State v. Consiglio , 2022 Ohio 2340 ( 2022 )

[Cite as State v. Consiglio, 2022-Ohio-2340.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
ANTHONY CONSIGLIO,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 21 MA 0066
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 21 CR 53
BEFORE:
Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Edward A. Czopur, Assistant
Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
for Plaintiff-Appellee
Atty. John P. Laczko, City Center One, Suite 975, 100 East Federal Street, Youngstown,
Ohio 44503, for Defendant-Appellant.
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Dated: June 29, 2022
WAITE, J.
{¶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.
Factual and Procedural History
{¶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
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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
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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
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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
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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.
ASSIGNMENT OF ERROR NO. 1
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
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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 N.E.3d 1256, ¶ 17, citing State v. Hancock, 108 Ohio St.3d 57, 2006-
Ohio-160, 840 N.E.2d 1032, ¶ 35; R.C. 2901.05(A). An affirmative defense is reviewed
under a manifest weight of the evidence standard. State v. Ford, 8th Dist. Cuyahoga No.
109087, 2020-Ohio-4298, ¶ 25.
{¶17} Weight of the evidence concerns “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.”
(Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
It is not a question of mathematics, but depends on the effect of the evidence in inducing
belief. Id. Weight of the evidence involves the state's burden of persuasion. Id. at 390,
678 N.E.2d 541 (Cook, J. concurring). An appellate court reviews the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether, in resolving conflicts in the evidence, the jury clearly lost its way
and created such a manifest miscarriage of justice that the conviction must be reversed.
State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, citing
Thompkins, at 387, 678 N.E.3d 541, 678 N.E.2d 541. This discretionary power of the
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appellate court to reverse a conviction is to be exercised only in the exceptional case in
which the evidence weighs heavily against the conviction. Id.{¶18} “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-
6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967), paragraph one of the syllabus. The trier of fact is in the best position to weigh
the evidence and judge the witnesses' credibility by observing their gestures, voice
inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461
N.E.2d 1273 (1984). The jurors are free to believe some, all, or none of each witness'
testimony and they may separate the credible parts of the testimony from the incredible
parts. State v. Barnhart, 7th Dist. No. 09 JE 15, 2010 WL 2749627, 2010-Ohio-3282,
¶ 42, citing State v. Mastel, 26 Ohio St.2d 170, 176, 270 N.E.2d 650 (1971). When there
are two fairly reasonable views of the evidence or two conflicting versions of events,
neither of which is unbelievable, we will not choose which one is more credible. State v.
Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist.1999).
{¶19} “A person is not guilty by reason of insanity only if he 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.’ ” State v. Wade, 2016-Ohio-
8546, 71 N.E.3d 31, (7th Dist.), ¶ 42, citing R.C. 2901.01(A)(14). Although Ohio law
formerly recognized the “irresistible impulse” defense, the legislature removed this
component from the law in 1990. State v. Nicholas, 2nd Dist. No. 2018-CA-25, 2020-
Ohio-3478, 155 N.E.3d 304, ¶ 90, appeal allowed, 161 Ohio St.3d 1439, 2021-Ohio-375,
162 N.E.3d 822, ¶ 90 (appeal allowed on other grounds).
Case No. 21 MA 0066
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{¶20} At trial, two psychologists who had evaluated Appellant pursuant to court
order testified. Although Appellant’s friend, Brocker, is a certified counselor, she
admittedly did not evaluate Appellant and did not have a professional relationship with
him. As previously stated, Dr. Hart works for the Forensic Psychiatric Center of Northeast
Ohio. She ultimately concluded that Appellant “has a severe mental disease, namely
schizophrenia, but that his symptoms did not interfere with knowing the wrongfulness of
his acts.” (Trial Tr., p. 76.) Dr. Hart acknowledged that Appellant was not taking his
medications at the time of the incident but found that this did not affect his ability to
understand the wrongfulness of his acts. She testified that “[h]e had a very limited
[memory] in the morning of his plans for the day and then he remembered basically after
the instant offenses.” (Trial Tr., p. 74.) She explained that although he claimed full
memory loss, he also claimed to have memory of the morning and the remainder of the
day and later asserted that he had regained some memory of the incident itself.
{¶21} Dr. Devies disagreed with Dr. Hart’s conclusion and opined that Appellant
did not understand the wrongfulness of his acts. (Trial Tr., p. 118.) Dr. Devies did not
find the fact that Appellant stole two phones from the victim amounted to evidence that
he knew his actions were wrong. Dr. Devies explained that a person in Appellant’s state
might have just taken whatever was nearby without any intent to necessarily prevent the
victim from calling the police. However, Dr. Devies had trouble explaining why Appellant
not only took the cell phone from the living room, but went into the kitchen and removed
the home phone.
