State v. Crump , 2019 Ohio 2219 ( 2019 )

[Cite as State v. Crump, 2019-Ohio-2219.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107460
v. :
TEQUILA CRUMP, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART
AND REMANDED
RELEASED AND JOURNALIZED: June 6, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-615579-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecutor, and
Anna Faraglia and Owen M. Patton, Assistant County
Prosecutors, for appellee.
The Law Office of Jaye M. Schlachet, and Eric M. Levy, for
appellant.
PATRICIA ANN BLACKMON, J.:
Defendant-appellant Tequila Crump appeals from her convictions
for reckless homicide and child endangering. She assigns eleven errors for our
review.1 Having reviewed the record and the controlling case law, we affirm the
convictions, but we reverse a portion of the sentence and remand for resentencing.
On October 17, 2016, Crump’s five-year-old daughter, T.M.,
sustained severe burns to her hands and forearms. Several months later, on March
17, 2017, T.M. died. Crump and her partner, Ursula Owens (“Owens”), were
subsequently indicted in a 15-count indictment in connection with both incidents.
They were charged with aggravated murder, murder, felonious assault, and
endangering children. The matter proceeded to a jury trial on May 31, 2018.
Crump’s former partner, Sabrina McCloud (“McCloud”), testified
that she met Crump in Virginia while Crump was pregnant with T.M. T.M.
developed normally but was hyperactive. McCloud eventually enrolled T.M. in
preschool. At that point, T.M. was toilet-trained and knew letters, numbers, and
colors. McCloud testified that T.M. once touched a hot stove, but she was able to
quickly move her hand away to avoid being burned. In 2016, Crump met Owens and
moved to Cleveland. T.M. stayed with McCloud for several weeks before joining
Crump and Owens in Cleveland.
Sierra Giles (“Giles”), Owens’s former partner, testified that in 2006,
she lived with Owens and her son, R.O. According to Giles, Owens was the main
disciplinarian and used corporal punishment on R.O. By 2012, Giles and Owens
1 See appendix.
were no longer living together. They formally agreed that Giles would have custody
of R.O., and Owens would have weekend visitation.
With regard to the events of October 17, 2016, Charles Yowler, M.D.
(“Dr. Yowler”), former director of the burn unit at MetroHealth Medical Center
(“MetroHealth”), testified that T.M. was admitted to the burn center following a
referral from Rainbow Babies and Children’s Hospital. T.M. had second-degree
burns to her left hand and forearm and “dead [skin] third-degree burns” to her right
hand and forearm. The third-degree burns extended all the way around her wrist
and distal forearm. Although Crump and T.M. maintained that the burns occurred
while T.M. was washing her hands, Dr. Yowler expressed concern that the injury did
not happen as described. He noted that T.M. said that “I was screaming when my
hands were under water,” and also said that Crump was with her in the bathroom at
the time of the burn. Dr. Yowler photographed the injuries and referred the matter
to the Cuyahoga County Department of Children and Family Services (“CCDCFS”).
Dr. Yowler and Anjay Khandelwal, M.D. (“Dr. Khandelwal”)
subsequently determined that T.M.’s injuries required surgical skin grafting. The
graft was ultimately successful, and T.M. was discharged back to Crump’s care on
October 29, 2016.
MetroHealth pediatric social worker Kathryn Mahoney (“Mahoney”)
testified that Crump maintained that T.M. was burned while alone in the bathroom
and washing her hands. Crump and Owens then ran cold water over T.M.’s hands
and wrapped them in clean dressings. The following morning, they observed
blistering, so they brought T.M. to the hospital. In a subsequent interview, Crump
told Mahoney that Owens had turned on only the hot water before T.M. washed her
hands then inadvertently prolonged the exposure to the hot water by draping a hot
cloth over T.M.’s hands. Crump also indicated that T.M. had developmental issues
and had an individualized education plan (“IEP”) at her former school in Virginia
but was not presently attending school.
Christina Quint (“Quint”), a former CCDCFS social worker, testified
that before the burn incident, she investigated the family regarding a claim that
Crump punched and smacked T.M. in the face. However, after speaking with
various people living at the home, Quint determined that the claim of abuse was
false. During the investigation of T.M.’s burn, Quint noted that T.M. did not seem
fearful of Crump or Owens and had no other injuries. Quint ultimately determined
that the abuse claim for the burn was “unsubstantiated” or not conclusively proven.
Marquetese Betts (“Betts”), a supervising social worker for CCDCFS,
testified that she reviewed the “unsubstantiated” abuse finding. Betts noted that
T.M. said that no one hurt her and there were no other signs of abuse. However,
Betts exercised her discretion to keep the family’s file open in light of continuing
concerns for T.M. and the family’s need for community resources.
Irene Dietz, M.D. of MetroHealth (“Dr. Dietz”), testified that she
performed a follow-up examination of T.M. in February 2017. Crump reported that
T.M. was born prematurely and had developmental issues. Crump told Dr. Dietz
that she had lost the child’s birth certificate and other important papers, so the child
was not enrolled in school. Dr. Dietz recorded that T.M. appeared extremely small
for her age and had symptoms of malnourishment, including abdominal dissention
and thin extremities. Dr. Dietz recommended that T.M. take a nutritional
supplement. Nothing in the history provided by Crump and Owens indicated that
T.M. experienced seizures.
Dr. Dietz examined T.M. again on March 7, 2017. She observed that
the burns and skin grafts appeared to be healed. T.M.’s chest was clear, and she also
gained five pounds since the last visit. Dr. Deitz noted multiple scars but no acute
bruising. Dr. Dietz acknowledged that T.M. complained of stomach aches during
both the February 2017 and March 2017 examinations. She also acknowledged that
she recommended further blood tests.
CCDCFS social worker Ada Johnson (“Johnson”) testified that
Crump’s family resided in the home of Yamika Brock (“Brock”). Johnson did not
observe peeling paint in the house, but she acknowledged that photographs of the
home show that paint was peeling in some of the rooms. T.M. did not have a bed
and slept with Crump and Owens, so Johnson arranged for her to get a bed. Johnson
also accompanied the family to the follow-up medical appointments. Neither
Crump nor Owens raised concerns about lead exposure during the appointments.
However, Johnson acknowledged that T.M. had “weird marks” on her skin.
