[Cite as State v. DeBartolo, 2012-Ohio-3449.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 97453 

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

MICHAEL DEBARTOLO

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-539648 

BEFORE: Rocco, J., Cooney, P.J., and S. Gallagher, J. 

RELEASED AND JOURNALIZED: August 2, 2012 

-i-
ATTORNEYS FOR APPELLANT

Robert L. Tobik 

Cuyahoga County Public Defender 

By: Cullen Sweeney 

Assistant Public Defender 

310 Lakeside Avenue 

Suite 200 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

By: Brett Kyker 

 Mollie Ann Murphy 

Assistant Prosecuting Attorneys 

The Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 

KENNETH A. ROCCO, J.: 

{¶1} Defendant-appellant Michael DeBartolo appeals from his 

convictions after a jury found him guilty of involuntary manslaughter, failure 

to provide for a functionally impaired person, and theft. 

{¶2} DeBartolo presents seven assignments of error. In his first, 

second, and third, he challenges the sufficiency of the evidence presented by 

the state to support each of his convictions. In his fourth, he claims the 
manifest weight of the evidence does not support his convictions. In his fifth, 

sixth, and seventh assignments of error, he asserts the trial court abused its 

discretion in making the following evidentiary rulings: (1) permitting the 

coroner and the coroner’s deputy to testify about how they arrived at their 

opinion on the cause of the victim’s death, (2) refusing to allow evidence that 

the victim gave DeBartolo her durable power of attorney (“POA”), and (3) 

permitting certain portions of the handwriting expert’s testimony. 

{¶3} After a thorough review of the extensive record in this case, this 

court cannot find that DeBartolo’s convictions were unsupported by either 

insufficient evidence or the manifest weight of the evidence, and cannot 

declare that the trial court abused its discretion with respect to evidentiary 

decisions. Consequently, DeBartolo’s convictions are affirmed. 

{¶4} DeBartolo’s convictions result from his relationship with the 

victim, Tressa Elizabeth Carnegie. The victim was 83 years old at the time 

of her death in May 2008. The following facts were established by the 

evidence the state presented. 

{¶5} The victim met DeBartolo over twenty years prior to her death at 

one of the places at which she was employed during her working career. 

DeBartolo lived in the same Lakewood, Ohio apartment building as the 

victim and began providing transportation to the victim when she stopped 
driving. By 2003, DeBartolo accompanied the victim nearly everywhere she 

went. 

{¶6} The victim had a married brother with whom she was not close 

and only one niece, Christine Fichter. Although the victim enjoyed her 

niece’s company and had a few close friends, she had no husband or children 

of her own. 

{¶7} In August 2004, DeBartolo moved with his roommate, Steven 

Kerr, to another apartment building in Lakewood. The two men leased a 

two-bedroom apartment on the top floor of the building that cost $1,450.00 a 

month to rent. Neither man, however, seemed to have outside employment, 

and neither filed a tax return for that year and the years that followed. 

{¶8} Shortly after DeBartolo moved, he convinced the victim to move 

into a one-bedroom apartment next door to DeBartolo’s apartment. After the 

move, one of the victim’s close friends, Patricia Kunkel, no longer saw the 

victim and was unable to contact her. In the summer of 2005, Kunkel 

received telephone messages from the victim that raised enough concern for 

Kunkel to contact the Cuyahoga County Department of Adult Protective 

Services (“APS”) and to make a report of possible neglect and/or abuse of the 

victim. 

{¶9} In order to investigate the report, Charlene Nichols, an APS social 

worker, went to the victim’s apartment without providing notice on August 
15, 2005. DeBartolo answered the victim’s door. He refused admittance to 

Nichols, but the victim came out into the hallway to speak briefly with the 

social worker. Nichols arranged another visit to take place two weeks later 

on August 30. 

{¶10} A few days after her unannounced visit, Nichols received a letter 

apparently signed by the victim. The letter was dated “August 16, 2005,” 

and indicated that Kunkel was harassing the victim by filing the APS report 

and that the victim had demanded of Kunkel a stop to the harassment. 

{¶11} When Nichols arrived for the August 30, 2005 scheduled visit to 

the victim’s apartment, no one answered the door. Moreover, Nichols’s 

supervisor received a letter dated “August 30, 2005,” apparently from the 

victim, that informed APS that she did not want its services. Nichols and 

another supervisor nevertheless went once more to the victim’s apartment on 

September 2, 2005. DeBartolo answered the door. Upon seeing them, he 

immediately slammed it shut. 

