[Cite as State v. Austin, 2018-Ohio-3048.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                       Nos. 106215 and 106530



                                              STATE OF OHIO

                                                          PLAINTIFF-APPELLEE

                                                    vs.

                                              DAVID D. AUSTIN

                                                          DEFENDANT-APPELLANT




                                                JUDGMENT:
                                             AFFIRMED IN PART;
                                             REVERSED IN PART



                                      Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                           Case Nos. CR-16-602549-A and CR-16-612510-B

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

        RELEASED AND JOURNALIZED: August 2, 2018
ATTORNEY FOR APPELLANT

Britta M. Barthol
P.O. Box 670218
Northfield, Ohio 44067


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Anthony Thomas Miranda
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
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 all day. C.R. testified that she did not see any bruises on M.R. when she

returned from her aunt’s house.

       {¶13} C.R. denied that she had told the prosecutor before trial that Austin had told her

that he had pushed M.R. that morning, although she admitted that Austin had previously pushed

her (C.R.). She also said she had lied when she told the prosecutor and her attorney that Austin

had put his hands around her neck when he was angry.

       {¶14} Thomas Nemeth, a Garfield Heights firefighter and paramedic, responded to

Austin’s home with four other paramedics at 10:36 a.m. on September 23, 2015. He testified

that he spoke with C.R., who told him that M.R. had vomited twice the day before because she

had eaten bad food. Nemeth testified that he noticed bruising on M.R.’s forehead.

       {¶15} Eric Cornell, a Garfield Heights police officer, also responded to the scene. He

observed M.R. as she was in the ambulance and testified that he too observed bruising and

swelling on M.R.’s forehead. Cornell said he spoke with C.R. to find out what had happened,

and based on what she told him, he and Garfield Heights detectives searched Austin’s residence

and took pictures.

       {¶16} Dr. Crystal Tomei, a pediatric neurosurgeon at Rainbow Babies and Children’s

Hospital, operated on M.R. for what Dr. Tomei characterized as “life-threatening injuries.”   Dr.

Tomei testified that M.R.’s skull was fractured from the bottom to the middle of her skull, and
that she found both old blood and an “active bleeding vein” in M.R.’s brain. She said that such

bleeds occur from “forceful impacts” and that M.R.’s skull fracture was consistent with

non-accidental trauma. Dr. Tomei testified that a person who experiences a brain injury such as

M.R. had may sometimes have a lucid interval after they are initially knocked out before they

decline, but others will never wake up and just progressively decline. She testified further that

an individual with an injury such as M.R.’s “would not likely be awake enough to be able to

convey that they had headaches.”

       {¶17} Dr. Robert Tarr, a neuroradiologist at University Hospitals, reviewed the scans of

M.R.’s brain before her surgery. He testified that he saw a skull fracture, as well as acute and

older bleeding. He dated the acute blood in M.R.’s brain as “hours to several days old.”

       {¶18} Peter Stroe, the Garfield Heights police detective who investigated the case,

testified that he met with C.R. at the hospital the day of the incident. He admitted that he was

never told that M.R. had stayed at her aunt’s house for a few days prior to the incident, and that

he only learned of the old blood in M.R.’s brain during trial. He testified that such information

would not have changed the course of his investigation, however, because he believed Austin’s

text messages to C.R. and the recorded telephone call incriminated Austin.

       {¶19} Austin testified in his own defense. He said that whichever adult was awake first

would do the “morning routine” with the children. He said that on the morning of September

23, 2015, he awoke to find his daughter and M.R. watching TV in his bedroom. He told them to

go brush their teeth and then come back upstairs to get their clothes on. Austin said that M.R.

never came back upstairs, and when he found her in the downstairs bathroom, she was just

“staring into space.” Austin showed M.R. where the toothpaste was and told her to come

upstairs when she was done brushing.
        {¶20} Austin said that M.R. did not come back up, so he went down again and asked her

what was wrong. M.R. told Austin she did not know what she was supposed to be doing.

Austin said he began putting M.R.’s clothes on her but realized the shorts he had picked out did

not match her shirt, so he told her to go upstairs, get another pair of shorts, and come back

downstairs.

