State v. Stiles ( 2019 )

[Cite as State v. Stiles, 2019-Ohio-3852.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 18CA0099
:
TIFFANY STILES :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Juvenile Division, Case
No. 18CA0099
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: September 23, 2019
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
WILLIAM C. HAYES MICHAEL R. DALSANTO
LICKING CO. PROSECUTOR 33 West Main St., Ste. 109
MAXWELL TAYLOR Newark, OH 43055
20 S. Second St., Fourth Floor
Newark, OH 43055
Licking County, Case No. 18CA0099 2
Delaney, J.
{¶1} Appellant Tiffany Stiles appeals from the September 21, 2018 Judgment
Entry of the Licking County Court of Common Pleas, Juvenile Division. Appellee is the
state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following evidence is adduced from the record of appellant’s bench trial
on June 22, 2018.
{¶3} Appellant’s daughter, age 9 at the time, attended a school in the Licking
County school district during the school year 2017-2018. Concerns were raised regarding
the child’s attendance. The following chart is adapted from appellee’s exhibit D, a log of
the child’s absences and tardies, with notes regarding communication with appellant.
Date of Reason for absence or tardy Action taken Hours
absence or offered by appellant by school: absent
tardy excused or
unexcused
Aug. 21, 2017 Appellant called to say K.N. is ill Excused
Aug. 22, 2017 Appellant called to say K.N. is ill Excused
Aug. 24, 2017 Appellant called to say “went out of Unexcused 6.0
town with grandmother”
Aug. 31, 2017 [Message left at residence; no Unexcused 6.0
response]
Sept. 6, 2017 Appellant called but offered no Unexcused 6.0
explanation for absence
Sept. 7, 2017 [Message left at residence; no Unexcused 6.0
response]
Sept. 11, 2017 “No answer” Unexcused 6.0
Sept. 14, 2017 [Message left at residence, no Unexcused 6.0
response]
Oct. 4, 2017 Appellant called to say K.N. is ill Unexcused 6.0
Oct. 19, 2017 “Left voicemail—death in the family” Excused
Oct. 23, 2017 Funeral; appellant called but no Unexcused 6.0
documentation provided
Oct. 24, 2017 Funeral; appellant called but no Unexcused 6.0
documentation provided
Oct. 25, 2017 Left voicemail Unexcused 6.0
Licking County, Case No. 18CA0099 3
Oct. 26, 2017 Left voicemail Unexcused 6.0
Oct. 27, 2017 Death in the family; appellant called Excused
Nov. 2, 2017 Doctor’s appointment, provided Excused
doctor’s excuse
Nov. 13, 2017 Appellant called to say K.N. has lice Unexcused 6.0
Nov. 15, 2017 Appellant called to say K.N. is ill Unexcused 6.0
Nov. 16, 2017 Sick and rash from lice treatment; Excused
doctor’s excuse provided
Nov. 29, 2017 Excused tardy for counseling Excused
appointment; doctor’s excuse
provided
Dec. 6, 2017 Excused tardy for counseling Excused
appointment; doctor’s excuse
provided
Dec. 13, 2017 Excused tardy for counseling Excused
appointment; doctor’s excuse
provided
Dec. 15, 2017 Absence Intervention Meeting held
Dec. 18, 2017 “Has HL per call from [appellant]” [not indicated]
Jan. 3, 2018 Funeral; appellant called in Unexcused 6.0
Jan. 4, 2018 Left voicemail Unexcused 6.0
Jan. 10, 2018 Excused tardy for counseling Excused
appointment; doctor’s excuse
provided
Jan. 11, 2018 Left voicemail Unexcused 6.0
Jan. 31, 2018 Appellant brought doctor’s excuse Unexcused 6.0
for tardy but said K.N. was ill, and
K.N. absent entire day
Feb. 6, 2018 K.N. ill, doctor’s excuse for strep Excused
throat
Feb. 8, 2018 Unexcused early dismissal due to Unknown
behavioral issues
Feb. 15, 2018 Unexcused early dismissal after Unknown
Valentine party
Feb. 21, 2018 Unexcused tardy: counseling with no Unknown
doctor’s excuse
Feb. 26, 2018 Absent, automated call from school Unexcused 6.0
Feb. 27, 2018 Unexcused early dismissal, no Unknown
reason given
Mar. 1, 2018 Appellant had panic attack about Unexcused 6.0
threats, decided not to send K.N. to
school
Mar. 2, 2018 Automated call Unexcused 6.0
Mar. 5, 2018 Automated call Unexcused 6.0
Mar. 6, 2018 Automated call Unexcused 6.0
Licking County, Case No. 18CA0099 4
Mar. 7, 2018 Automated call Unexcused 6.0
Mar. 8, 2018 Appellant says K.N. will be home Unexcused 6.0
schooled but not yet approved to do
so
{¶4} In the table, the count for “hours missed” is based upon the assistant
principal’s testimony that there are 6 hours in a school day. T. 117.
