State v. Muldrew , 2018 Ohio 4883 ( 2018 )

[Cite as State v. Muldrew, 2018-Ohio-4883.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27901
:
v. : Trial Court Case No. 2017-CR-3749
:
EDWARD MULDREW : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 7th day of December, 2018.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MARK J. BAMBERGER, Atty. Reg. No. 0082053, P.O. Box 189, Spring Valley, Ohio
45370
Attorney for Defendant-Appellant
.............
TUCKER, J.
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{¶ 1} Defendant-appellant Edward Muldrew appeals from his conviction and
sentence, following pleas of guilty, for kidnapping, rape, felonious assault, and grand theft
of an automobile. He contends that the trial court erred in failing to merge his convictions
for the purposes of sentencing and that the trial court erred by imposing consecutive
sentences. He further contends that the trial court erred in failing to consider his mental
health as it related to competency to stand trial and as a mitigating factor in sentencing.
{¶ 2} We conclude that the trial court did not err by not merging the convictions,
and the imposition of consecutive sentences was not clearly and convincingly
unsupported by the record. We further find no support for the claim that the court failed
to consider Muldrew’s mental health. Accordingly, the judgment of the trial court is
affirmed.
I. Facts and Procedural History
{¶ 3} In February 2017, Muldrew was indicted on two counts of rape in violation of
R.C. 2907.02(A)(2), one count of kidnapping (purpose to engage in sexual activity) in
violation of R.C. 2905.01(A)(4), one count of felonious assault in violation of R.C.
2903.11(A)(1), and one count of grand theft auto in violation of R.C. 2913.02(A)(4). The
kidnapping charge carried a sexual motivation specification as set forth in R.C. 2941.147.
{¶ 4} After the appointment of counsel, Muldrew filed a motion for a competency
evaluation. Muldrew was subsequently evaluated by Dr. Massimo Marchis, a
psychologist with the Forensic Psychiatry Center for Western Ohio. According to
Marchis’s report, Muldrew refused to participate in psychological testing. However,
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Marchis opined that, based upon his interview and review of the case, Muldrew was
competent to stand trial. Thereafter, Muldrew filed a notice of a plea of not guilty by
reason of insanity. He also filed a request for a second psychological evaluation. The
second psychologist, Daniel Davis, issued a report indicating that Muldrew submitted to
psychological testing. Davis’s report also opined that Muldrew was competent to stand
trial, that he did not suffer from a mental defect at the time he committed the offenses,
and that Muldrew was aware of the wrongfulness of his acts at the time of the offenses.
The trial court found Muldrew competent to stand trial.
{¶ 5} Thereafter, Muldrew filed a motion to suppress, which was set for a hearing.
On the day of the hearing, Muldrew indicated that he wanted to enter a plea of guilty on
all counts. Counsel for Muldrew indicated that he and the prosecutor disagreed on the
question of whether any of the offenses would merge for the purposes of sentencing.
Thereafter, Muldrew entered his guilty plea with the understanding that the issue of
merger would be briefed prior to sentencing. The trial court ordered the State to file a
Bill of Particulars.
{¶ 6} In December 2017, the State filed a Bill of Particulars which stated, in
pertinent part, as follows:
With respect to Count 1, the nature of the offense is that on February
4, 2017, in Montgomery County, Ohio, the Defendant engaged in sexual
conduct with the victim, identified as M.S., by purposely compelling her to
submit by force or threat of force. Specifically, Defendant put the knife to
M.S.’s throat, punched her multiple times in the head and face. He then
pulled her pants down, and pushed her over the seat and used his penis to
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penetrate her vaginally. This is one count of Rape (force or threat).
With respect to Count 2, the nature of the offense is that on February
4, 2017, in Montgomery County, Ohio, the defendant engaged in sexual
conduct with the victim, identified as M.S., by purposely compelling her to
submit by force or threat of force. Specifically, after penetrating M.S.
vaginally, Defendant then penetrated her anally. This is one count of Rape
(force or threat).
