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The Van Wert County Courthouse

Wednesday, Aug. 31, 2016

DAVE MOSIER/independent editor

LIMA — A recent decision by the Ohio Third District Court of Appeals has confirmed the conviction of a Van Wert man on rape and felony domestic violence charges.

Moses Wilder appears in Van Wert County Common Pleas Court on Wednesday. (Dave Mosier/Van Wert independent)

Moses Wilder appears in Van Wert County Common Pleas Court for an earlier court hearing. (VW independent file photo)

Moses D. Wilder had appealed his conviction, claiming that the trial court erred by denying his challenges for cause to jurors, allowing testimony regarding “battered spouse” syndrome and by not permitting his proposed jury instructions.

He also claimed that the jury’s verdict was against the manifest weight of the evidence.

Wilder was convicted for one count each of rape and domestic violence following a jury trial held May 11-12, 2015.

According to information provided during the trial, Wilder had forced a woman he had once lived with into having sex with him after threatening to kill her, her children, and other family members. He also physically abused her, according to testimony at the trial.

As a result of Wilder’s actions, the victim “had scratches on (her) face and knots on (her) head, big bruise on (her) shoulder,” according to trial information. Her right arm was also injured.

The victim also indicated that she was afraid that if she did not have sex with Wilder, he would further harm her.

The appellate court’s opinion, written by Judge John Willamowski, noted that Wilder’s claim the court trial erred in denying his challenge to a juror for cause was without merit, adding a juror does not need to be disqualified if the trial judge is satisfied the prospective juror can “render an impartial verdict according to the law and the evidence submitted to the jury at the trial.”

Willamowski said that, during juror challenges, a judge is given deference to decide whether the prospective juror can render an impartial verdict.

In fact, a defendant must use all of his or her peremptory challenges and then demonstrate that one of the jurors seated was not impartial.

Since Wilder still had peremptory challenges remaining, he used one to excuse the juror in question, who he felt would not be impartial because he was related by marriage to one of the police officers in the case.

Judge Willamowski also notes that the defendant does not argue that any of the jurors who actually sat on the jury were not impartial.

Judge Willamowski also addressed Wilder’s claim that the trial court erred in allowing evidence of battered spouse syndrome to be presented at the trial.

The appellate court’s opinion noted that, following a sidebar discussion between the presiding judge and the attorneys in the case, the prosecutor was allowed to ask very limited questions relating to battered spouse syndrome, with the victim noting that she had experienced domestic violence as a child. No other mention of battered wife syndrome was made during the trial.

“Wilder claims that the mere fact that the State uttered the words ‘battered spouse syndrome’ and ‘battered woman’ without any explanation for the jury was overly prejudicial,” Judge Willamowski wrote. “We disagree.”

While battered spouse syndrome is usually used, and is permissible, for defendants claiming self-defense, it can also be used in other circumstances.

“In this case, the victim was not the defendant, but the State wished to use the syndrome to explain why the victim acted the way she did (to do what Wilder wanted without physical coercion),” Willamowski noted, adding that the usage was permitted.

The appellate judge also said the prosecution made no argument that the victim was a battered woman and that Wilder didn’t move to have the statement stricken from the record.

“Wilder has not put forth any support for his claim that five words stated by the prosecuting attorney were overly prejudicial,” Willamowski said.

In denying Wilder’s claim that the jury’s verdict was against the manifest weight of the evidence, Judge Willamowski wrote that an appellate court, in deciding the question, must first look at the entire trial record and then determine that “the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.”

Noting that an appellate court acts as a “thirteenth juror,” Willamowski said it still must give “due deference” to findings made by a fact-finder in the case.

“A review of the testimony shows that the victim testified that Wilder physically harmed her, threatened to kill her, threatened to kill her children and other family members, and forced her to cooperate with sexual intercourse or be killed,” Willamowski wrote.

“Wilder argues that the victim’s testimony was not credible because she had spent the morning with him, including time after the alleged domestic violence occurred, appeared to walk into the hotel room voluntarily, and did not run away or seek help when she had the opportunity to do so,” he added.

The judge noted, though, that the victim explained why she acted that way, adding that the explanation was not unreasonable.

“Viewing the evidence as a whole, this court does not find that the convictions weighed against the evidence or that there was a manifest miscarriage of justice,” Willamowski concluded.

The judge also denied Wilder’s claim that the judge in the case erred by not including Wilder’s jury instruction about the fact he had a “consciousness of innocence” because he did not flee after committing the offense.

“The decision to give a requested jury instruction is within the sound discretion of the trial court,” Willamowski said as his reason for denying the assignment of error.

Judges Richard Rogers and Vernon Preston both concurred with the court’s decision.

POSTED: 02/04/16 at 8:36 am. FILED UNDER: News