[Cite as State v. Bradley, 2017-Ohio-7121.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2016-11-094
: OPINION - vs - 8/7/2017 :
VALERIE BRADLEY, :
Defendant-Appellant. :
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 15-N001046
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee
Joseph A. Cesta,1160 East Main Street, P.O. Box 36, Lebanon, Ohio 45036, for defendant- appellant
James R. Mason, Peter K. Kamakawiwoole, Home School Legal Defense Association, One Patrick Hendry Circle, Purcellville, VA 20132, Admitted Pro Hac Vice, for defendant-appellant
RINGLAND, J.
{¶ 1} Defendant-appellant, Valerie Bradley, appeals the decision of the Warren
County Common Pleas, Juvenile Division, finding her guilty of failure to send her child to
school. For the reasons detailed below, we reverse the decision of the trial court and Warren CA2016-11-094
discharge Bradley.
{¶ 2} The record is largely undisputed. Bradley began homeschooling her son for the
second semester of the 2014-2015 school year. On May 15, 2015, the school district sent
the Bradleys a letter asking if their son would continue homeschooling for the 2015-2016
school year. The letter also requested that Bradley enclose various documents, including the
results from standardized tests. The letter requested that the form be completed by August
1, 2015.
{¶ 3} Bradley did not complete the form or attach the necessary documents prior to
the August 1 deadline. Bradley testified that when the letter arrived, she simply placed it in a
file of homeschool documents and then forgot to take any action. However, she stated that
she continued to homeschool her son during the 2015-2016 school year.
{¶ 4} Bradley became aware of a problem when she received a phone call indicating
a problem with the homeschool arrangement. As a result, Bradley completed the form and
sent it to the school district. The form was dated September 28, 2015.
{¶ 5} On October 7, 2015, Dr. Ron Malone, the attendance officer for Carlisle Local
Schools, sent a letter to Bradley about the situation. The letter acknowledged that Bradley
had submitted an application for homeschooling for the 2015-2016 school year, but
requested that she provide her son's test results for 2014-2015. The letter further stated that
Bradley's son was considered truant.
{¶ 6} Bradley's son completed the necessary assessments and Bradley sent the test
scores to the school district on October 12, 2015. The record shows that Bradley's son
received exceptionally high marks in the testing.
{¶ 7} On October 21, 2015, the Carlisle Local Schools Superintendent, Larry Hook,
sent another letter to Bradley. The letter stated that Bradley had been approved for
homeschooling and Bradley's son was excused from attendance for the 2015-2016 school -2- Warren CA2016-11-094
year as of that date. The letter also reminded Bradley of reporting assessments for the
following year.
{¶ 8} On October 29, 2015, Bradley was named in a criminal complaint and charged
with contributing to the unruliness or delinquency of a child in violation of R.C. 2919.24(A)(2),
a first-degree misdemeanor. The complaint was based on Bradley's failure to send her son
to school from the beginning of the Carlisle school year, August 19, 2015, until the date that
she was approved to home school on October 21, 2015, approximately 46 school days.
{¶ 9} A trial was held before a magistrate. The state presented the testimony of the
attendance officer, Malone, and submitted the above-referenced letters. Malone testified that
Bradley had not completed the necessary paperwork or been approved to homeschool until
October 21, 2015. Therefore, Malone testified that Bradley's son was truant from the
beginning of the school year until the date homeschooling was approved.
{¶ 10} Bradley testified in her own defense and explained that she had forgotten
about the requirements until she was contacted by the school. When she learned of the
error, Bradley stated that she acted quickly to have the necessary assessments completed
and submitted to the district. Despite the fact that she was not approved to homeschool until
the October 21 letter, Bradley testified that she had homeschooled her son the entire time
and was simply unaware of any problems with the paperwork.