        {¶21} Austin said that when M.R. did not return, he went upstairs. After putting M.R.’s

shorts on, Austin told her to stand in the corner because she had “not been listening” that

morning. Austin said that when he went back upstairs, M.R. was standing at the top of the

stairs. Austin said he asked M.R. if she knew why she was in trouble, and when she did not

respond, he “tapped” her leg to get her attention. According to Austin, M.R. “jumped back” and

slipped on a cup on the floor. Austin said that when M.R. got up, he asked her if she was okay.

M.R. came to Austin and told him her head hurt. Austin said he got ice from downstairs,

brought it upstairs and put it on M.R.’s head, and then C.R. came upstairs.

        {¶22} Austin testified that he left the house because his daughter D.A. became hysterical

upon observing C.R. and M.R. He testified further that in his text messages to C.R., he was

apologizing because he was sympathetic about the “situation,” not because he had injured M.R.

He also testified that his promise to go to counseling was because he has a problem opening up to

people, not because he has anger issues. On cross-examination, Austin admitted that the carpet

at the top of the stairs where M.R. allegedly fell is thick.

        {¶23} At the close of the evidence, the trial court granted defense counsel’s Crim.R. 29

motion in part and dismissed Count 5, domestic violence.

        {¶24} During deliberations, the jury advised the court that it was unable to reach a verdict

on all counts, and the trial court gave a Howard charge. On September 2, 2016, after the jury

again advised the court that it was unable to reach a verdict on three of the four counts, the trial
court accepted the guilty verdict on Count 3, child endangering violation of R.C. 2919.22(A)

with a furthermore clause that the violation resulted in serious physical harm, and declared a

mistrial on the remaining counts. The state indicated that it would retry Austin on the remaining

charges.

       {¶25} In the ensuing months Austin’s trial counsel withdrew, and Austin obtained new

counsel who engaged in discovery, including obtaining an expert report that the defense provided

to the state. The trial court held several pretrials and eventually set trial on the remaining counts

for August 7, 2017.

       {¶26} On August 6, 2017, Austin filed a motion for new trial based on newly discovered

evidence and/or for postconviction relief under R.C. 2953.23. The trial court orally denied the

motion at the sentencing hearing, but told Austin if he refiled his motion after sentencing, the

court would give it full consideration. The trial court did not enter a judgment entry setting forth

its ruling denying the motion.

       {¶27} At sentencing, the state dismissed Counts 1, 2, and 4 without prejudice. The trial

court sentenced Austin to 30 months in prison, to run consecutively to the 12-month sentenced

imposed in CR-17-612510.

       {¶28} On August 11, 2017, Austin refiled his motion for a new trial based on newly

discovered evidence and/or for postconviction relief. On September 7, 2017, Austin filed a

notice of appeal in both cases, which were consolidated for briefing, hearing, and disposition.

Subsequently, on November 21, 2017, the trial court denied Austin’s motion in part, ruling that

the motion for a new trial was denied but the petition for postconviction relief was still pending.

On April 3, 2018, the trial court denied the petition for postconviction relief.

                                      II. Law and Analysis

A.     Sufficiency of the Evidence
          {¶29} In his first assignment of error, Austin contends that the trial court erred in denying

his Crim.R. 29 motion for acquittal because there was insufficient evidence to support his

conviction for endangering children.

          {¶30} A Crim.R. 29 motion challenges the sufficiency of the evidence. The test for

sufficiency requires a determination of whether the prosecution met its burden of production at

trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 12. An appellate

court’s function when reviewing the sufficiency of the evidence to support a criminal conviction

is to examine 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. 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. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541

(1997).

          {¶31} Austin was convicted of endangering children in violation of R.C. 2919.22(A),

which provides in pertinent part:

       No person, who is the parent, guardian, custodian, person having custody or
       control, or person in loco parentis of a child under eighteen years of age * * *
       shall create a substantial risk to the health or safety of the child, by violating a
       duty of care, protection, or support.
A specification charged that Austin’s violation of R.C. 2919.22(A) resulted in serious physical

harm to M.R.

          {¶32} The mens rea for child endangering pursuant to R.C. 2919.22(A) is recklessness.

State v. McGee, 79 Ohio St.3d 193, 680 N.E.2d 975 (1997), syllabus. A person acts recklessly

when, with heedless indifference to the consequences, he perversely disregards a known risk that

his conduct is likely to cause a certain result or is likely to be of a certain nature. R.C.

