[Cite as State v. Austin,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-210140 C-210141 Plaintiff-Appellee, : TRIAL NOS. C-20CRB-16036 C-20CRB-20043A : VS. : O P I N I O N.

DESMOND AUSTIN, :

Defendant-Appellant. :

Criminal Appeals From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: October 8, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Sean M. Donovan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

The Lewis Law Firm and Cornelius Lewis, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Presiding Judge.

{¶1} After spending the night with one woman, defendant-appellant

Desmond Austin returned the next day to the home he shared with a different

woman. Perhaps not surprisingly, tempers flared and a fight ensued. The altercation

ended with the victim seeking medical treatment and Mr. Austin convicted of

domestic violence and aggravated menacing. On appeal, Mr. Austin presents three

assignments of error, claiming prejudicial error and challenging the weight and

sufficiency of the evidence. We overrule all three and affirm the trial court’s

judgment.

I.

{¶2} Having met out west and traveled together for a number of years, Mr.

Austin and Ryshema Bailey settled down in Hamilton County. One evening, Mr.

Austin left around 10:00 p.m. and never returned. Ms. Bailey, suspicious that Mr.

Austin departed for a rendezvous with his former girlfriend and the mother of his

children, attempted to reach him by phone and text, but to no avail. Instead, he

sauntered home to Ms. Bailey around 7:15 a.m. the next morning only to find the

house in disarray with damage inflicted on some of his personal property. A verbal

dispute erupted between the couple, with conflicting accounts as to whether or what

extent physical violence occurred.

{¶3} According to Mr. Austin, he arrived home to a very agitated Ms. Bailey.

Mr. Austin decided to go for a jog in order to allow Ms. Bailey time to simmer down.

He went to the basement and changed into running clothes. Upon returning upstairs,

he noticed that Ms. Bailey had left the house. Mr. Austin claimed no physical

violence occurred during this time. Ms. Bailey’s version of the story differs

2 OHIO FIRST DISTRICT COURT OF APPEALS

significantly. In her rendition, Mr. Austin threatened her by patting his right hip—

the place he normally carried a Glock pistol—warning Ms. Bailey that he could “kill

[her] today.” When Ms. Bailey attempted to call 911, Mr. Austin grabbed the phone

from her. He then put her in a choke hold, pressed the pistol against her right cheek,

and shoved her to the floor. At this point, Ms. Bailey escaped, running across the

street to Bethesda North Hospital. Upon hearing her account of these events,

hospital staff contacted the Montgomery Police Department.

{¶4} After a bench trial, the court convicted Mr. Austin of domestic violence

and aggravated menacing and imposed concurrent 180-day jail sentences on each

charge. Mr. Austin presents three assignments of error. First, he faults the trial court

for denying his request for a continuance of the trial. Next, he claims that the state

failed to marshal sufficient evidence to convict him of aggravated menacing because

the state did not prove an element of the charge. And finally, Mr. Austin maintains

that the convictions for both domestic violence and aggravated menacing are against

the manifest weight of the evidence.

II.

{¶5} In his first assignment of error, Mr. Austin insists that the court erred

twice by denying him a continuance. Mr. Austin requested an initial continuance in

order to file a jury demand (after previously waiving his right to a jury). Shortly

thereafter, he requested another continuance when the prosecution divulged

incriminating photographs the morning of trial. Both requests were denied. Because

the “trial court is in the best position to rule on a requested continuance after

considering all the surrounding circumstances,” we “must not reverse the denial of a

continuance unless there has been an abuse of discretion.” State v. Martin, 1st Dist.

3 OHIO FIRST DISTRICT COURT OF APPEALS

Hamilton No.

. Abuse of discretion occurs when “a

court exercis[es] its judgment, in an unwarranted way, in regard to a matter over

which it has discretionary authority.” Johnson v. Abdullah, Slip Opinion No. 2021-

Ohio-3304, ¶ 35. And, as the Supreme Court recently clarified, “courts lack the

discretion to make errors of law.” Id. at ¶ 39.

A.

{¶6} We first consider Mr. Austin’s request for more time in order to submit

a jury demand. He concedes that he waived his right to a jury trial for this petty

offense by not presenting a jury demand in writing not less than ten days before trial.

Crim.R. 23(A) (“Failure to demand a jury trial as provided in this subdivision is a

complete waiver of the right thereto.”). Yet Mr. Austin goes on to posit that because

the state did not oppose his continuance request, the court abused its discretion by

following Crim.R. 23 and denying the request. When considering whether to grant a

continuance, trial courts should consider “the length of the delay requested; whether

other continuances have been requested and received; the inconvenience to litigants,

witnesses, opposing counsel and the court; whether the requested delay is for

legitimate reasons or whether it is dilatory, purposeful, or contrived; whether the

defendant contributed to the circumstance which gives rise to the request for a

continuance; and other relevant factors, depending on the unique facts of each case.”

