Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-18-629650-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Anthony M. Stevenson, Assistant Prosecuting
Attorney, for appellee.
W. Flowers Co., L.PA., and Louis E. Grube, for appellant.
JOURNAL ENTRY AND OPINION
C. GALLAGHER, PRESIDING JUDGE.
1} Teaco A. Croskey appeals his convictions for
attempted aggravated burglary, felonious assault, and
misdemeanor assault. Croskey is serving an aggregate two-year
term of imprisonment. For the following reasons, we reverse
2} On the day of the incident, Croskey approached
the victim's apartment. The victim's
boyfriend was present but did not reside at the
apartment. The boyfriend claimed there was another individual
present, but it is unclear whether that person was present
during the altercations - the boyfriend claimed that person
immediately left after being punched by Croskey, but before
the ensuing altercations involving the victim and the
boyfriend. There were three separate incidents. The
investigating officer, who filed the report, indicated that
the boyfriend was not initially present when Croskey first
arrived. That officer did not testify at trial. Instead
another detective testified, but she neither filed the report
nor drafted the officer's narrative. The detective
testified that the investigating officer would have included
the statements presented to him by the victims. The report
indicated that the boyfriend was not present when Croskey
first arrived. The state did not explain the discrepancy, and
because the investigating officer did not testify, it is
unclear where the statement originated.
Nevertheless, according to the trial testimony, when Croskey
first arrived, he stood on the porch and asked to speak with
the boyfriend about a money dispute. The "porch"
was a flat, concrete pad with no separate entrance. It was
open to the "outside world." While Croskey and the
boyfriend were on the front porch, the two began a
"heated discussion" that led to a fist fight. The
boyfriend claims that Croskey pulled out a box cutter (also
described as a razor blade) during that first altercation.
The boyfriend described the box cutter incorrectly, asserting
there was a bronze component to what was an all-silver item.
The boyfriend claimed that the victim saw the box cutter and
then told Croskey and the boyfriend to leave because of it.
The victim, however, was present during the entire
altercation and never saw any weapons, much less a box
cutter. Croskey and the boyfriend separated, with the
boyfriend walking away from the property altogether. The
boyfriend claimed he walked to a nearby store, about a
quarter of a mile from the victim's apartment. The
boyfriend, from his own testimony, spent anywhere from five
to seven minutes in the store before walking the quarter of a
mile back to the apartment.
4} About 10 to 15 minutes after the fist fight
concluded, according to the victim, Croskey returned to the
victim's apartment. The victim claimed that the boyfriend
was in the apartment again, although he claims he was not
present when Croskey returned the second time. According to
the victim, when Croskey returned the second time, 10 to 15
minutes following the first incident, he tried to force his
way into the apartment to fight the boyfriend. The victim
asked Croskey to leave, but he instead "launched"
at the victim, punching her in the nose while attempting to
get through the door. The victim punched Croskey in return.
According to the victim, Croskey attempted to enter the
apartment because "he wanted [the boyfriend]" and
Croskey "punched [the victim] because [she] wouldn't
let him in [her] house to fight [the boyfriend]."
Croskey then left the area for a second time.
5} The victim went to the store after the second
incident. She was not present for the third incident in which
Croskey is alleged to have cut the boyfriend with the box
cutter. According to the boyfriend, he returned to the
apartment after Croskey had already left the second time.
After 30 minutes or so of his return, the boyfriend heard
Croskey shouting at him from a distance, trying to "egg
on" the boyfriend into another fight. It was then that
the boyfriend claimed to have been cut by the box cutter, in
that third incident. There is no evidence that Croskey
attempted to enter the apartment at that time.
6} The prearrest investigation was limited. The
police officer who took the victim's and the
boyfriend's statements did not testify at trial. The
arresting officer testified at trial, but his involvement was
limited to taking Croskey into custody and collecting a box
cutter from Croskey's pocket the day following the
incident. A detective testified at trial, but her involvement
was also limited. On the day the victim and the boyfriend
filed a police report, the day after the incident, the
detective was "asked [by her commander] if [she] would
go and assist the officer * * * in the lobby with identifying
and assisting him in the process of what was going on with
the incident" because the commander was "unaware of
how to make sense of what was going on[.]" The detective
conducted no investigation of her own. She was "familiar
with the facts presented to [her] by [her] officers and by
speaking" to the victim and the boyfriend. In other
words, the detective was aware of the allegations, but she
did not review or procure any evidence. According to the
detective, the investigating officer "reports the facts
that are presented to him by the individuals at the time of
the incident being reported." Although there was a
photograph of the boyfriend's injuries taken the day
following the incidents, there was no photograph of the
victim's injury. The cut on the right side under the
boyfriend's lip was self-described as a
"scratch" caused by the box cutter the left-handed
Croskey wielded with his right hand.
7} In short, the convictions primarily rest on the
testimonial evidence of the two victims and their written
statements, which were introduced into evidence, along with a
photograph of the boyfriend's injury. The victim's
and the boyfriend's written statements differed from
their trial testimony. For example, the victim wrote that she
was punched the first time Croskey went to the house, while
her boyfriend was present. Croskey and the boyfriend first
fought after the victim was punched. Croskey left and
returned once after that, but the second time he merely spat
on the victim's house. The boyfriend stated that Croskey
wielded the box cutter during the first encounter and that
Croskey punched the victim during a second encounter when the
boyfriend was not present.
8} During the trial and again in closing arguments,
Croskey argued that law enforcement failed to conduct any
independent investigation into the allegations before
arresting him. Police officers took the victim's and the
boyfriend's statements and immediately proceeded to
arrest Croskey. The state took Croskey's challenge
against the lack of a prearrest investigation as an
invitation to comment on Croskey's postarrest and trial
silence in contravention of the Fifth Amendment.
to the state, the commentary was a "fair use" in
response to an unfair argument raised by the defense counsel
during closing argument.
9} Croskey appeals claiming, in relevant part, that
the conviction for attempted, aggravated burglary under R.C.
2911.11(A)(1) is based on insufficient evidence, and that his
remaining convictions should be reversed and remanded for a
new trial based on the prosecutor's use of Croskey's
postarrest and trial silence as evidence of guilt. The latter
argument has merit, but the result is a new ...