[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
