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State v. Lindsay

Court of Appeals of Ohio, Fifth District, Richland

December 19, 2019

STATE OF OHIO Plaintiff-Appellee
v.
WENDELL R. LINDSAY Defendant-Appellant

          Appeal from the Richland County Court of Common Pleas, Case No. 2010-CR-0419

          For Plaintiff-Appellee GARY BISHOP Prosecuting Attorney Richland County, Ohio JOSEPH C. SNYDER Assistant Prosecuting Attorney.

          For Defendant-Appellant WENDELL R. LINDSAY, PRO SE

          Hon. William B. Hoffman, P.J Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.

          OPINION

          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 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 ...


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