{¶12} Nichols then sent the victim a certified letter notifying her that 

another visit would occur on September 30, 2005. Once again on that date, 

Nichols was unable to obtain any response at the victim’s door or by 

telephoning the victim. This state of affairs prompted Nichols to obtain an 

order from the probate court for admittance to the victim’s apartment. The 

visit took place on November 2, 2005 with the victim, her attorney, and 
DeBartolo present. Thereafter, Nichols closed the victim’s APS file with the 

notation that the report of neglect and/or abuse remained “unclear.” 

{¶13} The victim held several bank accounts; she had an Individual 

Retirement Account (“IRA”) with Morgan Stanley that she opened in 1992 

and two checking accounts with KeyBank. Between October 2003 and May 

2005, several checks were written from the KeyBank accounts payable to 

Kerr. Beginning in May 2006, several checks were written that were 

payable to DeBartolo and that bore a notation that they were for a “loan 

repayment.” 

{¶14} By 2007, the victim had developed a medical condition that 

caused her to have small seizures during which she could not control the 

movements of her limbs. She also had heart disease and used a wheelchair 

for mobility. On June 24, 2007, one of her physicians prescribed the 

anti-epileptic medication known as Dilantin for her and recommended that 

she remain on it for at least one year. 

{¶15} Despite her medical conditions, the victim continued to 

communicate with and to visit Fichter. DeBartolo always drove the victim to 

Fichter’s house for these visits; Fichter never went to the victim’s new 

apartment. 

{¶16} During the summer of 2007, Fichter began to notice changes in 

the victim’s routine. Telephone calls between the two of them seemed to be 
monitored by DeBartolo, who made comments “in the background” that 

Fichter could hear. DeBartolo always remained within sight of the victim 

even when she attended a wedding shower with only other women present. 

The victim stopped visiting Fichter’s home; DeBartolo indicated part of the 

reason for this was because the victim occasionally was incontinent. In 

September 2007, although the victim attended Fichter’s daughter’s wedding, 

the victim seemed “very tired.” 

{¶17} That same month, Jennifer Kravec, the leasing agent for the 

victim’s apartment building, noticed the victim “curled up” in her chair out of 

sight in the building’s party room. The victim was “disheveled” and “crying.” 

 Kravec spoke with the victim for only a few minutes before DeBartolo 

appeared to “retrieve” her. Kravec thought he seemed hurried and 

“irritated.” Kravec reported concerns about the victim to the APS. 

{¶18} APS social worker Thomas Scully investigated Kravec’s concerns. 

 Scully presented himself at the victim’s door on September 17, 2007. 

DeBartolo answered, identified himself as the victim’s “caregiver,” and 

expressed reservations about permitting Scully to be inside “alone” with the 

victim. Scully deferred to DeBartolo by meeting with the victim in the 

hallway. Scully arranged another visit to take place on September 25, 2007. 

{¶19} On that date, DeBartolo permitted Scully inside the victim’s 

apartment. The victim was having tea. She appeared well-groomed, the 
apartment was neat, and DeBartolo produced an appointment book and a list 

of the victim’s medications for Scully’s review. 

{¶20} On October 11, 2007, Scully returned to the victim’s apartment 

unannounced. Once again, he could not enter; the victim came into the 

hallway to speak with him. Scully determined the concerns about the victim 

were “not validated.” 

{¶21} On November 19, 2007, the victim met with a new primary care 

physician, Dr. Matthew Faiman, for an initial assessment. DeBartolo 

remained in the same room with the victim during the entire visit. Faiman 

reviewed the victim’s medical records, and agreed with her previous doctor 

that she should continue taking Dilantin. Faiman also noted that the victim 

took 14 other medications, had a medical history that included, in addition to 

cerebrovascular seizure disorder, heart disease, hypertension, and 

gastrointestinal problems, used a wheelchair, and may have had “mild 

cognitive impairment.” 

{¶22} On December 12, 2007, DeBartolo brought the victim to Faiman’s 

office for treatment of a urinary tract infection (“UTI”). Faiman prescribed 

oral antibiotics. In January 2008, DeBartolo called Faiman’s office on the 

victim’s behalf to report that she was again experiencing the symptoms of a 

UTI. Based on DeBartolo’s representation, Faiman prescribed oral 

antibiotics to treat the infection without requiring an office visit. 
{¶23} In late January 2008, the victim called Fichter for the last time. 

The tone of the conversation was “very serious.” Fichter’s efforts to reach the 

victim by telephone thereafter proved unsuccessful. 