{¶5} The school communicated with appellant regarding her child’s attendance.
On or around September 17, 2017, appellant attended an “I.E.P.” meeting with the
assistant principal of the school and an intervention specialist. The purpose of the
meeting was to discuss the child’s individualized educational plan which addressed the
child’s behavioral issues. At the meeting, the assistant principal told appellant he sent
her a letter stating that her child had missed 38 hours of school in a month.
{¶6} Specifically, the principal told appellant that she would have to provide
documentation of the reason for her child’s absences; for example, if K.N. was ill,
appellant must provide the school with a doctor’s excuse. Appellant was cooperative and
indicated she understood the requirement. School personnel referred to this status
throughout the trial as “medicals only,” meaning that if K.N. was absent, a telephone call
from appellant alone was insufficient. Mother would have to document the reasons for
the absences, with a doctor’s notes or other appropriate documentation.
{¶7} The assistant principal acknowledged at trial that his first letter to appellant
stated she was required to provide “medicals” for the remainder of the month of
September, but he said their conversation addressed the rest of the school year.
{¶8} On November 30, 2017, the school mailed appellant a letter stating her child
was “habitually truant” and had missed 72 hours of school without a valid excuse.
Licking County, Case No. 18CA0099 5
{¶9} On December 15, 2017, an absence intervention meeting was held
between appellant, the assistant principal, and the district’s attendance officer. The
purpose of such a meeting is to communicate with parents regarding the reasons for a
student’s frequent absences and to advise the parents of the school’s expectations
moving forward. Again, the assistant principal testified appellant was cooperative and
compliant during the absence intervention meeting, acknowledging that there were days
when K.N. may have “pulled the wool over [appellant’s] eyes,” or pretended to be ill when
she wasn’t. The plan going forward, therefore, was that if K.N. purported to be ill,
appellant should bring her to school to see the nurse. If the nurse agreed K.N. was ill,
she would be sent home and the absence would be excused. If not, K.N. would complete
the school day.
{¶10} Appellee’s exhibit I is the Absence Intervention Plan signed by appellant,
the attendance officer, and the assistant principal. The Plan further states in pertinent
part: “If within 60 days of implementing this Absence Intervention Plan the child misses
without legitimate excuse 30 consecutive hours, 42 hours in 1 month (unless the absence
intervention team has determined that the student has made substantial progress on the
absence intervention plan) a complaint will be forwarded to the Licking County Juvenile
Court for review.”
{¶11} The absences continued, however. As indicated on the chart, some
unexcused absences were due to the child’s behavior; some were due to appellant’s
panic attacks over threats at a different school which led her to keep her child home;
some were due to a death in the family and the ensuing funeral.
Licking County, Case No. 18CA0099 6
{¶12} Ultimately appellant sought and obtained approval to home-school her
child. The final approval occurred on March 9, 2018, and absences prior to the approval
were unexcused.
