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AUSTINTOWN -- The attorney for Nicholas Cunningham, 31, who is charged with aggravated murder in the Oct. 26 killing of Gena M. Wade. 44, of Smith Township, asked today for time to "investigate" whether Cunningham is able to assist in his own defense.
Atty. Mike Kivlighan told Judge Scott Hunter in Mahoning County Area Court in Austintown he has concerns about Cunningham's "ability to assist me in his defense, so I am asking for some additional time to investigate those matters."
The request resulted in today's preliminary hearing being postponed to Dec. 13.
Also during the hearing, Mike Yacovone, assistant count prosecutor, told Judge Scott Hunter he felt the matter could be better addressed by presenting the case directly to a Mahoning County grand jury next month so that issues related to Cunningham's competency to stand trial can be addressed in Mahoning County Common Pleas Court instead of in the area court.
Yacovone said he needs for the preliminary hearing to be rescheduled for Dec. 13 to allow him present the case to the grand jury next month. The normal grand jury day would have been Thursday, but it cannot be done that day because of Thanksgiving.
A large group of people attended the short hearing, most of them apparently there for the victim. Cunningham was brought into the courtroom, but he was not asked to say anything.
Cunningham, of Wilcox Street, is being held in the Mahoning County jail in lieu of $500,000 bond. His case is before Judge Joe Schiavoni of the county area court in Sebring, but the Judge Hunter has handled the arraignment and today's hearing. The prosecutor's office asked for the hearing to be handled in Austintown instead of Sebring.
In addition to aggravated murder, Cunningham is charged with aggravated burglary and two counts of violating a protection order. The date of all of the offenses is Oct. 26, according to court documents.
Wade received a civil stalking protection order against Cunningham March 31 after she requested the order, alleging that Cunningham was "targeting my 12-year-old niece, and he is a convicted sex offender." She alleged that Cunningham had threatened her and her mother "almost every day"on his Facebook page.
According to the Ohio sex offender database, Cunningham is a tier 2 sex offender whose address was 682 Wilcox Street in Alliance. He used the alias "Saphire" Cunningham.
The reason he is classified a sex offender is because he was convicted in November 2015 of sexual battery with a sexual motivation in Stark County Common Pleas Court. He was convicted at the same time of gross sexual imposition of a victim under age 13 with sexual motivation.
According to Stark County Common Pleas Court records, Cunningham was indicted on charges of rape and gross sexual imposition in March 2015. In October 2015, he pleaded no contest to sexual battery and gross sexual imposition and was sentenced to three years in prison in November 2015.
According to an appeals court document, Cunningham's convictions were for incidents from 2010 between Cunningham and a victim younger than 13.