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State v. Croskey

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 20, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
TEACO A. CROSKEY, Defendant-Appellant.

          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.

          Paul W. Flowers Co., L.PA., and Louis E. Grube, for appellant.

          JOURNAL ENTRY AND OPINION

          SEAN 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 the convictions.

         {¶ 2} On the day of the incident, Croskey approached the victim's apartment. The victim's boyfriend[1] 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.

         {¶3} 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.

         According 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 ...


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