[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. Crai g 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-Appellan t GARY BISHOP WENDELL R. LINDSAY, PRO SE Prosecutin g Attorne y Inmate No. A591-512 Richland Count y , Ohio North Central Correctional Institution P.O. Box 1812 JOSEPH C. SNYDER Marion, Ohio 43302 Assistant Prosecutin g Attorne y 38 South Park Stree t Mansfield, Ohio 44902Richland Count y , Case No. 2019 CA 0059 2

Hoffman, P.J. {¶1} Defendant-appellant Wendell Lindsay appeals the June 10, 2019 j udgment entry entered by the Richland County Court of Common Pleas, whi ch 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 guidan ce counselor at school and told her “my mother's boyfriend has bee n raping me.” (T. 197). During the investigation into the sexual assault, the victim di sclosed her mother's boyfriend, Appellant, had come into the room she shared with he r 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 peni s a total of seven times. (T. at 271). {¶3} After the disclosures, the victim's father took her to the hosp ital for a sexual assault examination. The nurse who performed the exam found phy sical evidence consistent with the victim's allegations. As part of the examin ation, swabs were taken of the victim's pubic area and the underwear she was wearing at th e 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 count s 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 c ount of sexual battery, andRichland Count y , Case No. 2019 CA 0059 3

one count of gross sexual imposition. The jury returned verdict s of not guilty on the remaining charges. {¶5} The trial court conducted a sentencing hearing on October 27, 2 010. The

trial court found the three char ges were allied offenses. The s tate elected to go forward on the charge of rape and requested Appellant be sentenced to t en 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 ap peal 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 Cri m. R. 29 on September 26, 2012, and a motion for new trial on February 26, 2013. {¶9} In February, 2013, Appellant file d a petition for writ of habea s corpus in the United States District Court, N.D. Ohio, Eastern Division. Upo n 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 foun d the motion untimely andRichland Count y , Case No. 2019 CA 0059 4

his arguments were barred by the doctrine of res judicata. Appe llant 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 1 7, 2014, the trial court denied Appellant's February 26, 2013 motion for new trial. Appe llant appealed the judgment to this Court, but the appeal was dismissed for failur e to prosecute. {¶11} On April 5, 2016, Appellant filed an Application for DNA Testin g. 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; ther efore, the trial court was statutorily required to reject Appellant's application. Appella nt 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-convicti on relief. {¶12} On March 24, 2016, the trial court denied both motions and Lind say appealed. In Case No. 16CA38, Appellant appealed the trial cour t's judgment denying his Application for DNA Testing. In Case No. 16CA39, Appellant appe aled 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. 16C A38, 2017-Oh io-594, and State v. Lindsay , 5th Dist. Richland No. 16CA39, 2017-Ohio-595. {¶13} On June 18, 2018, Appellant filed a motion entitled, “‘Subjectm atterJurisdiction’ violations of defendant's constitutional rights u nder 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 f iled August 2, 2018, the trial court denied the motion, finding the petition for post-convicti on relief was successive,Richland Count y , Case No. 2019 CA 0059 5

untimely, and barred by res judicata. Appellant appealed to th is 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 A mendment to the motion on May 24, 2019. Via Judgment Entry filed June 1 0, 2019, the trial court overruled the motion , finding the motion was untimely and Appe llant failed to offer new evidence which could not have discovered prior to trial or with in 120 days after trial. {¶15} It is from this judgment entry Appellant appeals, raising the f ollowing 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 THERichland Count y , 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 T RIAL 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 pert inent part:

(A) Grounds. A new trial may be granted on motion of the defend ant for any of the following causes affecting materially his substa ntial rights:

* * * (6) When new evidence material to the defense is discovered whi ch the defendant could not with reasonable diligence have discover ed and produced at the trial. When a motion for a new trial is made up on the ground of newly discovered evidence, the defendant must produce at the hearing on the motion, in support thereof, the affidavits of the witnes ses 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 th e hearing ofRichland Count y , Case No. 2019 CA 0059 7

the motion for such length of time as is reasonable under all t he 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 tri al shall be made by motion which, except for the cause of newly discover ed 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 wai ved, unless it is made to appear by clear and convincing proof that the defend ant was unavoidably prevented from filing his motion for a new trial, i n which case the motion shall be filed within seven days from the order of t he court finding that the defendant was unavoidably prevented from filing such m otion within the time provided herein. Motions for new trial on account of newly discovered evidence s hall be filed within one hundred twenty days after the day upon whic h 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 t hat the defendant was unavoidably prevented from the discovery of the e vidence upon which he must rely, such motion shall be filed within seve n days from an order of the court finding that he was unavoidably prevented from discovering the evidence within the one hundred twenty day peri od.

{¶18} To warrant the granting of a motion for a new trial in a crimin al case based on newly discovered evidence, the defendant must show the new e vidence (1) disclosesRichland Count y , Case No. 2019 CA 0059 8

a strong probability it will change the result if a new trial i s granted, (2) has been discovered since the trial, (3) is such as could not in the exe rcise 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 contradi ct 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 tria l 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 overrul ing 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 mo tion was filed more than eight years after trial; therefore, was untimely. {¶21} We also find the motion is barred by the doctrine of res judica ta. {¶22} Res judicata bars the assertion of claims against a valid, fina l 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, parag raph nine of the syllabus.Richland Count y , Case No. 2019 CA 0059 9

{¶23} In his motion for new trial, Appellant alleges defects in the I ndictment and Bill of Particulars. Appellant raised these same allegations i n his June 18, 2018 motion entitled, “‘Subjectmatter-Jurisdiction’ violations of defendant 's constitutional rights under the United States, and Ohio Constitution: Plain Error.” The tr ial court found Appellant's claims were barred by res judicata. This Court agreed and affi rmed 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 Coun ty Court of Common Pleas is af firmed.

By: Hoffman, P.J. Wise, John, J. and Baldwin, J. concur