{¶24} In February 2008, Fichter left a message on the victim’s 

answering machine stating she would call the police if she did not reach 

someone. DeBartolo called in response to this message; he told Fichter that 

the victim had fallen on Valentine’s Day, injuring her ribs, but that he would 

bring her to Fichter’s house for a visit. 

{¶25} The visit occurred in March 2008 in Fichter’s driveway. The 

victim remained in DeBartolo’s car as Fichter took DeBartolo’s place in the 

driver’s seat; the victim was “slumped,” appeared to be in pain, and wanted 

only to go home. 

{¶26} At around this time, DeBartolo called Dr. Faiman’s office to 

request medication for the victim for “restlessness”; he did not indicate that 

the victim had suffered injury in a fall. DeBartolo was informed that 

Faiman would need to see the victim and was offered an appointment, but 

DeBartolo indicated that the time was inconvenient and that he would call 

back. 

{¶27} On April 11, 2008, DeBartolo called Dr. Faiman’s office at 9:26 

a.m. and spoke with registered nurse Theresa Fenohr. DeBartolo reported 

that the victim’s left leg had been “blue” for “a week,” so she needed an office 
appointment. In describing the problem, DeBartolo denied that the victim 

had suffered any injury to her leg that would account for the condition. 

{¶28} Fenohr told DeBartolo that the condition sounded life 

threatening and that he should obtain immediate emergency treatment for 

the victim. DeBartolo disagreed; his response was that the victim probably 

had only either “phlebitis” or “a clot” and did not need emergency care. 

Fenohr indicated those conditions also were life threatening. By the end of 

the conversation, Fenohr believed she had persuaded DeBartolo that the 

situation was extremely serious. 

{¶29} That same day, at approximately 11:00 a.m., as Linda Schwering 

cleaned on the top floor of the victim’s apartment building, she noticed the 

victim’s door stood open. Schwering looked in to see DeBartolo holding up 

the victim under her shoulders. To Schwering, the victim “looked like a rag 

doll”; she was limp and insensible. DeBartolo saw Schwering and told her 

the victim wasn’t “having a good day.” 

{¶30} Schwering finished her duties and proceeded to the building 

office, where she watched the surveillance cameras’ monitors. At 11:20 a.m., 

she saw DeBartolo, accompanied by Kerr, pushing the victim in her 

wheelchair out of the elevator into the garage. The victim was wearing a hat 

and was “slumped over.” DeBartolo transferred her into his car, Kerr 
returned with the victim’s wheelchair to the elevator, and DeBartolo drove 

away. 

{¶31} The victim arrived at the Cleveland Clinic (the “Clinic”) 

Emergency Department at 11:57 a.m. that morning. Michael Surratt, the 

nurse who attended her, found her vital signs upon arrival were “so low that 

everything had to be supported.” The victim was “critically ill” and verbally 

unresponsive. 

{¶32} The victim’s initial diagnoses consisted of “septic shock, 

presumed urosepsis, respiratory failure, seizures, and acute renal failure.” 

She was placed on a ventilator, X-rays were obtained of her legs and torso, 

and, on April 12, 2008, she was admitted to the intensive care unit. 

{¶33} Dr. Jorge Guzman, the Clinic’s intensive care physician, oversaw 

the victim’s treatment from April 11, 2008 until May 2, 2008. He agreed 

with the initial diagnoses of seizure, septic shock, urosepsis, respiratory 

failure, and acute renal failure. Guzman never saw the victim conscious. 

{¶34} On April 14, 2008, Clinic social worker Mary Beth Hyland 

received an assignment to the victim’s case. DeBartolo’s name appeared as 

the victim’s “emergency contact” in her medical records, so Hyland telephoned 

DeBartolo to ask some questions. DeBartolo told Hyland that the victim was 

“almost in assisted living” because of the extent of the care he provided. He 

indicated that he cooked all her meals and helped her to dress. Hyland 
requested that he provide his medical POA for the victim, and arranged to 

meet him in the victim’s room on April 16, 2008. 

{¶35} Upon DeBartolo’s arrival at the victim’s bedside, he did not 

provide the medical POA. Hyland demanded explanations for the 

“scratches” and bruises on the victim’s body. Although DeBartolo asserted 

the victim must have been “scratching herself,” he could not explain the 

bruises. He stated that he was the victim’s caregiver, that he and “the 

couple people working for him” in his real estate business cared for her so she 

was never alone, that he placed a “baby monitor” in her room so he could 

always hear her, and that he made sure her “spiritual needs” were met. 