{¶13} Appellant was charged by adult complaint with one count of contributing to
the unruliness of a minor, to wit, Jane Doe, pursuant to R.C. 2919.24(A)(2)[sic],1 a
misdemeanor of the first degree. Appellant entered a plea of not guilty.
{¶14} The matter proceeded to bench trial and the trial court filed its Decision and
Order on June 26, 2018. In the Order, the trial court ordered the parties to brief whether
appellee was estopped from filing the criminal charge against appellant because
appellant did not fail to meet the terms of the Absence Intervention Plan. Appellee filed
its trial brief on July 31, 2018 and appellant filed hers on August 2, 2018.
{¶15} On August 10, 2018, the trial court filed a Judgment Entry finding appellant
guilty as charged, and further finding that appellee was not estopped from pursuing
prosecution despite errors in the process and a lack of strict compliance with Amended
House Substitute Bill 410 which took effect on April 6, 2017.
{¶16} On September 21, 2018, following a sentencing hearing, the trial court
sentenced appellant to a jail term of 90 days, with all 90 days suspended on various
1 The statutory language of appellant’s charge states: “No person, including a parent,
guardian, or other custodian of a child, shall do any of the following: * * * * [a]ct in a way
tending to cause a child or a ward of the juvenile court to become an unruly child or a
delinquent child[.]” Prior to April 6, 2017, this was R.C. 2919.24(A)(2). Effective April 6,
2017, this became R.C. 2919.24(B)(2). The complaint against appellant was filed on April
2, 2018; we have not located in the record where the applicable code section may have
been corrected. From this point forward we will cite appellant’s charged offense as R.C.
2919.24(B)(2).
Licking County, Case No. 18CA0099 7
conditions including, e.g., that she works cooperatively with school personnel to assure
Jane Doe’s school attendance.
{¶17} Appellant now appeals from the judgment entry of the trial court dated
September 21, 2018.
{¶18} Appellant raises five assignments of error:
ASSIGNMENTS OF ERROR
{¶19} “I. THE TRIAL COURT’S GUILTY VERDICT IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE AND IS NOT SUPPORTED BY SUFFICIENT EVIDENCE
BECAUSE THE STATE PRESENTED NO EVIDENCE THAT THE APPELLANT
‘TENDED TO CAUSE’ K.N. TO BE AN UNRULY CHILD IN VIOLATION OF R.C.
2919.42(B)(2).”
{¶20} “II. THE TRIAL COURT’S GUILTY VERDICT IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE AND IS NOT SUPPORTED BY SUFFICIENT EVIDENCE
BECAUSE THE SCHOOL FAILED TO COMPLY WITH R.C. 3321.16 & 3321.19 AS
AMENDED BY H.B. 410. IT WAS THEREFORE IMPOSSIBLE FOR APPELLANT TO
‘TEND TO CAUSE’ K.N.’S UNRULINESS BASED [ON] SCHOOL ATTENDANCE.”
{¶21} “III. THE TRIAL COURT’S GUILTY VERDICT IS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE AND IS NOT SUPPORTED BY SUFFICIENT
EVIDENCE BECAUSE THE SCHOOL SUPERINTENDENT EXCUSED K.N. FROM
COMPULSORY SCHOOL ATTENDANCE AFTER APPELLANT ENROLLED HER IN
HOME-SCHOOLING. AS A RESULT, K.N. COULD NOT HAVE BEEN UNRULY AND
APPELLANT COULD NOT HAVE ‘TENDED TO CAUSE’ HER UNRULINESS.”
Licking County, Case No. 18CA0099 8
{¶22} “IV. THE STATE OF OHIO IS ESTOPPED FROM PROSECUTING THE
APPELLANT BECAUSE SHE REASONABLY RELIED ON THE SCHOOL ABSENCE
INTERVENTION PLAN, WHICH SPECIFICALLY DISCLAIMED A COMPLAINT IN
JUVENILE COURT IF K.N. DID NOT MISS 30 CONSECUTIVE HOURS OF SCHOOL
OR 42 TOTAL HOURS BETWEEN DECEMBER 15TH, 2017 AND FEBRUARY 15, 2018
WHERE K.N. DID NOT MISS THE PROHIBITED NUMBER OF DAYS.”
