In re J.J.M.

[Cite as In re J.J.M., 2012-Ohio-5605.]
STATE OF OHIO, HARRISON COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF: ) CASE NO. 12 HA 2
)
J.J.M., ) OPINION
)
A DELINQUENT CHILD. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Juvenile Division, Case No.
20122011.
JUDGMENT: Affirmed.
APPEARANCES:
For Appellee: Attorney T. Shawn Hervey
Prosecuting Attorney
Attorney Michael Washington
Assistant Prosecuting Attorney
111 West Warren Street
P.O. Box 248
Cadiz, Ohio 43907
For Appellant: J.J.M., Pro se
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: December 3, 2012
[Cite as In re J.J.M., 2012-Ohio-5605.]
VUKOVICH, J.
{¶1} Appellant J.J.M. appeals a decision from the Harrison County Common
Pleas Court, Juvenile Division that adjudicated him a delinquent child for committing
the offense of underage consumption in violation of R.C. 4301.69. Appellant raises
four arguments. First, he contends that the trial court’s decision is against the
manifest weight of the evidence. Second, he argues that the trial court should have
suppressed the results of the Portable Breath Test (PBT). Third, he asserts that
there was insufficient evidence to convict him. Lastly, he argues that the trial court
erred when it overruled his second motion to dismiss without holding a hearing. For
the reasons expressed below, none of these arguments are meritorious. Thus,
appellant’s delinquency adjudication and disposition are hereby affirmed.
Statement of the Facts and Case
{¶2} On the night of February 19, 2012, the Cadiz Police received a noise
complaint concerning a possible house party at 317 West Warren Street in the
Village of Cadiz, Harrison County, Ohio. Tr. 11, 30. Officers Michael Sable and
Rodney Taggart responded to the call and upon arriving at the address they heard
loud music and a lot of people talking. Tr. 12. They gained access to the residence
and observed open containers of alcohol and found underage people hiding in the
house. Appellant, 16 at the time, was one of the underage people hiding in the attic.
Tr. 13.
{¶3} The officers called the Ohio State Highway Patrol to bring a portable
breath test (PBT) to the address. Tr. 14, 30, 49. Trooper T.J. White responded to
the call and administered the PBT to a number of individuals, including appellant. Tr.
30, 34, 38, 50. Both Officers testified that appellant failed the PBT by blowing a .02.
Tr. 18, 34.
{¶4} As a result of that, appellant was issued a citation. Additionally, a
complaint was filed in the Juvenile Division alleging that appellant is a delinquent
child for committing the offense of underage consumption in violation of R.C.
4301.69.
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{¶5} Appellant, acting pro se, filed a motion to suppress and motion to
dismiss. He argued that the results of the PBT must be suppressed because the
Trooper had no authority to administer the test. Specifically, his argument was that
an Ohio State Trooper has no jurisdiction to assist local law enforcement by
administering a PBT. Appellant also argued that his Fourth Amendment Rights were
violated by an illegal search and seizure. He claimed that the officers did not have
permission to enter the house on Warren Street and thus, it was an illegal search and
seizure.
{¶6} A hearing was held on the matter. At the hearing, appellant
acknowledged that his Fourth Amendment Rights were not violated because he was
not the owner of the house. Thus, he dismissed the illegal search and seizure
argument. The only issue left for the court to decide was the legal issue of whether
the State Trooper had the authority to administer the PBT. The court instructed both
the state and appellant to file briefs on that issue.
{¶7} Both the state and appellant timely filed their briefs. However, in
appellant’s brief, he attempted to add a second argument concerning why his Fourth
Amendment Rights were violated. He claimed that he was not permitted to leave the
residence until the PBT was administered on him. He asserted that there was no
probable cause for the detention and thus, his rights were violated.
{¶8} Following review of the briefs, the trial court held that State Troopers
have authority to assist local law enforcement when requested to do so. Thus, it
concluded that appellant’s argument did not provide a basis to suppress the PBT
test. The trial court additionally overruled the supplemental Fourth Amendment
argument. It concluded that appellant had every opportunity to argue this allegation
in his first motion, but he did not. Furthermore, it noted that appellant had dismissed
Fourth Amendment violation arguments at the hearing.
{¶9} The matter then proceeded to an adjudication hearing. In addition to
the officers testifying that appellant blew a .02 on the PBT, one of the individuals at
the party that was also charged with and admitted to underage consumption, S.C.,
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testified that she witnessed him playing beer pong, drinking beer and taking at least
one sip of Southern Comfort. Tr. 66-67.
