State v. Consiglio
| Decision Date | 29 June 2022 |
| Docket Number | 21 MA 0066 |
| Citation | 2022 Ohio 2340 |
| Parties | STATE OF OHIO, Plaintiff-Appellee, v. ANTHONY CONSIGLIO, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 21 CR 53
Atty Paul J. Gains, Mahoning County Prosecutor and Atty. Edward A Czopur, Assistant Prosecuting Attorney, for Plaintiff-Appellee
Atty John P. Laczko, City Center One, for Defendant-Appellant.
BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.
OPINION AND JUDGMENT ENTRY
{¶1} Appellant Anthony M. Consiglio appeals a July 7, 2021 Mahoning County Common Pleas Court judgment entry convicting him of rape, attempted rape, aggravated robbery, robbery, theft from a person in a protected class, domestic violence, and assault. Appellant challenges his convictions, arguing they are against the manifest weight of the evidence because he believes that he established the affirmative defense of not guilty by reason of insanity. Appellant also challenges his sentence, arguing that it is contrary to law. For the reasons provided, Appellant's arguments are without merit and the judgment of the trial court is affirmed.
{¶2} On January 24, 2021 at approximately 6:00 p.m., Appellant unexpectedly visited the home of his grandmother, the victim in this case. (Trial Tr., p. 16.) Appellant lives in Youngstown. His grandmother's house is located in Campbell. The grandmother was 79-years-old at the time of the incident. Appellant and his grandmother were not close but did not have a poor relationship. Appellant did not often visit his grandmother, particularly alone. The grandmother appeared happy to see him and allowed him inside the house.
{¶3} Once inside, she escorted him to the living room where he lit up a cigarette. The grandmother reminded him that she did not permit smoking inside, however, she gave him an ashtray and allowed him to continue smoking. At this point, Appellant lifted her shirt and put his hand on her chest. She asked him to stop, reminding him of their relationship. He ignored her pleas, pulled her by her hair and threw her to the ground. He put his knee in her back as he removed her clothes and then began to rape her. When he had difficulty maintaining an erection he briefly stopped.
{¶4} Appellant then took his grandmother by the throat and ordered her to perform oral sex on him. (Trial Tr., p. 19.) The grandmother pleaded with him to stop, again reminding him that she is his grandmother. He told her that he did not care who she was and ordered her to do as he said. The grandmother proceeded to perform oral sex on Appellant, stopping multiple times asking to stop or to be given water. Appellant ordered her to continue each time. On several occasions, the grandmother noticed Appellant appear to look out the window to see if anyone was near the house.
{¶5} At one point, the grandmother offered him money to stop. He declined and ordered her to continue. When Appellant again had trouble maintaining an erection, he allowed her to stop. In exchange, he said he would take one hundred dollars. As the grandmother only had $51, he took the money and told her he would return the next day for the rest. Before leaving, he took her cellphone, which was in the living room, and her home phone receiver, which was located in the kitchen. The home phone system appears to be wireless, and it does not appear that Appellant also took the base receiver. Before leaving, he told her twice not to tell anyone about the incident and that it would be their secret.
{¶6} When Appellant left, his grandmother ran to a neighbor's house and called the police and her daughter, who is Appellant's aunt. (Trial Tr., p. 28.) The timeline is somewhat unclear, but before police located Appellant, he called this aunt several times. She testified that when she finally answered his call, she did not discuss the incident for fear that he would flee, but did ask him if he took his grandmother's phone. He replied that he took the phone by mistake and that he would return it the next day.
{¶7} Appellant was arrested at his mother's house in Youngstown, where he had been living in the basement. (Trial Tr., p. 44.) Officers located his grandmother's cell phone, home phone, and money. It appears from body camera video that the home phone and money were on Appellant's person and the cellphone was nearby. Appellant assisted the officers in locating the cell phone, claiming that he took the phones accidentally and that he planned to return them the next day.
{¶8} The officers brought Appellant to the Campbell police station and, as per department policy, interviewed him with two officers present. Despite the fact that Appellant remained handcuffed, he began an altercation with one of the officers, Det. Ryan Bloomer, and the two men ended up on the ground. At some point, the officers were able to restrain Appellant.
