State v. StilesState v. Stiles
For Plaintiff-Appellee:
WILLIAM C. HAYES
LICKING CO. PROSECUTOR
MAXWELL TAYLOR
20 S. Second St., Fourth Floor
Newark, OH 43055
For Defendant-Appellant:
MICHAEL R. DALSANTO
33 West Main St., Ste. 109
Newark, OH 43055
{¶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 absence or tardy | Reason for absence or tardy offered by appellant | Action taken by school: excused or unexcused | Hours absent |
|---|---|---|---|
| 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 town with grandmother” | Unexcused | 6.0 |
| Aug. 31, 2017 | [Message left at residence; no response] | Unexcused | 6.0 |
| Sept. 6, 2017 | Appellant called but offered no explanation for absence | Unexcused | 6.0 |
| Sept. 7, 2017 | [Message left at residence; no response] | Unexcused | 6.0 |
| Sept. 11, 2017 | “No answer” | Unexcused | 6.0 |
| Sept. 14, 2017 | [Message left at residence, no response] | Unexcused | 6.0 |
| 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 documentation provided | Unexcused | 6.0 |
| Oct. 24, 2017 | Funeral; appellant called but no documentation provided | Unexcused | 6.0 |
| Oct. 25, 2017 | Left voicemail | Unexcused | 6.0 |
| 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 doctor‘s excuse | Excused | |
| 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; doctor‘s excuse provided | Excused | |
| Nov. 29, 2017 | Excused tardy for counseling appointment; doctor‘s excuse provided | Excused | |
| Dec. 6, 2017 | Excused tardy for counseling appointment; doctor‘s excuse provided | Excused | |
| Dec. 13, 2017 | Excused tardy for counseling appointment; doctor‘s excuse provided | Excused | |
| 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 appointment; doctor‘s excuse provided | Excused | |
| Jan. 11, 2018 | Left voicemail | Unexcused | 6.0 |
| Jan. 31, 2018 | Appellant brought doctor‘s excuse for tardy but said K.N. was ill, and K.N. absent entire day | Unexcused | 6.0 |
| Feb. 6, 2018 | K.N. ill, doctor‘s excuse for strep throat | Excused | |
| Feb. 8, 2018 | Unexcused early dismissal due to behavioral issues | Unknown | |
| Feb. 15, 2018 | Unexcused early dismissal after Valentine party | Unknown | |
| Feb. 21, 2018 | Unexcused tardy: counseling with no doctor‘s excuse | Unknown | |
| Feb. 26, 2018 | Absent, automated call from school | Unexcused | 6.0 |
| Feb. 27, 2018 | Unexcused early dismissal, no reason given | Unknown | |
| Mar. 1, 2018 | Appellant had panic attack about threats, decided not to send K.N. to school | Unexcused | 6.0 |
| Mar. 2, 2018 | Automated call | Unexcused | 6.0 |
| Mar. 5, 2018 | Automated call | Unexcused | 6.0 |
| Mar. 6, 2018 | Automated call | Unexcused | 6.0 |
| Mar. 7, 2018 | Automated call | Unexcused | 6.0 |
| Mar. 8, 2018 | Appellant says K.N. will be home schooled but not yet approved to do so | Unexcused | 6.0 |
{¶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 insuffiсient. 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 schоol 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.
{¶10} Appellee’s exhibit I is the Absence Intervention Plan signed by appellant, the attendance officer, and the assistant principаl. 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, howevеr. 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.
{¶13} Appellant was charged by adult complaint with one count of contributing to the unruliness of a minor, to wit, Jane Doe, pursuant to
{¶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 сharged, 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
{¶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
{¶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
{¶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.”
{¶23} “V.
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
Appellant charged pursuant to R.C. 2919.24(B)(2)
{¶25} The complaint against appellant charges her with violating
[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] cаused 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}
{¶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 (1958) at paragraph one of the syllabus.
{¶28} Appellant argues her conviction is against the manifest weight and sufficiency of the evidence. The legаl 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, 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 (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
{¶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 thе 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
{¶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
{¶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,
{¶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 а 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
{¶36} We find the record is contrary to appellant’s assertion that she “was in significant contact” with the schoоl 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 schоol 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 (2nd Dist.1996).
R.C. 2919.24(B)(2) is not void for vagueness as applied
{¶38} Finally, appellant argues
{¶39} Appellant argues
{¶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 (1991), quoting Coates v. Cincinnati, 402 U.S. 611, 614 (1971). Stated another way,
{¶41} Appellant does not argue that
{¶42} Appellant’s as-аpplied 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 conviсtion 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
{¶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
CONCLUSION
{¶44} Appellant’s five assignments оf 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.