State v. Corteggiano ( 2024 )

[Cite as State v. Corteggiano, 2024-Ohio-1653.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2023-A-0065
CITY OF ASHTABULA,
Plaintiff-Appellee, Criminal Appeal from the
Municipal Court
- vs -
DOMINIC M. CORTEGGIANO, Trial Court No. 2022 CRB 00737
Defendant-Appellant.
OPINION
Decided: April 29, 2024
Judgment: Affirmed
Cecilia M. Cooper, Ashtabula City Solicitor, 110 West 44th Street, Ashtabula, OH 44004
(For Plaintiff-Appellee).
Margaret Brunarski, Ashtabula County Public Defender, and Michael J. Ledenko,
Assistant Public Defender, 22 East Jefferson Street, Jefferson, OH 44047 (For
Defendant-Appellant).
EUGENE A. LUCCI, P.J.
{¶1} Appellant, Dominic M. Corteggiano, appeals his conviction for aggravated
menacing. We affirm.
{¶2} In 2022, Corteggiano was charged with aggravated menacing, a first-
degree misdemeanor, in violation of R.C. 2903.21, following an incident at a Walmart self-
checkout station. Corteggiano pleaded not guilty, and the case proceeded to bench trial.
{¶3} Following trial, the court found Corteggiano guilty and set the matter for
sentencing. Thereafter, the court sentenced Corteggiano to a 90-day term of
confinement, fully suspended, together with a fine, partially suspended. The court
prohibited Corteggiano from visiting a Walmart for two years without written permission
and ordered him to perform 24 hours of community service, to complete certain conflict
resolution or anger management classes, to write a letter of apology to the victim, and to
commit no similar offenses for three years.
{¶4} Corteggiano noticed an appeal from the sentencing entry. In a judgment
entry issued by this court on March 21, 2024, we explained that the sentencing entry
failed to meet the requirements of a final appealable order. See State v. Lester, 130 Ohio
St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus; Crim.R.
32(C), and State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E. 2d 163, ¶ 17.
Accordingly, we issued a limited remand to the trial court to issue a new sentencing entry
that complied with the applicable finality criteria. The trial court issued a nunc pro tunc
sentencing entry on March 25, 2024. We now proceed to review Corteggiano’s sole
assigned error, which follows:
{¶5} “The trial court erred in denying Corteggiano’s motion for acquittal under
Criminal Rule 29 because the evidence viewed in light most favorable to the government
fails to prove the offense charged.”
{¶6} A motion for acquittal under Crim.R. 29 challenges the sufficiency of the
state’s evidence to sustain a conviction of the charged offense. The question of whether
sufficient evidence supports a conviction “is a test of adequacy,” which we review de
novo. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “In a
sufficiency-of-the-evidence inquiry, the question is whether the evidence presented, when
viewed in a light most favorable to the prosecution, would allow any rational trier of fact
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to find the essential elements of the crime beyond a reasonable doubt.” State v. Dent,
163 Ohio St.3d 390, 2020-Ohio-6670, 170 N.E.3d 816, ¶ 15; State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶7} Here, Corteggiano was charged with aggravated menacing, in violation of
R.C. 2903.21(A), which provides: “No person shall knowingly cause another to believe
that the offender will cause serious physical harm to the person * * *.” “A person acts
knowingly, regardless of purpose, when the person is aware that the person’s conduct
will probably cause a certain result or will probably be of a certain nature.” R.C. 2901.22.
{¶8} In support of the charge, at trial, the state presented the testimony of a
Walmart cashier and her supervisor. This testimony indicated that, on the date at issue,
Corteggiano used a self-checkout at Walmart to ring up a bathmat, and he informed the
cashier that the price displayed on the self-checkout was incorrect because the bathmat
was on sale. The cashier checked the price on her device, but it did not display a sale
price. Corteggiano reiterated that the bathmat was on sale, and the cashier responded
that she would take the item and have the price checked. Corteggiano “got upset by it,”
when the cashier took the item to her supervisor, and he left the self-checkout area.