{¶9} On February 18, 2021, Appellant was indicted on one count of rape, a felony of the first degree in violation of R.C. 2907.02(A)(2), (B); one count of attempted rape, a felony of the second degree in violation of R.C. 2923.02, R.C. 2907.02(A)(2), (B); one count of aggravated robbery, a felony of the first degree in violation of R.C. 2911.01 (A)(3), (C); one count of robbery, a felony of the second degree in violation R.C. 2911.02(A)(2); one count of theft from a person in a protected class, a felony of the fifth degree in violation of R.C. 2913.02(A)(1), (B)(3); one count of domestic violence, a misdemeanor of the first degree in violation of R.C. 2919.25(A), (D)(2); one count of assault, a felony of the fourth degree in violation of R.C. 2903.13(A), (C)(5); and one count of obstructing official business, a felony of the fifth degree in violation of R.C. 2921.31 (A), (B). The latter two counts, assault and obstructing official business, pertain to the incident at the police department.
{¶10} On March 4, 2021, Appellant filed a "Plea of Not Guilty By Reason of Insanity." Appellant also filed a motion seeking an evaluation of his competency to stand trial. After a hearing, the trial court issued a judgment entry finding the issue of competency moot after defense counsel informed the court that Appellant had been taking his medications and was able to assist in his defense. The court did order an evaluation for purposes of Appellant's insanity defense, and would later permit a second evaluation. The written evaluations were provided to the trial court and admitted into evidence.
{¶11} The two experts who prepared evaluations testified at a bench trial. The state's witnesses included: the victim, Geri Hunt (the victim's daughter and Appellant's aunt), Officer Tyler Thompson (Campbell Police Department), Det. Ryan Bloomer (Campbell Police Department), Lt. Kevin Sfera, and Dr. Jessica Hart (Forensic Psychiatric Center of Northeast Ohio). The following witnesses were called on behalf of Appellant: Appellant's mother, Beth Broker (family friend), and Dr. Robert Devies. Both Dr. Hart and Dr. Devies performed evaluations of Appellant pursuant to the two evaluations ordered by the trial court.
{¶12} At the conclusion of trial, the court found that the state had not included the obstruction of official business count within the bill of particulars, and found Appellant not guilty on that charge. However, the court found Appellant guilty on the remaining seven counts within the indictment. The court further found that Appellant had not met his burden of proving the affirmative defense of not guilty by reason of insanity, finding that Appellant's expert witness lacked credibility.
{¶13} The state conceded that the aggravated robbery, robbery, theft from a person in a protected class, and domestic violence convictions merged for purposes of sentencing. The court additionally found that the rape and attempted rape convictions merged. On June 6, 2021, the court sentenced Appellant to an indeterminate sentence of an aggregate total of nineteen and one-half years to twenty-five years of incarceration. The court credited Appellant with 145 days served. It is from this entry that Appellant timely appeals.
THE CONVICTION AGAINST APPELLANT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AS THE AFFIRMATIVE DEFENSE OF NOT GUILTY BY REASON OF INSANITY WAS PROVEN BY A PREPONDERANCE OF THE EVIDENCE.
{¶14} Appellant argues that he met his burden of proving the affirmative defense of insanity through the state's witness (Dr. Hart), his own expert witness (Dr. Devies), and a family friend who happens to be a licensed counselor (Beth Brocker). Beginning with Dr. Hart, she testified Appellant suffered from paranoid schizophrenia, major depressive disorder, cannabis use disorder, and alcohol use disorder. She further testified that Appellant had no memory of the incident and had not been taking his medication at that time. Dr. Devies testified that Appellant's mental illness impacted his ability to make rational decisions and he lacked the ability to understand the wrongfulness of his actions at the time of the incident. Appellant also cites to the testimony of Brocker, who interacted with him several days before the incident and opined that he was in a psychotic state.
{¶15} In response, the state points out that the trial court expressly found Dr. Devies' testimony was incredible. The state argues that the record, especially the evidence provided by Dr. Hart, contains sufficient evidence to support the trial court's verdict.
{¶16} A plea of not guilty by reason of insanity "is an affirmative defense that must be proven by a preponderance of the evidence." State v. Harris, 142 Ohio St.3d 211, 2015-Ohio-166, 28...
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