With respect to Count 3, the nature of the offenses is that on
February 4, 2017, in Montgomery County, Ohio, the Defendant did by force,
threat or deception, remove M.S. from the place she was found or restrained
her liberty for the purpose of engaging in sexual activity against her will.
Specifically, as described above, Defendant put a knife to M.S.’s throat to
get her to comply with forcible rape, both vaginally and anally. When he
was finished, he told her [he] had a gun, and directed her to take him to an
ATM to withdraw money. M.S. was again forced to drive and Defendant
told her he would shoot her if she tried to run. M.S. drove an unspecified
distance, but upon reaching a red light, jumped out of the car and ran. This
is one count of Kidnapping (sexual activity).
With respect to the Sexual Motivation Specification attached to
Count 3, the nature of the offense is that the Defendant committed the
kidnapping for the purpose of gratifying his sexual needs or desires.
With respect to Count 4, the nature of the offense is that on February
4, 2017, in Montgomery County, Ohio, Defendant knowingly caused serious
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physical harm to M.S. Specifically, when Defendant punched M.S. in the
face, he fractured her nose. This is one count of Felonious Assault (SPH).
With respect to Count 5, the nature of the offense is that on February
4, 2017, in Montgomery County, Ohio, Defendant did knowingly and by
threat, obtain or exert control over a 2002 Honda Civic, with purpose to
deprive the owner, M.S. Specifically, when M.S. jumped out of the car at
the red light, Defendant took control of the vehicle and drove away. The
vehicle was found 4 days later, having been abandoned. This is one count
of Grand Theft (MV).
{¶ 7} On January 11, 2018, Muldrew filed a sentencing memorandum seeking to
merge the two counts of rape, and also seeking to merge both the kidnapping and the
felonious assault counts with the rape counts. The State filed a response. A sentencing
hearing was conducted on February 9, 2018 at which time the trial court stated that it
would “determine whether there is merger based strictly upon the Bill of Particulars, what
was disclosed in the Bill of Particulars.” Tr. p. 31. After a discussion of the merger
issue, the trial court denied Muldrew’s merger request.
{¶ 8} The trial court sentenced Muldrew to a mandatory term of eleven years in
prison on each of the rape offenses, nine years on the kidnapping offense, eight years on
the felonious assault, and 18 months for the grand theft auto offense. The rape
convictions were ordered to run concurrently with each other. The kidnapping, felonious
assault and grand theft auto convictions were ordered to run concurrently with each other
and consecutively to the sentences for rape for an aggregate prison term of twenty years
of which eleven years was a mandatory sentence. Muldrew appeals.
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II. Merger and Consecutive Service Analysis
{¶ 9} Muldrew’s first assignment of error is as follows:
THE TRIAL COURT FAILED TO PROPERLY CONSIDER FULL MERGER
OF THE OFFENSES AND THUS ISSUE FULLY CONCURRENT
SENTENCING.
{¶ 10} Although not entirely clear, it appears that in this assignment of error
Muldrew contends the trial court erred by failing to merge all of the offenses into one count
of rape as they were all part of the same criminal act. He further argues that the trial
court erred by ordering the sentence for the rape convictions to run consecutively to the
sentence imposed for the remaining convictions.
{¶ 11} We begin with the issue of merger. “R.C. 2941.25 codifies the double
jeopardy protections in the federal and Ohio constitutions, which prohibit courts from
imposing cumulative or multiple punishments for the same criminal conduct unless the
legislature has expressed an intent to impose them.” State v. Barker, 183 Ohio App.3d
414, 2009-Ohio-3511, 917 N.E.2d 324, ¶ 22 (2d Dist.). R.C. 2941.25 provides:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
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to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶ 12} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the
Supreme Court of Ohio clarified the applicable standard when determining whether
offenses merge as allied offenses of similar import:
Rather than compare the elements of two offenses to determine
whether they are allied offenses of similar import, the analysis must focus
on the defendant's conduct to determine whether one or more convictions
may result, because an offense may be committed in a variety of ways and
the offenses committed may have different import. No bright-line rule can
govern every situation.