{¶23} “V. R.C. 2919.24(B)(2) IS VOID FOR VAGUENESS AS APPLIED WHERE
THE ALLEGED UNRULINESS ARISES OUT OF DEFICIENT SCHOOL ATTENDANCE,
THE SCHOOL’S WRITTEN POLICIES DO NOT EXPLAIN WHAT ACTIVITIES
CONSTITUTE UNEXCUSED ABSENCES, THE POLICIES THAT DO EXIST ARE
APPLIED SEEMINGLY AT RANDOM, AND WRITTEN PRONOUNCEMENTS FROM
THE SCHOOL DIRECTLY CONTRADICT VERBAL DIRECTIVES FROM SCHOOL
OFFICIALS. FOR THE SAME REASON, THE VERDICT IS NOT SUPPORTED BY
SUFFICIENT EVIDENCE AND IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.”
ANALYSIS
I., II., III., IV., V.
{¶24} Appellant’s five assignments of error are related and will be addressed
together. Appellant argues her conviction is not supported by sufficient evidence and is
against the weight of the evidence. Appellant further argues appellee was estopped from
prosecuting her due to an Absence Intervention Plan. For the first time on appeal,
appellant also argues that R.C. 2919.24 is void for vagueness as applied to her. For the
Licking County, Case No. 18CA0099 9
following reasons, we disagree with each of appellant’s contentions and affirm her
conviction.
Appellant charged pursuant to R.C. 2919.24(B)(2)
{¶25} The complaint against appellant charges her with violating R.C.
2919.24(B)(2), contributing to the delinquency of a minor, and states in pertinent part:
[f]rom August 1, 2017 to March 21, 2018, * * * [appellant] did
act in such a way tending to cause a child, [K.N.], to become an
unruly child, as defined in Section 2151.022(B) of the Ohio Revised
Code, to-wit: [appellant] failed to ensure that * * * [K.N.] attended
school. K.N. is a 9-year-old 3rd grade student, who is required to
attend * * * School. The action and/or inaction of [appellant] caused
her [child] to be absent from school without legitimate excuse for
thirty or more consecutive hours, forty-two or more hours in one
school month, or seventy-two or more hours for the 2017-2018
school year, thereby rendering [K.N.] an habitual truant as defined
by Section 2151.011(B)(18) of the Ohio Revised Code. * * * *.
{¶26} R.C. 2919.24(B)(2) states: “No person, including a parent, * * * shall * * *
[a]ct in a way tending to cause a child or a ward of the juvenile court to become an unruly
child or a delinquent child.” Pursuant to R.C. 2151.022(B), an “unruly child” includes “any
child who is a habitual truant from school.” Pursuant to R.C. 2151.011(B)(18), “habitual
truant” means “any child of compulsory school age who is absent without legitimate
excuse for absence from the public school the child is supposed to attend for thirty or
more consecutive hours, forty-two or more hours in one school month, or seventy-two or
Licking County, Case No. 18CA0099 10
more hours in a school year.” The question is not whether there was sufficient evidence
to establish K.N. was unruly; rather, the question is whether appellee produced sufficient
evidence to show appellant acted in a manner that would tend to cause K.N. to become
unruly as defined in R.C. 2151.022 between August 1, 2017 and March 8, 2018. State v.