State v. Unger,

,

(1981); see State v.

Blassingame, 1st Dist. Hamilton No. C-190555,

. Mr. Austin

concludes that on the whole, the Unger factors point in his favor. We disagree.

{¶7} To begin, we’re not convinced that the state actually acquiesced in the

continuance request, as it seemed to oppose the request on grounds of inconvenience

4 OHIO FIRST DISTRICT COURT OF APPEALS

to witnesses. Mr. Austin requested the continuance mere minutes before the start of

trial. By then, the state had assembled the prosecuting witness, two police officers,

and a victim’s advocate from Women Helping Women in court and ready to testify.

When asked about the possibility of a continuance, the state expressed its desire to

proceed because “the gang’s all here.” It was within the court’s discretion to find

significant inconvenience to the witnesses already present, in light of the last-minute

nature of the request and the prior waiver.

{¶8} Next, Mr. Austin directly contributed to the reason for the request. In

denying the continuance, the trial court noted some eight months elapsed between

the charges at hand and the requested continuance. Ample time and opportunity

existed during that window to request a jury trial in accordance with the criminal

rules. The court held multiple hearings regarding various issues with counsel ably

representing Mr. Austin each step of the way. And when presenting the request for a

continuance, Mr. Austin’s counsel assumed full responsibility for not submitting the

request for a jury demand on time. On this record, Mr. Austin certainly contributed

to the requested delay.

{¶9} Turning to whether a good faith basis existed for the continuance, Mr.

Austin extols the significance of the right to a jury trial and insists that it should not

be displaced by a technicality. But these are not mere technicalities—part of the

reason for the requirement to submit a jury demand in a timely manner is to alert the

court whether it must assemble a jury or proceed with a bench trial. The guarantee

of a jury trial in criminal cases is not absolute with respect to misdemeanors in Ohio,

and an authorized rule of the court may validly condition the right. State v. Ware, 2d

Dist. Darke No. 2018-CA-8,

, citing City of Mentor v.

5 OHIO FIRST DISTRICT COURT OF APPEALS

Giordano,

,

(1967), paragraph one of the syllabus

(“The guarantee of a jury trial in criminal cases * * * is not an absolute and

unrestricted right in Ohio with respect to misdemeanors, and a statute, ordinance, or

authorized rule of court may validly condition the right of a jury trial[.]”). Criminal

Rule 23 is just such a rule, providing that in petty offense cases, a defendant will be

tried by the court unless he demands a jury trial “not less than ten days prior to the

date set for trial, or on or before the third day following receipt of notice of the date

set for trial, whichever is later.” Mr. Austin failed to meet this condition and the

court did not abuse its discretion when denying him a continuance to submit a tardy

demand in light of the totality of circumstances.

B.

{¶10} We next consider the trial court’s second, and more troublesome,

refusal to continue the case in response to a discovery violation. Minutes before

opening statements, the prosecutor disclosed to defense counsel photographs

showing injuries to the victim’s arm and face that the state intended to present as

evidence. The photographs contained no date, timestamp, or other authenticating

notation. Mr. Austin objected to their authenticity, requesting a one-day

continuance to verify authenticity and gather contrary evidence if necessary for his

defense. The request was effectively denied, as the court saw no reason to continue

the case when presumably the state would authenticate the photos during its case-in-

chief.

{¶11} Undoubtedly, the state breached its duty under Crim.R. 16 by not

including the photographs in its discovery response to Mr. Austin. Crim.R. 16(B)(3)

(“Upon receipt of a written demand for discovery by the defendant * * * the

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prosecuting attorney shall provide * * * all laboratory or hospital reports, books,

papers, documents, [and] photographs[.]”). And when discovery violations occur, a

trial court has broad discretion to “impose any sanction ‘it deems just under the

circumstances.’ ” State v. Hall, 1st Dist. Hamilton No. C-200264,

, quoting Crim.R. 16(L)(1). Ohio courts use a three-part test to help guide a trial

court in exercising its discretion to impose sanctions. When inquiring into the

circumstances of the violation, courts should consider: (1) whether the prosecution’s

failure to disclose was a willful violation of Criminal Rule 16, (2) whether

foreknowledge of the evidence would have benefitted the accused in preparation of

his defense, and (3) whether the accused was prejudiced by the evidence concerned.

State v. Darmond,

,

,

. If we

find the trial court failed to properly cure a discovery violation, we then “consider

whether any resulting error was harmless.” State v. Newell, 8th Dist. Cuyahoga No.

