[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.