Schnebeli, 5th Dist. Licking No. 18-CA-47, 2019-Ohio-860, ¶ 26.2
{¶27} As both parties acknowledge, it was not necessary for appellee to establish
that K.N. was unruly. “Where it is charged that a defendant did ‘act in a way tending to
cause delinquency’ in a child, it is not necessary, for a conviction, to establish an actual
delinquency, but only that the acts of the defendant were within themselves of such a
nature that they would tend to cause delinquency in such child * * *.” State v. Collins, 5th
Dist. Stark No. CA-7312, 1988 WL 37997, *2, citing State v. Gans, 168 Ohio St. 174, 151
N.E.2d 709 (1958) at paragraph one of the syllabus.
{¶28} Appellant argues her conviction is against the manifest weight and
sufficiency of the evidence. The legal concepts of sufficiency of the evidence and weight
of the evidence are both quantitatively and qualitatively different. State v. Thompkins, 78
Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The
standard of review for a challenge to the sufficiency of the evidence is set forth in State
v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in
which the Ohio Supreme Court held, “An appellate court’s function when reviewing the
sufficiency of the evidence to support a criminal conviction is to examine the evidence
2The complaint references March 21, 2018 as the end date of the charged conduct, but
the trial court ruled it would consider appellant’s conduct through March 8, 2018, the date
of a letter from the district superintendent advising appellant she was approved to home-
school K.N. T. 6.
Licking County, Case No. 18CA0099 11
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.”
{¶29} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, 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 overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
H.B. 410 requirements, including Absence Intervention Plan, not relevant
{¶30} Appellant argues throughout her brief that appellee failed to comply with a
number of requirements of recently-enacted Ohio truancy law. In December 2016, the
Ohio General Assembly passed H.B. 410, which went into effect for the 2017-2018 school
year. The bill changed how juvenile courts handle truancy and required schools to be
actively engaged with students to address attendance issues prior to filing truancy
charges in juvenile court. The bill also, e.g., changed attendance requirements from days
absent to hours absent. Once a student misses a certain number of hours, the school is
required to enact an absence intervention plan. The student’s progress on the absence
Licking County, Case No. 18CA0099 12
intervention plan is integral to whether further action is taken, including a complaint in
juvenile court.
{¶31} As appellee points out, the H.B. 410 amendments are relevant to charges
of unruly by means of being a habitual truant pursuant to R.C. 2151.022(B) and failure to
send child to school pursuant to R.C. 3321.38(A). Those violations are not at issue in this
case because appellant, an adult, is charged with contributing pursuant to R.C.
2919.24(B)(2). R.C. 2919.24 and 3321.38 are “two independent offenses” and “the
prosecutor has the sole discretion as to whether to enforce R.C. 2919.24, irrespective of
whether an action is brought under R.C. 3321.38.” State v. Wood, 63 Ohio App.3d 855,
861–62, 580 N.E.2d 484, 488–89 (6th Dist.1989), dismissed, 48 Ohio St.3d 704, 549
N.E.2d 1190 (1990), overruled on other grounds by State v. Moody, 104 Ohio St.3d 244,
2004-Ohio-6395, 819 N.E.2d 268. We therefore conclude the Absence Intervention Plan
and any deficiencies therein do not prevent appellee from prosecuting pursuant to R.C.
2919.24(B)(2).
{¶32} We have previously observed that the compulsory school attendance laws
under Chapter 3321 of the Revised Code provide penalties for failing to send one's child
to school, and in contrast, R.C. 2919.24 sanctions behavior which contributes to a child
becoming a habitual truant. In re Kent, 5th Dist. Stark No. 2000CA0167, 2001 WL 109131,
*4. R.C. 2919.24 provides a different and more serious offense for contributing to the
habitual truancy of a child than does Chapter 3321 for merely failing to send a child to
school. Id. The conduct prohibited by the two statutes is not the same and thus is not
irreconcilable. Id.Licking County, Case No. 18CA0099 13
{¶33} Appellee can prosecute appellant under R.C. 2919.24 based upon failure
to send her child to school. State v. Wood, 63 Ohio App.3d 855, 861–62, 580 N.E.2d 484,
488–89 (6th Dist.1989), dismissed, 48 Ohio St.3d 704, 549 N.E.2d 1190 (1990), overruled
on other grounds by State v. Moody, 104 Ohio St.3d 244, 2004-Ohio-6395, 819 N.E.2d
268 [R.C. 2919.24 and 3321.38 are two independent offenses and prosecutor has sole
discretion as to whether to enforce R.C. 2919.24, irrespective of whether an action is
brought under R.C. 3321.38]. See also, State v. Bradley, 12th Dist. Warren No. CA2016-
11-094, 2017-Ohio-7121 [R.C. 3321.38 is a “less severe” offense than R.C. 2919.24, is a
separate offense of a different degree, and has applicable defenses that don’t apply to
R.C. 2919.24].
