State v. CorneliusState v. Cornelius
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,
{¶ 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
{¶ 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,
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
{¶ 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}
{¶ 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;
{¶ 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
{¶ 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
{¶ 18} In order to prove the violation of
{¶ 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.
{¶ 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
{¶ 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
{¶ 24}
{¶ 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
{¶ 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
{¶ 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
{¶ 29} Because the jurisdiction of the juvenile court that
{¶ 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
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
{¶ 36} The Revised Code contains no definition of the term “mentally or physically handicapped.” Former
{¶ 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
Several decisions prior to the amendment of
{¶ 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
{¶ 41} We urge the General Assembly to cure the possible definitional defect in
{¶ 42} Having sustained the third assignment of error, we will reverse and vacate Defendant‘s conviction for a violation of
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