Explanation why thiscase isnot acaseof public or great general concernProcedural HistoryOn March 4 2010 tenyearold NJ approached her guidance counselor ather younger sister on the morning of Mar ID: 838830
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1 IN THE SUPREME COURT OF OHIOOn Appeal fr
IN THE SUPREME COURT OF OHIOOn Appeal from theRichland County Court of Appeals,WENDELL R. LINDSAY, Court of Appeals Case No. 20io-CA-oi34MEMORANDUM IN OPPOSITION TO JURISDICTIONBY: John C. Nieft Wendell Lindsay, A591-512(419)774-5676Attorney for Plaintiff-Appellee[EEC^^VUMAR 3 CL)CLERK OF COURTSUPREME CO CQ^1®D
2 efendant-AppellantMARIq ,SUPREME CCURTOF
efendant-AppellantMARIq ,SUPREME CCURTOF OHIO Explanation why thiscase isnot acaseof public or great general concernProcedural HistoryOn March 4, 2010, ten-year-old N.J. approached her guidance counselor ather younger sister on the morning of March 4th, pulled down her underwear and stuckId.The Appellant was in
3 dicted by the Richland County Grand Jury
dicted by the Richland County Grand Jury for five counts of1 degree, and five counts of Gross Sexual Imposition, felonies of the third degree. TheThe Appellant's trial began on October 21, and ended on October 26, 20io. TheThe Appellant appealed the judgment of the trial court to the Fifth District Courtbut was
4 properly sentenced under the rape statu
properly sentenced under the rape statute which provides for a life sentence ifThe appeals court ruled on September 19, 2011, affirming the decision of the trial2 presented below was not properly admitted, the court found that the evidence of thealso found that there was sufficient evidence to convict the Appe
5 llant and joinder of3 THE APPELLANT'S AR
llant and joinder of3 THE APPELLANT'S ARGUMENTS ARE REPETITIVE OFThe Appellant's arguments are difficult to follow and jumbled. However, itThe Appellant argues that his appellate counsel was ineffective because he shouldare barred by res judicata. New arguments brought for the first time in this appeal area Arg
6 uments Raised on Initial AppealMost of t
uments Raised on Initial AppealMost of these arguments were properly raised in the Appellant's direct appeal,Appellant continues to argue that the trial court acted improperly due to fact that thewas sufficient evidence to convict the Appellant even if the trial court below erred inArguments Made on the Motion
7 to Re-OpenThe arguments made by the Appe
to Re-OpenThe arguments made by the Appellant that were unique on his motion to re-open5 record, weigh the evidence and all reasonable inferences, consider the credibility of themust be reversed and a new trial ordered."State v. Martin(1983), 20 Ohio App.3d 172.State v. Thompkins(1997), 78 Ohio St.3d 38o.Strick
8 land v. Washington(1984), 466 U.S. 668 s
land v. Washington(1984), 466 U.S. 668 set out a twoId.at 687. InStricklandtest is the same as the test for plain error, i.e.,Statev. Lindsay, 2011 Ohio 4747, PP74, 77, 89-9o. The court found that there was6 Court should continue to hold that the Appellant has not been prejudiced by any of theState v. Hicks,200
9 5 Ohio 1842, P7. More properly, 'any all
5 Ohio 1842, P7. More properly, 'any allegations of ineffectiveness based on factsState u.Carmon (Nov. 18, 1999), Cuyahoga App. No.75377,reopeningState v. Coleman(1999), 85 Ohio St.3d 129.and to whom it belonged. The Appellant was presented with the opportunity to testify7 The Appellant argues it was proven tha
10 t the victim bathed prior to putting on
t the victim bathed prior to putting on herarea when she put on the panties her mother had discarded before going to bed.8 that she was wearing at the time indicated the presence of DNA from the victim, thewas a more reliable wiiness than the victim and therefore the conviction is against theState v. DeHass(196
11 7), ro Ohio St.2d9 Therefore, appellate
7), ro Ohio St.2d9 Therefore, appellate counsel was not ineffective for failang to argue manifestissues.Furthermore,noneof theseissuesare a case for publicNew Arguments on This AppealThe new arguments the Appellant makes in this request for jurisdiction are - theIssues not properly presented to the appeals cour
12 t for its consideration will not beThirt
t for its consideration will not beThirty-Four Corp. v. Sixty-Seven Corp.(1984), 15 Ohio St.3d 35o at 362. As the10 ConclusionWherefore, for the foregoing reasons, the State of Ohio respectfully requests this(419) 774-5589 (FAX)Counsel for the Plaintiff-Appelleeof March, 2012.JPIIN C. NIEFTAssistant Prosecuting