State v. CloptonState v. Clopton
{¶ 1} Appellant Shardey1 Clopton appeals her conviction in Cuyahoga County Common Pleas Court Case No. CR-519602 on one count of endangering a child. For the following reasons, we affirm Clopton‘s conviction. Before addressing the issues raised on appeal, we sua sponte remand the case for the limited purpose of addressing a clerical error in the
{¶ 2} Clopton and her codefendant Maurice Hockett have two children, V.H. and N.H. V.H. was born with a congenital impairment that required the use of a permanently attached feeding tube. Clopton and Hockett had an ongoing referral with the Cuyahoga County Department of Children and Family Services (“CCDCFS“) for the care of V.H. In May 2008, CCDCFS sought an emergency order of custody over V.H. In July 2008, Clopton gave birth to N.H. Clopton and Hockett refused home visits required by CCDCFS on multiple occasions as they related to V.H. Clopton, when finally allowing a home visit, told CCDCFS employees that doctors were concerned with N.H.‘s weight. During that home visit, Clopton talked on her cell phone the entire time and failed to engage the CCDCFS employee in any meaningful manner.
{¶ 3} Dr. Shenandoah Robinson, the treating pediatric neurosurgeon, testified that N.H. was only at the 3 percent growth curve for her age and not appropriately gaining weight. N.H. started to gain weight after being fed on a regular schedule while admitted in the hospital. The hospital staff administered an X-ray of N.H.‘s wrist to check for organic causes of the malnourishment. The X-ray revealed evidence of trauma that further led to CT and MRI scans that revealed abnormal fluid collections around her brain. Dr. Robinson explained that type of damage seen to the brain could only be inflicted by non-accidental causes. There was little evidence as to exactly when or how the wrist and brain traumas occurred, and no evidence establishing who caused the injuries. Both Clopton and Hockett traded turns caring for the children.
{¶ 4} Clopton stated that N.H. was fed regularly, breast fed twice daily, given baby cereal and fruit daily, and given four ounces of Enfamil every two hours. N.H. weighed 2,6082 grams at birth and 3,220 grams four months later when admitted to the hospital.
{¶ 5} Dr. Lolita McDavid, the medical director of child advocacy and protection at University Hospitals, oversaw the hospital‘s review of suspected child abuse cases, including N.H.‘s case. Dr. McDavid stated that the amount of food claimed to have been given to N.H. would not have resulted in the failure-to-thrive diagnosis nor in N.H.‘s emaciated condition, which was readily identifiable by a lay person. The pictures introduced at trial reflected little to no fat on the baby‘s body, and her ribs were visible.
{¶ 6} On January 6, 2009, Clopton was indicted in Cuyahoga County Common Pleas Court Case No. CR-519602 on one count of felonious assault in violation of
{¶ 7} All cases proceeded to a jury trial. The jury found Clopton guilty of one count of endangering a child, her daughter N.H., in violation of
“I. The trial court erred in denying appellant‘s Criminal Rule 29 motion for acquittal when there was insufficient evidence to prove the elements of child endangering. (Transcript generally).”
“II. The appellant‘s conviction for child endangering was against the manifest weight of the evidence. (Transcript generally).”
“III. The trial court erred by allowing prejudicial joinder of the trials of appellant and Maurice Hockett. (Tr. 7-23).”
“IV. The language of the indictment and jury charge regarding count two was defective in that it was missing an element of the crime charged. (Transcript generally).”
{¶ 8} We will address Clopton‘s first and second assignments of error together, then the fourth as they all deal with a violation of
{¶ 9} In reviewing a claim of insufficient evidence, “‘the relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.‘” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus. The weight to be given the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37.
{¶ 10} In reviewing a claim challenging the manifest weight of the evidence, the question to be answered is whether “there is substantial evidence upon which a jury could reasonably conclude that all the elements have been proved beyond a reasonable doubt. In conducting this review, we must examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether 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.” (Internal citations and quotations omitted.) State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229.
{¶ 11} Clopton was convicted of a violation of
“(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;
“(b) Any physical harm that carries a substantial risk of death;
“(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;
“(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement.
“(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.”
{¶ 12} “Serious physical harm” may involve injuries where the condition is of such gravity as would normally require hospitalization. State v. Sledge, Cuyahoga App. No. 83093, 2004-Ohio-2157, ¶ 17; State v. Smith (May 27, 1993), Cuyahoga App. No. 62399, *7; State v. Snyder, Cuyahoga App. No. 94755, 2011-Ohio-1062 (reversing conviction for felony child endangerment by distinguishing hospital examinations from treatment); State v. Sharp, Butler App. No. CA2009-09-236, 2010-Ohio-3470; State v. Jones, Summit App. No. 22545, 2005-Ohio-5502. It may also involve physical injuries that permanently or temporarily disfigure the victim or carry a substantial risk of death.
{¶ 13} We acknowledge that as recently as State v. Littlejohn, Cuyahoga App. No. 95380, 2011-Ohio-2035, this court has maintained the proposition that “where injuries to the victim are serious enough to cause him or her to seek medical treatment, a jury many reasonably infer that the force exerted on the victim caused serious physical harm as defined by
{¶ 14} In Griffin, the court affirmed the trial court‘s inclusion of a simple assault jury instruction for a felonious assault charge and found that the lesser included offense instruction was proper considering the fact that the victim never sought medical attention for his injuries. The jury could reasonably infer from the lack of treatment that the injury was not serious. Id. The Griffin case does not stand for the proposition that seeking medical treatment alone substantiates an inference that the victim suffered serious physical harm. The inference derived from a victim seeking medical treatment is a proper factor to consider, not a dispositive one.
