[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
                                                                   4

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
                                                                    6

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.
                                                                     7

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
                                                                    8

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
                                                                    9

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
                                                                  10

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
                                                                  11

     {¶ 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
                                                                     12

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
                                                                       13

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.
                                                                      14

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