{¶36} Hyland continued to have contact with DeBartolo, and his 

statements proved so odd and unsatisfying as to lead Hyland to make a report 

about his possible exploitation or neglect of the victim to the APS. Shortly 

thereafter, she was removed from the victim’s case. 

{¶37} On April 23, 2008, as a result of Hyland’s report, APS social 

worker Vanessa Anderson contacted DeBartolo. In response to her 

questions, DeBartolo claimed that he took the victim to the Clinic because he 

had noticed her leg was discolored “the day before,” the victim was “alert” 

prior to the trip to the Clinic on April 11, she “determin[ed] what bracelet 

would go with her necklace” before they left, and she suffered a seizure on the 

way. 
{¶38} On April 24, 2008, Clinic social worker Terrance Roncagli was 

assigned to the victim’s case. Roncagli noted that the medical POA that 

DeBartolo had produced for the victim bore no notary seal. Roncagli 

arranged a “patient care conference” with DeBartolo to obtain information. 

{¶39} At the meeting, DeBartolo stated that he was the victim’s 

“nephew, that his mother was the [victim’s] sister.” He further stated that 

he was the victim’s caregiver. Several times during the meeting, DeBartolo 

expressed “rage” at what he saw as Hyland’s interference. 

{¶40} When Roncagli brought up the subject of the victim’s medications 

before her hospitalization, DeBartolo “expressed doubt” that her doctors had 

properly diagnosed her medical conditions. Moreover, DeBartolo gave his 

own “medical opinions” about the victim’s conditions and stated he “read 

somewhere” that she would do better if she were “off of” Dilantin. He told 

Roncagli that he had stopped giving Dilantin to the victim on December 24, 

2007. 

{¶41} On April 30, 2008, Anderson reported her concerns about the 

victim to the Lakewood Police Department. Det. James Motylewski 

eventually was assigned to investigate the case. 

{¶42} On May 2, 2008, the Clinic discharged the victim and transferred 

her to a long-term care facility located at Fairview Hospital. DeBartolo 

arranged to drive Fichter and her daughter there for a visit. 
{¶43} On the way to the hospital, DeBartolo handed Fichter an 

envelope that contained documents she had never previously seen. One was 

entitled “Last Will and Testament” of the victim and dated July 31, 2003; it 

indicated DeBartolo was her sole beneficiary. Another was entitled 

“Agreement” and dated October 28, 2005; it indicated that DeBartolo loaned 

the victim $130,000.00 in 1988 for the purchase of a condominium. 

{¶44} On May 14, 2008, the victim died. Dr. Erica Armstrong 

performed an autopsy on the victim’s body the following day. Based on her 

examination and review of the medical records and reports she received, 

Armstrong determined the cause of death was sepsis with respiratory and 

renal failures due to infection. Armstrong determined the manner of death 

as homicide. 

{¶45} On that basis, Motylewski’s investigation of the APS report on 

the victim became a homicide investigation. Motylewski learned from 

another witness that the rent for the victim’s apartment remained current. 

On July 3, 2008, he executed a search warrant of the victim’s apartment. 

{¶46} Upon entry, Motylewski observed clothing and other indications 

that the apartment was in use by a man. Motylewski recovered several 

pieces of mail addressed to DeBartolo and Kerr. 

{¶47} The legal documents Motylewski recovered as a result of the 

search consisted of a living will and a durable POA, both signed by the victim 
dated 1997, and both appointing her brother as her representative. 

Motylewski noted the presence of several unopened and out-of-date bank 

statements addressed to the victim at her former apartment; the only current 

statements were from credit card companies that were addressed to “T. E. 

Carnegie” at the victim’s most recent address. 

{¶48} Motylewski also recovered an appointment book in which only 

the months of Scully’s APS investigation had several entries. Motylewski 

found no prescription bottles bearing the victim’s name that were dated after 

2002. 

{¶49} Thereafter, Motylewski continued his investigation of the 

victim’s death by contacting banking institutions, medical personnel, social 

workers, and friends and family. On August 31, 2010, DeBartolo ultimately 

was indicted with Kerr in this case on four counts, viz., one count of 

involuntary manslaughter, two counts of failure to provide for a functionally 

impaired person, and one count of theft. The state dismissed one count of 

failure to provide for a functionally impaired person prior to trial. 

{¶50} After considering all of the evidence, the jury found DeBartolo 

guilty on each of the three remaining counts. DeBartolo received a prison 

sentence that totaled three years for his convictions. He presents seven 

assignments of error in this appeal, as follow; they will be addressed together 

when appropriate. 
“I. Michael DeBartolo’s conviction for failure to provide for a 

functionally impaired person is not supported by legally sufficient 

evidence as required by state and federal due process. 