106584,

, citing City of Middlesburg Hts. v. Lasker, 2016-Ohio-

5522,

, ¶ 16 (8th Dist.).

{¶12} Here, the trial court’s lack of inquiry into the discovery violation raises

concern. Regarding the first Darmond factor, the court did not ascertain whether

the failure to disclose represented a willful violation. The prosecutor professed that

he received the photos that morning due to a “hiccup in the chain,” despite admitting

police had them and “[i]t’s possible they sent them” over previously. The court later

points to all the other documents the state turned over in its discovery response, but

neglected to investigate the omission of potentially incriminating photographs. Nor

did the state explain the alleged oversight, offering nothing more than an assurance

that “the First District * * * [is] pretty permissive as long as it’s disclosed before

7 OHIO FIRST DISTRICT COURT OF APPEALS

trial.” But because “the record does not provide any justification or excuse for the

state’s failure to comply with the discovery request * * * we are unable to determine

whether the state acted willfully or negligently in failing to disclose the photographs.”

See Hall at ¶ 13. We also reiterate that Crim.R. 16(B)(3) means what it says, and that

it does not allow the state to avoid its responsibilities by simply shrugging its

shoulders and laying blame at the feet of the bureaucracy.

{¶13} Likewise, the trial court did not consider the second Darmond factor—

which explores whether foreknowledge of the photos would have benefitted Mr.

Austin’s defense preparation—and proceeded right to the third factor, asking what

prejudice might result. Mr. Austin responded to the prejudice inquiry by indicating

that he had no idea when the photos were taken, how they were taken, or whether

they were even taken on the date the incident occurred. He implied that around the

time the photos were supposedly taken Ms. Bailey contacted mutual friends who may

be able to corroborate (or dispute) when Ms. Bailey sustained the injuries, and

suggested the photos could be of injuries from another time and place. The trial

court largely discounted these concerns and commenced the trial. On this record,

because we cannot say this exchange represented the “sound reasoning process”

envisioned by Darmond, we find the trial court abused its discretion by failing to

consider the proper factors before denying the request for a continuance. See

Darmond,

,

,

; see also Hall

at ¶ 16 (“Because it imposed a sanction without engaging in the sound reasoning

process provided by Darmond, we find that the trial court abused its discretion.”).

{¶14} Having concluded the trial court abused its discretion, we must

consider whether it resulted in reversible error. We will not reverse unless (1) “the

8 OHIO FIRST DISTRICT COURT OF APPEALS

defendant was prejudiced by the error, i.e., whether the error had an impact on the

verdict”; (2) “the error was not harmless beyond a reasonable doubt”; and (3) “once

the prejudicial evidence is excised, the remaining evidence is weighed to determine

whether it establishes the defendant’s guilt beyond a reasonable doubt.” State v.

Harris,

,

,

, citing State v.

Morris,

,

,

, ¶ 25–33. Recently, in

Hall, we found reversible error when the trial court failed to inquire into the

circumstances of a similar discovery violation. Hall, 1st Dist. Hamilton No. C-

200264,

. There, the state never filed a response to Mr.

Hall’s discovery request but instead disclosed photos of the victim’s injuries the

morning of trial. Id. at ¶ 5. The case was little more than “he said, she said” with the

pictures constituting “the lynchpin of the state’s case.” Id. at ¶ 15. The court also

explicitly relied on the photos during sentencing. Id. Mr. Hall’s attorney requested

the photos be excluded; the trial court offered a continuance but defense counsel

declined based on Mr. Hall’s incarceration. Id. at ¶ 12. Because the trial court

proposed a sanction without first considering the Darmond factors, we reversed and

remanded for a new trial. Id. at ¶ 16-17.

{¶15} Here, while the trial court failed to properly weigh the Darmond

factors before denying the continuance, the record demonstrates the error was

harmless. Unlike in Hall, the photos played no significant role either during trial or

at sentencing. The state turned over all other requested discovery approximately

four months before trial. The discovery response included an incident report, an

arrest and investigation report, a weapons report, Ms. Bailey’s statement that she

was injured, and a witness list. At least two corroborating witnesses—a nurse from

9 OHIO FIRST DISTRICT COURT OF APPEALS

Bethesda Hospital and the police officer who took the pictures—testified at trial,

verifying the nature of the injuries sustained. In light of that testimony, it minimized

the significance of the photos, which may explain why they received so little attention

during trial. Because we are confident that the trial court’s error had no impact on

the verdict, we overrule Mr. Austin’s first assignment of error in its entirety.

III.

{¶16} In his second assignment of error, Mr. Austin argues insufficient

evidence existed to convict him of aggravated menacing because the state failed to

prove a necessary element of the offense. Specifically, Mr. Austin claims that Ms.