As a practical matter, when determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts must
ask three questions when the defendant's conduct supports multiple
offenses: (1) Were the offenses dissimilar in import or significance? (2)
Were they committed separately? and (3) Were they committed with
separate animus or motivation? An affirmative answer to any of the above
will permit separate convictions. The conduct, the animus, and the import
must all be considered.
Ruff at ¶ 30-31.
{¶ 13} A criminal defendant bears the burden of establishing entitlement to merger,
and we review a trial court's ruling on the issue de novo. State v. LeGrant, 2d Dist. Miami
No. 2013-CA-44, 2014-Ohio-5803, ¶ 15.
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{¶ 14} Although it is not clear whether Muldrew intended to raise the argument, we
will address the issue of whether the trial court should have merged the two counts of
rape. This court has previously held that anal rape and vaginal rape do not involve the
same conduct and are not subject to merger. State v. Coleman, 2d Dist. Montgomery
No. 26376, 2015-Ohio-538, ¶ 25, citing State v. Nesser, 2d Dist. Clark No. 2013 CA 21,
2014-Ohio-1978, ¶ 63. Thus, we conclude that the trial court did not err by declining the
request to merge those two offenses.
{¶ 15} Muldrew next claims that the trial court should have merged the conviction
for felonious assault with the conviction for rape because they were part of the same
crime with the same animus. Significantly, this argument ignores the fact that Muldrew
punched M.S. in the face. This conduct was not necessary, and further, the conduct
caused a separate harm (the broken nose) that was distinct from the harm caused by the
rapes. State v. Mpanurwa, 2017-Ohio-8911, 192 N.E.3d 66, ¶ 19 (2d Dist.). Thus, we
conclude that the trial court did not err by failing to merge the conviction for felonious
assault with the rape convictions.
{¶ 16} Muldrew also argues that the conviction for grand theft auto should have
merged with the rape convictions. The bill of particulars indicates that the charge of
grand theft auto was predicated upon the fact that Muldrew took control of the victim’s
vehicle after she escaped therefrom. He then drove the vehicle to his residence. At the
point Muldrew took the vehicle, all of the other offenses had been completed. It can be
inferred that Muldrew took the vehicle in order to avoid apprehension at the site of the
offense. Thus, we conclude that taking the vehicle was a crime committed with a
separate animus, and the trial court did not err by failing to merge this conviction.
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{¶ 17} Finally, we address the issue of whether the kidnapping conviction should
have merged with the rape convictions. Muldrew was indicted on, and convicted of, rape
in violation of R.C. 2907.02(A)(2), which states that “[n]o person shall engage in sexual
conduct with another when the offender purposely compels the other person to submit by
force or threat of force.” “Sexual conduct” is defined, in part, as vaginal intercourse or
anal intercourse. R.C. 2907.01(A). Muldrew was also indicted on, and convicted of,
kidnapping in violation of R.C. 2905.01(A)(4), which provides in pertinent part that “[n]o
person, by force, threat, or deception, * * * shall remove another from the place where the
other person is found or restrain the liberty of the other person, [with the purpose to]
engage in sexual activity, as defined in section 2907.01 of the Revised Code, with the
victim against the victim's will[.]” “Sexual activity” is defined, in part, as sexual conduct.
R.C. 2907.01(C).