“II. Michael DeBartolo’s conviction for involuntary 

manslaughter is not supported by legally sufficient evidence as 

required by state and federal due process. 

“III. Michael DeBartolo’s conviction for theft of property in 

excess of $25,000 is not supported by legally sufficient evidence as 

required by state and federal due process. 

“IV. Michael DeBartolo’s convictions are against the manifest 

weight of the evidence. 

“V. The trial court erred in permitting the deputy coroner and 

coroner to opine that Elizabeth Carnegie’s death was a homicide 

when that opinion was not based on facts or data perceived by the 

expert or admitted in evidence at trial. 

“VI. The trial court erred in failing to admit Elizabeth 

Carnegie’s durable power of attorney and in failing to permit 

Amanda Winters to testify about Carnegie’s statements to her about 

the power of attorney. 

“VII. The trial court erred and violated DeBartolo’s due 

process rights by permitting the state to present opinion testimony 
from a handwriting expert that went beyond her expertise and that 

had minimal probative value that was substantially outweighed by 

the danger of unfair prejudice and misleading the jury.”

{¶51} Because DeBartolo’s fifth, sixth, and seventh assignments of 

error all present challenges to the admissibility of evidence, they will be 

addressed prior to his first four assignments of error, each of which 

challenges the sufficiency and manifest weight of the evidence presented in 

support of his convictions. 

{¶52} In addressing DeBartolo’s fifth, sixth, and seventh assignments 

of error, this court is guided by the appropriate analysis of the issue he 

presents. The Ohio Supreme Court set forth that analysis in Rigby v. Lake 

Cty., 58 Ohio St.3d 269, 569 N.E.2d 1056 (1991), as follows: 

Ordinarily, a trial court is vested with broad discretion in 

determining the admissibility of evidence in any particular case, 

so long as such discretion is exercised in line with the rules of 

procedure and evidence. The admission of relevant evidence 

pursuant to Evid.R. 401 rests within the sound discretion of the 

trial court. E.g., State v. Sage (1987), 31 Ohio St.3d 173, 31 OBR 

375, 510 N.E.2d 343, paragraph two of the syllabus. An 

appellate court which reviews the trial court’s admission or 

exclusion of evidence must limit its review to whether the lower 

court abused its discretion. State v. Finnerty (1989), 45 Ohio 

St.3d 104, 107, 543 N.E.2d 1233, 1237. As this court has noted 

many times, the term “abuse of discretion” connotes more than an 

error of law; it implies that the court acted unreasonably, 

arbitrarily or unconscionably. E.g., Blakemore v. Blakemore 

(1983), 5 Ohio St.3d 217, 219, 5 OBR 481, 482, 450 N.E.2d 1140, 

1142. 
{¶53} DeBartolo first claims that the trial court abused its discretion 

when it permitted the coroner and his assistant to explain their reason for a 

verdict of homicide as the manner of the victim’s death, because that 

conclusion was based in part on information gained outside the autopsy itself. 

 He claims the testimony violated Evid.R. 703. His claim lacks merit. 

{¶54} R.C. 313.12 places the coroner under a statutory duty to 

investigate an unusual death. Pursuant to R.C. 313.17, the coroner’s report 

with respect to such a death “shall be made from the personal observation by 

the coroner or his deputy of the corpse, from the statements of relatives or 

other persons having any knowledge of the facts, and from such other sources 

of information as are available, or from the autopsy.” (Emphasis added.) 

{¶55} Thus, the coroner also is placed under a statutory duty to 

examine any information relating to the death that is available, including 

police and APS reports and witness statements. In State v. Jacks, 63 Ohio 

App.3d 200, 578 N.E.2d 512 (8th Dist. 1989), this court noted: 

It is well established that a coroner testifies as an expert 

witness to assist the jury in determining the cause of death. 

Vargo v. Travelers Ins. Co. (1987), 34 Ohio St.3d 27, 30, 516 

N.E.2d 226, 229; Evid.R. 702. * * * . See, also, R.C. 313.19. 

Further, the coroner’s conclusion “as to the cause of death and the 

manner and mode in which the death occurred is entitled to much 

weight.” State v. Manago (1974), 38 Ohio St.2d 223, 227, 67 

O.O.2d 291, 293, 313 N.E.2d 10, 13. (Emphasis added.) 
{¶56} From the foregoing, the trial court properly determined that 

the coroners’ testimony was admissible; Evid.R. 703 states that the “facts or 

data” upon which an expert witness “bases an opinion or inference may be 

those perceived by the expert or admitted in evidence.” (Emphasis added.) 