Corteggiano returned with a picture on his phone of the sale price displayed in the store
and showed the picture to the cashier. Corteggiano then headed out of the store, facing
away from the cashier, and when he was several feet away, near her supervisor, the
cashier heard him make a statement, but she could not decipher what he had said. The
cashier testified that she has difficulty with her hearing, particularly when there is
substantial activity around her, such as in the self-checkout area.
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{¶9} The supervisor testified that, when Corteggiano was walking past her, a few
feet from where she stood, she heard him state “ever take anything out of my hands like
that again, I’ll come back and chop your fucking hands off.” The supervisor indicated that
Corteggiano did not make the statement to her, nor did he appear to be speaking to
anyone in particular. However, she clearly heard Corteggiano make this statement in an
angry and agitated way, loud enough to cause other customers in the self-checkout area
to turn toward him. The supervisor informed the cashier of the statement made by
Corteggiano. The cashier testified that, ever since the incident, she is startled by people
approaching her from behind and is always watching her surroundings and fearful that
something may happen.
{¶10} After eliciting the above testimony, the state rested, and Corteggiano moved
for acquittal pursuant to Crim.R. 29. The trial court overruled the motion. Thereafter,
Corteggiano testified on his own behalf. His testimony of the events at the store was fairly
consistent with the testimony of the state’s witnesses, except as to the alleged threat.
Corteggiano testified that, although he could not remember specifically what he said as
he was leaving the store, he recalled that he was muttering to himself, and he was not
addressing anyone in particular.
{¶11} On appeal, Corteggiano argues that the trial court erred in overruling his
Crim.R. 29 motion because the state failed to produce sufficient evidence that he
“knowingly” caused the cashier to believe he would cause her serious physical harm. In
support, Corteggiano maintains that the evidence established that he did not make the
statement to any particular person. See State v. Chmiel, 11th Dist. Lake No. 96-L-173,
1997 WL 663316, *1-2 (Sept. 26, 1997) (insufficient evidence to support aggravated
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menacing conviction where defendant relayed disturbing thoughts she was having
regarding a neighborhood child to mental health professional and police officer).
{¶12} In State v. Nixon, 2014-Ohio-4303, 20 N.E.3d 404, ¶ 4 (11th Dist.),
addressed by both parties in their briefs, this court affirmed an aggravated menacing
conviction of a jail inmate who made threatening statements to a third party regarding a
corrections officer. On appeal, the inmate maintained that his conviction lacked
“evidentiary support because he did not make threats directly to [the corrections officer]
or a member of the officer’s family.” Id. at ¶ 16. However, this court concluded that, given
the evidence that the inmate made the threats during calls that he knew were recorded
and monitored and made one threat on a phone that was in close proximity to the
correction officer’s desk, the threats “were made under circumstances that placed
appellant on reasonable notice that his threats would probably reach [the correction
officer] or his family and cause these individuals to believe appellant would cause them
serious physical harm.” Id. at ¶ 18 (distinguishing Chmiel and State v. Richard, 129 Ohio
App.3d 556, 718 N.E.2d 508 (7th Dist.1998)).
{¶13} Here, Corteggiano maintains that the evidence established that he did not
make the statement to any particular person or with the type of notice present in Nixon
that his statement would be relayed to the target of the statement. However, when
viewing the evidence in the light most favorable to the state, Corteggiano’s statement was
made loud enough to be heard by the supervisor and the other customers in
Corteggiano’s vicinity. Moreover, although the cashier could not decipher what was said,
she could hear Corteggiano make a statement from several feet away with his back turned
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to her. Under these circumstances, Corteggiano was on reasonable notice that his
statement would probably reach the cashier.
{¶14} Accordingly, Corteggiano’s sole assigned error is without merit.
{¶15} The judgment is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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