{¶ 18} The Supreme Court of Ohio has held that kidnapping as defined by
2905.01(A)(4) and rape as defined by R.C. 2907.02(A)(1) are allied offenses of similar
import within the meaning of R.C. 2941.25(A). State v. Donald, 57 Ohio St.2d 73, 386
N.E.2d 1341 (1979), syllabus. However, the Court in Donald did not reach or discuss
the issue of animus within the meaning of R.C. 2941.25(B). Shortly thereafter, as
discussed by this court in State v. Portman, 2d Dist. Clark No. 2013-CA-68, 2014-Ohio-
4343, the Supreme Court addressed the animus prong:
All rapes inherently involve a restraint on the liberty of another, and where
the act of rape is the sole unlawful exercise of restraint on the physical
liberty of another person, the law is clear that any accompanying kidnapping
charge should merge with the rape charge. State v. Logan, 60 Ohio St.2d
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126, 397 N.E.2d 1345 (1979). A separate animus for kidnapping exists
where (1) “the restraint is prolonged, the confinement is secretive, or the
movement is substantial so as to demonstrate a significance independent
of the other offense,” or (2) “the asportation or restraint of the complainant
subjects the complainant to a substantial increase in risk of harm separate
and apart from that involved in the underlying crime.” Logan at syllabus;
see also State v. Rucker, 2d Dist. Montgomery No. 24340, 2012-Ohio-4860,
¶ 52. Although focused on the animus aspect of the allied offense analysis,
these factors are also reasonable considerations for determining whether
the defendant committed kidnapping as separate conduct from other
offenses. See State v. Lovato, 2d Dist. Montgomery No. 25683, 2014-
Ohio-2311, ¶ 13, citing State v. Ware, 63 Ohio St.2d 84, 406 N.E.2d 1112(1980).
Id. at ¶ 32.
{¶ 19} As set forth in the Bill of Particulars, the kidnapping, for the purpose of
engaging in sexual activity, occurred when Muldrew held a knife to M.S.’s throat and
proceeded to rape her. 1 Muldrew could have committed the crimes of rape and
kidnapping merely by holding the victim down. But because of the use of the knife, the
restraint posed a substantial increase in the risk of harm separate from the rape. Thus,
1
We note that the Bill of Particulars also sets forth a claim that the kidnapping continued
after the rapes had been completed. However, the Bill of Particulars indicates that the
animus for the continued kidnapping was for the purpose of obtaining M.S.’s money rather
than for the purpose of sexual activity as charged in the indictment. Thus, our analysis
focuses on the restraint connected with the purpose of sexual activity.
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the crimes were committed with a different animus, and we must conclude that the trial
court did not err in failing to merge the offenses.2 See State v. Greathouse, 2d Dist.
Montgomery No. 21536, 2007-Ohio-2136, ¶ 46 (detention posed an increased risk of
harm because the defendant threatened to “crash and burn the car” with the victim inside
and threatened to shoot her with a gun); Portman at ¶ 42 (use of a gun in the commission
of a kidnapping increased the risk of harm separate from the ensuing rape).
{¶ 20} Based upon the foregoing, we conclude that the trial court did not err in
denying Muldrew’s request to merge the convictions for the purposes of sentencing.
{¶ 21} We next address the claim that the trial court erred in imposing consecutive
sentences. R.C. 2929.14(C)(4) is an exception to the presumption in favor of concurrent
sentences set forth in R.C. 2929.41(A). In this regard, R.C. 2929.14(C) provides that:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the offender
and that consecutive sentences are not disproportionate to the seriousness
of the offender's conduct and to the danger the offender poses to the public,
and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed
2
We are cognizant of the fact that the defendant in Logan utilized a gun to aid in
kidnapping the victim. However, the Court did not discuss the use of the gun as
increasing the risk of harm to the victim. Rather, the Court focused solely on the distance
of the asportation of the victim in determining whether to merge the kidnapping and rape
convictions. Id. at 135.
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pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
{¶ 22} When a defendant challenges a consecutive sentence, “R.C.
2953.08(G)(2)(a) directs the appellate court ‘to review the record, including the findings
underlying the sentence’ and to modify or vacate the sentence ‘if it clearly and
convincingly finds * * * [t]hat the record does not support the sentencing court's findings
under division * * * (C)(4) of section 2929.14 * * * of the Revised Code.’ ” State v. Bonnell,
140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 28, quoting R.C.