With regard to the events of March 17, 2017, Cleveland paramedic
Samuel Wilson (“Wilson”) testified that when he arrived at the home at 10:06 p.m.,
T.M. was unconscious. Her pupils were fixed and dilated, indicating possible brain
injury. She had vomit in her airway, her heart rate was 60, and her respiratory rate
was four breaths per minute. T.M.’s Glasgow Coma value, a scale for assessing brain
injury, was 3 out of a possible score of 15, indicating a severe injury with a poor
prognosis. Wilson did not see signs of bodily trauma, however. Crump informed
Wilson that T.M. had no prior history of seizures, but she had a seizure at noon and
had been sleeping since that time.
University Hospitals Pediatric Social worker Kimberly Foley
(“Foley”) testified that according to Crump, T.M. had a seizure at noon that she
“sle[pt] off.” Crump maintained that later that afternoon, she saw T.M. playing in
her room, but by 10:00 p.m., T.M. was unconscious and was gasping for air.
Pediatric Intensive Care Attending Physician Ann Stormorken (“Dr.
Stormorken”) testified that she was part of the team of physicians who treated T.M.
Crump told Dr. Stormorken that T.M. was completely healthy earlier in the day and
was not exposed to any illness, but at 11:00 a.m. T.M. had a seizure that lasted
between three and five minutes. T.M. reportedly fell asleep until around 4:00 p.m.
then slept again until 10:00 p.m. At that point, T.M.’s breathing was labored, so
Crump called 911. Crump did not mention concerns about lead poisoning to Dr.
Stormorken. Dr. Stormorken denied learning from Crump that prior to the 911 call,
T.M. had six protracted seizures.
Dr. Stormorken diagnosed T.M. as having a severe brain injury that
was not likely to be survivable. Additionally, there was evidence of rib fractures from
an older injury. Dr. Stormorken testified that there is no connection between
seizures and life-threatening brain injuries. She also testified that lead poisoning
does not manifest as acute brain injury, and an ordinary spanking would not result
in the type of acute brain injury that T.M. displayed.
Brock, owner of the house where Crump’s family resided, testified
that in the afternoon of March 17, 2017, she saw Crump checking T.M. with a
stethoscope. Later, when the police arrived, Owens instructed Brock to tell them
that T.M. experienced a seizure.
Giles’s 14-year-old son, R.M., testified that Owens’s son, R.O., is his
good friend. R.M. spent the night at Crump’s house on March 17, 2017; he and R.O.
played video games. There was nothing unusual about T.M.’s appearance or health,
but the boys were forbidden from giving her water so that she would not wet herself
during the night. At around 5:00 a.m., R.M. heard Owens yelling and T.M. crying.
R.M. then heard two thuds, like the sound of something hitting the floor and the
wall. R.M. saw Crump and Owens standing next to T.M. who was on the floor in a
“locked” position or “seized up” with her forearms against her chest. At that point,
Crump carried T.M. to the bathroom and began splashing water on her face. When
that failed to awaken T.M., Crump placed her on a bed and shook her. Crump and
Owens searched the internet for information about CPR and seizures, then R.O.
performed CPR. Eventually, R.M. and R.O. left to get something to eat. When they
returned, T.M. was still unconscious, and R.O. continued to check on her throughout
the day. Later that night, paramedics arrived and took T.M. to the hospital.
R.O. testified that T.M. generally got into trouble for wetting herself
or “sneaking water,” and Owens usually disciplined T.M. by punching or pushing
her. After T.M. was burned, Owens maintained that T.M. was burned in the bathtub.
R.O. stayed with Owens and Crump on March 17, 2017. When he
arrived, T.M. was “in trouble” and was scrubbing urine from the floor using bleach.
After a few minutes, T.M. “blacked out.” Crump rushed T.M. into the bathroom,
splashed water on her face and revived her. Later, R.O. and R.M. played with T.M.
until it was time for her to go to sleep. The boys went to sleep at around midnight
but were awakened by Crump and Owens shouting. According to R.O., Owens was
upset that T.M. had plugged in a bedroom fan, so Crump went into the room and
struck T.M. repeatedly on the arm. Owens then said, “that’s not how you do it.” At
that point, Owens pushed T.M. to the floor, then pushed her down again after T.M.
got up. Owens struck T.M. on her head and body, stepped on T.M.’s back, then
picked her up and threw her. According to R.O., T.M.’s head struck the mirror of a
dresser in the room. T.M. lost consciousness, and Crump told Owens to stop.
Crump attempted to revive T.M. by splashing water on her face. Crump considered
whether T.M. “was faking,” so she put her on the bed and shook her. After a few
minutes, T.M.’s arms were down and she was no longer able to swallow. R.O.
checked her heart with a stethoscope and heard slow beats.
Later that morning, R.O. and R.M. left for a short time to get
something to eat. When they returned, T.M. was still unconscious, Crump was
searching for information on her phone, and Owens was watching television. R.O.
asked if they should call 911 but Crump said no, and he was too afraid to call for help
without permission. After a few hours, Crump said that T.M.’s heart was stopping,
so they called 911. On cross-examination, R.O. acknowledged that T.M. complained
of having a headache before she went to sleep.
Elizabeth Mooney, D.O. (“Dr. Mooney”) a forensic pathologist with
the Cuyahoga County Coroner’s Office, performed an autopsy on T.M. Dr. Mooney
determined that T.M. died from multiple blunt force injuries that severed a blood
vessel and caused a brain hemorrhage and a cervical spinal hemorrhage. T.M. also
suffered bruises to her lungs, rib fractures, and back injuries. Additionally, T.M. was
malnourished and had older injuries, including rib fractures and a fractured clavicle.
Cleveland Police Homicide Detective Jody Remington (“Det.
Remington”) executed a search warrant for Crump’s home and also interviewed
Crump and Owens. Crump stated that the October 2016 burn resulted from T.M.
“trying to run a bath.” As to the events of March 17, 2017, Crump stated that she was
very angry with T.M. for touching a fan and for wetting herself, but she simply
pushed T.M. away from her. Later, Crump observed T.M. having a seizure. Phone
records show that at 10:48 a.m., Crump visited the website “epilepsy.com.” At 7:32
p.m., Crump searched the internet for “recovery after seizure.” Owens told Det.
Remington that T.M. had two seizures on March 16, 2017. The next morning, T.M.
awoke at 8:00 a.m. She reportedly had a tantrum and “threw her head back” when
Owens told her to stay in bed. Later that day, after T.M. touched the fan, Owens hit
her with a flip flop then “mushed her head,” signaling that T.M. could go and play.
T.M. later had another seizure and slept throughout the day.