{¶ 11} The magistrate found Bradley guilty of contributing to the unruliness or
delinquency of a child in violation of R.C. 2919.24(A)(2). Bradley filed objections to the
magistrate's decision. The trial court found that Bradley's failure to follow the homeschool
procedures amounted to a "technical violation of the statute." However, the trial court noted
that Bradley had been ensuring that her son received his educational requirements. Simply,
Bradley "was delinquent in submitting the paperwork in a timely manner." Therefore, the trial
court granted Bradley's objections "insofar as the Court will allow the charge be amended to -3- Warren CA2016-11-094
conform to the evidence." The trial court then found Bradley guilty of failure to send her child
to school under a separate statute, R.C. 3321.38. Bradley now appeals the decision of the
trial court, raising two assignments of error for review.
{¶ 12} Assignment of Error No. 1:
{¶ 13} THE COURT OF COMMON PLEAS ERRED BECAUSE THE STATE'S
PROSECUTION OF APPELLANT WAS PROCEDURALLY FORECLOSED AS A MATTER
OF LAW.
{¶ 14} Assignment of Error No. 2:
{¶ 15} THE COURT COMMITTED REVERSIBLE ERROR BECAUSE THE RECORD
DOES NOT CONTAIN EVIDENCE PROVING AN ESSENTIAL ELEMENT OF THE STATE'S
CASE.
{¶ 16} We will address Bradley's assignments of error together. In her first
assignment of error, Bradley argues that the state did not follow the proper statutory
procedures for obtaining a conviction under the relevant statutes. In her second assignment
of error, Bradley argues that the state failed to prove an essential element of the offense.
We agree with Bradley. The trial court's decision should be reversed.
{¶ 17} The state chose to pursue this case as contributing to the unruliness or
delinquency of a child in violation of R.C. 2919.24. That statute states:
(B) No person, including a parent, guardian, or other custodian of a child, shall do any of the following:
***
(2) Act in a way tending to cause a child or a ward of the juvenile court to become an unruly child or a delinquent child;
An unruly child includes "[a]ny child who is an habitual truant from school." R.C. 2151.022.
A trial before a magistrate was held on that charge and Bradley was found guilty.
{¶ 18} The trial court vacated the magistrate's findings and instead found her guilty of -4- Warren CA2016-11-094
failure to send her child to school in violation of R.C. 3321.38. Bradley was never charged
with that offense or notified that the state would be proceeding on that charge. The trial court
simply vacated Bradley's contributing conviction and entered a conviction for failing to send
her child to school, a separately defined offense. R.C. 3321.38 states that "[n]o parent * * *
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[Cite as State v. Bradley, 2017-Ohio-7121.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2016-11-094
: OPINION - vs - 8/7/2017 :
VALERIE BRADLEY, :
Defendant-Appellant. :
APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. 15-N001046
David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice Drive, Lebanon, Ohio 45036, for plaintiff-appellee
Joseph A. Cesta,1160 East Main Street, P.O. Box 36, Lebanon, Ohio 45036, for defendant- appellant
James R. Mason, Peter K. Kamakawiwoole, Home School Legal Defense Association, One Patrick Hendry Circle, Purcellville, VA 20132, Admitted Pro Hac Vice, for defendant-appellant
RINGLAND, J.
{¶ 1} Defendant-appellant, Valerie Bradley, appeals the decision of the Warren
County Common Pleas, Juvenile Division, finding her guilty of failure to send her child to
school. For the reasons detailed below, we reverse the decision of the trial court and Warren CA2016-11-094
discharge Bradley.
{¶ 2} The record is largely undisputed. Bradley began homeschooling her son for the
second semester of the 2014-2015 school year. On May 15, 2015, the school district sent
the Bradleys a letter asking if their son would continue homeschooling for the 2015-2016
school year. The letter also requested that Bradley enclose various documents, including the
results from standardized tests. The letter requested that the form be completed by August
1, 2015.
{¶ 3} Bradley did not complete the form or attach the necessary documents prior to
the August 1 deadline. Bradley testified that when the letter arrived, she simply placed it in a
file of homeschool documents and then forgot to take any action. However, she stated that
she continued to homeschool her son during the 2015-2016 school year.
{¶ 4} Bradley became aware of a problem when she received a phone call indicating
a problem with the homeschool arrangement. As a result, Bradley completed the form and
sent it to the school district. The form was dated September 28, 2015.