{¶34} The issue presented by this case, therefore, is whether appellant acted in a
way tending to cause K.N. to be absent without legitimate excuse for thirty or more
consecutive hours, forty-two or more hours in one school month, or seventy-two or more
hours in a school year. R.C. 2919.24(B)(2); R.C. 2151.022(B); R.C. 2151.011(B)(18).
Based upon the chart, K.N. was absent without excuse 30 or more consecutive hours in
March 2018 and was absent without excuse in excess of 72 hours for the 2017-2018
school year.
Evidence established appellant tended to cause K.N. to become unruly
{¶35} Appellant next argues appellee failed to establish that she acted in a way
which tended to cause unruliness of K.N., pointing to the number of times appellant did
provide a doctor’s note. K.N. was 9 years old during the relevant time frame. Id.Although appellant acknowledged that K.N. was not always truthful about feeling ill, and
the school gave her the option of bringing K.N. in to see the school nurse, K.N. still missed
Licking County, Case No. 18CA0099 14
entire days for illness and appellant failed to produce a doctor’s note. Appellant points to
the fact that K.N. was suspended from riding the bus for two days due to behavioral
issues, but she fails to explain why the bus suspension should have led to two school
days entirely absent. Similarly, the call about head lice could have been verified through
the school nurse and not resulted in an unexcused absence.
{¶36} We find the record is contrary to appellant’s assertion that she “was in
significant contact” with the school regarding the absences. The table supra is replete
with messages from the school that were not returned, purported medical absences that
were not documented, and absences due to family issues that were not properly
documented. The child missed at least one day, March 1, 2018, entirely due to appellant’s
own panic attack regarding threats at a different school entirely. Finally, appellant didn’t
send K.N. to school from March 2 through March 8 despite not yet having approval for
home schooling.
{¶37} In short, the record demonstrates appellant enabled K.N's behavior for
several months, including the dates considered by the trial court, and such enabling
tended to cause K.N. to become an habitual truant. Schnebeli, supra, 2019-Ohio-860 at
¶ 27. The evidence does establish appellant affirmatively kept K.N. home from school
and failed to take steps to ensure that K.N. would attend school. See, State v. Michael,
108 Ohio App.3d 285, 290, 670 N.E.2d 560 (2nd Dist.1996).
R.C. 2919.24(B)(2) is not void for vagueness as applied
{¶38} Finally, appellant argues R.C. 2919.24(B)(2) is void for vagueness as
applied to her because the school’s attendance rules were inconsistently and arbitrarily
enforced. Appellant did not make this argument before the trial court. Generally, a
Licking County, Case No. 18CA0099 15
constitutional argument that is not raised in the trial court is “waived and cannot be raised
for the first time on appeal.” In re L.Z., 5th Dist. No. 15-CA-36, 2016-Ohio-1337, 61 N.E.3d
776, ¶ 29, citing State v. Brewer, 2nd Dist. Montgomery No. 26153, 2015-Ohio-693, 2015
WL 848406, ¶ 36. We may still “consider constitutional challenges to the application of
statutes in specific cases of plain error or where the rights and interests involved may
warrant it.” Id., citing In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus.