2901.22(C).
       {¶33} Thus, to prove Austin guilty of child endangering in violation of R.C. 2919.22(A),

the state was required to demonstrate that (1) Austin was the parent, guardian, custodian, person

having custody or control, or person in loco parentis of M.R., and (2) that he recklessly violated a

duty of protection, care, or support that (3) created a substantial risk to M.R.’s safety.   State v.

Stewart, 5th Dist. Stark No. 2007-CA-00059, 2007-Ohio-6118, ¶ 51. To prove Austin guilty of

the specification attached to the charge, the state was required to prove that Austin’s reckless

violation of his duty of care caused severe physical harm to M.R.

       {¶34} Our review of the record demonstrates that, viewing the evidence in a light most

favorable to the prosecution, there was sufficient evidence to support each element of the

offense. Although Austin contends there was no evidence that he was in loco parentis of M.R.,

R.C. 2919.22(A) includes person having “custody or control” of the child as potential offenders

of the statute. “‘Custody or control’ in R.C. 2919.22(A) has been defined as more than a casual

relationship but less than in loco parentis.”      State v. Stout, 3d Dist. Logan No. 8-06-12,

2006-Ohio-6089, ¶ 17. Thus, in State v. Smith, 8th Dist. Cuyahoga No. 68745, 1996 Ohio App.

LEXIS 214, *22 (Jan. 25, 1996), this court found that a grandfather had “custody or control” over

his grandchildren where the grandchildren and their mother had lived with the grandparents for

over two years. Likewise, in State v. Schoolcraft, 11th Dist. Portage No. 91-P-2340, 1992 Ohio

App. LEXIS (May 29, 1992), the court found that the mother’s boyfriend, who gave the child a

bath while the mother was not at home, “exerted control over the child victim, and control alone

has been found to be sufficient to satisfy that element of R.C. 2919.22(A).” Id. at *3.

       {¶35} Here, C.R. testified that she and M.R. lived with Austin “pretty much all the time”

and that he “very much” acted as M.R.’s parent. C.R. testified that she was sleeping the

morning of September 23, 2015, and that Austin “always” took care of the children if she was

sleeping. Austin testified while C.R. was sleeping, he began the “morning routine” with his
daughter D.A. and M.R., telling them to brush their teeth and get their clothes. Thus, at a

minimum, Austin had control of M.R. that morning, which satisfied that element of R.C.

2919.22(A).

       {¶36} We also find there was sufficient evidence that Austin recklessly created a

substantial risk to M.R.’s health or safety by violating his duty of protection and care. This court

has recognized that the Ohio Supreme Court has distinguished between two types of child

endangering in R.C. 2919.22 by explaining that section (A) of the statute is aimed at preventing

acts of omission or neglect involving a child, while section (B) deals with affirmative acts of

physical abuse. Cleveland Hts. v. Cohen, 8th Dist. Cuyahoga No. 101349, 2015-Ohio-1636, ¶

27, citing State v. Kamel, 12 Ohio St.3d 306, 308, 466 N.E.2d 860 (1984).

       {¶37} An adult in control of a child has a clear duty imposed by law to protect that child

from abuse and to care for the child’s injuries.            State v. Gaver, 5th Dist. Stark No.

2015CA00204, 2016-Ohio-7055, ¶ 55. Thus, it is not necessary to show an actual instance or

pattern of physical abuse on the part of the accused to support a conviction under R.C.

2919.22(A). Id., citing Kamel at 309. “It is an offense under R.C. 2919.22(A) when one fails,

without excuse, to act in discharge of one’s duty to protect one’s child, where the result is a

substantial risk to the child’s health or safety.” Id.

       {¶38} Thus, in Gaver, the court found the defendant’s conviction for child endangering

under R.C. 2919.22(A) supported by sufficient evidence and not against the manifest weight of

the evidence where the medical evidence demonstrated that the child’s serious physical injuries

resulted from violent forceful trauma that occurred while the child was in the defendant’s care.

The court found that the jury could have reasonably inferred that the defendant was responsible

for the child’s injuries, or it could have inferred that the defendant failed to protect the child from

such injury.
       {¶39} Here, the evidence demonstrated that M.R. sustained life-threatening injuries while

she was under Austin’s care. Even if the evidence was insufficient to demonstrate that Austin

caused the injury, the evidence was sufficient to demonstrate Austin violated his duty of care and

protection of M.R. by failing to protect her from such injuries.

