[Cite as State v. Crump,

.]

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,

,

, ¶ 76 (10th Dist.); State v. Robinson, 8th

Dist. Cuyahoga No. 99917,

(“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,

, ¶ 29. Reckless homicide

is also a lesser included offense of aggravated murder under R.C. 2903.01(B). State

v. Trimble,

,

,

.

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.

Moreover, in State v. Williams, 5th Dist. Richland No. 95 CA 93,

, *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,

,

,

, ¶ 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,

,

,

. 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,

, ¶ 30; State v. McKinney, 8th Dist. Cuyahoga No. 106377,

.

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,

,

,

, ¶ 183-189 (rejecting unanimous verdict challenge to felony murder, finding that

jurors need not be unanimous as to the predicate offense); State v. Thompson,

,

(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,

, 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,

, 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,

,

, ¶ 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.

There is no distinction between a defendant convicted of complicity or as a principal offender.

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,

.

Therefore, the aiding and abetting instruction was not required to state that Crump

acted “knowingly.” State v. Redding, 8th Dist. Cuyahoga No. 59988,

, 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,

,

, 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,

(Tx. App. 2007).

In this regard, felonious assault cases are again instructive. See State

v. Davis, 9th Dist. Summit No. 21794,

, 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,

,

¶ 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,

. 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,

. 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,

,

, at ¶ 76; State v. Robinson, 8th Dist.

Cuyahoga No. 99917,

. 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,

,

,

. 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,

, citing State v. Howard, 8th Dist. Cuyahoga No. 100094,

, and State v. Martens,

,

(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,

,

,

.

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,

.

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,

,

,

. 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,

, 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, [

,

(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,

,

,

[(10th Dist. 1960)].

Id. at 199.

This same showing is required for the defense of compulsion and

coercion. See, e.g., State v. Milam,

,

(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,

,

(1997); State v. Jenks,

,

(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,

,

,

(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,

. See also State v. Alston,

9th Dist. Lorain No. 05CA008769,

; State v. Hipshire,

2d Dist. Darke No. 2010-CA-07,

.

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,

,

(8th Dist.); State v.

Reynolds, 8th Dist. Cuyahoga No. 65342,

, 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,

,

,

,

quoting State v. Martin,

,

(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,

,

,

(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.”

Moreover, circumstantial evidence carries the same weight as direct evidence. State v. Seals, 8th Dist. Cuyahoga No. 101081,

, ¶ 32, citing

Jenks,

,

.

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,

,

,

, 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,

. 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.”

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,

,

(1984), citing State v. Sammons,

,

(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,

, 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 [

,

,

] 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,

,

, ¶ 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,

, 2010-Ohio-

6314,

, 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,

,

, ¶ 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,

,

,

. Accord Bishop,

;

Dayton,

. Therefore, the aiding and abetting instruction was not required to state that Crump acted “knowingly.” Redding, 8th Dist.

Cuyahoga No. 59988,

, 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,

,

(1990). In State v. Diar,

,

,

, 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,

,

,

, ¶ 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,

,

. 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,

,

(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,

,

,

. 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,

,

,

(1984). Judicial scrutiny

of defense counsel’s performance must be highly deferential.

In Ohio, there is a

presumption that a properly licensed attorney is competent. State v. Calhoun,

,

,

.

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,

,

(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,

,

(9th

Dist. 1973). It is a matter left to the discretion of the trial court.

citing State v. Graven,

,

(1978), and State v. Bayless,

,

(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,

,

,

, ¶ 132; State v. Garner,

,

(1995).

However, the doctrine of cumulative error is inapplicable when the alleged errors are found to be harmless or nonexistent. Id.; State v. Brown,

,

,

, ¶ 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.