[Cite as State v. Hockett, 2011-Ohio-2911.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 95232




                                     STATE OF OHIO
                                                PLAINTIFF-APPELLEE

                                                 vs.

                             MAURICE C. HOCKETT
                                                DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                 Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                            Case Nos. CR-518448 and CR-519602
      BEFORE:        Sweeney, J., Boyle, P.J., and Keough, J.

      RELEASED AND JOURNALIZED:                     June 16, 2011

ATTORNEY FOR APPELLANT

Ronald Skingle, Esq.
2450 St. Clair Avenue
Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Katherine Mullin, Esq.
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113



JAMES J. SWEENEY, J.:

      {¶ 1} Defendant-appellant Maurice C. Hockett appeals his convictions

for   felonious   assault,   domestic   violence,    and    two   counts   of   child

endangerment as being based upon insufficient evidence. For the reasons

that follow, we affirm.

      {¶ 2} Defendant was indicted in various cases with multiple count

indictments, which were consolidated for trial.            The charges arose from

injuries suffered by defendant’s four month old daughter, N.C.H.                 The

offenses were alleged to have occurred between November 1, 2008 and

November 24, 2008. N.C.H.’s mother, Sharday Clapton, was also charged as a
co-defendant in one case. Defendant moved for acquittal on all counts. In

CR-518448, the jury found defendant guilty of child endangering in violation

of R.C. 2919.22(A) with an additional finding that the victim was under

eighteen years of age.    In CR-519602, the jury found defendant guilty of

felonious assault in violation of R.C. 2903.11(A)(1); two counts of child

endangering in violation of R.C. 2919.22(A) and 2919.22(B)(1), with an

additional finding that the victim was under the eighteen years of age; and

domestic violence in violation of R.C. 2919.25(A).

      {¶ 3} Defendant’s sole assignment of error relates to his convictions in

CR-519602 only, and he contends:

      {¶ 4} “Appellant’s four convictions of felonious assault, endangering

children in violation of R.C. 2919.22(A) and (B)(1) and domestic violence in

Case No. CR-519602 are not supported by sufficient evidence.”

      {¶ 5} An appellate court’s function when reviewing the sufficiency of

the evidence to support a criminal conviction is to examine the evidence

admitted at trial to determine whether such evidence, if believed, would

convince the average mind of the defendant’s guilt beyond a reasonable doubt.

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.

Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541.
      {¶ 6} Defendant was charged with felonious assault in violation of R.C.

2903.11(A)(1), which provides: “(A) No person shall knowingly * * * [c]ause

serious physical harm to another or to another’s unborn;”

      {¶ 7} He was also charged with child endangering pursuant to R.C.

2919.22(A) and (B)(1), which provides:

      {¶ 8} “(A) No person, who is the parent, guardian, custodian, person

having custody or control, or person in loco parentis of a child under eighteen

years of age or a mentally or physically handicapped child under twenty-one

years of age, shall create a substantial risk to the health or safety of the child,

by violating a duty of care, protection, or support. It is not a violation of a

duty of care, protection, or support under this division when the parent,

guardian, custodian, or person having custody or control of a child treats the

physical or mental illness or defect of the child by spiritual means through

prayer alone, in accordance with the tenets of a recognized religious body.

      {¶ 9} “(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:

      {¶ 10} “(1) Abuse the child.”

      {¶ 11} Defendant’s final conviction was for domestic violence as set forth

in R.C. 2919.25(A) as follows: “No person shall knowingly cause or attempt to

cause physical harm to a family or household member.”
      {¶ 12} These charges related to injuries sustained by defendant’s

daughter, including a subdural hematoma. The indictment charged that the

offenses occurred between November 1, 2008 and November 24, 2008, the day

she was admitted to the hospital due to concerns over her low weight.

      {¶ 13} Defendant asserts that there was insufficient evidence to

establish that he knowingly caused serious physical harm or physical harm to

his daughter and that he recklessly abused or violated a duty to protect her

from abuse. He premises his argument on the fact that various individuals

participated in the care of N.C.H. and an absence of direct evidence that he

inflicted any of the injuries that were suffered by his four month old

daughter, which included failure to thrive, a fractured wrist, chronic subdural

hematomas caused by “non-accidental trauma, inflicted trauma, or shaken

baby syndrome,” and retinal hemorrhages.

