[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 

 : O P I N I O N 

 - 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 defendantappellant 

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 
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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 
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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 
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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 
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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). 
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{¶ 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. 
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{¶ 24} Judgment reversed and Bradley is discharged. 

 S. POWELL, P.J., and PIPER, J., concur.