State v. Cornelius

[Cite as State v. Cornelius, 2011-Ohio-2564.]
IN THE COURT OF APPEALS OF MIAMI COUNTY, OHIO
STATE OF OHIO :
Plaintiff-appellee : C.A. CASE NO. 10CA10
vs. : T.C. CASE NO. 09CR429A
KYLE A. CORNELIUS : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 27th day of May, 2011.
. . . . . . . . .
James D. Bennett, Atty. Reg. No.0022729, First Asst. Pros.
Attorney, 201 West Main Street, Troy, OH 45373
Attorney for Plaintiff-Appellee
John C. Califf, Atty. Reg. No.0071800, 15 West Race Street, Troy,
OH 45373
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} Defendant, Kyle A. Cornelius, appeals from his
conviction for Interference with Custody, R.C. 2919.23(A)(1).
{¶ 2} Defendant Cornelius met Lindsay McHugh through an
internet connection when McHugh was fifteen or sixteen years of
age. From that time, Defendant repeatedly urged McHugh to join
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him in North Carolina. On September 3, 2009, McHugh departed from
her home in Piqua, Ohio, and traveled to Raleigh, North Carolina
with Defendant and another man, Thomas Steen. The three were
located there the following day, and McHugh was returned to her
home in Piqua.
{¶ 3} Lindsay McHugh was born on May 20, 1991. On September
2, 2008, the Van Wert County Juvenile Court awarded custody of
McHugh to her cousins, David and Lynne Steele, with whom McHugh
resided at their home in Piqua, Ohio, in Miami County. The custody
award was made with the agreement of McHugh’s parental custodian,
her mother, on a finding that the award was in McHugh’s best
interest. McHugh was seventeen years of age when the custody award
was made. She became eighteen years of age on May 20, 2009.
{¶ 4} Defendant was charged with two felony offenses arising
from conduct that occurred “on or about September 3, 2009,” the
date on which he took McHugh to North Carolina: abduction, R.C.
2905.02(A)(1), and interference with custody, R.C. 2919.23(A)(1).
The State dismissed the abduction charge. Defendant waived his
right to a jury trial on the interference with custody charge.
Defendant was tried by the court, which on January 11, 2010, entered
its general findings of guilty. (Dkt. 17). On February 23, 2010,
Defendant was sentenced to an eleven-month prison term and ordered
to pay the costs of the action.
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{¶ 5} Defendant filed a premature notice of appeal on February
22, 2010. He presents five assignments of error for review.
THIRD ASSIGNMENT OF ERROR
{¶ 6} “THE EVIDENCE PRESENTED ON THE ISSUE OF WHETHER THERE
WAS AN ABSENCE OF PRIVILEGE, SPECIFICALLY WHETHER AT THE TIME OF
THE ALLEGED CRIME THERE WAS SOME SORT OF GUARDIANSHIP OR PARENTAL
OR CUSTODIAL RELATIONSHIP, WAS NOT OF THE QUALITY OR QUANTITY TO
CONVINCE THE AVERAGE MIND OF GUILT BEYOND A REASONABLE DOUBT.”
{¶ 7} This assignment of error presents a sufficiency of the
evidence question. Sufficiency of the evidence and weight of the
evidence are distinct concepts to which different legal tests
apply. State v. Thompkins (1997), 78 Ohio St.3d 380; State v.
Hufnagle (Sept. 6, 1996), Montgomery App. No. 15563, unreported.
{¶ 8} "Sufficiency" of the evidence refers to its logical
capacity to demonstrate both the criminal conduct and the culpable
mental state that the alleged criminal liability requires. The
test is whether all or some part of the evidence that was admitted
in the trial would, if believed, convince the average mind beyond
a reasonable doubt that the defendant is guilty of committing the
offense charged. State v. Jenks (1991), 61 Ohio St.3d 259,
paragraph two of the syllabus. "Weight" of the evidence refers
to the inclination of the greater amount of the credible evidence
presented in a trial to prove the issue established by the verdict
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that was reached. State v. Thompkins (1997), 78 Ohio St.3d 380.
