concurring in part and dissenting in part.
*390I concur in the majority's disposition of appellant's first assignment of error. I must, however, dissent with respect to the second assignment of error as I find the error claimed therein to be neither harmless nor invited by appellant.
Defense counsel's cross-examination of Officer McClanahan elicited testimony that appellant neither touched, possessed, nor controlled either of the weapons removed from appellant's van. It would appear that the questions concerning the lack of any statements by appellant were designed to dispel any doubts in the minds of the triers of fact as to whether appellant engaged in any conduct or made any statements which were inculpatory. After said questions were answered in the negative, the state proceeded to ask whether appellant made any statements of an exculpatory nature. I believe such was a violation of appellant's Fifth Amendment rights and constitutes reversible error.
I do not agree that counsel's cross-examination of McClanahan "opened the door" and invited any error which followed. In State v. Woodruff (1983), 10 Ohio App. 3d 326, the invited error related to evidence which the accused himself introduced and is distinguishable from the case at bar where the contested evidence was offered by the state Center Ridge Ganley, Inc v. Stinn (1987), 31 Ohio St. 3d 310, is a civil case and simply does not involve the infringement of a constitutionally guaranteed protection in criminal proceedings.
Even if the record contains other sufficient evidence to support a finding of guilt, such does not give the state free reign to comment on "uncontroverted" evidence in closing arguments and essentially assert that appellant is guilty because he failed to profess his innocence The state is not permitted to use an accused's post-arrest silence against him absent proof the accused first voluntarily offers information to police and thereafter terminates his statement, refusing to speak any further with the authorities State v. Gillard (1988), 40 Ohio St. 3d 226, 231, 232, certiorari denied (1989), _ U.S. _, 109 S.Ct. 3263.
While defense counsel might have opened a "crack" in the door during cross-examination, such did not give the prosecution the right to break down the door and rush in with the SWAT team by repeatedly emphasizing the point in final argument.
I would sustain the second assignment and remand the matter for a new trial. Accordingly, I respectfully dissent.