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State v. Crump

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 6, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
TEQUILA CRUMP, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-615579-B

          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.

          JOURNAL ENTRY AND OPINION

          PATRICIA ANN BLACKMON, JUDGE.

         {¶ 1} 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.

         {¶2} 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.

         {¶3} 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.

         {¶ 4} 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 were no longer living together. They formally agreed that Giles would have custody of R.O., and Owens would have weekend visitation.

         {¶ 5} 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").

         {¶6} 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.

         {¶ 7} 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.

         {¶ 8} 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.

         {¶ 9} 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.

         {¶ 10} 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.

         {¶ 11} 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.

         {¶ 12} 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.

         {¶ 13} 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.

         (¶ 14} 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.

         {¶ 15} 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.

         {¶ 16} 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.

         {¶ 17} 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.

         {¶ 18} 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. RM. 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 RO. continued to check on her throughout the day. Later that night, paramedics arrived and took T.M. to the hospital.

         {¶ 19} 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.

         {¶ 20} 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.

         {¶ 21} Later that morning, RO. 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.

         {¶ 22} 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.

         {¶23} 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.

         {¶ 24} 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.

         {¶ 25} 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.

         {¶ 26} 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

         {¶ 27} 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 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.

         {¶ 28} 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.

         {¶ 29} 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.

         {¶ 30} 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.

         {¶ 31} 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.

         {¶ 32} 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');">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.

         {¶ 33} 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).

         {¶ 34} 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.

         {¶ 35} 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.

         {¶ 36} Moreover, we note that in this matter, substantial evidence supported each alternative means for committing the offense.

         {¶ 37} 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 ...

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