      {¶ 14} A social worker from Cuyahoga County Department of Children

and Family Services testified to her involvement with N.C.H. that began on

April 29, 2008.    She testified that defendant and Clopton turned down

offered assistance for both N.C.H. and her older brother. They also refused

five referrals for in-home nursing assistance.

      {¶ 15} Another social worker, Holly Williams, testified concerning the

agency’s efforts concerning the care and custody of N.C.H. and her older

brother who had been removed from the home.           Williams testified that
defendant had threatened her and refused her entry during an attempted

home visit.   Williams said that defendant stated he would “harm me, he

would shoot me, he would bomb the agency.”       The parents also canceled

several home visits and failed to take N.C.H. to scheduled medical

appointments despite an on-going concern over the infant’s low weight.

Williams testified that defendant took N.C.H. to some medical appointments,

which were required once a month.         However, he indicated that the

appointment was not conducive to his work schedule. Efforts were made to

accommodate defendant’s schedule but he still failed to bring N.C.H. back for

the appointment.

     {¶ 16} After three or four home visits were canceled, Williams attempted

to facilitate a visit by coordinating a sibling visit between N.C.H. and her

brother at the hospital. By this time, N.C.H. was “extremely, extremely tiny

and looked the size of a newborn.” Williams and others were able to convince

Clopton to take N.C.H. to the emergency room where she was admitted with

concerns regarding her weight.

     {¶ 17} Defendant asserts that the evidence is insufficient that it was

him who caused these injuries to N.C.H. Defendant points to the witnesses’

inability to identify how N.C.H. had sustained the injuries, exactly when she

sustained them, and who caused them.

     {¶ 18} As set forth above, there is sufficient testimony that N.C.H.
suffered a fractured wrist and head injuries within weeks prior to being

admitted to the hospital.      There is also evidence that defendant and the

co-defendant were the ones who took care of her. There is direct evidence

that N.C.H was obviously underweight yet defendant failed to take her to

scheduled appointments. That she gained weight without a problem when

properly fed indicates that her caretakers, which were defendant and the

co-defendant, were not properly feeding her. Both caretakers were indicted

in the case at bar.

      {¶ 19} We note that defendant is not challenging his conviction for child

endangering that stemmed from the incident at that occurred at the hospital.

 However, the evidence is probative of how defendant handled and treated

N.C.H.

      {¶ 20} Defendant simply ignores his erratic behavior at the hospital,

where multiple witnesses observed him handling the child in a rough and

unsafe manner. These facts alone distinguish this case from those at issue

in State v. Miley (1996), 114 Ohio App.3d 738, 684 N.E.2d 102, upon which

defendant relies.     See, also, State v. Cheney-Shaw, Cuyahoga App. Nos.

76828 and 76829.1 Witnesses observed defendant squeezing the baby harder


      1
       Further, the injuries at issue in Miley were internal without any external
manifestations. Here, while there were internal injuries, there also was an on-going
concern over the child’s low weight in spite of which defendant failed to attend some
scheduled                                                               appointments.
and harder causing her eyes to bulge; ramming into doors at full force while

holding the baby and without properly supporting her head.

      {¶ 21} A few hours after N.C.H. had been admitted to the hospital on

November 24, 2008, defendant entered her hospital room.            Nurses at

Rainbow Babies and Children Hospital testified that they heard a commotion

and saw defendant running out of the room with N.C.H. in his arms. He

“ran through the nurses station, jumped over the reception desk * * * and was

holding the baby. He tried to ram his body into the locked double doors to

try to escape* * *.” Security was called because of defendant’s behavior and

the danger it posed to the baby including that “he tried to ram through double

doors holding an infant in his arms.” It was possible that the baby could

have touched the double doors as he was ramming forward into them. Other

witnesses described defendant ramming the door with his shoulder with full

force while holding the baby.

      {¶ 22} The baby’s head was draped over defendant’s arm and he was not

supporting it. Clopton asked defendant to give her the baby but he refused.

Defendant was handling N.C.H. roughly, “her head was not being supported.”

A nurse told defendant to support the baby’s head and defendant responded

by yelling obscenities and hitting the nurse. A few times defendant said, “I’m

her protection and she’s mine.”

      {¶ 23} When nurses approached and attempted to take the baby from
him for safety, defendant yelled, “F*** you. Who are you to be telling me

about my child.” Nurses and aids continued their efforts to obtain the baby

“so she would be safe.” Their primary concern was for the safety of the child.