       {¶40} Although Austin contends there was no evidence regarding when M.R.’s skull

fracture occurred, Dr. Tomei testified that someone with an injury such as M.R.’s would not

likely be awake enough to convey that they had headaches. M.R. was, in fact, nonresponsive

when C.R. found her around 9 a.m., even though only two hours earlier, she had been giggling

and running around the house. As admitted by Austin, M.R. was in his care that morning while

C.R. was sleeping. Thus, despite C.R.’s testimony that M.R. complained of a headache the

evening before, Dr. Tomei’s and Austin’s testimony, if believed, was sufficient to establish that

M.R.’s skull fracture — the injury that caused the active bleeding in her brain and made her

nonresponsive — occurred while she was under Austin’s care. If it had occurred the evening or

even days prior to September 23, 2015, M.R. would not have been able to communicate.

Accordingly, even if the jury believed that Austin may not have caused M.R.’s injury, the

evidence was sufficient to establish that Austin, as the sole caregiver when M.R. sustained her

injury, breached his duty to protect M.R. from serious physical harm while she was in his care.

And if M.R. was complaining of a headache the evening before, as C.R. and Austin testified,

Austin’s failure to protect M.R. from any further head injury was indeed reckless under the

circumstances.

       {¶41} Furthermore, the evidence was sufficient to establish that Austin recklessly

violated his duty of care to M.R. by failing to seek medical attention for her. Austin testified

that he believed M.R. fractured her skull the night before September 23, 2015, while she was at

her aunt’s house. He testified that on the morning of September 23, 2015, M.R.’s behavior was
“different than on other mornings” because she told him she “didn’t know what she was

supposed to be doing,” was “just staring into space,” “not paying attention to nothing [sic] that

was going on,” “not listening,” and not responding to his questions. If this was true, and if it

was true, as Austin testified, that M.R. vomited and complained of a headache the evening before

after returning home from her aunt’s house, Austin’s failure to seek immediate medical attention

for M.R. that morning after she allegedly began demonstrating signs of a head injury was

certainly reckless and a violation of his duty of care.

       {¶42} Furthermore, if M.R. was injured on the morning of September 23, 2015, while in

Austin’s care, the evidence was sufficient to establish that Austin recklessly violated his duty of

care to M.R. after her injury. Austin testified that he put ice on M.R.’s head. However, he

then just laid in the bed with her, without calling for C.R.’s help or calling 911, despite the fact

that M.R. was totally nonresponsive.

       {¶43} And then, knowing that 911 had been called, he left the scene. He did not stay to

tell the paramedics what had happened, even though M.R. had been in his care when the injury

happened and he could have assisted the paramedics in their evaluation and treatment of M.R. by

telling them what happened. Moreover, Austin left with his daughter D.A., who was in the

home when the injury occurred and may have been able to tell the paramedics what had

happened.

       {¶44} Considering the evidence in a light most favorable to the prosecution, a rational

trier of fact could have found the essential elements of child endangering in violation of R.C.

2919.22(A) proven beyond a reasonable doubt. The first assignment of error is overruled.

B.     Manifest Weight of the Evidence

       {¶45} In his second assignment of error, Austin contends that his conviction for

endangering children was against the manifest weight of the evidence.
        {¶46} In contrast to a sufficiency argument, a manifest weight challenge questions

whether the state met its burden of persuasion.        Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598 at ¶ 12. A reviewing court “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.” Thompkins, 78 Ohio St.3d at 388, 678

N.E.2d 541 (1997). A conviction should be reversed as against the manifest weight of the

evidence only in the most “exceptional case in which the evidence weighs heavily against the

conviction.” Id.

        {¶47} Austin contends his conviction was against the manifest weight of the evidence

because there was no testimony that he was responsible for M.R.’s injuries. He argues that there

was both old and new blood in M.R.’s brain, and that M.R. complained of a headache and

vomited several times after returning from her aunt’s house, apparently suggesting that the aunt

caused M.R.’s injuries, which manifested as life-threatening the morning after she returned

home.

        {¶48} The evidence was undisputed that Austin was caring for M.R. the morning of

September 23, 2015. He testified that he was doing the “morning routine” with the girls, and

C.R. testified that Austin was taking care of the girls while she was sleeping.