{¶10} On appellant’s behalf, two of his friends testified that they did not
witness him drinking that evening and that instead of playing beer pong, they were
playing water pong and were not drinking. Tr. 80, 83, 85, 91. Appellant’s mother
testified that she witnessed the administration of the PBT and that appellant blew a
0.00. Tr. 102-103. Appellant also testified that he did not consume any alcohol that
evening. Tr. 116.
{¶11} After taking the matter under advisement, the trial court found that the
state proved the elements of underage consumption and adjudicated appellant a
delinquent. The dispositional hearing was held a couple weeks later. The court
ordered appellant to be detained for 90 days at Sargus Juvenile Detention Center,
but suspended that detention period. Appellant was additionally ordered to pay court
costs, was placed on probation for three months, ordered to perform 40 hours of
community service, and ordered to undergo a Drug and Alcohol Evaluation. 06/22/12
J.E.
{¶12} Appellant, pro se, filed a timely appeal and brief.
First Assignment of Error
{¶13} “In his Judgment Entry dated June 6, 2012, the judge lied repeatedly,
failed to abide by multiple laws, including a law that was stipulated to by the assistant
prosecutor, fraudulently attributed testimony to an Ohio Trooper, discredited a
credible witness based upon untruthful accusations and wrongfully omitted almost
every bit of testimony that supported appellant’s case. Since the final judgment was
based upon the judge’s wrongful actions, the judge erred when he found the
appellant to be a delinquent child.”
{¶14} As the assignment of error indicates, appellant contends that the trial
court acted improperly in adjudicating him a delinquent. The only law that appellant
cites this court to in this assignment of error is the Ohio Supreme Court’s decision in
In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177.
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{¶15} In re C.S. is the Ohio Supreme Court’s decision on a juvenile’s ability to
waive the right to counsel. Appellant contends that the Ohio Supreme Court’s
decision in In re C.S. stands for the proposition that his mother could help and advise
him during the delinquency proceedings while he was acting pro se. He asserts that
the trial court violated the case law when it admonished his mother for advising him.
{¶16} It is true that during the proceedings, the trial court did explain to both
appellant and his mother that she could not represent him. In fact, when she was
passing appellant notes during the adjudication hearing, the following colloquy
occurred:
THE COURT: [Appellant’s mother], you are here as a parent.
[Appellant’s Mother]: Okay.
THE COURT: I see you taking notes and handing them to you –
your son. That is again verging very close to practicing law without a
license. You’re not permitted to be doing that. You’re not permitted to
be prompting him.
[Appellant’s Mother]: I’m sorry.
THE COURT: You’re not permitted to be doing those things. I
just don’t want to get you crossing the line into something that you’re
just –
[Appellant’s Mother]: I’m sorry.
THE COURT: I’m just trying to keep you safe on that point.
Okay. Thank you.
Tr. 18.
{¶17} The trial court did not err in making this advisement and admonishing
appellant’s mother from being careful that she did not engage in the unauthorized
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practice of law. In discussing whether a parent can represent a minor child, the Court
made the following statements:
In enacting this statute [R.C. 2151.352], we presume, the
General Assembly was mindful of the common law. Cf. Meyer v. Holley
(2003), 537 U.S. 280, 285, 123 S.Ct. 824, 154 L.Ed.2d 753. Because
the common law does not permit parents to appear pro se on behalf of
their minor children in civil cases, see, e.g., Shepherd v. Wellman
(C.A.6, 2002), 313 F.3d 963, 970–971, a fortiori, the common law would
not permit parents to act pro se on behalf of their children in a
delinquency case.
Moreover, at the time it enacted R.C. 2151.352, the Ohio
legislature was well aware that this court has the exclusive authority to
regulate, control, and define the practice of law, including prohibitions
on lay representation, see In re Unauthorized Practice of Law in
Cuyahoga Cty. (1963), 175 Ohio St. 149, 151, 23 O.O.2d 445, 192
N.E.2d 54, that we had held that “no one, other than an attorney, may
appear in court as a representative of another, whether or not such
representative is to receive a fee for his services,” id., and that we had
defined the practice of law as including representation before a court,
as well as other tasks, including “all advice to clients and all actions
taken for them in matters connected with the law,” Land Title Abstract &
Trust Co. v. Dworken (1934), 129 Ohio St. 23, 1 O.O. 313, 193 N.E.