 One of the nurses was reaching for the baby saying, “Please give me the

child so she can be safe” and defendant slapped her.

      {¶ 24} Security guards arrived with pepper spray.      As security was

trying to take the baby, defendant was struggling “whipping his body around

and her head is just going around.” The nurse was very nervous for the

baby, “how she was being handled.”      A security guard observed defendant

continuously squeezing the baby hard. Defendant said at one point, “You are

making me hurt her.       You are making me hurt her,” and he would keep

squeezing her harder. According to the guard defendant “keeps squeezing

the child harder and harder. Her eyes are starting to bulge from her head * *

* When he’s squeezing her, her eyes were bulging out of her head.”

      {¶ 25} Clopton jumped on one of the security guards.    Eventually, the

baby was recovered and taken by nurses to a secured area. The baby’s face

was red on her nose, forehead, and cheek. The guards had to force defendant

to the floor.

      {¶ 26} The agency obtained a telephonic order of removal based on

defendant’s erratic behavior and attempt to remove N.C.H. from the hospital

against medical advice.
      {¶ 27} With respect to the charges involved in CR-519602, it was

determined that N.C.H. was gaining weight when fed properly. The wrist

injury occurred approximately 7 to 10 days prior to N.C.H.’s admission to the

hospital.    Upon further examination, other injuries were discovered that

pre-dated N.C.H.’s admission to the hospital and included a subdural

hemotoma.

      {¶ 28} The pediatric neurosurgeon testified that after N.C.H. was

admitted for failure to thrive, the hospital took an x-ray to evaluate for

rickets.    That x-ray revealed a fractured wrist, which prompted further

evaluation for inflicted trauma. Imaging studies of N.C.H.’s head, taken on

November 26, 2008, showed she had abnormal fluid collections over the brain.

 Between the time N.C.H had been admitted and when the neurosurgeon saw

her, the baby’s head circumference had increased markedly, which is

indicative of pressure. The infant required surgery to relieve the pressure on

her skull. The neurosurgeon concluded that the injury was “some assault to

the baby that was not a natural accident.” The type of subdural hematoma

present in N.C.H. takes a significant amount of force to inflict, such as violent

shaking or slamming the child’s head against the wall.         According to the

doctor, the injury could not have resulted from an accidental drop or fall.

The doctor was unable to tell whether N.C.H. will suffer permanent

developmental delays as a result of the injury. N.C.H. has also developed
seizures.   N.C.H. also had retinal hemorrhages that can be present from

immediately after the injury and last for about two weeks.

      {¶ 29} The doctor opined that N.C.H.’s injuries could have been inflicted

during a time frame somewhere between three days up to a few weeks prior.

 The doctor did not know where the injuries were caused or who caused them

but stated that “somebody inflicted this on [N.C.H.].”

      {¶ 30} According to the record, defendant was at home with N.C.H.

when she was not at day care. Clopton indicated to the social worker that

defendant was the primary caregiver of the children due to the fact that

Clopton worked full-time and attended school. The social worker was aware

that defendant worked from 4 p.m. to 10 p.m. and Clopton worked from 6 a.m.

to 3 p.m. Numerous witnesses testified to the fact that N.C.H. was obviously

underweight. The parents did not take N.C.H. to medical appointments and

missed well visits. The medical professionals testified that N.C.H. gained

weight when she was fed properly.         Despite the child’s fractured wrist,

neither parent reported any injury to the child, nor did either parent ever

express any concerns about it. At least one medical professional testified

that the child most likely would exhibit symptoms as a consequence of the

fracture. Similarly, neither parent noticed or reported any symptoms of the

child’s head injury that was discovered at the hospital.

      {¶ 31} A parent clearly has a duty imposed by law to protect his or her
child from abuse and to care for the child’s injuries. See State v. Sammons

(1979), 58 Ohio St.2d 460, 463, 12 O.O.3d 384, 391 N.E.2d 713.

      {¶ 32} The standard of review requires that the evidence be viewed in a

light most favorable to the state. Applying this standard, the record contains

sufficient evidence to withstand defendant’s motions for acquittal on the

subject counts and this assignment of error is overruled.

      Judgment affirmed.

      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

Rule 27 of the Rules of Appellate Procedure.



JAMES J. SWEENEY, JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