The test is whether that evidence is capable of inducing belief
in its truth, and whether those truths preponderate in favor of
the verdict according to the applicable burden of proof. Id.{¶ 9} “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. Jenks, paragraph two of the Syllabus
by the Court citing and following Jackson v. Virginia (1979), 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
{¶ 10} R.C. 2919.23(A) provides:
{¶ 11} “No person, knowing the person is without privilege to
do so or being reckless in that regard, shall entice, take, keep,
or harbor a person identified in division (A)(1), (2), or (3) of
this section from the parent, guardian, or custodian of the person
identified in division (A)(1), (2), or (3) of this section:
{¶ 12} “(1) A child under the age of eighteen, or a mentally
or physically handicapped child under the age of twenty-one;
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{¶ 13} “(2) A person committed by law to an institution for
delinquent, unruly, neglected, abused, or dependent children;
{¶ 14} “(3) A person committed by law to an institution for
the mentally ill or mentally retarded.”
{¶ 15} The indictment charged Defendant with a violation of
R.C. 2919.23(A)(1) in the terms of the statute, with respect to
conduct involving “a mentally or physically handicapped child under
the age of twenty-one.” (Dkt. 1). No reference is made to the
alternative grounds in the statute which involve conduct involving
“[a] child under the age of eighteen.”
{¶ 16} David Steele testified that McHugh has mental
deficiencies. She attended special individual education classes
at Piqua High School, and her social skills were not well-developed
and had led to problems dealing with the other students. Steele
also testified that McHugh has physical disabilities in that she
is blind in her right eye and has impaired vision in her left eye.
During Detective Burnside’s interview of Defendant, Defendant
stated that early on in his conversations with McHugh he learned
she was “retarded.”
{¶ 17} Dr. Fred Sacks, who performed a psychological evaluation
on McHugh, testified that her full scale IQ is 75. Below 70
generally indicates retardation. McHugh is severely impaired in
her logical and abstract reasoning, and her greatest weakness is
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understanding her world, making sense out of it, and responding
to challenges. She doesn’t recognize risks. School records
indicate McHugh has problems adapting to rules and conducting
herself appropriately in a school setting. She also has academic
achievement problems and is in an individualized education program
at school. Dr. Sacks testified that McHugh is at significantly
greater risk for being taken advantage of and manipulated than
average teens her age, and that she needs continued supervision
or guardianship until age twenty-one.
{¶ 18} In order to prove the violation of R.C. 2919.23(A)(1)
charged, the State was required to prove that the “mentally or
physically handicapped child” victim of the offense was at the
time of its commission under twenty-one years of age and subject
to rights conferred by law on the victim’s parent, guardian, or
custodian, and that the offender, being without privilege or
reckless in that regard, enticed, took, kept, or harbored the victim
from the victim’s parent, guardian, or custodian.
{¶ 19} Defendant argues that the evidence offered at trial was
insufficient to prove that he acted without privilege when he took
Lindsay McHugh to North Carolina on September 3, 2009 because,
being then eighteen years of age, and absent an adult guardianship,
McHugh was not then subject to any parental, custodial, or
guardianship rights conferred by law on another person.
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Defendant’s argument relies on R.C. 3109.01, which prescribes the
age of majority, and provides: “All persons of the age of eighteen
years or more, who are under no legal disability, are capable of
contracting and are of full age for all purposes.”
{¶ 20} In its General Findings After Trial To The Court (Dkt.
17), the court made the following finding of fact and law with
respect to the custodial status of Lindsay McHugh, at p. 17:
{¶ 21} “In the present case, the Court concludes David and Lynne
Steele were custodians of Lindsay as that term is used in O.R.C.
2919.23(A)(1), in that they had officially been placed in charge
of her shelter, care, protection and the continuation of her
education and that obligation remained in effect as of September
3, 2009, notwithstanding her reaching her 18th birthday.”
{¶ 22} The court reasoned that the juvenile court’s September
8, 2008 custody order remained in effect on September 3, 2009,
because the juvenile court retained jurisdiction following
McHugh’s eighteenth birthday on May 20, 2009, due to the fact that
McHugh is unable to care for herself. The court relied on Castle
v. Castle (1984), 15 Ohio St.3d 279, which held that, absent a
statute to the contrary, the common law duty imposed on parents
for the care of their children may continue beyond the age of
majority if the children remain unable to care for themselves
because of mental or physical disabilities, and in that event the
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domestic relations court retains jurisdiction to continue or modify
support payments for the child beyond the age of majority.
{¶ 23} We do not agree that Castle controls in the present case,
for several reasons. First, the Van Wert County Juvenile Court’s
order of September 2, 2008, granting custody of McHugh to the
Steeles, made no findings regarding McHugh’s mental or physical
disabilities. Second, Castle was a civil case and, per R.C.
2901.04(A), in criminal cases “sections of the Revised Code
defining offenses or penalties shall be strictly construed against
the state, and liberally construed in favor of the accused.”