650, at paragraph one of the syllabus. We did not then, and we do not
now, countenance a parent who is not an attorney representing a child
in court in the capacity of counsel.
Indeed, “[i]t has long been recognized that the right to counsel is
the right to the effective assistance of counsel.” McMann v. Richardson
(1970), 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763, fn. 4. Most
parents are not attorneys and will not be able to provide effective
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counsel because they are not trained in the law. See Gault, supra;
Johnson v. Zerbst (1938), 304 U.S. 458, 462–463, 58 S.Ct. 1019, 82
L.Ed. 1461; Powell v. Alabama (1932), 287 U.S. 45, 68–69, 53 S.Ct. 55,
77 L.Ed. 158; In re Manuel R. (1988), 207 Conn. 725, 739, 543 A.2d
719. Because even the best-intentioned parents will lack the skill and
familiarity with law and procedure to adequately represent their children
in delinquency proceedings, they may not do so.
In re C.S. at ¶ 91-93.
{¶18} Consequently, a parent that is not a licensed attorney is not permitted
to act as counsel for his/her child in this context. When a parent is feeding a pro se
juvenile the questions to ask and the arguments to make, the juvenile is merely a
puppet and the parent is actually engaging in the practice of law.
{¶19} That said, we do acknowledge that the Ohio Supreme Court does
discuss that a parent can advise or counsel their child. It is this portion of the
decision that appellant seems to be relying on. However, when that discussion is
read in context, the Ohio Supreme Court is solely discussing that when a juvenile is
waiving counsel the parent is allowed to advise or counsel the child as to whether
waiver is the appropriate course of action:
We believe that the fifth sentence of the statute reflects the
General Assembly's understanding that Gault held that the juvenile may
waive his rights, including his right to counsel, see Gault, 387 U.S. at
41–42, 87 S.Ct. 1428, 18 L.Ed.2d 527, and that it codifies that right of
waiver but only if the juvenile is advised by a parent in considering
waiver.
We hold that the word “represent” in the fifth sentence of R.C.
2151.352 means to counsel or advise the juvenile in a delinquency
proceeding. We further hold that in a delinquency proceeding, a
juvenile may waive his constitutional right to counsel, subject to certain
standards articulated below, if he is counseled and advised by his
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parent, custodian, or guardian. If the juvenile is not counseled by his
parent, guardian, or custodian and has not consulted with an attorney,
he may not waive his right to counsel.
In re C.S. at ¶ 95, 98.
{¶20} Here, the right to counsel was already waived. Thus, the advisements
and counsel that appellant’s mother was making did not go to the choice of whether
counsel should be waived. The record implies that the mother’s involvement was
hinging on the unauthorized practice of law because she was telling the pro se
juvenile the questions to ask and the arguments to make. Therefore, we hold that
the trial court did not err when it informed appellant’s mother that she would not be
permitted to engage in the unauthorized practice of law in its courtroom.
{¶21} As aforementioned, In re C.S. is the only law cited in this assignment of
error. App.R. 16(A)(7) states that the arguments must contain citations to authorities
and statutes that support the argument. As stated above, In re C.S. does not support
reversal of the adjudication decision. Thus, this court could hold that under this
assignment of error appellant has not presented this court with any other legal basis
for reversing the court’s decision.
{¶22} That said, the state asserts that appellant is claiming that reversal can
occur because the trial judge violated the Ohio Code of Judicial Conduct. In
appellant’s reply brief, he appears to admit that is his argument.
{¶23} As the state correctly points out, a violation of the Judicial Code does
not permit this court to reverse the trial court’s adjudication determination. Appellate
Courts have consistently recognized that any allegation that the trial judge violated
the Code of Judicial Conduct, acted in a manner demeaning to the judiciary, and
engaged in unethical misconduct are not properly brought before the court of
appeals. Wilburn v. Wilburn, 9th Dist. No. 05CA008798, 2006–Ohio–5820; Szerlip v.
Szerlip, 5th Dist. No. 01CA16, 2002 WL 1270849 (May 20, 2002). “Any allegations of
judicial misconduct are not cognizable on appeal, but is a matter properly within the
jurisdiction of the Disciplinary Counsel.” Wilburn at ¶ 10, quoting Szerlip v. Spencer
(Mar. 14, 2002), 5th Dist. No. 01 CA30 (Mar. 14, 2002).