{¶ 15} It is important to briefly note that every case from Griffin to Littlejohn includes facts that establish one of the factors in
{¶ 16} The history of the case law coupled with the fact that subsequent cases do not solely rely on the proposition as stated — that a jury may infer a serious physical harm from
{¶ 17} In this case, Clopton claims there is no evidence she caused the brain or wrist trauma, or establishing that the failure-to-thrive diagnosis was life threatening to substantiate the finding of a serious physical harm. We find some merit to Clopton‘s first argument, but not the latter. The record may not adequately establish a direct link between the brain and wrist injuries and Clopton, but we need not address that argument. The state was not limited to the brain and wrist injuries in order to establish a violation of
{¶ 18} Starting with the sufficiency of the evidence assignment of error, when viewing the trial evidence in a light more favorable to the prosecution, a rational trier of fact could find the essential elements of the crime proven beyond a reasonable doubt.
{¶ 19} Clopton was aware that doctors were concerned with N.H.‘s weight and still avoided regular checkups on at least three occasions. N.H. saw a doctor only after CCDCFS offered Clopton child care vouchers and she was already at the hospital visiting V.H. The emergency room staff examined N.H. and determined it necessary to immediately admit and treat her for failure to thrive. N.H. thus required hospitalization for a condition that, according to Dr. McDavid‘s testimony, should have been readily apparent to anyone.
{¶ 20} Upon being admitted, N.H. gained weight at the expected rate — in ten days gaining almost half the weight gained in the preceding four months. Dr. McDavid established that N.H. would not have been malnourished if she received the amount of food Clopton claimed to be feeding her, especially in light of the fact there were no organic causes for the malnourishment and N.H. gained weight as expected upon admission. Clopton, N.H.‘s mother, created a substantial risk to the health of N.H. by failing to care for, protect, and support N.H. by allowing N.H. to become so malnourished as to require hospitalization.
{¶ 21} There is sufficient evidence establishing the malnourishment. The question becomes whether the failure-to-thrive diagnosis and subsequent hospital admission satisfies the elements of endangering a child to support a felony conviction. The emergency room
{¶ 22} In reviewing that same evidence from the entire record under the manifest weight of evidence standard, we find that based on the substantial evidence presented at trial, the jury could find beyond a reasonable doubt that the state proved every element of the crime of endangering and causing serious physical harm to the child.
{¶ 23} Again, we agree with Clopton that there may have been issues with the wrist and brain traumas as they relate to her conviction, but the jury heard evidence on the failure-to-thrive diagnosis as well. The record does not indicate which injury Clopton was convicted on. The evidence of the circumstances surrounding the malnourishment, in and of itself, was enough to sustain the conviction.
{¶ 24} In addition to the above-noted evidence, a defense witness testified on N.H.‘s emaciated appearance and Clopton‘s parental prowess. That testimony came from Clopton‘s friend and coworker. Clopton worked at a daycare center. Clopton‘s friend testified that she did not think N.H.‘s condition warranted immediate medical attention based on her
{¶ 25} Relying on the evidence presented at trial, the jury did not lose its way in finding Clopton guilty of endangering and causing serious physical harm to the child in violation of
{¶ 26} Turning to Clopton‘s fourth assignment of error, Clopton claims the indictment failed to include the allegation that Clopton was a parent of the child being endangered. The statute requires the offender to be a parent, guardian, custodian, person having custody or control, or person in loco parentis of a child.
{¶ 27} An indictment will not be invalidated “[f]or other defects or imperfections which do not tend to prejudice the substantial rights of the defendant upon the merits.”
{¶ 28} It was not necessary to put Clopton on notice that she had to be the parent of N.H. as an element of the endangering a child crime. She was the parent and admitted as much to CCDCFS employees and to the medical staff of the hospital handling N.H.‘s case. The imperfection in this indictment did not prejudice any substantial rights of Clopton. She could not have defended the case on the grounds that she did not fit into any of the relationships enumerated in
{¶ 29} Clopton‘s final assignment of error, Assignment of Error No. III, attacks the trial court‘s decision to join cases CR-518448, CR-519602, and CR-520865 together for trial. In CR-518448, Hockett was charged with various crimes stemming from an incident at the hospital where Hockett attempted to forcibly remove N.H. from hospital care. Clopton and Hockett were codefendants in CR-519602 with the victim being N.H. and CR-520685 with the victim being V.H. Clopton requested to separate her trial from Hockett‘s. Clopton argues that Hockett‘s behavior was disturbing and that his hostile defiance of the hospital and CCDCFS employees prejudiced her defense. Clopton also claims that it was Hockett who prevented CCDCFS employees from completing home visits and N.H. from getting medical attention. Clopton‘s third assignment of error is not well taken.
{¶ 30} Pursuant to
{¶ 31} Clopton‘s only argument to the trial court was that the charges against her relating to both her children served only to “pile on” charges at one trial. The trial court focused on the chain of events that led to the charges in the individual cases: while V.H. was in the hospital being treated for the alleged abuse in CR-520685, CCDCFS encouraged Clopton to take N.H. for an examination, which led to the charges in CR-519602; while N.H. was in the hospital being treated for the alleged abuse, Hockett‘s actions in attempting to remove her led to the indictment in CR-518442. The trial court also noted that the witnesses in each case, one being from out of town, were the same.
{¶ 32} Such interweaving of issues and the judicial economy of one trial outweighed any prejudice to Clopton from presenting multiple charges to the jury. Any defendant will be
Judgment affirmed, and case remanded.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, P.J., and
KENNETH A. ROCCO, J., CONCUR