Third, a statute denies the jurisdiction of the juvenile court
which the trial court found.
{¶ 24} R.C. 2151.353(A) provides that the juvenile court may
award custody of an abused, neglected, or dependant child to a
parent or another movant who seeks custody, subject to certain
qualifications regarding the custodian. That section further
provides that the custodian’s responsibility continues past the
child’s eighteenth birthday while the child remains in school.
R.C. 2151.353(J) provides:
{¶ 25} “The jurisdiction of the court shall terminate one year
after the date of the award or, if the court takes any further
action in the matter subsequent to the award, the date of the latest
further action subsequent to the award, if the court awards legal
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custody of a child to either of the following:
{¶ 26} “(1) A legal custodian who, at the time of the award
of legal custody, resides in a county of this state other than
the county in which the court is located.” (Emphasis supplied.)
{¶ 27} The agreed custody order of the Van Wert County Juvenile
Court (Ex. 1) granting custody of McHugh to the Steeles fails to
reflect the basis of that award, other than that it was upon a
complaint filed by David and Lynne Steele and that it was in McHugh’s
best interest to make the award. No basis for an adjudication
of delinquency is suggested. Necessarily, therefore, the award
was predicated on a finding of abuse, dependency, or neglect, and
was made pursuant to R.C. 2151.353(A)(3).
{¶ 28} When the custody order was journalized on September 2,
2008, the Steeles were residents of Miami County. No evidence
was presented that the Van Wert County Juvenile Court took any
further action in the matter subsequent to the order of September
2, 2008. Therefore, per R.C. 2151.353(J), the jurisdiction of
the court that entered that order terminated one year later, on
September 2, 2009. That termination concludes any continued
jurisdiction the court may have enjoyed past the child’s age of
majority in relation to her continued education pursuant to R.C.
2151.353(A)(3)(b).
{¶ 29} Because the jurisdiction of the juvenile court that
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entered the order granting custody of McHugh to the Steeles
terminated on September 2, 2009, that order had no force of effect
on September 3, 2009, the date on which Defendant took McHugh to
North Carolina. The evidence was therefore insufficient to
support the trial court’s express finding that, on that date,
Defendant took McHugh from persons to whose custody she had been
committed. Because the element of custody is essential to a
violation of R.C. 2919.23(A)(1) alleged, the trial court erred
when it found Defendant guilty of that offense and convicted him
accordingly.
{¶ 30} The third assignment of error is sustained.
FIRST ASSIGNMENT OF ERROR
{¶ 31} “IT WAS REVERSIBLE ERROR TO CONVICT APPELLANT UNDER R.C.
2919.23(A)(1) BECAUSE THE STATUTE IS SO VAGUE AND INCOMPREHENSIBLE
TO ENSURE INDIVIDUALS OF COMMON INTELLIGENCE ARE ABLE TO DETERMINE
WHAT CONDUCT IS PROHIBITED; AS TO WHAT CONSTITUTES MENTALLY OR
PHYSICALLY HANDICAPPED UNDER THE CRIMINAL STATUTE.”
SECOND ASSIGNMENT OF ERROR
{¶ 32} “THE EVIDENCE PRESENTED ON THE ISSUE OF WHETHER THE
PERSON WAS ‘MENTALLY OR PHYSICALLY HANDICAPPED’ WAS NOT OF THE
QUALITY OR QUANTITY TO CONVINCE THE AVERAGE MIND OF GUILT BEYOND
A REASONABLE DOUBT.”
FOURTH ASSIGNMENT OF ERROR
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{¶ 33} “THERE WAS NO EVIDENCE OF ANY KIND ESTABLISHING THAT
AT THE TIME OF THE ALLEGED CRIME APPELLANT KNEW OR WAS RECKLESS
WITH RESPECT TO THE EXISTENCE OF A GUARDIANSHIP OR CUSTODIAL OR
PARENTAL RELATIONSHIP. THERE ALSO WAS NO DETERMINATION OR FINDING
BEYOND A REASONABLE DOUBT AS TO THAT ELEMENT.”
FIFTH ASSIGNMENT OF ERROR
{¶ 34} “THE APPELLANT WAS IMPROPERLY CONVICTED BY THE LACK OF
PROOF OR FINDING OF PROOF BEYOND A REASONABLE DOUBT ON THE MENS
REA ELEMENT OF KNOWLEDGE OR RECKLESSNESS AS TO WHETHER THE PERSON
WAS MENTALLY OR PHYSICALLY HANDICAPPED.”