{¶22} Dr. Devies explained that he did not attempt to talk to Appellant about the
incident after learning that he had regained memory. Specifically, he testified that “[w]hen
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I went to see him in May, he had a record of being on the medication and he had regained
memory for the incident and certainly acknowledged it was wrong, but did not necessarily
know that he believed that it was wrong at the time it occurred.” (Trial Tr., p. 120.)
{¶23} The discussion continued and the state inquired as to why Dr. Devies did
not attempt to ask Appellant about the aspects of the incident that he remembered.
A I’m interviewing him in the jail. We were interrupted for a medication
check. And we’re isolated. I was not going to irritate him. But the point is
is [sic] that what he remembered would be suspect anyhow. There’s no
real point in asking --
Q Can you think of better evidence as to what his mental state was other
than his memory?
A The -- well, I would say his memory is suspect. It didn’t exist, he had
problems prior to this, and it was not there at the time of an earlier
examination and now he’s being interviewed by another psychologist [Dr.
Hart], how can I have any confidence in the memory that he produces?
(Trial Tr., pp. 121-122.)
{¶24} The state asked Dr. Devies if he knew that Appellant had told the victim
not to tell anyone and that it would be their secret. Dr. Devies did not know of this fact,
but did not believe that it was relevant. He testified “[a]gain, I don’t -- I believe that it’s --
you’re in error for taking any utterances on the part of a psychotic individual and trying to
extrapolate the truth from it.” (Trial Tr., p. 128.)
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{¶25} Essentially, Dr. Devies believed that it was useless to evaluate Appellant’s
memory as he could not ensure that it was truly due to his restoration of memory and not
the results of information Appellant learned after the fact. His testimony indicated that in
his opinion it is impossible to determine, after the fact, whether a person knew his actions
were wrong at the time of an incident. Dr. Devies repeatedly referred to the incident in
this matter as an “irresistible impulse.” (Trial Tr., p. 128.)
{¶26} Beth Brocker did not have a professional relationship with Appellant and
knew him only as a family friend. She testified that she observed Appellant several days
before the incident and believed that he was in a psychotic state. The court sustained an
objection to this testimony. She also testified that she knew he had not been taking his
medications at the time.
{¶27} Appellant’s mother also testified as to his mental state. She explained that
Appellant lived at her house and had a bedroom upstairs. However, he chose to sleep in
what she described as less than ideal living conditions in the basement. She testified that
he laid a blanket on the floor and surrounded it with knives because he thought people
were out to get him. This area of the basement is not shown on the body camera footage.
She testified that Appellant had been diagnosed with his mental illnesses around the age
of 20 or 21. She stated that on occasion he asks to be taken to a hospital because he
has “bad thoughts.” (Trial Tr., p. 96.) She stated that he has been hospitalized for his
conditions several times and has previously attempted suicide. She also described a
violent altercation he had with his brother a few weeks before the incident when he
attacked his brother and she had to hit Appellant with part of a vacuum cleaner to stop
him.
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{¶28} The most significant testimony came from the victim. She testified that
Appellant kept looking out of the window during the incident. She also testified that he
took her cell phone, which was located in the room where the rape occurred, and her
house phone, which was located in the kitchen. She testified that he told her not to tell
anyone what had happened because it was their secret. (Trial Tr., p. 27.)
{¶29} The fact that Appellant kept looking out the window during the rape and that
it appeared he was checking to see if anyone was coming to the house was viewed by
the trial court as strong evidence that Appellant knew what he was doing was wrong.
Otherwise, Appellant would not have been concerned that his behavior was observed or
interrupted. For similar reasons, the fact that Appellant told the victim not to tell anyone
what had happened and that it was their secret also suggests that he knew what he was
doing was wrong. These appear to be reasonable determinations.
{¶30} The record also reveals that after the victim’s daughter spoke to police, she
received several calls from Appellant. When she finally answered his call, she asked him
if he took the victim’s phones. He responded that it was a mistake but that he planned to
return them the next day. Removing his grandmother’s phones would obviously hinder
her efforts to call for help. Further, it appears unlikely that a person would leave an almost
80-year-old woman who lives alone without a phone, particularly as Appellant lived not
far away and did not have a reason why he did not immediately return the phones. It is
hard to imagine that Appellant could accidentally take his grandmother’s home phone, as
she testified he was required to go into another room to get the phone. Testimony was
offered that Appellant did not call his aunt often. After the incident, he called her several
times over the course of a day until she finally answered, and it did not appear to his aunt
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that he had an obvious purpose for calling repeatedly other than to determine whether
she knew about the incident. This record supports the trial court’s decision that Appellant
knew his actions were wrong.
