State v. Terry L. Wendling, 90-LW-3321
| Decision Date | 06 December 1990 |
| Docket Number | 90-LW-3321,CA 12015 |
| Parties | STATE OF OHIO, Plaintiff-Appellee v. TERRY L. WENDLING, Defendant-Appellant CASE |
| Court | Ohio Court of Appeals |
LORINE M. REID, Assistant Prosecuting Attorney, Appellate Division Suite 315, 41 N. Perry Street, Dayton, Ohio 45422, Attorney for Plaintiff-Appellee.
DAVID L. HALL, 310 Regency Ridge, Dayton, Ohio 45459, Attorney for Defendant-Appellant.
The defendant, Terry L. Wendling, was tried by jury in the Court of Common Pleas of Montgomery County and found guilty of rape, kidnapping, and domestic violence with a specification of a previous conviction, and from the judgment and sentence thereupon entered in the trial court, Wendling has filed a notice of appeal to this court.
According to the evidence, the defendant entered a plea of guilty to a charge of domestic violence in the Miamisburg Municipal Court on June 1, 1989. Then, on September 7, 1989 Wendling's wife, Linda, filed another similar charge in the Miamisburg Municipal Court, at which time a protection order was issued ordering the defendant to stay away from Linda and from her residence.
However, on September 20, 1989, at about 3:00 p.m., Wendling went to her apartment and refused to leave, but Linda was able to get away by saying that she was going after more beer and cigarettes. When Mrs. Wendling returned to her apartment, she assumed that the defendant had left, and she locked the doors. However, he had been hiding in a large closet, and he demanded that she have sex with him. Then, according to the evidence, the defendant held a knife to his wife's throat, pushed and pulled her into the bedroom, and completed the alleged rape.
At about the same time, Linda's sister, Lisa, knocked on the door and window, and though Wendling attempted to cover his wife's mouth with his hands, she was able to call out to Lisa who then called the police. On September 27, 1989, Wendling was indicted by the Montgomery County Grand Jury for the alleged charges.
In the appeal, the appellant has set forth four assignments of error, the first of which has been stated as follows:
THE TRIAL COURT ERRED TO THE APPELLANT'S PREJUDICE WHEN IT ALLOWED THE APPELLANT TO BE JUDGED AND SENTENCED FOR BOTH RAPE AND KIDNAPPING.
In support of this alleged error, the appellant correctly observes that the facts of this case are subject to the analysis and conclusion of the Supreme Court of Ohio in State v. Logan, 60 Ohio St. 2d 126, where the court held that the detention and asportation of the victim were only incidental to the crime of rape.
Likewise, in State v. Price, 60 Ohio St. 2d 136, the Supreme Court held that "a rape conviction * * * and a kidnapping conviction * * * are allied offenses of similar import within the meaning of R.C. 2941.25(A), and cannot be punished multiply when they are neither committed separately nor with a separate animus as to each within the meaning of R.C. 2941.25(B)." See also, State v. Parker, 31 Ohio App. 3d 128; State v. Malone, 15 Ohio App. 3d 123; State v. Donald, 57 Ohio St. 2d 73.
In this appeal, the prosecution has also argued with minimal enthusiasm that the failure to raise the multiple-counts statute as an issue in the trial court was fatal to this assignment of error, but in view of the current status of statutory and case law on the subject, this court is of the opinion that the concurrent sentence of from five to twenty-five years for kidnapping was inconsistent with substantial justice. See, Crim. R. 52(B). Unquestionably, the additional sentence affected "substantial rights", and the first assignment of error is well made.
The second assignment of error has been presented by the appellant as follows:
THE TRIAL COURT ERRED WHEN IT ALLOWED THE APPELLEE TO ADMIT INTO EVIDENCE THE APPELLANT'S PRIOR CONVICTION FOR DOMESTIC VIOLENCE.
In this case, Wendling was charged with two counts of domestic violence, and each count carried a specification of a previous conviction of domestic violence. Hence, the evidence was not only relevant, but essential, for a purpose other than to show a mere propensity or disposition to commit domestic violence. See, Evid. R. 404(B); State v. Watson, 28 Ohio St. 2d 15. See also, State v. Roe, 41 Ohio St. 3d 18; State v. Wilkerson, 64 Ohio St. 2d 308.
Furthermore, the failure to object to the evidence of prior convictions at the trial constituted a waiver of any subsequent challenge to such evidence regardless of the disposition made of the preliminary motion in limine. Evid. R. 103(A) (1); State v. White, 6 Ohio App. 3d 1. Accordingly, the second assignment of error is overruled.
The third assignment of error has been submitted by the appellant as follows:
THE TRIAL COURT ERRED WHEN IT ALLOWED THE APPELLEE TO AMEND THE INDICTMENT OF SEPTEMBER 27, 1989, SINCE THE AMENDMENT CHANGED, IN ESSENCE, THE CRIME FOR WHICH THE APPELLANT WAS CHARGED.
The indictment returned against Wendling on September 27, 1989 substantially embodied the language of R.C. 2907.02(A) (2),...
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