2953.08(G)(2)(a).
{¶ 23} “There are two ways that a defendant can challenge consecutive sentences
on appeal. First, the defendant can argue that consecutive sentences are contrary to
law because the court failed to make the necessary findings required by R.C.
2929.14(C)(4).” State v. Adams, 2d Dist. Clark No. 2014-CA-13, 2015-Ohio-1160, ¶ 17,
citing R.C. 2953.08(G)(2)(b) and Bonnell at ¶ 29. “Second, the defendant can argue that
the record does not support the findings made under R.C. 2929.14(C)(4).” Id., citing R.C.
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2953.08(G)(2)(a) and State v. Moore, 2014-Ohio-5135, 24 N.E.3d 1197 (8th Dist.).
{¶ 24} In this case, there is no question that the trial court made the required
statutory findings. The trial court made the appropriate statements as well as additional
findings under R.C. 2929.14(C)(4)(a) and R.C. 2929.14(C)(4)(c) that Muldrew was under
post-release control at the time he committed the instant offenses and that Muldrew’s
history of criminal conduct demonstrated that consecutive sentences were necessary to
protect the public.
{¶ 25} Regarding the second potential basis for error, i.e., that the sentence is
clearly and convincingly unsupported by the record, we note that trial courts are guided
by the R.C. 2929.11 sentencing principles. They are also required to consider the
sentencing factors in R.C. 2929.12, but “need not articulate their considerations explicitly
on the record.” State v. Mabra, 2d Dist. Clark No. 2014-CA-147, 2015-Ohio-5493, ¶ 56.
{¶ 26} R.C. 2929.12(B) contains a list of nine factors indicating that an “offender's
conduct is more serious than conduct normally constituting the offense * * *.” The trial
court noted that the victim suffered serious physical and psychological harm as listed in
R.C. 2929.12(B)(2). Further, R.C. 2929.12(B) permits trial courts to consider any other
relevant factors that would make an offender's conduct more serious than conduct
normally constituting the offense. Muldrew held a knife to the victim’s throat, he broke
her nose, and he left bruises where he bit her. The trial court found that none of the
factors that would make an offender’s conduct less serious were present.
{¶ 27} R.C. 2929.12(D) sets forth factors indicating that an offender is likely to
commit future crimes. The trial court noted that Muldrew had both a juvenile record as
well as an adult criminal history. R.C. 2929.12(D)(2). The trial court also noted that
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Muldrew was on post-release control at the time he committed the offenses. R.C.
2929.12(D)(1). The court also found that Muldrew had not been rehabilitated and that
he did not respond favorably to prior sanctions. R.C. 2929.12(D)(3). Finally, the trial
court found that Muldrew exhibited no genuine remorse. R.C. 2929.12(D)(5).
{¶ 28} We have no basis to conclude that the consecutive sentences the trial court
imposed are clearly and convincingly unsupported by the record.
{¶ 29} We conclude that the trial court did not err by failing to merge Muldrew’s
convictions for purposes of sentencing and that it did not err by imposing consecutive
sentences. Accordingly, the first assignment of error is overruled.
III. Competency/Sanity
{¶ 30} For his second assignment of error, Muldrew asserts the following:
THE TRIAL COURT FAILED TO GIVE CREDENCE TO QUESTIONS OF
COMPETENCY.
{¶ 31} Muldrew contends that the trial court’s “overt dismissal of potential mental
illness and resulting competency concerns” was error. In support, he argues that there
was “circumstantial evidence from the facts of this case that the psychological
professionals missed something significant.” Muldrew then cites to the fact that he did
not attempt to hide the evidence of the offenses and that he was raised under “dire
conditions” and “lived [a] tragic existence.”