{¶ 5} On October 7, 2015, Dr. Ron Malone, the attendance officer for Carlisle Local
Schools, sent a letter to Bradley about the situation. The letter acknowledged that Bradley
had submitted an application for homeschooling for the 2015-2016 school year, but
requested that she provide her son's test results for 2014-2015. The letter further stated that
Bradley's son was considered truant.
{¶ 6} Bradley's son completed the necessary assessments and Bradley sent the test
scores to the school district on October 12, 2015. The record shows that Bradley's son
received exceptionally high marks in the testing.
{¶ 7} On October 21, 2015, the Carlisle Local Schools Superintendent, Larry Hook,
sent another letter to Bradley. The letter stated that Bradley had been approved for
homeschooling and Bradley's son was excused from attendance for the 2015-2016 school -2- Warren CA2016-11-094
year as of that date. The letter also reminded Bradley of reporting assessments for the
following year.
{¶ 8} On October 29, 2015, Bradley was named in a criminal complaint and charged
with contributing to the unruliness or delinquency of a child in violation of R.C. 2919.24(A)(2),
a first-degree misdemeanor. The complaint was based on Bradley's failure to send her son
to school from the beginning of the Carlisle school year, August 19, 2015, until the date that
she was approved to home school on October 21, 2015, approximately 46 school days.
{¶ 9} A trial was held before a magistrate. The state presented the testimony of the
attendance officer, Malone, and submitted the above-referenced letters. Malone testified that
Bradley had not completed the necessary paperwork or been approved to homeschool until
October 21, 2015. Therefore, Malone testified that Bradley's son was truant from the
beginning of the school year until the date homeschooling was approved.
{¶ 10} Bradley testified in her own defense and explained that she had forgotten
about the requirements until she was contacted by the school. When she learned of the
error, Bradley stated that she acted quickly to have the necessary assessments completed
and submitted to the district. Despite the fact that she was not approved to homeschool until
the October 21 letter, Bradley testified that she had homeschooled her son the entire time
and was simply unaware of any problems with the paperwork.
{¶ 11} The magistrate found Bradley guilty of contributing to the unruliness or
delinquency of a child in violation of R.C. 2919.24(A)(2). Bradley filed objections to the
magistrate's decision. The trial court found that Bradley's failure to follow the homeschool
procedures amounted to a "technical violation of the statute." However, the trial court noted
that Bradley had been ensuring that her son received his educational requirements. Simply,
Bradley "was delinquent in submitting the paperwork in a timely manner." Therefore, the trial
court granted Bradley's objections "insofar as the Court will allow the charge be amended to -3- Warren CA2016-11-094
conform to the evidence." The trial court then found Bradley guilty of failure to send her child
to school under a separate statute, R.C. 3321.38. Bradley now appeals the decision of the
trial court, raising two assignments of error for review.
{¶ 12} Assignment of Error No. 1:
{¶ 13} THE COURT OF COMMON PLEAS ERRED BECAUSE THE STATE'S
PROSECUTION OF APPELLANT WAS PROCEDURALLY FORECLOSED AS A MATTER
OF LAW.
{¶ 14} Assignment of Error No. 2:
{¶ 15} THE COURT COMMITTED REVERSIBLE ERROR BECAUSE THE RECORD
DOES NOT CONTAIN EVIDENCE PROVING AN ESSENTIAL ELEMENT OF THE STATE'S
CASE.
{¶ 16} We will address Bradley's assignments of error together. In her first
assignment of error, Bradley argues that the state did not follow the proper statutory
procedures for obtaining a conviction under the relevant statutes. In her second assignment
of error, Bradley argues that the state failed to prove an essential element of the offense.
We agree with Bradley. The trial court's decision should be reversed.
{¶ 17} The state chose to pursue this case as contributing to the unruliness or
delinquency of a child in violation of R.C. 2919.24. That statute states:
(B) No person, including a parent, guardian, or other custodian of a child, shall do any of the following:
***
(2) Act in a way tending to cause a child or a ward of the juvenile court to become an unruly child or a delinquent child;
An unruly child includes "[a]ny child who is an habitual truant from school." R.C. 2151.022.