Dr. Thomas Young (“Dr. Young”) testified for the defense. He stated
that the torn blood vessel that Dr. Mooney observed occurred during the autopsy
and was not the cause of T.M.’s death. Rather, Dr. Young opined that T.M. died from
natural causes after developing a thrombus or blood clot in her brain that caused
repeated seizures, loss of blood to the brain, and brain swelling.
The state presented rebuttal testimony from Cuyahoga County
Medical Examiner Dr. Thomas Gilson (“Dr. Gilson.”) Dr. Gilson stated that T.M.
suffered a trauma that caused a hemorrhage. The hemorrhage in turn produced a
clot; the clot did not produce a hemorrhage.
The defense requested and obtained an instruction on reckless
homicide as a lesser included offense of aggravated murder. (Tr. 1866-1867, 1870-
1871.) Crump was subsequently convicted of two counts of reckless homicide and
seven counts of child endangering with findings that the violation resulted in serious
physical harm to the victim. Crump was sentenced to 13 years of imprisonment.2
I. Claimed Denial of Unanimous Verdict
In the first assigned error, Crump asserts that her conviction for
reckless homicide must be vacated. First, she argues that reckless homicide is not a
lesser included offense of aggravated murder because the aggravated murder jury
2 Owens was convicted of two counts of reckless homicide, murder, felonious
assault, and seven counts of endangering children. She was sentenced to 25 years to life.
instruction for “cause” requires an act that produces a harm, whereas the reckless
homicide jury instruction for “cause” includes an act and the failure to act, as well as
the natural and foreseeable consequences. Crump also argues that the jury
instructions for reckless homicide deprived her of a unanimous verdict because they
did not attempt to narrow the jury’s finding to a single form of the offense, i.e., by
means of aiding and abetting in an act, committing a specific act, or failing to act.
Beginning with the first portion of Crump’s argument, Crump
concedes that she requested the reckless homicide instruction. Accordingly, this
error was invited by Crump. Under the invited-error doctrine, a party will not be
permitted to take advantage of an error that he himself invited or induced. State v.
Teitelbaum, 2016-Ohio-3524, 67 N.E.3d 85, ¶ 76 (10th Dist.); State v. Robinson, 8th
Dist. Cuyahoga No. 99917, 2014-Ohio-2973, ¶ 33 (“Therefore, since Robinson
requested the jury instruction of which he now complains, he may not now seek to
use the instruction to his advantage on appeal.”). Further, reckless homicide is a
lesser included offense of aggravated murder under R.C. 2903.01(A). State v.
Daniels, 8th Dist. Cuyahoga No. 93545, 2010-Ohio-3871, ¶ 29. Reckless homicide
is also a lesser included offense of aggravated murder under R.C. 2903.01(B). State
v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 190.
Crump insists that reckless homicide cannot be a lesser included
offense of aggravated murder because each has a different standard jury instruction.
The “cause” jury instruction for aggravated murder requires an act that directly
produces a harm, but the “cause” jury instruction for reckless homicide includes an
act or failure to act and the natural and foreseeable consequences. See Ohio Jury
Instructions (“O.J.I.”), CR Section 503.01 and Section 417.23.
However, with particular regard to the issue of “cause,” the Trimble
court stated:
[A] defendant cannot cause the death of a person under R.C.
2903.01(B) without also causing the death of that person under R.C.
2903.041. In purposely causing the death of another, one has to first
become reckless in causing the death of another.
Id.Moreover, in State v. Williams, 5th Dist. Richland No. 95 CA 93, 1996
Ohio App. LEXIS 6174, *35-36 (Dec. 3, 1996), the court concluded that the
instruction on a lesser included offense was correct where the court’s overall
instructions clarified that the definition of “cause” differed from the definition of
“cause” for the primary offense. Likewise in this matter, the instruction on the lesser
included offense and the primary offense both contained distinct and correct
definitions of the “cause” elements.
Turning to the next portion of Crump’s assigned error, we note that
Crim.R. 31(A) provides that a jury must return a unanimous guilty verdict.
However, “the law on juror unanimity distinguishes between the elements of the
crime and the means by which a defendant commits an element.” State v. Gardner,
118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 37. In a typical alternative
means case, the jury must be unanimous as to the defendant’s guilt of the crime
charged, but need not be unanimous as to the means by which the crime was
committed. See State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d
127, ¶ 290. Therefore, the critical inquiry is whether the case involves “alternative
means” or “multiple acts.” Gardner at ¶ 48; State v. Hinzman, 8th Dist. Cuyahoga
No. 92767, 2010-Ohio-771, ¶ 30; State v. McKinney, 8th Dist. Cuyahoga No. 106377,
2019-Ohio-1118, ¶ 32.
In McKinney, this court recently explained the distinction as follows:
“In an ‘alternative means’ case, where a single offense may be
committed in more than one way, there must be jury unanimity as to
guilt for the single crime charged. Unanimity is not required, however,
as to the means by which the crime was committed so long as
substantial evidence supports each alternative means. In reviewing an
alternative means case, the court must determine whether a rational
trier of fact could have found each means of committing the crime
proved beyond a reasonable doubt.” [Gardner] at ¶ 49.
However, in a “multiple acts” case, “several acts are alleged and any one
of them could constitute the crime charged. In these cases, the jury
must be unanimous as to which act or incident constitutes the crime.
To ensure jury unanimity in multiple acts cases, we require that either
the state elect the particular criminal act upon which it will rely for
conviction, or that the trial court instruct the jury that all of them must
agree that the same underlying criminal act has been proved beyond a
reasonable doubt.” [Gardner] at ¶ 50.
Id. at ¶ 33-34. Accord State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d
31, ¶ 183-189 (rejecting unanimous verdict challenge to felony murder, finding that
jurors need not be unanimous as to the predicate offense); State v. Thompson, 33
Ohio St.3d 1, 514 N.E.2d 407 (1987) (rejecting unanimous verdict challenge, finding
that the court did not have to instruct jury that it was required to unanimously find
a particular type of rape).
With regard to the claim of lack of unanimity in distinguishing
between aiding and abetting and the principal offense, we begin by noting in State
v. Robinson, 8th Dist. Cuyahoga No. 99917, 2014-Ohio-2973, this court observed
that where a defendant is charged with alternative theories of principal offender or
aider and abettor, the jury instructions need not require the jury to unanimously
agree on one of these alternative theories so long as they unanimously agree beyond
a reasonable doubt that the defendant’s actions constituted the offense charged. Id.
at ¶ 45. This court held that a rational trier of fact could have found Robinson guilty
of murder, aggravated robbery, and felonious assault as either the principal offender
or an aider and abettor, so unanimous agreement on one of these alternatives in the
verdict form was not required. Id. at ¶ 46.
