Mr. Corteggiano was on reasonable notice that his statement would probably reach the cashier.
State v. Corteggiano
2024 – Ohio – 1653
Eleventh District Appellate Court
Ashtabula County, Ohio
April 29, 2024
Bathmat Price Dispute
This testimony indicated that, on an unknown date, Mr. Dominic 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. Mr. Corteggiano reiterated that the bathmat was on sale, and the cashier responded that she would take the item and have the price checked. Mr. Corteggiano “got upset by it,” when the cashier took the item to her supervisor, and he left the self-checkout area. Mr. Corteggiano returned with a picture on his phone of the sale price displayed in the store and showed the picture to the cashier. Mr. 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.
Mr. Corteggiano became frustrated over the price of a bathmat at the Ashtabula Walmart at 3551 North Ridge Road, East, Ashtabula. This dispute led to an Aggravated Menacing charge, conviction and appeal. It remains unclear what the difference in price of the bathmat that cost much more in legal filing fees in this case.
[E]ver take anything out of my hands like that again, I’ll come back and chop your fucking hands off.
The supervisor testified that, when Mr. Corteggiano was walking past her, a few feet from where she stood, she heard him state “[E]ver take anything out of my hands like that again, I’ll come back and chop your fucking hands off.” The supervisor indicated that Mr. Corteggiano did not make the statement to her, nor did he appear to be speaking to anyone in particular. However, she clearly heard Mr. 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 Mr. 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.
Ever Wonder what Behavior Would Get Someone Banned from Walmart?
Wonder no more …
Mr. Corteggiano was charged with Aggravated Menacing, a first-degree misdemeanor, in violation of O.R.C. §2903.21. Mr. Corteggiano pleaded not guilty, and the case proceeded to bench trial. Following trial, the court found Mr. Corteggiano guilty and set the matter for sentencing. Thereafter, the court sentenced Mr. Corteggiano to a 90-day term of confinement, fully suspended, together with a fine, partially suspended. The court prohibited Mr. 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.
Appeal
Mr. Corteggiano filed an appeal.
Aggravated Menacing or Muttering?
After eliciting the above testimony, the state rested, and Mr. Corteggiano moved for acquittal pursuant to Crim.R. 29. The trial court overruled the motion. Thereafter, Mr. 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. Mr. 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.
Did Mr. Corteggiano have the mens rea of Knowingly?
On appeal, Mr. 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, Mr. 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 menacing conviction where defendant relayed disturbing thoughts she was having regarding a neighborhood child to mental health professional and police officer).
Reasonable Notice Doctrine
In State v. Nixon, 2014-Ohio-4303, 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.”. 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.”.
Court Determines Mr. Corteggiano was not Muttering
Here, Mr. 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, Mr. Corteggiano’s statement was made loud enough to be heard by the supervisor and the other customers in Mr. Corteggiano’s vicinity. Moreover, although the cashier could not decipher what was said, she could hear Mr. Corteggiano make a statement from several feet away with his back turned to her. Under these circumstances, Mr. Corteggiano was on reasonable notice that his statement would probably reach the cashier.
Accordingly, Mr. Corteggiano’s sole assigned error is without merit.
The judgment is affirmed.
Information for this article was obtained from State v. Corteggiano, 2024 – Ohio – 1653.
State v. Corteggiano, 2024 – Ohio – 1653 was issued by the Eleventh District Appellate Court on April 29, 2024 and is binding in the following Ohio Counties: Ashtabula, Geauga, Lake, Portage and Trumbull.
Lessons Learned:
- Muttering or Menacing? Rather than own his statement, Mr. Corteggiano made a feeble attempt to claim he was muttering to himself when he told the Walmart cashier “[E]ver take anything out of my hands like that again, I’ll come back and chop your fucking hands off.”. However, the legal challenge was that the Walmart cashier did not hear Mr. Corteggiano make the statement. Rather the Walmart supervisor heard the statement that was directed at the Walmart cashier. Did the lack of auditory reception by the Walmart cashier absolve Mr. Corteggiano from criminal responsibility? On September 30, 2014 the Eleventh District held that threats not directly heard by a corrections officers outside of earshot “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.”. This is the ‘Reasonable Notice’ Doctrine and was the basis for Mr. Corteggiano conviction being upheld.
- Reasonable Notice Doctrine – Though the court did not actually use the ‘Totality of the Circumstances’doctrine, the Reasonable Notice Doctrine is congruent as the court explained “ Corteggiano’s statement was made loud enough to be heard by the supervisor and the other customers in Mr. Corteggiano’s vicinity. Moreover, although the cashier could not decipher what was said, she could hear Mr. Corteggiano make a statement from several feet away with his back turned to her. Under these circumstances, Mr. Corteggiano was on reasonable notice that his statement would probably reach the cashier.”.
- Hardest Job In America – Often law enforcement must make decisions as to whether a person is muttering self-deprecation or actually making threats. The Reasonable Notice Doctrine is not based on whether the victim actually heard the threat but whether the vitriolic statement could have been heard. I also recognize the verbal and sometimes physical abuse business clerks suffer from simply doing their job. In this case, the unnamed Walmart cashier was simply making a price check on a bathmat [i.e. doing her job!] and is threatened to have her hands chopped off.
Does your agency train on Aggravated Menancing?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and objectively reasonable!