A trial before a magistrate was held on that charge and Bradley was found guilty.
{¶ 18} The trial court vacated the magistrate's findings and instead found her guilty of -4- Warren CA2016-11-094
failure to send her child to school in violation of R.C. 3321.38. Bradley was never charged
with that offense or notified that the state would be proceeding on that charge. The trial court
simply vacated Bradley's contributing conviction and entered a conviction for failing to send
her child to school, a separately defined offense. R.C. 3321.38 states that "[n]o parent * * *
of a child of compulsory school age shall violate any provision of section 3321.01, 3321.03,
3321.04, 3321.07, 3321.10, 3321.19, 3321.20, or 3331.14 of the Revised Code."
{¶ 19} We recognize that the trial court has the authority to amend a complaint under
Crim.R. 7(D), which states:
The court may at any time before, during, or after a trial amend the indictment, information, complaint, or bill of particulars, in respect to any defect, imperfection, or omission in form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged.
See In re J.S., 6th Dist. Erie No. E-11-012, 2011-Ohio-6313.1 If an amendment changes the
penalty or degree of the charged offense, it changes the identity of the offense and is not
permitted by Crim.R. 7(D). State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, ¶ 13. The
rule ensures that a defendant will not be "surprised" by a new charge. State v. Lenard, 8th
Dist. Cuyahoga No. 104986, 2017-Ohio-4074, ¶ 17.
{¶ 20} The trial court found that the evidence did not support the imposition of
criminal misdemeanor penalties under R.C. 2919.24 for allegedly contributing to the
unruliness or delinquency of a child. The trial court explained that Bradley had made sure
that her son had his educational requirements met during the relevant time. The record
supports a finding that Bradley's son received instruction and his test scores reflect high
achievement. Because of the technical paperwork violation, the court instead chose to enter
a guilty finding on a new R.C. 3321.38 charge for Bradley's failure to send her child to school.
1. The Criminal Rules are applicable because the Juvenile Rules do not apply to procedure upon the trial of criminal actions. Ohio Juv.R. 1(C)(2). -5- Warren CA2016-11-094
{¶ 21} Based on our review, we conclude that Bradley's conviction under R.C.
3321.38 must also be vacated based on the unusual facts of this case. In the present case,
Bradley was never charged with violating R.C. 3321.38. Though R.C. 3321.38 is less severe,
it is a separate offense of a different degree. Until the trial court entered a guilty plea,
Bradley had no notice that she had to defend on that charge. A review of the record shows
that Bradley was prejudiced by this amendment because she would have had applicable
defenses. For example, one way of violating R.C. 3321.38 is to prove a violation of R.C.
3321.19, which addresses truancy and actions directed at parents, guardians, or responsible
persons. R.C. 3321.19(D) describes the process and procedure for initiating a complaint
against the child and the parent, including the requirements that the parties be served with
notice and the complaint must be filed against both parent and child jointly. It is undisputed
that a complaint was not filed jointly against parent and child and therefore Bradley would
have prevailed on that issue.
{¶ 22} The state, for its part, essentially argues that the deficiencies in the record on
the R.C. 3321.38 conviction should be overlooked because it pursued this case as a
contributing offense under R.C. 2919.24, not R.C. 3321.38. The unusual facts of this case
highlight the need to reverse the trial court's decision. While the trial court was attempting to
enact a just verdict, the fact remains that Bradley would have had applicable defenses to a
charge under R.C. 3321.38. Bradley could not utilize those defenses because she was
charged with a separate offense and was not put on notice that she may have to defend
against claims under R.C. 3321.38. Accordingly, we find the trial court erred by finding
Bradley guilty of violating R.C. 3321.38.
{¶ 23} Therefore, we reverse Bradley's conviction for failure to send her son to school
under R.C. 3321.38 for the reasons stated above and order her discharged.
-6- Warren CA2016-11-094
{¶ 24} Judgment reversed and Bradley is discharged.
S. POWELL, P.J., and PIPER, J., concur.
-7-