State v. Muldrew

2018 Ohio 4883

• Court: Ohio Court of Appeals
• Decided: December 7, 2018
• Docket: 27901
• Status: Published

Opinion

[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. -2-

{¶ 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, -3-

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 -4-

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 -5-

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. -6-

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 -7-

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. -8-

{¶ 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. -9-

{¶ 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 -10-

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. -11-

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. -12-

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. -13-

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 -14-

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 -15-

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 -16-

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. -17-

***

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 -18-

“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, -19-

“[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.