        {¶49} And despite Austin’s argument otherwise, the evidence established that M.R.

incurred her life-threatening injuries while she was in Austin’s care. Dr. Tomei testified that

someone with a skull fracture such as M.R.’s would not be awake enough to tell anyone they had

a headache. Thus, if M.R.’s skull had been fractured the evening or days before, as Austin

seems to suggest, she would not have been able to tell anyone that she had a headache. But the

evidence established that M.R. was communicative when she returned home from her aunt’s
house, and that on the morning of September 23, 2015, she was giggling and running through the

house, obviously alert enough to talk and respond. Two hours later, however, after being in

Austin’s care, M.R. was totally nonresponsive. Austin admitted in his text to C.R. that he was

“beating himself up a lot” for what had happened.

        {¶50} Thus, even if the jury did not believe that Austin caused the skull fracture, based on

the evidence, it could have reasonably found that M.R.’s life-threatening injury occurred while

she was in Austin’s care, and that he therefore recklessly breached his duty to protect her from

serious physical harm.

        {¶51} Furthermore, the jury could have reasonably found that Austin failed to seek

medical attention for M.R., in violation of his duty of care. Although Austin testified that he put

ice on M.R.’s head after she fell, he admitted he did not call 911, despite M.R.’s

nonresponsiveness, and that he left the scene with his daughter after 911 was called, even though

he could have given the paramedics valuable information about what had happened to assist in

their evaluation and treatment of M.R. In light of M.R.’s serious injury and condition, the jury

could have reasonably concluded that Austin’s failure to remain on the scene and speak to the

paramedics was another breach of his duty of care to M.R.

        {¶52} We do not find that this to be the exceptional case where the evidence weighs

heavily against the conviction. The jury did not lose its way in finding Austin guilty of child

endangering in violation of R.C. 2919.22(A). The second assignment of error is overruled.

C.      Flight Instruction

        {¶53} In his third assignment of error, Austin contends that the trial court erred in giving

the jury a flight instruction.

        {¶54} A trial court has discretion to determine whether the evidence adduced at trial was

sufficient to warrant an instruction. State v. Fulmer, 117 Ohio St.3d 319, 2008-Ohio-903, 883
N.E.2d 1052, ¶ 72. We review the giving of a jury instruction for an abuse of discretion. State

v. Howard, 8th Dist. Cuyahoga No. 100094, 2014-Ohio-2176, ¶ 35.

          {¶55} In this case, the trial court gave the following instruction to the jury regarding

flight:

          Testimony has been admitted indicating that the defendant fled the scene. You’re
          instructed that the fact that the defendant fled the scene does not raise a
          presumption of guilt, but it may tend to indicate the defendant’s consciousness of
          guilt.

          If you find that the facts do not support that the defendant fled the scene or if you
          find that some other motive prompted the defendant’s conduct, or if you are
          unable to decide what the defendant’s motivation was, then you should not
          consider this evidence for any purpose.

          However, if you find that the facts support that the defendant engaged in such
          conduct and if you decide that the defendant was motivated by a consciousness of
          guilt, you may, but are not required to, consider that evidence in deciding whether
          the defendant is guilty of the crimes charged.

          {¶56} “Flight from justice may be indicative of a consciousness of guilt.” State v.

Santiago, 8th Dist. Cuyahoga No. 95516, 2011-Ohio-3058, ¶ 30. However, “a mere departure

from the scene of the crime is not to be confused with a deliberate flight from the area in which

the suspect is normally to be found.” Id A “defendant’s conduct of leaving the scene of the

crime does not warrant a flight instruction where there is no evidence of deliberate flight in the

sense of evading police.” State v. Dunn, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583, ¶

48; State v. Johnson, 8th Dist. Cuyahoga No. 99715, 2014-Ohio-2648, ¶ 110. To warrant an

instruction, it must be clear that the defendant took affirmative steps to avoid detection and

apprehension beyond simply not remaining at the scene of the crime. Id. at ¶ 52; State v.

Jackson, 8th Dist. Cuyahoga No. 100125, 2014-Ohio-3583, ¶ 46.