{¶ 32} As noted by the State, it is not clear from a reading of Muldrew’s argument
whether he is asserting a claim that the trial court erred by finding him competent to stand
trial, or whether he is merely arguing that the trial court should have considered his mental
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health as a mitigating factor at sentencing.
{¶ 33} We begin by noting that Muldrew waived these arguments because
Muldrew’s “guilty plea constituted an implied admission of sanity, and the trial court's
acceptance of the plea was an affirmation of its belief in [his] sanity.” State v. Pepper,
2d Dist. Miami No. 2013-CA-6, 2014-Ohio-3841, ¶ 6, citing State v. Fore, 18 Ohio App.2d
264, 248 N.E.2d 633 (4th Dist.1969). As such, “issues of competency as they relate to
a defense to criminal charges are waived by a plea of guilty.” Id., quoting State v.
Denton, 2d Dist. Montgomery No. 11376, 1989 WL 159195 (Dec. 29, 1989). “Pleas of
guilty or nolo contendere waive all issues of fact and allow the court to go forward on the
basis of the record, resting on the presumption of competence created by the law.” Id.{¶ 34} Even were the issue not waived, we would conclude that Muldrew’s claim
lacks merit. This court has recently addressed the issues of insanity and competency to
stand trial in State v. Ferguson, 2018-Ohio-987, 108 N.E.3d 1161 (2d Dist.), wherein we
stated:
A defendant is incompetent to stand trial if he or she “is incapable of
understanding the nature and objective of the proceedings against the
defendant or of assisting in the defendant's defense * * *.” R.C.
2945.37(G). Criminal defendants are rebuttably presumed to be
competent to stand trial. Id.The test for determining whether a defendant is competent to stand
trial is whether he or she has sufficient present ability to consult with his or
her lawyer with a reasonable degree of rational understanding and whether
the defendant has a rational and factual understanding of the proceedings
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against him or her. State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-
1914, 12 N.E.3d 1112, ¶ 32, citing State v. Berry, 72 Ohio St.3d 354, 359,
650 N.E.2d 433 (1995) and Dusky v. United States, 362 U.S. 402, 80 S.Ct.
788, 4 L.Ed.2d 824 (1960). In determining if incompetence was
established, courts should consider the following: “(1) doubts expressed by
counsel as to the defendant's competence; (2) evidence of irrational
behavior; (3) the defendant's demeanor at trial; and (4) prior medical opinion
relating to competence to stand trial.” State v. Rubenstein, 40 Ohio App.3d
57, 60-61, 531 N.E.2d 732 (8th Dist. 1987).
It is well established that a defendant may be emotionally disturbed
or even psychotic and still be capable of understanding the charges against
him and assisting his counsel; incompetency must not be equated with mere
mental illness or emotional instability. State v. Bock, 28 Ohio St.3d 108,
110, 502 N.E.2d 1016 (1986); State v. Fahl, 2d Dist. Clark No. 2005-CA-98,
2006-Ohio-1809, ¶ 8. Accord State v. Smith, 89 Ohio St.3d 323, 329, 731
N.E.2d 645 (2000).
Because a defendant is presumed to be competent to stand trial, the
burden is on the defendant to prove by a preponderance of the evidence
that he is not competent. State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-
783, 804 N.E.2d 1, ¶ 28; R.C. 2945.37(G). A trial court's finding that a
defendant is competent to stand trial will not be disturbed on appeal when
there is some reliable and credible evidence supporting that finding. State
v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 46.
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***
A person is not guilty by reason of insanity only if he or she proves
that, at the time of the commission of the offense, the person did not know,
as a result of a severe mental disease or defect, the wrongfulness of the
person's acts. R.C. 2901.01(A)(14). A criminal defendant's sanity is not
an element of an offense that the prosecution must prove. State v.
Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 35.
Rather, a plea of not guilty by reason of insanity is an affirmative defense,
which must be pled and proved by a preponderance of the evidence. R.C.
