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State v. Austin

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 2, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
DAVID D. AUSTIN DEFENDANT-APPELLANT

          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 Prosecutor

          BEFORE: Keough, J., E.A. Gallagher, A.J., and E.T. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          KATHLEEN ANN KEOUGH, J.

         {¶1} 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.

         I. Background and Procedural History

         {¶2} 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 a jury.

         {¶3} 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 sentencing.

         {¶4} 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.

         {¶5} 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 M.R.'s parent.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.]
Sorry
[M.R.] I'm sorry I apologize I love you
Tell her
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?
C.R. Everything
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

         {¶10} 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."

         {¶11} 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.

         {¶12} 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 ...


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