          {¶57} We find that the facts of this case did not warrant a flight instruction. Austin’s

leaving the scene was not deliberate flight in the sense of evading police and detection. In fact,
Detective Stroe testified that after he met with C.R. at the hospital on September 23, 2015, he

asked her to contact Austin and ask him to contact the police so he could interview him. There

was no testimony that Austin could not be located by the police or that he tried to evade them

once located.

       {¶58} Nevertheless, Austin has not demonstrated that the error was prejudicial. “‘A

reviewing court may not reverse a conviction in a criminal case due to jury instructions unless it

is clear that the jury instructions constituted prejudicial error.’” Jackson at ¶ 49, quoting State v.

McKibbon, 1st Dist. Hamilton No. C-010145, 2002-Ohio-2041, ¶ 4. To determine whether an

erroneous instruction was prejudicial, a reviewing court must examine the jury instructions as a

whole. State v. Shepherd, 8th Dist. Cuyahoga No. 102951, 2016-Ohio-931, ¶ 25, citing State v.

Harry, 12th Dist. Butler No. CA2008-01-013, 2008-Ohio-6380, ¶ 36.                A jury instruction

constitutes prejudicial error where it results in a manifest miscarriage of justice.         State v.

Hancock, 12th Dist. Warren No. CA2007-03-042, 2008-Ohio-5419, ¶ 13. Conversely, however,

errors, defects, irregularities, or variances that do not affect substantial rights are to be

disregarded. Crim.R. 52(A).

       {¶59} After reviewing the jury instructions as a whole, we cannot say that the trial court’s

       instruction on flight resulted in a manifest miscarriage of justice. The instruction given,

       although improper, allowed the jury to make its own conclusion regarding whether Austin

       fled the scene and to consider his motivations for doing so. The instruction correctly

       advised the jury not to consider evidence of Austin’s departure from the scene if they

       found it was not motivated by a consciousness of guilt. State v. Hill, 8th Dist. Cuyahoga

       No. 99186, 2013-Ohio-3245, ¶ 31. Accordingly, we find the instruction was harmless

       beyond a reasonable doubt. The third assignment of error is therefore overruled. D.

                Motion for New Trial
       {¶60} In his fourth assignment of error, Austin contends that the trial court erred in

denying his motion for a new trial on November 21, 2017.

       {¶61} Although Austin asserts that the trial court’s journal entry of November 21, 2017,

denied the motion for a new trial that was filed on August 6, 2017, the record is clear that the

trial court orally denied that motion during the sentencing hearing on August 7, 2017, but never

entered a journal entry setting forth its ruling. Austin then refiled his motion for new trial and/or

for postconviction relief on August 11, 2017. The trial court’s journal entry of November 21,

2017, denying the motion for new trial pertains to the motion filed on August 11, 2017.

       {¶62} However, Austin filed his notice of appeal in these cases on September 7, 2017.

Once an appeal is taken, the trial court is divested of jurisdiction until the case is remanded to it

by the appellate court, except where the retention of jurisdiction is not inconsistent with that of

the appellate court to review, affirm, modify, or reverse the order from which the appeal is

perfected. State v. Abboud, 8th Dist. Cuyahoga Nos. 87660 and 88078, 2006-Ohio-6587, ¶ 11.

 A motion for a new trial is inconsistent with a notice of appeal of the judgment sought to be

retried. Id. Therefore, a notice of direct appeal divests the trial court of jurisdiction to consider

a motion for a new trial. Id.

       {¶63} Here, because Austin’s appeal was pending before this court on September 7, 2017,

when the trial court ruled on the motion for a new trial, the trial court had no jurisdiction to rule

on the motion. Where a trial court enters an order without jurisdiction, its order is void and a

nullity. Id. at ¶ 13. A void judgment puts the parties back in the same position they would be

in if it had not occurred. Id.

       {¶64} The fourth assignment of error is sustained.

E.     Consecutive Sentences
       {¶65} In his fifth assignment of error, Austin contends that the trial court erred in

imposing consecutive sentences because it did not make the necessary factual findings to impose

consecutive sentences. Austin’s argument is without merit.