2901.05(A); State v. Brown, 5 Ohio St.3d 133, 134, 449 N.E.2d 449 (1983).
Ferguson at ¶ 17-21.
{¶ 35} As noted above, Muldrew underwent two separate psychological
examinations. During the first evaluation with Dr. Marchis, Muldrew declined to
participate in psychological testing. He also, according to Marchis, exhibited “bizarre”
behavior “in a clear attempt to appear much more disturbed than what may be the case.”
Court’s Exh. I, p. 5. However, based upon the interview with Muldrew, Dr. Marchis
concluded that “Mr. Muldrew is not an intellectually-disabled individual. He does not elicit
evidence of a serious mental illness and he is familiar with legal proceedings and with the
consequences he could face if convicted of the charges. * * * Mr. Muldrew’s clinical
presentation was unequivocally consistent with malingering. His malingering attempts
were assessed as rather obvious and unsophisticated.” Tr. p. 50-51. Marchis opined
that Muldrew was competent to stand trial.
{¶ 36} Following the second evaluation, Dr. Davis opined that Muldrew exhibited
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“non-credible symptoms of mental illness” which was corroborated by the psychological
testing results that were “characteristic of persons who are feigning a mental disorder and
is rarely seen in clients responding truthfully.” Court’s Exh. III, p.5. Davis also noted
that Muldrew informed the victim that he had committed a rape offense and been in prison
prior to the instant offenses, that he used Vaseline during the rape offenses, and that he
ejaculated on the victim’s leg and then wiped the semen away. Finally, David noted that
when Muldrew forced the victim to drive him to an ATM, he threatened to shoot her if she
tried to get away. According to Davis, all of these behaviors indicated that Muldrew was
aware of the wrongfulness of his actions at the time of the offenses. Davis also
concluded that Muldrew exhibited signs of malingering, that he was capable of standing
trial, and that he did not suffer from a mental defect at the time of offenses.
{¶ 37} We conclude that the record contains competent, credible evidence that
Muldrew was competent to stand trial. We also note that during the plea hearing, when
the trial court read the kidnapping charges to Muldrew, the court included the language
“or in the case of a victim under the age of 13.” Tr. p. 11. At that point, Muldrew
interjected to ask why such language was in the charge as the victim was not a minor.
The trial court indicated that the language was surplusage and did not apply to the case.
This exchange corroborates the finding that Muldrew was able to participate in his own
defense. We further conclude that there was competent, credible evidence that Muldrew
was not suffering from a mental defect or illness at the time he committed the offenses.
{¶ 38} We next address the claim that the trial court did not take note of Muldrew’s
alleged mental health issues during sentencing. Muldrew claims that the trial court “itself
alluded to its concerns about [his] mental state when it reviewed [his] history and stated,
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“[b]ut he does suffer from that mental health history.”3 Tr. p. 40.
{¶ 39} We reject this claim. First, it is evident from the record that the trial court
did consider Muldrew’s psychological evaluations and his personal history during
sentencing. Further, as stated above, the evidence did not support a finding that
Muldrew suffered from any significant mental health issues that would have any effect
upon sentencing.
{¶ 40} We conclude that the trial court properly considered the relevant mental
health evidence and that it did not err by finding Muldrew competent to stand trial. The
trial court also did not improperly fail to consider Muldrew’s mental health during
sentencing. Accordingly, the second assignment of error is overruled.
IV. Conclusion
{¶ 41} Both of Muldrew’s assignments of error being overruled, the judgment of
the trial court is affirmed.
.............
DONOVAN, J. and FROELICH, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Mark J. Bamberger
Hon. Dennis J. Langer
3
We note that this cited statement was not made by the trial court as alleged by Muldrew,
but rather was a statement made by his own counsel. Counsel also stated that Muldrew
was on “psychotic medication” while in jail. However, the psychological reports indicate
that Muldrew sought the medication because he thought it would help his case.