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{¶24} Although it is not the duty of this court to make arguments for any party,
including a pro se party, when reading this entire argument, it appears to this court
that the argument appellant is really trying to assert is a manifest weight of the
evidence argument. Or in other words, it seems that appellant is contending that in
weighing the evidence, the trial court lost its way. Consequently, we will address that
issue.
{¶25} A review of a manifest weight of the evidence claim in juvenile
delinquency adjudication is the same as for criminal defendants. In re N.Z., 11th
Dist. No. 2010-L-023, 2011-Ohio-6845, ¶ 78; In re P.G., 12th Dist. No. CA2006–05–
009, 2007–Ohio–3716, ¶ 13–14; In re D.R., 10th Dist. No. 05AP–492, 2006–Ohio–
5205; In re R.S., 9th Dist. No. 21177, 2003-Ohio-1594, at ¶ 10.
{¶26} In determining whether a verdict is against the manifest weight of the
evidence, a court of appeals must review the entire record, weigh the evidence and
all reasonable inferences, and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered. State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “Weight of the evidence
concerns ‘the inclination of the greater amount of credible evidence, offered in a trial,
to support one side of the issue rather than the other.’” Id. A conviction will only be
reversed as against the manifest weight of the evidence in exceptional
circumstances. Id. This is so because the trier of fact is in a better position to
determine credibility issues, since it personally viewed the demeanor, voice
inflections and gestures of the witnesses. State v. Hill, 75 Ohio St .3d 195, 204, 661
N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212(1967).
{¶27} At the hearing, both Officer Sable and Officer Taggart testified that
appellant failed the PBT and blew a .02. Tr. 18, 34. Officer Sable also indicated that
it seemed to him that some of appellant’s inhibitions were gone because while other
people were reserved during the officers’ questions, appellant was chatting with
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people like nothing was going on. Tr. 14. Other than that, he explained that
appellant did not exhibit any other signs of alcohol use or intoxication. Tr. 15.
{¶28} There were some discrepancies between the two officer’s testimonies.
For instance, Officer Sable testified appellant admitted to drinking by raising his hand
when he and others were asked if they had been drinking. Tr. 13. Officer Taggart
testified that individuals that admitted to drinking got their citation that night. Tr. 39.
However, individuals that denied drinking were given the PBT. Tr. 39-40. He also
testified that he personally witnessed appellant take the PBT. Tr. 38. Trooper White
confirmed that testimony by indicating that he remembered administering appellant’s
breath test. Tr. 50.
{¶29} Officer Taggart’s testimony insinuates that appellant denied drinking
and that is the reason he had to take the PBT. However, Officer Sable testified that
appellant admitted to drinking, but still had to take the breath test. Regardless of this
discrepancy, both officers clearly indicate that appellant failed the breath test.
{¶30} The trial court, in addition to relying on the officers’ testimony
concerning the fact that appellant consumed alcohol that night, also stated that
Trooper White testified that appellant tested positive for alcohol usage on the PBT.
Appellant argues that the Trooper did not testify that he tested positive on the PBT.
Rather, appellant claims the Trooper testified that he did not recall the results of
every test he gave.
{¶31} A review of the transcript reveals that Trooper White testified that he did
not “recall the results of each and every individual that [he] tested that night.” Tr. 52.
However, Trooper White was never specifically asked if he remembered the results
of appellant’s test. During a discussion on the admissibility of the PBT results,
Trooper White explained that the PBT is not accurate as to the amount of alcohol in a
person’s system, rather it is just registers whether there is alcohol in a person’s
system. Tr. 56. He also stated:
You was [sic] not given a breathalyzer test that night. You are
not being convicted of a DUI. You were not driving a vehicle. You are
being charged with underage alcohol consumption, that you were
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consuming alcohol underage. So, the PBT shows that you had alcohol
in your system that night.
Tr. 57-58.
{¶32} Given this testimony we do not find that the trial court’s statement was
incorrect. Regardless, even if the trial court should not have relied on this testimony,
as is discussed below there is other evidence to support the adjudication.
{¶33} In addition to the Officers and Trooper’s testimonies, the state called
S.C. to testify. She avowed that she witnessed appellant drinking beer and at least
one sip of Southern Comfort. Tr. 65-66. Appellant claims that her testimony was not
credible. He asserts that S.C.’s testimony is not credible because she admitted to
drinking, her voice was barely audible and she was hunched over in her chair, with
her shoulders drooping and her head down.