In this regard, felonious assault cases are instructive. See State v.
Feagin, 5th Dist. Richland No. 14CA11, 2014-Ohio-5133, in which the court
explained:
We find the instant case to be an alternative-means case, not a
multiple-acts case, the issue being what caused the victim’s serious
physical harm. See State v. Jeffery, 2013-Ohio-504, 986 N.E.2d 1093,
¶ 34-35 (2nd Dist.). The jury was not required to agree whether
appellant’s punches caused the serious physical harm (his own
conduct) or whether Jarvis’ punches caused the serious physical harm
(appellant complicit in Jarvis’ conduct) because each is an alternative
form of aiding and abetting felonious assault. Id. There is no
distinction between a defendant convicted of complicity or as a
principal offender. Id., citing R.C. 2923.03(F).
Id. at ¶ 40.
Moreover, we note that in this matter, substantial evidence
supported each alternative means for committing the offense.
Crump next claims that she was deprived of unanimity on complicity
to commit reckless homicide because the state was required to prove that she
knowingly or purposely aided and abetted in committing the reckless homicide.
However, this argument appears to conflate the proof needed for attempt with the
proof needed for complicity. That is, R.C. 2923.03(A)(2) states, “[n]o person, acting
with the kind of culpability required for the commission of an offense, shall * * *
[a]id or abet another in committing the offense.” Further, R.C. 2923.03(F) states,
Whoever violates this section is guilty of complicity in the commission
of an offense, and shall be prosecuted and punished as if he were a
principal offender. A charge of complicity may be stated in terms of
this section, or in terms of the principal offense.
Accord Columbus v. Bishop, 10th Dist. Franklin No. 08AP-300, 2008-Ohio-
6964, ¶ 35; State v. Dayton, 3d Dist. Union No. 14-17-03, 2018-Ohio-3003, ¶ 99.
Therefore, the aiding and abetting instruction was not required to state that Crump
acted “knowingly.” State v. Redding, 8th Dist. Cuyahoga No. 59988, 1992 Ohio App.
LEXIS 972, 21 (Mar. 5, 1992).
We next consider Crump’s assertion that the trial court erred in
giving the aiding and abetting instruction in relation to the reckless homicide charge
because it was impermissibly premised upon Crump’s “after the fact” conduct of
failing to get help for T.M. Again, we note that Crump requested the reckless
homicide instruction and invited any error. Teitelbaum, 2016-Ohio-3524, 67
N.E.3d 85, at ¶ 76. In any event, considering the merits of the claim, Crump’s
argument focuses on O.J.I. Section 417.23 that defines “cause” as an “act or failure
to act which in a natural and continuous sequence directly produces the death and
without which it would not have occurred.”
R.C. 2903.041(A), the statute prohibiting reckless homicide states
that “[n]o person shall recklessly cause the death of another * * *.” The reckless
homicide statute indicates that the emphasis is on the fact that the defendant caused
the death. 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[.]” R.C. 2901.22(C).
The “act” and “failure to act” identified in the causation instruction
are simply alternative means of showing the element of cause, and not separate
offenses. That is, there are different means of accomplishing this crime, but the
different means do not create separate and distinct offenses. The jury instructions
properly demonstrated that action or failure to act is the means by which the offense
is committed and embodies alternative means of causation and not separate
offenses. Accord Villanueva v. State, 227 S.W.3d 744 (Tx. App.2007).
In this regard, felonious assault cases are again instructive. See State
v. Davis, 9th Dist. Summit No. 21794, 2004-Ohio-3246, in which the court
explained:
To convict Defendant of felonious assault the State must have proven
that she “knowingly * * * caus[ed] serious physical harm” to Edgar
either via an act or a failure to act where the natural and direct
consequence of that act or failure directly produced the serious physical
harm. R.C. 2903.11(A)(1).
Id. at ¶ 27. Accord State v. Spates, 8th Dist. Cuyahoga No. 100933, 2015-Ohio-1014,
¶ 53-56.
Therefore, Crump simply raises an alternative means issue, not a
multiple acts issue, in establishing the causation element. The jury was not required
to agree on the alternative means for the causation element, and substantial
evidence supports the alternative means of committing reckless homicide in this
case.
Crump insists that this matter is similar to this court’s decision in
State v. Jackson, 8th Dist. Cuyahoga No. 95920, 2011-Ohio-5920. In Jackson, the
defendant was charged with felonious assault, domestic violence, and endangering
children. Jackson’s argument focused on the indictment and asserted that the
indictment was duplicative in violation Crim.R. 8(A) and the Due Process Clause of
the United States Constitution because the record was not clear as to what
occurrences formed the bases of each of the charges. This court concluded that the
indictment was duplicitous and the case involved “multiple acts,” rather than
“alternative means,” so the jury could have found him guilty of any of the offenses
and may not have reached a unanimous verdict. Clearly, Jackson’s discussion of
alternative means, multiple acts, and Crim.R. 31(A) was dicta and has no application
here. See McKinney, 8th Dist. Cuyahoga No. 106377, 2019-Ohio-1118, at ¶ 41.
In accordance with all of the foregoing, Crump’s first assigned error
lacks merit.
II. Multiple Acts and Child Endangering
Crump next argues that the trial court erred in failing to require the
state to identify the specific act comprising child endangering in Counts 9 and 15.
She asserts that it is unclear whether the conviction under Count 9 is based upon
failing to stop Owens from beating T.M., or whether it is from failing to promptly
bring T.M. to the hospital on March 17, 2017. Under Count 15, Crump argues that it
is unclear whether the conviction for child endangering on October 17, 2016, is from
permitting T.M. to have access to scalding water, or whether it is from failing to
obtain prompt medical treatment for the burns.
Both Count 9 and Count 15 alleged violations of R.C. 2919.22(A),
alleging that Crump created a substantial risk to the health or safety of the child, by
violating her parental duty of care, protection, or support. Applying Gardner and
Adams, and incorporating our discussion as to the first assigned error, we conclude
that the precise means in which Crump violated that duty presents alternative
means and not multiple acts. Moreover, substantial evidence supports each
alternative means of establishing the offense. There is no unanimity violation.
The second assigned error lacks merit.