The rule does not require the facts or data to be admitted into evidence. 

{¶57} In this case, as in Jacks, the coroners both opined the death was 

a homicide, and provided the jury with the reasons for their determination. 

State v. Heinish, 50 Ohio St.3d 231, 553 N.E.2d 1026 (1990); State v. Cohen, 

11th Dist. No. 12-011, 1988 WL 41545. The defense was free to offer 

evidence to rebut the coroner’s testimony, and, in fact, it did. Vargo. 

{¶58} Based on the foregoing, the trial court neither violated Evid.R. 

703 nor abused its discretion when permitting the coroners to testify as to 

their opinion of the manner of the victim’s death based, in part, upon 

sources outside the autopsy itself. State ex rel. Blair v. Balraj, 69 Ohio St.3d 

310, 631 N.E.2d 1044 (1994). 

{¶59} DeBartolo also argues that the trial court abused its discretion in 

excluding testimony and a defense exhibit that would have shown that the 

victim gave DeBartolo her durable POA. A review of the record fails to 

support his argument. 

{¶60} As to the defense witness, Amanda Winters, the testimony she 

was prepared to give constituted hearsay in contravention of Evid.R. 802. 
“Hearsay” is defined in Evid.R. 801(C) as “a statement, other than one made 

by the declarant while testifying at the trial * * * offered in evidence to prove 

the truth of the matter asserted.” 

{¶61} By recounting a conversation Winters had with the victim, 

Winters sought to prove that, to Winters’s understanding, the victim gave 

DeBartolo her durable POA. Because this testimony was inadmissible, the 

trial court properly excluded it. 

{¶62} As to the document, the trial court determined that Winters 

could not authenticate it as required by Evid.R. 901(A). Moreover, the record 

reflects the defense actually did not seek to introduce this document as an 

exhibit; it was proffered only to show that one of the potential defense 

witnesses had died by the time the state indicted DeBartolo. Therefore, the 

trial court did not abuse its discretion in excluding this evidence. 

{¶63} DeBartolo further claims that the trial court abused its 

discretion in permitting state’s witness Jessica Toms, who was qualified as a 

handwriting expert, to opine that some of the documents she reviewed 

contained what appeared to be attempts to copy the victim’s signature. 

DeBartolo complains that Toms’s opinion in this regard did not constitute a 

“recognized scientific conclusion.” However, as authority for his claims, he 

cites only Evid.R. 403. 
{¶64} Evid.R. 705 provides that an expert “may testify in terms of an 

opinion or inference and give the expert’s reasons therefor after disclosure of 

the underlying facts or data.” Because a review of the challenged testimony 

reveals compliance with the foregoing rule, the trial court committed no 

abuse of its discretion in permitting Toms to explain her conclusion. 

{¶65} DeBartolo’s fifth, sixth, and seventh assignments of error, 

accordingly, are overruled. 

{¶66} In his first, second, and third assignments of error, DeBartolo 

argues that none of his three convictions was supported by sufficient 

evidence, so the trial court improperly denied his motions for acquittal of the 

charges. He asserts in his fourth assignment of error that all of his 

convictions are unsupported by the manifest weight of the evidence. 

{¶67} When reviewing the sufficiency of the evidence to support a 

criminal conviction, an appellate court examines the evidence admitted at 

trial to determine whether such evidence, if believed, would convince the 

average mind of the defendant’s guilt beyond a reasonable doubt. State v. 

Bridgeman, 55 Ohio St.2d 261, 381 N.E.2d 184 (1978). The relevant inquiry 

is whether, after viewing the evidence in a light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements 

of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. Whether the 
evidence is legally sufficient to sustain a verdict is a question of law. State v. 

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). 

{¶68} In evaluating a challenge to the verdict based on the manifest 

weight of the evidence, on the other hand, a court sits as the “thirteenth 

juror,” and intrudes its judgment into proceedings only that it finds to be 

fatally flawed through misapplication of the evidence by a jury that has “lost 

its way.” Id. As the Ohio Supreme Court stated: 

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. It indicates clearly to the jury that the party having the 

burden of proof will be entitled to their verdict, if, on weighing the evidence in 

their minds, they shall find the greater amount of credible evidence sustains 

the issue which is to be established before them. Weight is not a question of 

mathematics, but depends on its effect in inducing belief.” * * * 

The court, reviewing 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 and a new trial ordered. The discretionary power to grant a new 

trial should be exercised only in the exceptional case in which the evidence 

weighs heavily against the conviction. Id.

