Court of Appeals of Ohio, Eighth District, Cuyahoga
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,
Law Office of Jaye M. Schlachet, and Eric M. Levy, for
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. Having reviewed the record
and the controlling case law, we affirm the convictions, but
we reverse a portion of the sentence and remand for
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.
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
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
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
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
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.
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.
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
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.
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
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
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 ...