{¶31} Further, as stated by the trial court, Appellant’s expert witness relied on old
law in his testimony concerning irresistible impulses, which is no longer the standard in
Ohio. The witness also had difficulty explaining why he did not ask Appellant about the
incident when he claimed he had regained his memory of the day, first stating that he did
not want to agitate Appellant and then that he could not trust Appellant’s recollection. The
witness also discounted evidence that Appellant took his grandmother’s phones and
warned her not to tell anyone. Appellant’s witness also appeared to suggest that it was
impossible to ever tell if someone knew right from wrong at the time of their actions and
that information on this issue obtained from the subject afterward is necessarily tainted.
We cannot say from this record that the trial court erred in finding this witness’s testimony
not to be credible. As such, Appellant’s first assignment of error is without merit and is
overruled.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE
SENTENCES UPON THE APPELLANT CONTRARY TO LAW.
{¶32} While the state appears to interpret Appellant’s argument as an attack on
whether the trial court made the requisite R.C. 2929.14(C)(4) factors, it appears that
Appellant is actually arguing that the trial court failed to consider mitigating evidence
pertaining to his mental illness.
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{¶33} “[A]n appellate court may vacate or modify a felony sentence on appeal only
if it determines by clear and convincing evidence that the record does not support the trial
court's findings under relevant statutes or that the sentence is otherwise contrary to law.”
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1.
{¶34} “A sentence is considered to be clearly and convincingly contrary to law if it
falls outside of the statutory range for the particular degree of offense; if the trial court
failed to properly consider the purposes and principles of felony sentencing as
enumerated in R.C. 2929.11 and the seriousness and recidivism factors set forth in R.C.
2929.12; or if the trial court orders consecutive sentences and does not make the
necessary consecutive sentence findings.” State v. Pendland, 7th Dist. Mahoning No. 19
MA 0088, 2021-Ohio-1313, ¶ 41; citing State v. Collins, 7th Dist. Noble No. 15 NO 0429,
2017-Ohio-1264, ¶ 9; State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d
659, ¶ 30.
{¶35} The Ohio Supreme Court recently addressed review of felony sentences in
State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649. The Jones Court
clarified the standard of review for felony sentences that was previously announced in
Marcum. The Marcum Court held “that R.C. 2953.08(G)(2)(a) compels appellate courts
to modify or vacate sentences if they find by clear and convincing evidence that the record
does not support any relevant findings under ‘division (B) or (D) of section 2929.13,
division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the
Revised Code.’ ” Marcum, supra, ¶ 22. The Jones Court did not overrule Marcum but
clarified dicta to reflect that “[n]othing in R.C. 2953.08(G)(2) permits an appellate court to
independently weigh the evidence in the record and substitute its judgment for that of the
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trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and
2929.12.” Jones, supra, at ¶ 42.
{¶36} While the trial court in this matter made it abundantly clear that it does not
appreciate the requirement to convey certain advisements to a defendant and to make
certain findings on the record, the court did acknowledge Appellant’s mental illness.
However, because the judge found that Appellant knew right from wrong at the time of
his actions, the court was obligated to sentence him as any other individual who knows
right from wrong, regardless of his mental illness.
{¶37} We note that, “while mental health is a factor a trial court may consider when
imposing a sentence, it is not the only factor for a court to consider.” State v. Linzey, 7th
Dist. Mahoning No. 19 MA 0041, 2021-Ohio-1994, ¶ 27, appeal not allowed, 164 Ohio
St.3d 1433, 2021-Ohio-3091, 173 N.E.3d 514, ¶ 27; See State v. Bishop, 7th Dist.
Jefferson No. 18 JE 0005, 2019-Ohio-4963, ¶ 41 (evidence regarding drug addiction is a
factor that may be considered when determining a sentence but does not automatically
reduce a sentence.) Thus, while a trial court may consider mental illness, it is not required
to impose a lesser sentence based solely on this factor. Because Appellant’s sentence
is not contrary to law, Appellant’s second assignment of error is without merit and is
overruled.
Conclusion
{¶38} Appellant challenges his conviction, arguing that it is against the manifest
weight of the evidence as he believes he established the affirmative defense of not guilty
by reason of insanity. Appellant also challenges his sentence, arguing that it is contrary
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to law. For the reasons provided, Appellant’s arguments are without merit and the
judgment of the trial court is affirmed.
Donofrio, P.J., concurs.
Robb, J., concurs.
Case No. 21 MA 0066
[Cite as State v. Consiglio, 2022-Ohio-2340.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
JUDGE CHERYL L. WAITE
JUDGE GENE DONOFRIO
JUDGE CAROL ANN ROBB
NOTICE TO COUNSEL
This document constitutes a final judgment entry.