III. Reckless Homicide and Aggravated Murder
In the third assigned error, Crump argues that the trial court erred in
instructing the jury on reckless homicide because reckless homicide for a failure to
act is not a lesser included offense of aggravated murder.
Again, Crump invited any error here by requesting this instruction.
Teitelbaum, 2016-Ohio-3524, 67 N.E.3d 85, at ¶ 76; State v. Robinson, 8th Dist.
Cuyahoga No. 99917, 2014-Ohio-2973, at ¶ 33. In any event, as is relevant to the
charges in this matter, reckless homicide is a lesser included offense of aggravated
murder under R.C. 2903.01(A). Daniels, 8th Dist. Cuyahoga No. 93545, 2010-Ohio-
3871, at ¶ 29. Reckless homicide is also lesser included offense of aggravated murder
under R.C. 2903.01(B). Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d
242, at ¶ 190. This assigned error therefore lacks merit.
IV. Instructions on Aiding and Abetting
In the fourth assigned error, Crump argues that the trial court erred
in granting the state’s request for an instruction on aiding and abetting. She also
complains that the court gave a single aiding and abetting instruction that was not
tailored to each specific charge, and that the court also omitted “affirmative defenses
of duress, coercion and compulsion.”
The giving of jury instructions is within the sound discretion of the
trial court, and we review it for an abuse of discretion. State v. Jackson, 8th Dist.
Cuyahoga No. 100125, 2014-Ohio-3583, ¶ 42, citing State v. Howard, 8th Dist.
Cuyahoga No. 100094, 2014-Ohio-2176, ¶ 35, and State v. Martens, 90 Ohio App.3d
338, 629 N.E.2d 462 (3d Dist.1993).
Under R.C. 2923.03(F), a charge of complicity may be stated in terms
of this section or in terms of the principal offense. As a result, a jury instruction on
complicity is proper as long as “the evidence adduced at trial could reasonably be
found to have proven the defendant guilty as an aider and abettor.” State v.
McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 244.
A complicity instruction was proper here because the evidence could
reasonably be found to have proven that Crump was an aider and abettor to Owens.
Moreover, this court has approved instructions giving a single aiding and abetting
instruction with instructions on other principal offenses. See State v. Singleton, 8th
Dist. Cuyahoga No. 98301, 2013-Ohio-1440, ¶ 23.
On the issue of duress, we note that duress cannot be asserted as a
defense to aggravated murder, but is theoretically available to other felonies. State
v. Getsy, 84 Ohio St.3d 180, 198, 1998-Ohio-533, 702 N.E.2d 866. Under R.C.
2901.05(A), a defendant has the “burden of going forward with evidence of a nature
and quality sufficient to raise” the defense. State v. Simes, 8th Dist. Cuyahoga No.
103672, 2016-Ohio-7300, ¶ 35, citing Getsy at 198.
Evidence is sufficient where a reasonable doubt of guilt has arisen
based upon a claim of duress. If the evidence generates only a mere
speculation or possible doubt, such evidence is insufficient to raise the
affirmative defense, and submission of the issue to the jury will be
unwarranted.
Id., quoting Getsy.
As explained in Getsy:
One of the essential features of the defense of duress is a sense of
immediate, imminent death, or serious bodily injury if the actor does
not commit the act as instructed. See [State v.] Cross, [58 Ohio St.2d
482, 488, 391 N.E.2d 319 (1979) at] 487. The force used to compel the
actor’s conduct must remain constant; controlling the will of the
unwilling actor during the entire time he commits the act, and must be
of such a nature that the actor cannot safely withdraw. See State v.
Good, 110 Ohio App. 415, 83 Ohio Law Abs. 65, 165 N.E.2d 28 [(10th
Dist.1960)].
Id. at 199.
This same showing is required for the defense of compulsion and
coercion. See, e.g., State v. Milam, 108 Ohio App. 254, 260, 156 N.E.2d 840 (8th
Dist.1959).
We find no abuse of discretion in this matter because the record does
not indicate that Crump dealt with a sense of immediate, imminent death, or serious
bodily injury if she did not act as ordered to by Owens.
This assigned error lacks merit.
V. Sufficiency of the Evidence
Crump next asserts that her convictions for reckless homicide and
child endangering are not supported by sufficient evidence.
When reviewing the sufficiency of the evidence, our inquiry focuses
primarily upon the adequacy of the evidence; that is, whether the evidence, if
believed, reasonably could support a finding of guilt beyond a reasonable doubt.
State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997); State v. Jenks,
61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). The standard of review is whether,
after viewing the probative evidence and inferences reasonably drawn therefrom in
the light most favorable to the prosecution, any rational trier of fact could have
found all the essential elements of the offense beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jenks.
R.C. 2903.041(A) prohibits reckless homicide and states that “[n]o
person shall recklessly cause the death of another * * *.” Under R.C. 2901.22(C),
“[a] person acts recklessly when, with heedless indifference to the consequences, the
person disregards a substantial and unjustifiable risk that the person’s conduct is
likely to cause a certain result or is likely to be of a certain nature.” The offense can
be shown through either affirmative acts or failure to seek medical attention that
show heedless indifference to the consequences and perversely disregard a known
risk that his or her conduct was likely to result in death. State v. Patterson, 11th
Dist. Trumbull No. 2013-T-0062, 2015-Ohio-4423, ¶ 94. See also State v. Alston,
9th Dist. Lorain No. 05CA008769, 2006-Ohio-4152, ¶ 9, 45-46; State v. Hipshire,
2d Dist. Darke No. 2010-CA-07, 2011-Ohio-3863, ¶ 44.
Reviewing the record in this matter, we find that the state presented
sufficient evidence as to Crump’s recklessness for failing to seek medical treatment
for T.M. after the fatal beating. The state also presented sufficient evidence
demonstrating that Crump committed reckless homicide by aiding and abetting
Owens during the fatal beating on March 17, 2017.
R.C. 2919.22 defines the offense of endangering children as follows:
(A) No person, who is the parent, guardian, custodian, person having
custody or control, or person in loco parentis of a child * * * shall create
a substantial risk to the health or safety of the child, by violating a duty
of care, protection, or support.
(B) No person shall do any of the following to a child under eighteen
years of age or a mentally or physically handicapped child under
twenty-one years of age:
(1) Abuse the child;
(2) Torture or cruelly abuse the child;
(3) Administer corporal punishment or other physical disciplinary
measure, or physically restrain the child in a cruel manner or for a
prolonged period, which punishment, discipline, or restraint is
excessive under the circumstances and creates a substantial risk of
serious physical harm to the child * * *[.]