{¶34} In discussing this argument, the first thing we must note is that we are a
court of record and thus, can only review the record; we cannot consider matters
outside the record. State v. Oliver, 7th Dist. No. 07MA169, 2008–Ohio–6371, ¶ 90.
How S.C. was sitting at the witness stand and the inflection of her voice is a matter
outside of the record. We only have a written transcript of the proceedings before us
that does not explain the witness’s demeanor or tone of voice. This is why the Ohio
Supreme Court has clearly indicated that credibility is a decision that is best left to the
trier of fact to decide. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80,
461 N.E.2d 1273 (1984). The trier of fact has the opportunity “to view the witnesses
and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility” of their testimonies. Id. Thus, for that reason
we will typically not find a witness to not be credible when a trial court has already
determined them to be credible.
{¶35} As to the fact that S.C.’s voice was barely audible, the record does
disclose that both the trial court and the state during the beginning of her testimony
were having trouble hearing her. The trial court did ask her to pull the microphone up
a bit and indicated she was “soft spoken.” Tr. 61. Likewise, the state asked her to
use her “outside voice” because it was having trouble hearing her. Tr. 62. During
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her 10 pages of testimony these were the only two instances where there were
comments about the volume of her speech.
{¶36} The fact that a person is “soft spoken” is not a clear indication of lying.
We see in many transcripts that witnesses are asked to speak louder and to pull the
microphone in. For instance, even in this transcript appellant’s mother was asked to
pull the microphone closer. Tr. 102.
{¶37} Likewise, the fact that S.C. admitted to drinking that night does not
necessarily make her testimony less credible. S.C. acknowledged that she was
charged with underage consumption and that she accepted the deal that was offered
to everyone. Tr. 63-64. She had to take a class, pay a fine and do community
service. Tr. 63. She testified she had already completed the diversion program. Tr.
63.
{¶38} These facts do not necessarily make her less credible. She is admitting
what she had done. Furthermore, nothing in the record suggests that she was
offered a deal to testify against appellant. Rather the testimony shows she got the
same deal everyone else did that admitted to underage consumption. Thus, she
received no benefit from testifying and there is no indication that she has a reason for
lying.
{¶39} Appellant argues that since she admittedly was consuming alcohol, her
testimony is less credible because alcohol affects ones’ memory. Appellant did not
offer testimony from an expert as to the effect that alcohol has on a person’s
memory. Furthermore, S.C. testified that she only drank one beer. There was no
testimony from anyone else to refute that testimony. Appellant now attempts to
attach an affidavit from his friend stating that S.C. had consumed more than that.
However, we cannot consider that affidavit. As previously mentioned, we can only
consider what is in the record, i.e. what was before the trial court. That affidavit was
not before the trial court and as such is not part of the record. Thus, considering her
testimony, we cannot find that the trial court was wrong in finding S.C. credible.
{¶40} Additionally, concerning S.C.’s testimony, appellant argues that there
were no other witnesses brought forth to testify that appellant was consuming alcohol
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that night. The state subpoenaed approximately 20 juveniles to testify. Tr. 7.
However, prior to trial the state released all but two. The reason those 18 were
released was because they “do not have substantive information to give, either
through lack of memory or through non-observation in the beginning.” Tr. 8.
Appellant argues that not a single one of the witnesses released corroborated S.C.’s
story. The subpoenaed witnesses who did not testify are inconsequential in our
review because they did not testify. While their testimony allegedly would not
corroborate S.C.’s testimony, there is nothing to suggest that it would corroborate
appellant’s testimony that he did not drink. Those witnesses may either have not
seen him that night or do not remember whether he was drinking. Thus, the
argument does not support appellant’s position and/or discredit the state’s position.
{¶41} Appellant’s theory of this case was that he had not been drinking and
that the officers “doctored” the report that shows that he blew a .02 on the PBT
and/or they mixed up his name by putting it in the pile with the individuals being
charged with underage consumption when it should have been put with the
individuals being charged with curfew violation.
{¶42} The testimony of Officer Taggart confirms that minors who blew zero on
the PBT were told that they would be charged with a curfew violation. Tr. 41.
However, when asked whether the complaint forms for the juveniles that were
supposed to be charged with just a curfew violation were put together with the
complaint forms for the underage consumption violations, the Officer stated that the
information goes all in one report and they could not be mistaken. Tr. 41-42.