{¶ 35} The errors assigned in the first, second, fourth, and
fifth assignments of error are made moot by our decision sustaining
the third assignment of error. We therefore decline to decide
the error assigned. App.R. 12(A)(1)(c). Nevertheless, we
believe that one of Defendant’s arguments should be addressed,
that being his claim that R.C. 2919.23(A)(1) is unconstitutionally
void for vagueness because the operative term “mentally or
physically handicapped child,” as it appears in that section, lacks
a clear definition.
{¶ 36} The Revised Code contains no definition of the term
“mentally or physically handicapped.” Former R.C. 3323.01(A)
defined the term “handicapped child.” That section was amended
by 2007 H 119, effective September 29, 2007. It now defines “child
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with a disability,” and provides:
{¶ 37} “(A) ‘Child with a disability’ means a child who is at
least three years of age and less than twenty-two years of age;
who has mental retardation, a hearing impairment (including
deafness), a speech or language impairment, a visual impairment
(including blindness), a serious emotional disturbance, an
orthopedic impairment, autism, traumatic brain injury, another
health impairment, a specific learning disability, deaf-blindness,
or multiple disabilities; and who, by reason thereof, needs special
education and related services.
{¶ 38} “A ‘child with a disability’ may include a child who
is at least three years of age and less than six years of age;
who is experiencing developmental delays, as defined by standards
adopted by the state board of education and as measured by
appropriate diagnostic instruments and procedures in one or more
of the following areas: physical development, cognitive
development, communication development, social or emotional
development, or adaptive development; and who, by reason thereof,
needs special education and related services.”
{¶ 39} A number of sections of the Revised Code employ the term
“mentally or physically handicapped child,” or some variation of
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it, without a stated or referenced definition of the term. 1
Several decisions prior to the amendment of R.C. 3323.01(A) relied
on that section’s definition of “handicapped child” to find the
necessary definition. See: State v. Jennings (July 12, 1989),
Summit App. No. 13896; State v. McNeil (July 12, 1989), Summit
App. No. 13896. Such reliance is no longer available after R.C.
3323.01(A) was amended to instead define “child with a disability.”
An earlier decision, State v. Turner (1965), 3 Ohio App.2d 5,
devised its own “dictionary definition of mentally handicapped
child,” with reference to the legislative intent the court found
in the statue concerned. An express legislative definition is
preferred.
{¶ 40} All statutes are presumed constitutional, but an
enactment may be void for vagueness and violate due process if
its prohibitions are not clearly defined. A statute is void for
1
The term “mentally or physically handicapped child”
likewise appears in R.C. 2903.15(A), permitting child abuse;
and R.C. 2919.21(A)(2), nonsupport of dependents; R.C.
2919.22(A), endangering children. The term is also employed
in R.C. 2931.02, criminal jurisdiction of county courts; R.C.
2945.42, competency of witnesses; R.C. 3313.06, failure to pay
child agency costs; failure to comply, R.C. 3113.08. The term
“handicapped children” appears in various forms in R.C. 3119.23,
deviations in child support; R.C. 3701.022, defining medically
handicapped children; R.C. 3701.027, pertaining to grant
programs; R.C. 5104.011(F)(1), creating rules regarding
handicapped children; and in R.C. 5153.163, regarding payments
to parents of adoptive children with disabilities.
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vagueness if it (1) fails to provide sufficient notice of its
proscriptions and (2) fails to contain reasonably clear guidelines
to prevent official arbitrariness or discrimination in its
enforcement. Perez v. Cleveland, 78 Ohio St.3d 376, 1997-Ohio-33.
{¶ 41} We urge the General Assembly to cure the possible
definitional defect in R.C. 2919.23(A)(1) and other sections of
the Revised Code by providing a clear definition for the term
“mentally of physically handicapped child.” Alternatively, that
and other sections which employ the term may be amended to instead
apply to “a child with a disability,” as that term is now defined
by R.C. 3323.01(A).
{¶ 42} Having sustained the third assignment of error, we will
reverse and vacate Defendant’s conviction for a violation of R.C.
2919.23(A)(1).
FROELICH, J. And BROGAN, J., concur.
(Hon. James A. Brogan, retired from the Second District Court of
Appeals, sitting by assignment of the Chief Justice of the Supreme
Court of Ohio.)
Copies mailed to:
James D. Bennett, Esq.
John C. Califf, Esq.
Hon. Robert J. Lindeman