This court has held, under similar circumstances, that a parent may
be found guilty of child endangering for creating a substantial risk to the health or
safety of the child where the parent fails to seek medical treatment for an injured or
ill child. State v. Jones, 2018-Ohio-498, 105 N.E.3d 702, ¶ 93 (8th Dist.); State v.
Reynolds, 8th Dist. Cuyahoga No. 65342, 1994 Ohio App. LEXIS 3610, 26 (Aug. 18,
1994).
In this matter, the state presented sufficient evidence that Crump
both abused T.M. in violation of R.C. 2919.22(B) (Count 12) and violated a duty of
protection and care to T.M. in violation of R.C. 2919.22(A) (Count 15) on October
17, 2016. The evidence indicated that Crump was in the bathroom with T.M. at the
time of the burn and did not immediately seek help for her despite the severe burns.
The state also presented sufficient evidence that Crump both abused T.M. in
violation of R.C. 2919.22(B) (Counts 5-8) and violated a duty of protection and care
to T.M. in violation of R.C. 2919.22(A) (Count 9) on March 15, 2017. The evidence
indicated that Crump struck T.M., aided and abetted Owens in the beating, and did
not seek help for the child for many hours.
This assigned error lacks merit.
VI. Manifest Weight of the Evidence
For her sixth assigned error, Crump argues that her convictions are
against the manifest weight of the evidence.
In reviewing a challenge to the manifest weight of the evidence
supporting a conviction, 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 380, 387, 1997-Ohio-52, 678 N.E.2d 541,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
“When considering an appellant’s claim that a conviction is against the manifest
weight of the evidence, the court of appeals sits as a ‘thirteenth juror’ and may
disagree with the factfinder’s resolution of conflicting testimony.” Thompkins,
quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). 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. Moreover, circumstantial evidence carries the same weight as direct
evidence. State v. Seals, 8th Dist. Cuyahoga No. 101081, 2015-Ohio-517, ¶ 32, citing
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492.
In this matter, we cannot say that the jury clearly lost its way and
created such a manifest miscarriage of justice that the convictions must be reversed
and a new trial ordered. The manifest weight of evidence demonstrated that Crump
committed reckless homicide by aiding and abetting Owens during the fatal beating
on March 17, 2017, and also failed to seek medical treatment for T.M. in the many
hours following the fatal blows. The manifest weight of the evidence also
demonstrated that Crump both abused T.M. in violation of R.C. 2919.22(B) (Count
12) and violated a duty of protection and care to T.M. in violation of R.C. 2919.22(A)
on October 17, 2016 (Count 15), and that she both abused T.M. in violation of R.C.
2919.22(B) (Counts 5-8) and violated a duty of protection and care to T.M. in
violation of R.C. 2919.22(A) on March 15, 2017 (Count 9). Therefore, this matter
does not present the exceptional case in which the evidence weighs heavily against
the conviction.
The sixth assigned error lacks merit.
VII. Failing to Merge Offenses
In the seventh assigned error, Crump argues that the trial court erred
in failing to merge her convictions for reckless homicide with the child endangering
convictions for the March 17, 2017 abuse of T.M. in violation of R.C. 2919.22(B)
(Counts 5-8).
The state maintains that Crump did not object and forfeited all but
plain error. However, the record indicates that prior to sentencing, the state and
counsel for Crump discussed the issue of merger. The state refused to agree that
offenses merge, however Crump argued that “Counts 1 and 2, the reckless homicide
convictions, should merge with Counts 5, 6, and 7, child endangering counts.” (Tr.
1996-1997.)
The question of whether offenses should merge under R.C. 2941.25
ordinarily presents a question of law we review de novo. In State v. Ruff, 143 Ohio
St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Ohio Supreme Court held that courts
considering whether there are allied offenses that merge into a single conviction
under R.C. 2941.25 should focus on the defendant’s conduct. Id. at ¶ 25. R.C.
2941.25(A) allows only a single conviction for conduct by a defendant that
constitutes “allied offenses of similar import.” However, under R.C. 2941.25(B), a
defendant charged with multiple offenses may be convicted of all the offenses if (1)
the defendant’s conduct constitutes offenses of dissimilar import or significance, (2)
the conduct demonstrates that the offenses were committed separately, or (3) the
conduct shows that the offenses were committed with a separate animus. Ruff
at ¶ 31.
In the instant case, Crump was convicted of reckless homicide and
endangering children under both R.C. 2919.22(A) and (B). The court merged both
reckless homicide counts, but did not merge them with any of the endangering
children counts. However, the court did merge Counts 5-8, endangering children in
violation of R.C. 2919.22(B), alleging that Crump administered abuse that created a
substantial risk to the child on March 17, 2017. The court determined that the
remaining child endangering counts, Count 9 (alleging that Crump violated a duty
of care, protection or support in violation of R.C. 2919.22(A) on March 17, 2017),
Count 12 (alleging that Crump administered abuse in violation of R.C. 2919.22(B)
on October 17, 2016), and Count 15 (alleging that Crump violated a duty of care,
protection or support in violation of R.C. 2919.22(A) on October 17, 2016) do not
merge.
On the issue of whether the reckless homicide counts merge with
Counts 5-8, endangering children in violation of R.C. 2919.22(B), alleging that
Crump administered abuse that created a substantial risk to the child on March 17,
2017, we note that this court addressed a similar issue in State v. Esper, 8th Dist.
Cuyahoga No. 105069, 2017-Ohio-7069. In that case, Esper pled guilty to two
offenses directly related to causing serious physical harm to his son: felonious
assault in violation of R.C. 2903.11(A)(1) (knowingly cause serious physical harm to
another); and child endangering with a serious physical harm specification, in
violation of R.C. 2919.22(B)(1) (no person shall abuse a child resulting in serious
physical harm). This court addressed the merger issue as follows:
R.C. 2919.22 focuses on “child neglect and abuse.” Subsection (A)
defines the offense of neglect as the “violation of a duty of care,
protection, or support which results in a substantial risk to his health
or safety.” Committee Comment to R.C. 2919.22. Subsection (B) of
R.C. 2919.22, on the other hand, “deals with actual physical abuse of a
child, whether through physical cruelty or through improper discipline
or restraint.” Id.The Ohio Supreme Court has similarly distinguished between the two
types of child endangering by explaining that division (B) deals with
affirmative acts of physical abuse whereas division (A) is concerned
with circumstances of neglect. State v. Kamel, 12 Ohio St.3d 306, 309,
466 N.E.2d 860 (1984), citing State v. Sammons, 58 Ohio St.2d 460,
391 N.E.2d 713 (1979) (an affirmative act of abuse is a required element
for a conviction under R.C. 2919.22(B); whereas subsection (A)
involves acts of omission). “[A]n inexcusable failure to act in discharge
of one’s duty to protect a child, where such failure to act results in a
substantial risk to the child’s health or safety, is an offense under R.C.