Bailey presented no testimony indicating that she truly feared that he would harm

her. With respect to sufficiency, “ ‘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. Walker,

,

,

, ¶ 12, quoting

State v. Jenks,

,

(1991), paragraph two of the

syllabus. And “ ‘[w]here reasonable minds can reach different conclusions upon

conflicting evidence, determination as to what occurred is a question for the trier of

fact. It is not the function of an appellate court to substitute its judgment for that of

the factfinder.’ ” (Emphasis deleted.) State v. Shabazz,

, 2016-

Ohio-1055,

, quoting

. Whether Mr. Austin’s

aggravated menacing conviction is supported by sufficient evidence “is a question of

law this court reviews de novo.” State v. Ellison,

, 2008-Ohio-

5282,

(1st Dist.).

10 OHIO FIRST DISTRICT COURT OF APPEALS

{¶17} Mr. Austin centers his sufficiency argument on the element in the

statute requiring Ms. Bailey to have believed she faced danger. A person is guilty of

aggravated menacing in Ohio when they “knowingly cause another to believe” they

are at risk of serious physical harm. R.C. 2903.21(A). Essentially, Mr. Austin argues

that because Ms. Bailey never uttered the word “fear” while testifying, then no fear

existed on her part. But circumstantial evidence may be used to prove one’s belief of

serious physical harm. State v. Flannery, 1st Dist. Hamilton No. C-140426, 2015-

Ohio-1360, ¶ 17 (“Circumstantial evidence also established [the victim’s] belief” that

the defendant would cause physical harm.), citing State v. Heinze, 12th Dist. Brown

No. CA99-04-008,

(Nov. 1, 1999). Thus, the question is whether

Ms. Bailey presented sufficient testimony that she feared for her safety despite not

expressly saying so. The answer is surely yes. Ms. Bailey testified to a number of

things which would instill fear in most people. Among these were allegations that

Mr. Austin threatened to kill her while referencing his gun, that he later rubbed the

gun against her face while conveying other threats, that she was screaming, that she

attempted to call 911, that she was hysterical and having a panic attack, and that she

ran away from him and to the hospital. Construed in a light most favorable to the

state, that certainly paints a portrait of fear sufficient to convince the trial court that

Ms. Bailey feared Mr. Austin would cause her serious physical harm. We accordingly

overrule this second assignment of error.

IV.

{¶18} In his final assignment of error, Mr. Austin asserts that his convictions

for aggravated menacing and domestic violence were both against the manifest

weight of the evidence. In reviewing whether Mr. Austin’s convictions run counter to

11 OHIO FIRST DISTRICT COURT OF APPEALS

the manifest weight of the evidence, we sit as a “thirteenth juror.” State v.

Thompkins,

,

(1997). In other words, we

review the evidence, the credibility of witnesses, the entire record.

But we will

only reverse if the trial court “clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.”

quoting State v. Martin,

,

(1st

Dist. 1983).

{¶19} Here, Mr. Austin speculates that Ms. Bailey fabricated the physical

conflict and her injuries in order to punish him for spending the previous night in the

arms of another woman. While such a theory is possible, Mr. Austin fails to explain

how the court lost its way in rejecting this interpretation of the record. Convictions

do not run afoul of the manifest weight of the evidence simply because the trier of

fact believed the state’s version. State v. Robinson, 12th Dist. Butler No. CA2018-08-

163,

(“ ‘When conflicting evidence is presented at trial, a

conviction is not against the manifest weight of the evidence simply because the trier

of fact believed the prosecution testimony.’ ”), quoting State v. Lunsford, 12th Dist.

Brown No. CA2010-10-021,

, ¶ 17.

{¶20} In any event, the trial court did more than just find one side slightly

more credible. It pointedly declared Mr. Austin to be the teller of tall tales, not Ms.

Bailey. Mr. Austin lied to police about removing weapons from the home after the

incident in question. He failed to present corroborating evidence despite admitting

such evidence would exist were he telling the truth. The record reflects the court’s

determination that Mr. Austin “demonstrate[d] his consciousness of guilt” by telling

a web of lies. In contrast, the court found Ms. Bailey’s testimony to be credible and

12 OHIO FIRST DISTRICT COURT OF APPEALS

consistent. The “credibility of witnesses [is] for the trier of fact to resolve.” State v.

Ham, 1st Dist. Hamilton No. C-170043,

. And because the trier

of fact here clearly explained its reasoning on credibility issues and we find those

conclusions supported by the record, we overrule Mr. Austin’s third assignment of

error.

* * *

{¶21} In light of the foregoing analysis, we overrule all of Mr. Austin’s

assignments of error and affirm the judgment of the trial court.

Judgment affirmed.

WINKLER and BOCK, JJ., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion

13