{¶69} In State v. Bruno, 8th Dist. No. 84883, 2005-Ohio-1862, this court cautioned 

that a reviewing court must be mindful that the weight of the evidence and the credibility 

of witnesses are matters primarily for the trier of fact to assess. Therefore, a reviewing 
court will not reverse a verdict where the trier of fact could reasonably conclude from 

substantial evidence that the prosecution proved the offense beyond a reasonable doubt. 

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus; 

State v. Eley, 56 Ohio St.2d 169, 383 N.E.2d 132 (1978). Moreover, in reviewing a claim 

that a conviction is against the manifest weight of the evidence, the conviction cannot be 

reversed unless it is obvious that the trier of fact clearly lost its way and created such a 

manifest miscarriage of justice that the conviction must be reversed and a new trial 

ordered. State v. Garrow, 103 Ohio App.3d 368, 370-371, 659 N.E.2d 814 (4th Dist.1995). 

{¶70} DeBartolo was convicted in Count 3 of violating R.C. 2903.16, failing to 

provide for a functionally impaired person. The relevant portion states: 

(B) No caretaker shall recklessly fail to provide a functionally impaired 

person under the caretaker’s care with any treatment, care, goods, or service 

that is necessary to maintain the health or safety of the functionally impaired 

person when this failure results in serious physical harm to the functionally 

impaired person. 

{¶71} Thus, the state’s evidence had to show: (1) the victim was a functionally 

impaired individual, (2) DeBartolo was a caretaker for the victim, (3) DeBartolo recklessly 

failed to provide the victim with treatment or care necessary to maintain her health or 

safety, and (4) this failure resulted in serious physical harm to the victim. State v. 

Davis, 9th Dist. No. 21794, 2004-Ohio-3246, ¶27. Although DeBartolo argues that the 
state did not meet its burden with respect to these necessary elements, when viewed in a 

light most favorable to the state, his argument fails. 

{¶72} Fichter testified that, by September 2007, the victim had 

suffered a heart attack, could neither drive nor ambulate, DeBartolo drove 

the victim everywhere, and the victim suffered from an illness that made her 

lose control of her limbs. Margaret Lucko indicated that, by September 

2007, the victim could not go to the bathroom by herself. Armstrong testified 

that, during the autopsy of the victim’s body, she observed in analyzing the 

victim’s brain a significant amount of atrophy that suggested the victim had 

dementia. 

{¶73} DeBartolo indicated to Hyland that, prior to the victim’s 

hospitalization, she required constant monitoring. DeBartolo also told 

Hyland that, in his care, the victim for all intents and purposes was “in 

assisted living.” 

{¶74} DeBartolo described himself to Scully, Roncagli, and other Clinic 

personnel as the victim’s caregiver. Many of the witnesses who knew the 

victim prior to her hospitalization had not seen the victim without DeBartolo 

in attendance. 

{¶75} DeBartolo indicated to both Dr. Faiman and Roncagli that he 

made medical decisions for the victim, and that he believed she did not 

require Dilantin. DeBartolo told the Clinic’s emergency personnel that the 
victim stopped taking Dilantin in December 24, 2007. Armstrong testified 

that when the victim arrived at the emergency room, she had a 

“subtherapeutic” level of Dilantin in her blood. Therefore, the victim would 

have continued to suffer seizures. DeBartolo told the Clinic’s emergency 

room personnel that the victim suffered a seizure on the drive to the hospital; 

when the victim arrived, she was already in a medically critical condition. 

{¶76} DeBartolo called Dr. Faiman’s office in January 2008 to request 

additional medication for the victim for a UTI that she apparently could not 

overcome. In light of the victim’s incontinence, she was prone to such an 

infection. 

{¶77} DeBartolo also called Dr. Faiman’s office on the morning of April 

11, 2008; he told the nurse that the victim’s leg had been “blue” for “a week,” 

thereby indicating that he did not believe the condition required his prompt 

attention, in spite of the victim’s history of vascular problems. Added to 

that, despite Fenohr’s urging to get medical attention for the victim 

“immediately,” DeBartolo waited a few hours before he drove the victim to the 

emergency room. 

{¶78} When Schwering saw the victim at 11:00 a.m., she was already 

barely conscious. Even when the victim was in this condition, DeBartolo did 

not summon an ambulance, rather, he decided to drive the victim to the 
Clinic. Indeed, before they left the building, DeBartolo made sure the victim 

was nicely dressed and wearing a hat. 