2919.22(A).” Id. at 309 (finding that the failure to secure medical
attention for son’s injuries or to prevent further injury, constituted a
violation of R.C. 2919.22(A)).
Id. at ¶ 12-13.
This court concluded that the offenses were allied because they were
committed with the same conduct and the same animus. This court stated:
In this case, the record reflects that Esper’s conduct that gave rise to the
felonious assault charge was the same conduct that gave rise to the
endangering children charge under R.C. 2919.22(B)(1) — his shaking
of the child, which caused substantial physical harm to the child.
Esper’s conduct was committed with the same animus — out of anger
and frustration on February 19, 2016. Esper’s subsequent conduct of
failing to seek immediate medical assistance was the basis for the
dismissed endangering children charged under R.C. 2919.22(A).
Id. at ¶ 15.
Because Esper involved felonious assault and a violation of
subsection (B) child endangering (in violation of R.C. 2919.22(B)(1), no person shall
abuse a child resulting in serious physical harm), this court distinguished an earlier
case, State v. Porosky, 8th Dist. Cuyahoga No. 94705, 2011-Ohio-330, involving
felonious assault and a violation of subsection (A) child endangering in violation of
R.C. 2919.22(A), violation of a duty of care, protection, or support that results in a
substantial risk to his health or safety. The Esper court emphasized that:
Porosky first harmed his son (felonious assault) and then endangered
him by failing to seek medical attention for the baby for approximately
12 hours * * *. Thus, even if child endangering and felonious assault
could be considered allied offenses under the [old State v.] Johnson
[128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061] framework, in
this case, the offenses do not merge since Porosky committed them
with a separate animus.
Id. at ¶ 11.
Applying Esper, we conclude that Crump’s March 17, 2017 conduct
that gave rise to the reckless homicide charges (Counts 1 and 2) was the same
conduct that gave rise to the abuse-related endangering children charges under R.C.
2919.22(B) (Counts 5-8). Crump’s conduct was also committed with the same
animus, i.e., anger and frustration with T.M. Therefore, these counts should have
merged. Accord State v. Grube, 2013-Ohio-692, 987 N.E.2d 287, ¶ 52 (4th Dist.)
(applying Johnson framework and remanding for trial court to must consider
whether child endangering was committed separately and with a separate animus
from aggravated murder). However, Crump’s subsequent conduct of failing to seek
medical assistance for over nine hours on the same date, endangering children
under R.C. 2919.22(A) (Count 9), was based upon different conduct and was
motivated by a different animus, so it does not merge.
The state argues that different conduct could support both
convictions, i.e., endangering children from failing to stop Owens’s abuse and
reckless homicide from aiding and abetting Owens’s abuse. However, there is no
evidence to establish that there was a break in a temporal continuum between the
initial blows and the final beating such that we could find that there were separate
acts or a separate animus for the acts. See Johnson, 128 Ohio St.3d 153, 2010-Ohio-
6314, 942 N.E.2d 1061, in which the court stated:
We decline the invitation of the state to parse Johnson’s conduct into a
blow-by-blow in order to sustain multiple convictions for the second
beating. This beating was a discrete act that resulted in the
simultaneous commission of allied offenses, child abuse and felony
murder.
Id. at ¶ 56. See also State v. Anthony, 2015-Ohio-2267, 37 N.E.3d 751, ¶ 50 (8th
Dist.).
This assigned error is well taken in part.
VIII. Aiding and Abetting in Reckless Homicide
For her eighth assigned error, Crump maintains that the trial court
erred in allowing the state to present a complicity theory of reckless homicide
because aiding and abetting requires the actor to knowingly intend to aid and abet,
whereas reckless homicide requires mere recklessness.
As this court explained in the discussion of the first assigned error,
R.C. 2923.03(A)(2) states, “[n]o person, acting with the kind of culpability required
for the commission of an offense, shall * * * [a]id or abet another in committing the
offense.” Under R.C. 2923.03(F), “[w]hoever violates this section is guilty of
complicity in the commission of an offense, and shall be prosecuted and punished
as if he were a principal offender. A charge of complicity may be stated in terms of
this section, or in terms of the principal offense.” McKelton, 148 Ohio St.3d 261,
2016-Ohio-5735, 70 N.E.3d 508, at ¶ 244. Accord Bishop, 2008-Ohio-6964, at ¶ 35;
Dayton, 2018-Ohio-3003, at ¶ 99. Therefore, the aiding and abetting instruction
was not required to state that Crump acted “knowingly.” Redding, 8th Dist.
Cuyahoga No. 59988, 1992 Ohio App. LEXIS 972, 21.
The eighth assigned error lacks merit.
IX. Failure to Sever Charges
In the ninth assigned error, Crump asserts that the trial court erred
in failing to sever the charges pertaining to T.M.’s October 2016 burn from the
charges pertaining to her March 2017 death.
Under Crim.R. 13, a court may order two or more cases be tried
together “if the offenses * * * could have been joined in a single indictment * * *.”
Pursuant to Crim.R. 8(A), two or more offenses may be joined if the offenses “are of
the same or similar character * * * or are based on two or more acts or transactions
connected together or constituting parts of a common scheme or plan, or are part of
a course of criminal conduct.” While the law favors the joinder of offenses that are
of the “same or similar character,” a defendant may move to sever the charges under
Crim.R. 14 upon a showing of prejudice. State v. Lott, 51 Ohio St.3d 160, 163, 555
N.E.2d 293 (1990). In State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900
N.E.2d 565, the court explained:
The defendant, however, bears the burden of proving prejudice and of
proving that the trial court abused its discretion in denying severance.
State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d
959, ¶ 29[.]
The state may rebut a defendant’s claim of prejudicial joinder in two
ways. First, if in separate trials the state could introduce evidence of
the joined offenses as “other acts” under Evid.R. 404(B), a defendant
cannot claim prejudice from the joinder. Lott, 51 Ohio St.3d at 163, 555
N.E.2d 293. Second, the state can refute prejudice by showing that
“evidence of each crime joined at trial is simple and direct.”
