verdicts of not guilty on the
remaining charges.
{¶5} The trial court conducted a sentencing hearing on October 27, 2010. The
trial court found the three charges were allied offenses. The state elected to go forward
on the charge of rape and requested Appellant be sentenced to ten years to life. The trial
court merged the offenses for sentencing purposes and imposed a term of incarceration
of ten years to life.
{¶6} Appellant filed a direct appeal. This Court affirmed Appellant's convictions
and sentence in State v. Wendell Lindsay, 5th Dist. Richland No. 2010–CA–0134, 2011–
Ohio–4747. The Ohio Supreme Court did not accept Appellant’s appeal for review. State
v. Lindsay, 131 Ohio St.3d 1555, 2012–Ohio–2263, 967 N.E.2d 765.
{¶7} On December 14, 2011, Appellant filed an application to reopen his appeal,
which this Court denied on January 26, 2012. Appellant filed a motion to reconsider,
which we also denied. Appellant appealed our denial to the Ohio Supreme Court, which
the Court dismissed on June 7, 2012.
{¶8} Appellant filed an amended motion for acquittal pursuant to Crim. R. 29 on
September 26, 2012, and a motion for new trial on February 26, 2013.
{¶9} In February, 2013, Appellant filed a petition for writ of habeas corpus in the
United States District Court, N.D. Ohio, Eastern Division. Upon review, the magistrate
judge recommended the petition be dismissed with prejudice. Lindsay v. Tibbals, N.D.
Ohio No. 1:13–CV–00309, 2014 WL 11128199.
{¶10} The trial court considered Appellant's motion for acquittal as a petition for
post-conviction relief. On March 18, 2013, the trial court found the motion untimely and
Richland County, Case No. 2019 CA 0059 4
his arguments were barred by the doctrine of res judicata. Appellant appealed the trial
court's judgment entry to this Court, which affirmed in State v. Lindsay, 5th Dist. Richland
No. 13CA28, 2013–Ohio–3332. Via Judgment Entry filed January 17, 2014, the trial court
denied Appellant's February 26, 2013 motion for new trial. Appellant appealed the
judgment to this Court, but the appeal was dismissed for failure to prosecute.
{¶11} On April 5, 2016, Appellant filed an Application for DNA Testing. The state
filed a response, arguing, pursuant to R.C. 2953.74(A), the DNA test conducted on the
biological evidence in the case was a definitive DNA test; therefore, the trial court was
statutorily required to reject Appellant's application. Appellant also filed a Motion for
Resentencing/Sentence Reduction. The state responded Appellant's motion should be
denied as an untimely and successive petition for post-conviction relief.
{¶12} On March 24, 2016, the trial court denied both motions and Lindsay
appealed. In Case No. 16CA38, Appellant appealed the trial court's judgment denying his
Application for DNA Testing. In Case No. 16CA39, Appellant appealed the trial court's
judgment denying his Motion for Resentencing/Sentence Reduction. This Court affirmed
both judgments in State v. Lindsay, 5th Dist. Richland No. 16CA38, 2017-Ohio-594, and
State v. Lindsay, 5th Dist. Richland No. 16CA39, 2017-Ohio-595.
{¶13} On June 18, 2018, Appellant filed a motion entitled, “‘Subjectmatter-
Jurisdiction’ violations of defendant's constitutional rights under the United States, and
Ohio Constitution: Plain Error.” The trial court considered the motion to be Appellant's
third petition for post-conviction relief. Via judgment entry filed August 2, 2018, the trial
court denied the motion, finding the petition for post-conviction relief was successive,
Richland County, Case No. 2019 CA 0059 5
untimely, and barred by res judicata. Appellant appealed to this Court, which affirmed the
trial court’s decision. State v. Lindsay, 5th Dist. Richland No. 18CA87, 2019 -Ohio- 157.
{¶14} Appellant filed a Motion for New Trial on May 3, 2019, and an Amendment
to the motion on May 24, 2019. Via Judgment Entry filed June 10, 2019, the trial court
overruled the motion , finding the motion was untimely and Appellant failed to offer new
evidence which could not have discovered prior to trial or within 120 days after trial.
{¶15} It is from this judgment entry Appellant appeals, raising the following
assignments of error:
I. THE TRIAL COURT ALLOWED THE PROSECUTION TO
COMMIT PURJURY [SIC]; PURSUANT TO R.C. 2921.11, IN THE
COMPLAINT TO THE GRAND JURY, CAUSING THEM TO RETURN AN
INDICTMENT CONTAINING THEREIN, FRAUDULENT INFORMATION
THAT WAS KNOWINGLY PRESENTED; IN DOING SO, VIOLATED THE
APPELLANTS DUE PROCESS OF LAW RIGHTS, AND ALSO VIOLATING
APPELLANT’S EQUAL PROTECTION OF THE LAW RIGHTS
GUARANTEED HIM, BOTH BY THE CONSTITUTION OF THE UNITED
STATES AND THE OHIO CONSTITUTION.