{¶39} Appellant argues R.C. 2919.24(B)(2) is void for vagueness because it
encourages arbitrary enforcement as applied to her. “Under the vagueness doctrine,
statutes which do not fairly inform a person of what is prohibited will be found
unconstitutional as violative of due process.” State v. Carrick, 131 Ohio St.3d 340, 2012-
Ohio-608, 965 N.E.2d 264, ¶ 14, citing State v. Reeder, 18 Ohio St.3d 25, 26, 479 N.E.2d
280 (1985) and Connally v. Gen. Constr. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322(1926); Columbus v. Thompson, 25 Ohio St.2d 26, 266 N.E.2d 571 (1971). However,
“‘[i]mpossible standards of specificity are not required. * * * The test is whether the
language conveys sufficiently definite warning as to the proscribed conduct when
measured by common understanding and practices.’” Id. at ¶ 14, quoting Jordan v. De
George, 341 U.S. 223, 231–232, 71 S.Ct. 703, 95 L.Ed. 886 (1951).
{¶40} A facial challenge requires that “the challenging party * * * show that the
statute is vague ‘not in the sense that it requires a person to conform his conduct to an
imprecise but comprehensible normative standard, but rather in the sense that no
standard of conduct is specified at all.’” Carrick, supra, 2012-Ohio-608, at ¶ 15, citing
State v. Anderson, 57 Ohio St.3d 168, 171, 566 N.E.2d 1224 (1991), quoting Coates v.
Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). Stated another way,
Licking County, Case No. 18CA0099 16
“the challenger must show that upon examining the statute, an individual of ordinary
intelligence would not understand what he is required to do under the law.” Id. Appellant
“must prove, beyond a reasonable doubt that the statute was so unclear that he could not
reasonably understand that it prohibited the acts in which he engaged.” Id., citing United
States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954); 25 Ohio
Jurisprudence 3d, Criminal Law, Section 8, at 106 (1981).
{¶41} Appellant does not argue that R.C. 2919.24(B)(2) is unclear or not
susceptible to being easily understood; in fact, she concedes it is not void on its face
(Brief, 24.) Instead she argues the statute is unconstitutional as applied to her because
the enforcement by K.N.’s school was confusing and contradictory. “In an as-applied
challenge, the challenger ‘contends that application of the statute in the particular context
in which he has acted, or in which he proposes to act, [is] unconstitutional.’” Carrick,
supra, 2012-Ohio-608 at ¶ 16, citing State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606,
861 N.E.2d 512, ¶ 17, quoting Ada v. Guam Soc. of Obstetricians & Gynecologists, 506
U.S. 1011, 113 S.Ct. 633, 121 L.Ed.2d 564 (1992) (Scalia, J., dissenting). Thus, an as-
applied challenge focuses on the particular application of the statute.
{¶42} Appellant’s as-applied challenge is premised upon the fact that the
testimony of school personnel was inconsistent as to what constituted an excused
absence versus an unexcused absence. We note, however, that at the I.E.P. meeting
and at the absence intervention meeting, appellant was given options to address K.N.’s
absences. We found supra that appellant’s conviction is supported by sufficient evidence
and is not against the manifest weight of the evidence. Appellant has presented us with
no authority establishing why application of the contributing statute to her is
Licking County, Case No. 18CA0099 17
unconstitutionally void for vagueness. The statute is not so unclear appellant could not
reasonably understand that it prohibited her from keeping her child out of school 24 days
as evidenced by the chart, nor is it unconstitutional as applied to her conduct.
{¶43} Appellant’s five assignments of error are overruled. Her conviction is
supported by sufficient evidence and is not against the manifest weight of the evidence.
Appellee was not estopped from prosecuting her pursuant to R.C. 2919.24(B)(2) and the
statute is not void for vagueness as applied to her.
CONCLUSION
{¶44} Appellant’s five assignments of error are overruled and the judgment of the
Licking County Court of Common Pleas, Juvenile Division is affirmed.
By: Delaney, J.,
Gwin, J. and
Wise, John, J., concur.