Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case Nos. CR-16-602549-A and CR-16-612510-B
ATTORNEY FOR APPELLANT Britta M. Barthol
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Anthony Thomas Miranda Assistant County
BEFORE: Keough, J., E.A. Gallagher, A.J., and E.T. Gallagher,
JOURNAL ENTRY AND OPINION
KATHLEEN ANN KEOUGH, J.
Defendant-appellant David Austin appeals from the trial
court's judgment finding him guilty of child endangering
and identity fraud, and sentencing him to an aggregate term
of 42 months in prison. For the reasons that follow, we
affirm in part and reverse in part.
Background and Procedural History
In January 2016, Austin was indicted in Cuyahoga C.P. No.
CR-16-602549 in a five-count indictment that charged him with
(1) child endangering in violation of R.C. 2919.22(B)(1); (2)
endangering children in violation of R.C. 2919.22(B)(2); (3)
endangering children in violation of R.C. 2919.22(A); (4)
felonious assault in violation of R.C. 2903.11(A)(1); and (5)
domestic violence in violation of R.C. 2919.25(A). These
charges arose from an incident that occurred on September 23,
2015, in which M.R., the three-year-old daughter of
Austin's girlfriend, was injured. This case was tried to
In January 2017, Austin was charged in Cuyahoga C.P. No.
CR-16-612510 with six counts of identity fraud in violation
of R.C. 2913.49(B)(2) and one count of receiving stolen
property in violation of R.C. 2913.51(A). He subsequently
pleaded guilty to one count of identity fraud, and the
remaining counts were dismissed. The matter was continued for
At the jury trial in CR-16-602549, M.R.'s mother, C.R.,
testified that she had pleaded guilty to attempted permitting
child abuse relating to the events of September 23, 2015, and
that as a condition of her plea agreement, she had agreed to
testify truthfully at Austin's trial.
C.R. testified that she and Austin began a romantic
relationship in June 2011. She said that she and M.R. lived
with Austin, his three children, and Austin's sister
"pretty much all the time," even though she still
kept her own apartment. She testified further that even
though Austin was not M.R.'s biological father, "he
acted as one" toward M.R. C.R. said that when M.R. was
at Austin's house and she was not there, M.R. was in
Austin's care and he "very much" acted as
C.R. testified that she awoke at approximately 7 a.m. on
September 23, 2015. After taking Austin's daughter to the
bus stop, she returned home. She heard M.R. and Austin's
daughter D.A. giggling and running around upstairs. She
assumed that Austin was taking care of them "like he
always did if [she] overslept or went back to sleep," so
she went to sleep downstairs.
C.R. said that she woke up around 9 a.m. and went upstairs,
where she found Austin cuddling M.R. in bed. C.R. said M.R.
was laying on her side and looked like she was sleeping.
Austin told C.R. he had to talk to her, but she ignored him
and went to the bathroom. When she returned to the bedroom,
she saw that M.R. was wheezing and her eyes were half open.
When C.R. picked up M.R., her skin was cold and she did not
respond to C.R.'s voice or touch. C.R. ran downstairs
with M.R., screaming that someone should call 911. She then
ran outside, thinking the air would help M.R. breathe.
C.R. testified that Austin's brother, who was at the
house, called 911. C.R. said that by that time, Austin was in
his car. C.R. testified that she screamed at Austin and
pounded on the car door but Austin said nothing and drove
away. Austin's daughter D.A. was in the car with him.
C.R. spent the day at the hospital with M.R. She called
Austin several times but he did not respond or come to the
hospital. Several days later, Austin and C.R. exchanged the
following text messages:
Austin: You think in [sic] not sorry and bearing [sic] myself
up a lot? You know more than anyone how I feel stop trying to
play me like this it hurt more coming from you than anyone
cuz u know my attentions [sic]
C.R.: Your intentions doesn't [sic] excuse you from what
happen just give me a minute ill [sic] call
Austin: I'm not trying to excuse myself
Do you really feel like that?
I didn't mean to hurt [M.R.] in any way [C.R.]
[M.R.] I'm sorry I apologize I love you
C.R.: It wasn't intentionally but in that case you need
help you need to start now go to counseling find the root of
it all talking to somebody helps . . .
And I will
Austin: I am I promise
C.R.: Did you talk to attorney or did you talk to mom
Austin: What's wrong? Is she doing bad today?
Austin: Tell me what's going on!! Call me something Why
are you leaving me in the dark?
C.R.: Cause I shouldn't f-ing have to keep you in the
light this shouldn't of f-ing happened just should woke
me up we should just left man this would never happened she
asked to go to her auntie house i shoulda just took her I
just wanna hear my baby laugh again
State's exhibit No. 6, a telephone call between C.R. and
Austin recorded at the request of the Garfield Heights Police
Department, was played for the jury. In the call, C.R. asked
Austin "how long M.R. was like that," which she
testified meant she wanted to know how long M.R. was wheezing
and unresponsive before C.R. found her. Austin responded that
"it all happened within three to four minutes."
C.R. also told Austin, "your mom said you put her in a
corner three times and that's when you lost your
patience." Austin responded, "I don't want to
talk about it."
On cross-examination, C.R. admitted that the Garfield Heights
police had come to Austin's house on August 29, 2015, to
investigate bruises on M.R. and that as a result, the
Cuyahoga County Department of Child and Family Services
obtained legal custody of M.R. C.R. admitted that she never
turned M.R. over to the county.
C.R. testified that M.R. returned around 6:30 p.m. the
evening before the incident after spending a few days at her
aunt's house, and that she immediately threw up upon
exiting the car. C.R. said that M.R. threw up two more times
after she returned home, and complained about her head
hurting. C.R. called the aunt, who told her that M.R. was
sick because she had eaten only pizza rolls ...