II. THE APPELLANT WAS DENIED DUE PROCESS OF THE LAW
DURING THE JUDICIAL PROCESS; THE CONSTITUTIONAL
PROVISIONS THAT PROHIBITS [SIC] THE GOVERNMENT FROM
UNFAIRLY OR ARBITRARILY DEPRIVING ANY PERSON OF LIFE,
LIBERTY, OR PROPERTY; THE FOURTEENTH AMENDMENT OF THE
Richland County, Case No. 2019 CA 0059 6
CONSTITUTION OF THE UNITED STATES INCORPORATES THE DUE
PROCESS CLAUSE OF THE FIFTH AMENDMENT’S DOCTRINE; ALSO,
THE EQUAL PROTECTION CLAUSE, GUARANTEEING THE
FUNDAMENTAL FAIRNESS DOCTRINE; THAT A PROTECTION BASED
ON AN INDICTMENT FRAUDULANTLY [SIC] OBTAINED THROUGH THE
USE OF FALSE INFORMATION, (PURJURY) [SIC], DISCOVERED TO BE
MANIPULATED AND HID FROM THE TRIAL COURT, THE DEFENSE, IS
GROUNDS TO GRANT A NEW TRIAL.
I, II
{¶16} We elect to address Appellant’s assignments of error together.
{¶17} Crim. R. 33 governs motions for new trial and provides, in pertinent part:
(A) Grounds. A new trial may be granted on motion of the defendant
for any of the following causes affecting materially his substantial rights:
***
(6) When new evidence material to the defense is discovered which
the defendant could not with reasonable diligence have discovered and
produced at the trial. When a motion for a new trial is made upon the ground
of newly discovered evidence, the defendant must produce at the hearing
on the motion, in support thereof, the affidavits of the witnesses by whom
such evidence is expected to be given, and if time is required by the
defendant to procure such affidavits, the court may postpone the hearing of
Richland County, Case No. 2019 CA 0059 7
the motion for such length of time as is reasonable under all the
circumstances of the case. The prosecuting attorney may produce affidavits
or other evidence to impeach the affidavits of such witnesses.
(B) Motion for New Trial; Form, Time. Application for a new trial shall
be made by motion which, except for the cause of newly discovered
evidence, shall be filed within fourteen days after the verdict was rendered,
or the decision of the court where a trial by jury has been waived, unless it
is made to appear by clear and convincing proof that the defendant was
unavoidably prevented from filing his motion for a new trial, in which case
the motion shall be filed within seven days from the order of the court finding
that the defendant was unavoidably prevented from filing such motion within
the time provided herein.
Motions for new trial on account of newly discovered evidence shall
be filed within one hundred twenty days after the day upon which the verdict
was rendered, or the decision of the court where trial by jury has been
waived. If it is made to appear by clear and convincing proof that the
defendant was unavoidably prevented from the discovery of the evidence
upon which he must rely, such motion shall be filed within seven days from
an order of the court finding that he was unavoidably prevented from
discovering the evidence within the one hundred twenty day period.
{¶18} To warrant the granting of a motion for a new trial in a criminal case based
on newly discovered evidence, the defendant must show the new evidence (1) discloses
Richland County, Case No. 2019 CA 0059 8
a strong probability it will change the result if a new trial is granted, (2) has been
discovered since the trial, (3) is such as could not in the exercise of due diligence have
been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative
to former evidence, and (6) does not merely impeach or contradict the former evidence.
State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370, syllabus (1947).
{¶19} The decision whether to grant or deny a motion for a new trial is committed
to the sound discretion of the trial court. See, State v. LaMar, 95 Ohio St.3d 181, 201,
767 N.E.2d 166 (2002); State v. Williams, 43 Ohio St.2d 88, 330 N.E.2d 891 (1975),
paragraph two of the syllabus. Thus, we will not reverse a trial court's denial of a motion
for a new trial absent an abuse of discretion. LaMar, 95 Ohio St.3d at 201, 767 N.E.2d
166. An abuse of discretion is more than an error in judgment; instead, it implies a court's
ruling is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶20} We find the trial court did not abuse its discretion in overruling Appellant’s
motion for new trial. First, Appellant’s motion was not filed “within one hundred twenty
days after the day upon which the verdict was rendered. The motion was filed more than
eight years after trial; therefore, was untimely.
{¶21} We also find the motion is barred by the doctrine of res judicata.
{¶22} Res judicata bars the assertion of claims against a valid, final judgment of
conviction which have been raised or could have been raised on appeal. State v. Perry
(1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, paragraph nine of the
syllabus.
Richland County, Case No. 2019 CA 0059 9
{¶23} In his motion for new trial, Appellant alleges defects in the Indictment and
Bill of Particulars. Appellant raised these same allegations in his June 18, 2018 motion
entitled, “‘Subjectmatter-Jurisdiction’ violations of defendant's constitutional rights under
the United States, and Ohio Constitution: Plain Error.” The trial court found Appellant's
claims were barred by res judicata. This Court agreed and affirmed the trial court’s
decision in State v. Lindsay, 5th Dist. Richland No. 18CA87, 2019 -Ohio- 157. Likewise,
the assertions in Appellant’s most recent motion should have or could have been raised
in his direct appeal; therefore, are barred by res judicata.
{¶24} Appellant’s first and second assignments of error are overruled.
{¶25} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Wise, John, J. and
Baldwin, J. concur