A Geauga County man convicted of intimidating a witness based on a threatening voicemail left in Italian has had his conviction affirmed by the Ohio Eleventh Appellate District Court. Agostino Gigliotti challenged the conviction, arguing the evidence was insufficient and the verdict was against the weight of the evidence, but the appellate court found no merit in his claims, upholding the trial court’s decision.
The Charges and the Bench Trial
Agostino Gigliotti was indicted in 2023 on one count of intimidation of a witness in a criminal case, a third-degree felony under Ohio Revised Code (R.C.) 2921.04(B)(2). This statute criminalizes knowingly attempting to influence, intimidate, or hinder a witness through force or unlawful threats of harm or offense.
Gigliotti opted to waive his right to a jury trial, proceeding instead with a bench trial before the Court of Common Pleas. Following the trial, the court found him guilty and sentenced him to three years of community control, including six months in a residential facility.
The Contentious Voicemail
The case revolved around a voicemail Gigliotti left on the answering machine of Maria, a woman from his native Calabrian region in Italy. The context was criminal charges brought against Maria’s 88-year-old uncle, Gino, and Gino’s children (one of whom is married to Gigliotti). These charges stemmed from suspicious financial activity discovered during the administration of an estate managed by Maria.
Maria testified that she understood the message, delivered in the Calabrian dialect, as a threat: Gigliotti asserted that if Gino was not released from custody, he would “talk to somebody in the Calabrese way,” meaning he would arrange for Maria or her family to be killed or hurt.
Maria’s daughter, Lori, who also understood the dialect, corroborated the threatening nature of the call. Lori recalled Gigliotti insulting her and her mother, stating he had “made the call to somebody to whisper in the ear,” which Lori interpreted as arranging a “mob hit.”
The State brought in an FBI translator fluent in the rare Calabrese dialect to provide a verbatim translation of the message. The translation included several highly charged statements, such as: “If anything happens to my father-in-law before he comes home legally, we will have to deal with things like someone does before they die,” and “I gave you little warning and that is where it starts. And you will not be the first to pay for it.” Crucially, Gigliotti also stated, “Now, I would like to do things with you like the Calabrese way.”
Gigliotti’s Defense Strategy
On appeal, Gigliotti argued that the evidence failed to meet the legal standards for conviction. He contended that he made no explicit “demand” of the witness, citing the precedent set in *State v. Cress*. Furthermore, he suggested the message was merely an expression of concern for his father-in-law, and that the witnesses testifying to its threatening nature had a monetary interest in the outcome of the underlying estate dispute.
The Court’s Analysis of the Law
The appellate court first addressed the two standard challenges: sufficiency and weight of the evidence. Sufficiency of the evidence asks whether, viewed favorably to the prosecution, any rational juror could find the essential elements proven beyond a reasonable doubt. Weight of the evidence requires the court to examine the entire record and determine if the conviction is against the manifest weight of the evidence—an exceptional situation where the fact-finder clearly lost its way.
Regarding Gigliotti’s reliance on *Cress*, the court clarified that *Cress* did not establish that a specific demand is a required element of witness intimidation. Instead, *Cress* focused on defining an “unlawful threat of harm.” The appellate court noted that the threat in this case was unlawful because it likely constituted the offense of menacing (R.C. 2903.21), which involves knowingly causing another person to believe the offender will cause serious physical harm.
The court found that the testimony from Maria and Lori, who were fluent in the dialect, provided sufficient evidence that Gigliotti knowingly made an unlawful threat intended to intimidate them as witnesses in the criminal case against Gino. While Gigliotti questioned their credibility due to potential financial interests, the appellate court stressed that the trial court, as the fact-finder, is best positioned to judge witness credibility, and generally, appellate courts defer to those findings.
Trial Court’s Findings Affirmed
The appellate panel agreed with the trial court’s detailed findings, which emphasized the context of the message. The trial judge highlighted specific phrases in the translation—such as Gigliotti saying, “You better believe it. If anything happens to my father-in-law… we will have to deal with things like someone does before they die”—as clear threats of harm intended to influence the witnesses.
Furthermore, the trial court reasoned that Gigliotti acted “knowingly” because his statements—like “You call whomever you want”—indicated he knew the recipients would perceive the message as a threat and would be compelled to react.
In conclusion, the Eleventh Appellate District found that a reasonable inference supported the trial court’s finding that Gigliotti knowingly used an unlawful threat of harm to intimidate a witness. The court saw no reason to overturn the conviction, stating it was not the “exceptional case where the conviction was against the weight of the evidence.”