       {¶66} Consecutive sentences may be imposed only if the trial court makes the required

findings pursuant to R.C. 2929.14(C)(4).            State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, 16 N.E.23d 659, ¶ 20-22. Under the statute, consecutive sentences may be

imposed if the trial court finds that (1) consecutive sentences are necessary to protect the public

from future crime or to punish the offender, (2) consecutive sentences are not disproportionate

to the seriousness of the offender’s conduct and to the danger the offender poses to the public,

and (3) that any of the following applies:

       (1) the offender committed one or more of the multiple offenses while awaiting
       trial or sentencing, while under a sanction, or while under postrelease control for a
       prior offense;

       (2) at least two of the multiple offenses were committed as part of one or more
       courses of conduct, and the harm caused by two or more of the offenses was so
       great or unusual that no single prison term for any of the offenses committed as
       part of the courses of conduct adequately reflects the seriousness of the offender’s
       conduct; or

       (3) the offender’s history of criminal conduct demonstrates that consecutive
       sentences are necessary to protect the public from future crime by the offender.

       {¶67} To impose consecutive sentences, the trial court must both make the statutory

findings mandated under R.C. 2929.14(C)(4) at the sentencing hearing and incorporate those

findings into its sentencing entry. Bonnell at the syllabus.

       {¶68} The trial court made all the required findings to impose consecutive sentences. It

found that consecutive sentences were necessary to protect the public from future crime and to

punish Austin. (Tr. 875.) It found that consecutive sentences were not disproportionate to the

seriousness of Austin’s conduct and the danger he poses. (Tr. 875.) And it found that Austin
had committed the identity fraud offense while he was awaiting trial in the child endangerment

case. (Tr. 876.)

       {¶69} The trial court likewise incorporated its findings into the journal entry of

sentencing. Because the trial court properly imposed consecutive sentences, the fifth assignment

of error is overruled.

       {¶70} Judgment affirmed in part; reversed in part.

       It is ordered that the parties share 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 conviction 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.




KATHLEEN ANN KEOUGH, JUDGE

EILEEN A. GALLAGHER, A.J., CONCURS;
EILEEN T. GALLAGHER, J., CONCURS WITH SEPARATE CONCURRING OPINION


EILEEN T. GALLAGHER, J., CONCURRING WITH SEPARATE OPINION:

       {¶71} I concur with the majority’s judgment, but write separately because I believe the

flight instruction was justified by the evidence adduced at trial and, therefore, was not given in

error, harmless or otherwise.
        {¶72} Flight from justice may be indicative of a defendant’s consciousness of guilt.

State v. Taylor, 78 Ohio St.3d 15, 27, 676 N.E.2d 82. In State v. Jackson, 8th Dist. Cuyahoga

No. 100125, 2014-Ohio-3583, we held that a mere departure from the scene of a crime is not to

be confused with deliberate flight to avoid detection. We concluded that the flight instruction in

that case was not warranted because there was no indication that Jackson left the scene for the

purpose of evading the police.        Although one of the victims called 911 while Jackson

continually fired his gun at the victims, there was no evidence that Jackson knew that 911 had

been called. Jackson only left the scene when he had sufficiently terrorized everyone in the

home.

        {¶73} A flight instruction on consciousness of guilt based on the flight of the accused is

appropriate when supported by sufficient evidence in the record.            State v. Hill, 8th Dist.

Cuyahoga No. 98366, 2013-Ohio-578, ¶ 49. As noted by the majority in paragraph 43, the

evidence in this case showed that Austin left the scene the moment his brother called 911. In

contrast to Jackson, who seems to have left the scene because his mission was accomplished,

Austin fled the scene because the authorities were coming.           Therefore, because there was

evidence that Austin fled the scene the moment the authorities were called, I believe there was

evidence to warrant the flight instruction in this case.

        {¶74} The majority concludes that the flight instruction was not warranted because

Austin did not hide from the police when they later searched for him. This may be a valid point,

but it suggests that an initial decision to flee followed by a later decision to cooperate with police

does not warrant a flight instruction. I disagree. The initial decision to flee may indicate

consciousness of guilt regardless of a subsequent change of mind.

       {¶75} The majority observes that the flight instruction correctly advised the jury not to
consider evidence of Austin’s departure from the scene if they find it was not motivated by
consciousness of guilt. Thus, the jury would determine the weight, if any, to be given to
Austin’s initial flight from the scene in light of his subsequent cooperation with police. But
because Austin’s initial decision to flee was motivated by the imminent arrival of the police, I
believe the flight instruction was appropriately given in this case.
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