Id. at ¶ 95-96.
Moreover, the jury is believed capable of segregating the proof on
multiple charges when the evidence as to each of the charges is uncomplicated.
State v. Torres, 66 Ohio St.2d 340, 343, 421 N.E.2d 1288 (1981).
Applying the Diar analysis, we find no abuse of discretion. Had the
charges from the burn incident been severed from the homicide-related charges, this
evidence would have been admissible under Evid.R. 404(B). See Diar, 120 Ohio
St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, at ¶ 97. Moreover, the evidence from
the each incident was simple and direct.
This assigned error lacks merit.
X. Ineffective Assistance of Counsel
In her tenth assigned error and a portion of her seventh assigned
error, Crump raises various ineffective assistance of counsel claims. She asserts that
her trial counsel was ineffective for: (1) conceding that the child endangering
convictions in Counts 9 and 15 were not subject to merger; (2) failing to renew the
motion to sever the charges; (3), failing to object to the jury instructions; (4) failing
to request specific findings on the charged offenses; (5) failing to argue for merger
of offenses; (6) failing to object to Dr. Gilson’s testimony as beyond the scope of
rebuttal; and (7) making improper comments to the jury.
In order to substantiate a claim of ineffective assistance of counsel,
the appellant is required to demonstrate (1) his counsel was deficient in some aspect
of his representation, and (2) there is a reasonable probability that, were it not for
counsel’s errors, the result of the trial would have been different. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Judicial scrutiny
of defense counsel’s performance must be highly deferential. Id. In Ohio, there is a
presumption that a properly licensed attorney is competent. State v. Calhoun, 86
Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905.
Beginning with Crump’s first contention that Counts 9 and 15 should
have merged, we note that they are from separate dates so they do not share the
same conduct or animus. Counsel was not ineffective in failing to seek merger, so
the ineffectiveness claim raised within the seventh assigned error lacks merit.
Turning to claims two through five, we have determined that each of
the claimed errors are without merit, so they cannot serve as a basis for establishing
trial error to support her claim of ineffective assistance. See State v. Henderson, 39
Ohio St.3d 24, 33, 528 N.E.2d 1237 (1988).
Regarding the sixth claim regarding defense counsel’s failure to
object to Dr. Gilson’s testimony as beyond the scope of permitted rebuttal, we
recognize that the purpose of rebuttal is to allow the state to refute evidence offered
by the defense. State v. Linder, 8th Dist. Cuyahoga No. 106600, 2018-Ohio-
3951, ¶ 49, citing State v. Moore, 47 Ohio App.2d 181, 353 N.E.2d 866 (9th
Dist.1973). It is a matter left to the discretion of the trial court. Id., citing State v.
Graven, 54 Ohio St.2d 114, 115, 374 N.E.2d 1370 (1978), and State v. Bayless, 48
Ohio St.2d 73, 357 N.E.2d 1035 (1976). Here, Dr. Gilson’s testimony was offered to
rebut Dr. Young’s testimony on the cause of death and was not beyond the scope of
proper rebuttal testimony. Trial counsel did not err in failing to object to it. Linder.
Finally, as to the seventh claim regarding trial counsel’s conduct,
Crump complains that counsel stated in closing argument that he “wasn’t happy”
that he “had to take this case” and painted an “improper picture” of her, the record
shows that Crump’s trial counsel spoke in extreme candor to the jurors, expressing
heartfelt concerns with the issuance of an indictment in this matter. Further, there
is no basis on the record from which we can conclude that he behaved improperly.
Accordingly, the ineffective assistance of counsel claims raised in the
seventh and tenth assigned errors are without merit.
XI. Cumulative Errors
In the eleventh assigned error, Crump argues that the combined
weight of multiple errors prejudiced her and entitles her to a new trial.
Under the doctrine of cumulative error, a conviction will be reversed
when the cumulative effect of errors in a trial deprives a defendant of the
constitutional right to a fair trial even though each of the errors does not individually
constitute cause for reversal. State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524,
960 N.E.2d 955, ¶ 132; State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995).
However, the doctrine of cumulative error is inapplicable when the alleged errors
are found to be harmless or nonexistent. Id.; State v. Brown, 100 Ohio St.3d 51,
2003-Ohio-5059, 796 N.E.2d 506, ¶ 48.
In this matter, because we have determined that each of the other
claimed errors are without merit, the doctrine of cumulative error is inapplicable.
The eleventh assigned error is without merit.
The convictions are affirmed, but the portion of the sentence that
failed to merge the reckless homicide counts with child endangering under Counts
5-8 is reversed, and the matter is remanded for resentencing.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue of this court directing the common
pleas court to carry this judgment into execution. Case remanded to the trial court
for resentencing.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________________
PATRICIA ANN BLACKMON, JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR
Appendix
I. The trial court committed plain error and violated [Crump’s] right to due
process of law and a unanimous verdict pursuant to Crim. R. 31(A) where
it found [Crump] guilty following a jury trial on a duplicative lesser
included charged of reckless homicide where the jury instruction
included all possible theories of the offense which could be committed by
alternative means or multiple acts.
II. The trial court committed plain error in violating the multiple acts test
when it convicted [Crump] of child endangering in Counts 9 and 15.
III. The trial court committed plain error when it gave a reckless homicide
jury instruction for each charge of aggravated murder where the
causation portion of the instruction regarding failure to act was not a
lesser included offense.
IV. The trial court abused its discretion when it generically instructed the
jury on aiding and abetting regarding all offenses and further misled it by
not properly instructing on complicity/aiding and abetting and did not
use the proper Ohio jury instruction with the necessary affirmative
defenses and otherwise committed plain error.
V. [Crump’s] convictions were not supported by sufficient evidence.
VI. [Crump’s] convictions were against the manifest weight of the evidence.
VII. The trial court erred when it failed to merge [Crump’s] convictions for
reckless homicide with the child endangering convictions in Counts 5-8
and trial counsel was ineffective in conceding that the child endangering
convictions in Counts 9 and 15 were not subject to merger.
VIII. The trial court erred when it improperly allowed the state to present a
theory of aiding and abetting charges with a mens rea of recklessness.
IX. The court erred and abused its discretion by failing to sever the trials of
the 2016 and 2017 events.
X. [Crump] received ineffective assistance of trial counsel in violation of the
Fifth and Sixth Amendments to the United States Constitution.
XI. The cumulative effect of errors deprived [Crump] of a fair trial.