{¶79} Based upon the evidence, the trial court properly denied 

DeBartolo’s motion for acquittal on the charge of failure to provide for a 

functionally impaired person. Davis, 9th Dist. No. 21794, 2004-Ohio-3246. 

{¶80} Similarly, the state’s evidence was sufficient to prove DeBartolo’s 

failure to provide medical care for the victim led to her death, as required for 

a conviction for involuntary manslaughter. 

{¶81} According to both the coroner and his assistant, the victim’s 

cause of death was “psuedomonas aeruginosa sepsis with acute respiratory 

failure and acute renal failure due to pseudmonas aeruginosa wound 

infection.” The coroner specifically testified that medical conditions the 

victim had on April 10, 2008, contributed to her death, including the “seizure 

disorder, urosepsis, and hypertensive atheroschlerotic cardiovascular 

disease.” 

{¶82} Simply put, the coroner indicated that, by April 11, 2008, the 

bacteria that caused the UTI had spread in the victim’s system, and that, 

because her pre-existing diseases compromised her resistance, her body 

succumbed to septic shock, which ultimately led to her death. DeBartolo, 

who by his own admission made medical decisions for the victim, nevertheless 
thought it unnecessary to take the victim to see a physician after her last 

appointment in December 2007. 

{¶83} DeBartolo also asserts that the trial court erred in denying his 

motion for acquittal on the theft charge. He contends that the notations on 

the victim’s checks demonstrated she owed him money for a loan on her 

purchase of a condominium, and that no evidence indicated he obtained 

money “beyond the scope of the express or implied consent” of the victim, as 

required by R.C. 2913.02(A)(2). This court disagrees. 

{¶84} In a letter written to Fichter’s relatives dated June 27, 2008, 

DeBartolo stated, “Despite an allegation by [Fichter] that [the victim] owns or 

owned a condominium, she has never owned one at any time. * * * [The 

victim] has no equity * * * in any real estate.” (Emphasis added.) 

Moreover, many checks were written on the victim’s checking accounts that 

were signed with her name and dated while she was in the Clinic in a 

comatose state. 

{¶85} DeBartolo states in his appellate brief that “given that [he] 

helped [the victim] manage her affairs, it would be quite normal for him to 

have access to pay her bills and other expenses.” The evidence presented by 

the state, however, showed DeBartolo’s access exceeded the “normal.” 

{¶86} According to the bank records, beginning in July 2007, ATM 

withdrawals in $100 to $300 amounts were made from the victim’s checking 
account two or three times per week. This activity continued after DeBartolo 

took the victim to the hospital. It also occurred after the victim’s death. 

DeBartolo had the victim’s unopened bank statements in his apartment. 

{¶87} Moreover, on May 2, 2008, the victim, who had been unconscious 

since April 11, was transferred into a long-term care facility. On May 9, 

2008, the institution holding the victim’s (“IRA”) received a form that was 

purportedly from the victim because it bore the signature “T. E. Carnegie.” 

The form was dated “May 8, 2008.” 

{¶88} This document directed that the victim’s IRA account was to be 

closed and that the balance of $15,000 be distributed to her in the form of an 

check. The institution complied. On May 29, 2008, that same sum was 

deposited into a new account that had been opened at Fifth Third Bank on 

May 10, 2008 under the name “Carnegie DeBartolo.” Kerr was the sole 

signatory on the account. 

{¶89} Based on DeBartolo’s apparent control over the victim’s finances, 

 when viewed in a light most favorable to the prosecution, a reasonable juror 

could find that DeBartolo used his access to the victim’s account to commit 

theft. 

{¶90} Accordingly, DeBartolo’s first, second, and third assignments of 

error are overruled. 
{¶91} DeBartolo’s claim that his convictions are against the manifest 

weight of the evidence is also rejected. As DeBartolo does in his appellate 

brief, “[f]or the sake of brevity,” this court “incorporates its discussion from 

the first three assignments of error.” The jury acted within its prerogative to 

believe the state’s evidence, because two of the defense witnesses made 

significant concessions in their testimony. One conceded that the victim’s 

disabilities made her suitable for “assisted living,” and another testified, 

without objection, that, in his presence, the victim directed DeBartolo to 

“make out” one of her checks. Davis, 9th Dist. No. 21704, 2004-Ohio-3246. 

{¶92} DeBartolo’s convictions are affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 

convictions having been affirmed, any bail pending appeal is terminated. 

Case remanded to the trial court for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

______________________________________ 

KENNETH A. ROCCO, JUDGE 
COLLEEN CONWAY COONEY, P.J., and 

SEAN C. GALLAGHER, J., CONCUR