State v. Austin
| Decision Date | 27 September 2017 |
| Docket Number | No. 28199,28199 |
| Citation | 2017 Ohio 7845,97 N.E.3d 1266 |
| Parties | STATE of Ohio, Appellee v. Daniel D. AUSTIN, Appellant |
| Court | Ohio Court of Appeals |
BARBARA J. ROGACHEFSKY, Attorney at Law, Cuyahoga Falls, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.
DECISION AND JOURNAL ENTRY
{¶ 1} Defendant–Appellant, Daniel Austin, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms in part and reverses in part.
{¶ 2} In January 2015, three women came forward and accused Austin of having sexually assaulted them in their youth. Relevant to this appeal, Austin's half-sister, K.R., accused him of sexually assaulting her when she was between the ages of five and ten. Meanwhile, his cousin, L.B., accused him of sexually assaulting her when she was between the ages of five and thirteen. It is undisputed that, at the time Austin allegedly committed the sexual assaults, he was between the ages of ten and nineteen.
{¶ 3} A grand jury indicted Austin on thirty-five counts: (1) ten counts of rape and eight counts of gross sexual imposition ("GSI") that pertained to L.B.; (2) six counts of rape and six counts of GSI that pertained to K.R.; and (3) four counts of rape and one count of GSI that pertained to a third accuser. Each count of rape or GSI spanned a designated time period. The counts involving L.B. spanned from December 1999 until December 2008. The counts involving K.R. spanned from January 2003 until January 2009. Finally, the counts involving the third accuser spanned from July 2003 until July 2007.
{¶ 4} Austin moved to dismiss the indictment, in whole or part, on the basis of pre-indictment delay. He further claimed that subjecting him to prosecution as an adult for crimes he allegedly committed at such a young age offended the Due Process Clause. The State filed a brief in opposition to his motion, and the trial court held a hearing. Following the hearing, the court granted Austin's motion in part and dismissed four of the rape counts and three of the GSI counts involving L.B. The remaining twenty-eight counts remained for trial, but, at the close of its case-in-chief, the State dismissed an additional eight counts as a result of the evidence presented at trial and successful amendments to the dates in the indictment. Specifically, the State dismissed one of the rape counts pertaining to K.R., three of the rape counts pertaining to L.B., three of the rape counts pertaining to the third accuser, and the GSI count pertaining to the third accuser. The jury heard the remaining twenty counts.
{¶ 5} The jury found Austin not guilty of the sole remaining rape count involving the third accuser and one of the GSI counts involving K.R. The jury found Austin guilty of his other eighteen counts, and the court sentenced him on each count. The court imposed a total sentence of life in prison with parole eligibility after thirty-five years.
{¶ 6} Austin now appeals from his convictions and raises seven assignments of error for our review.
{¶ 7} In his first assignment of error, Austin argues that R.C. 2152.02(C)(3) and 2152.12(J) are unconstitutional as applied to him with respect to three of his convictions.1 For the reasons that follow, we reject his argument as to two of those convictions.
{¶ 8} (Internal citations omitted.) State v. Romage , 138 Ohio St.3d 390, 2014-Ohio-783, 7 N.E.3d 1156, ¶ 7. "A party may challenge a statute as unconstitutional on its face or as applied to a particular set of facts." Harrold v. Collier , 107 Ohio St.3d 44, 2005-Ohio-5334, 836 N.E.2d 1165, ¶ 37. "In an as-applied challenge, the challenger ‘contends that application of the statute in the particular context in which he has acted * * * [is] unconstitutional.’ " (Bracketed alteration sic.) State v. Lowe , 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 17, quoting Ada v. Guam Soc. of Obstetricians & Gynecologists , 506 U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting). It is the challenger's burden to " ‘present[ ] clear and convincing evidence of a presently existing set of facts that make the statute[ ] unconstitutional and void when applied to those facts.’ " Groch v. Gen. Motors Corp. , 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 181, quoting Harrold at ¶ 38.
Likewise, the Revised Code provides that "[a]ny person who, while under eighteen years of age, commits an act that would be a felony if committed by an adult and who is not taken into custody or apprehended for that act until after the person attains twenty-one years of age is not a child in relation to that act." R.C. 2152.02(C)(3).
{¶ 10} Before trial, Austin filed a motion to dismiss his indictment, in whole or part, on the basis of pre-indictment delay. He also argued that prosecuting him as an adult for crimes he allegedly committed when he was less than fourteen years of age "raise[d] a due process fundamental fairness issue" because he would not have been subject to bindover at that age. See R.C. 2152.12(B)(1). While the trial court rejected his pre-indictment delay argument, the court agreed that it would be "fundamentally unfair and an arbitrary and unreasonable abridgment of his due process rights" to apply R.C. 2152.02(C)(3) and 2152.12(J) to him for conduct he allegedly committed before turning fourteen. The court, therefore, dismissed seven counts in the indictment, all of which were alleged to have occurred between December 21, 1999, and December 20, 2002. The court held in abeyance its ruling on several additional counts because it could not determine, without hearing the evidence at trial, whether Austin was under fourteen when those offenses allegedly occurred. The trial court never revisited its ruling, and the jury ultimately found Austin guilty of the three counts at issue in this assignment of error.
{¶ 11} Austin argues that R.C. 2152.02(C)(3) and 2152.12(J) are unconstitutional as applied to him with respect to his three counts because the evidence does not support the conclusion that he was at least fourteen when he committed them. Count 1 was for rape, concerned K.R., and was alleged to have occurred between January 12, 2003, and January 11, 2004. Renumbered count 6 was for GSI, concerned K.R., and was alleged to have occurred during that same time period. Renumbered count 15 was for GSI, concerned L.B., and was alleged to have occurred between December 21, 2002, and December 20, 2003. Austin turned fourteen on October 14, 2003. Accordingly, with respect to the counts involving K.R., Austin was fourteen for almost three months of the indictment period (i.e., between October 14, 2003, and January 11, 2004). With respect to the count involving L.B., he was fourteen for just over two months of the indictment period (i.e., between October 14, 2003, and December 20, 2003).
{¶ 12} Notably, this Court need not address the trial court's ultimate conclusion that it would be "fundamentally unfair and an arbitrary and unreasonable abridgment of [Austin's] due process rights" to apply R.C. 2152.02(C)(3) and 2152.12(J) to him for conduct he allegedly committed before turning fourteen. The trial court ruled in Austin's favor on that issue, and the State has not appealed from the trial court's ruling. Austin's statutory argument hinges entirely upon his assertion that there was no proof he committed count 1, renumbered count 6, and renumbered count 15 when he was at least fourteen. Accordingly, this Court will assume for purposes of its analysis that the trial court's underlying ruling was correct and limit its review to the issue of whether Austin was at least fourteen when he committed the foregoing offenses.
{¶ 13} K.R. testified that she was born in January 1998 and is Austin's half-sibling.
She stated that she was five years old when she started kindergarten and that Austin began raping her during that school year. The first rape occurred in the midst of a game that Austin invented, which he called "the wormy game." K.R. explained that Austin had them remove their clothes, roll up in blankets, and try to get into each other's blankets. During the game, K.R. stated that "you would touch the other person on their penis or their vagina and then it turned into sex after that." She testified that, after the first time, the game "seemed to happen almost...
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