{¶43} At the hearing, an exhibit was offered by the state that contained Officer
Taggart’s handwritten notes of the results of the administered breath tests. Appellant
objected to the introduction of this exhibit because it was not provided in discovery.
Tr. 31-32. The state explained that it just received it that day. Tr. 32. The court gave
appellant the opportunity to review the document. Tr. 31-32. After reviewing the
document, appellant renewed his objections by stating he did not know if the
document was just created recently or not. Tr. 32. The trial court informed him that
he could ask the witness that question. Tr. 32. Appellant did ask that question.
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Officer Taggart explained that this document was originally attached to the report, but
they did not realize until that day that it was not included in the information that was
given to the prosecutor. Tr. 35-36. He also explained that no information was added
to this document later. Tr. 36. Officer Taggart testified that he was the one who
wrote the test results on the document. Tr. 33. This document indicates that
appellant was tested and that he blew a .02. Tr. 34.
{¶44} Trooper White was also asked about this document. He stated on both
direct and cross-examination that Officer Taggart was standing beside him and he
saw him write down the test results. Tr. 51-53, 55. He explained that it was a
handwritten piece of paper with names written on it and the test results. Tr. 52. On
cross-examination he further stated that the results were not added later. Tr. 55.
{¶45} Later when the state offered this handwritten document into evidence,
the trial court asked appellant if he objected to the admission of the document. Tr.
78. He indicated he did not. Tr. 78. Thus, despite appellant’s insistence to the
contrary, the document was admitted without objection.
{¶46} Appellant’s case also included testimony from two of his friends, his
mother and himself. He testified that he did not drink alcohol and was playing water
pong, not beer pong. Tr. 116.
{¶47} His mother testified that she personally witnessed the administration of
the PBT and that his result was zero. Tr. 103. She also testified that appellant is a
straight A student and an exceptional athlete. Tr. 105. He is the only member of the
track team to qualify for Regionals in an individual event and that he is currently
going to State on the 4X4 relay team. Tr. 105.
{¶48} His friend R.R. also testified that he did not see appellant drink and that
they were playing water pong. Tr. 80, 83. However, R.R. admitted that he was not
with the appellant the entire evening and that he would not know if appellant
consumed any alcohol while appellant was not around him. Tr. 80, 84.
{¶49} Similarly, K.S. testified that appellant was not drinking that evening and
that they were playing water pong. Tr. 91. K.S. also claimed that he was not drinking
that evening and that he blew a zero on the breath test, yet he was still charged with
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underage consumption. Tr. 90. However, instead of defending the charge, K.S.
admitted to drinking and accepted the plea deal. Tr. 91.
{¶50} It is true that the trial court specifically indicated that K.S. was not
credible because he earlier admitted to the charge of underage consumption, but
was now claiming he did not drink or commit that offense. As explained above,
credibility is a decision best left to the trier of fact. The trial court’s conclusion that
K.S. was not credible is upheld; the trial court’s reasoning can justify its decision that
K.S. is not credible.
{¶51} As the above testimony shows, this is a classic credibility case. There
are two versions of what happened and the trial court, as the trier of fact, must
determine which one it believes. Appellant and his two friends testified that he was
not drinking. Appellant’s mother testified that she witnessed the administration of the
PBT and appellant blew a zero. The state offered testimony from two officers that
appellant failed the breath test by blowing a .02. Furthermore, Officer Sable testified
that appellant admitted to drinking and that his inhibitions were diminished. S.C., one
of the party goers, testified that she witnessed appellant drinking.
{¶52} Considering everything, we cannot hold that the trial court lost its way.
There was evidence to support the conclusion that was reached. In all, this
assignment of error lacks merit.
Second Assignment of Error
{¶53} “The trial court erred when it overruled Appellant’s Motion to Suppress
in its Judgment Entry dated May 11, 2012, because Ohio Administrative Code 3701-
53-02 ‘Breath Tests’ does not approve Preliminary Breath Tests (PBTs) as
evidentiary breath testing instruments.”
{¶54} At the motion to suppression/motion to dismiss hearing, appellant
agreed that the sole issue that he was arguing was whether the Trooper had the
jurisdiction to go to Cadiz and administer the PBT:
THE COURT: Mr. Washington [assistant prosecutor], then at
that point the only thing that I’m going to ask of you is I will take the
motion for -- to dismiss under review pending the briefs for both of you
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to submit me within the next week on why a State Trooper has no
authority to do a PBT test or assist an officer in their investigation. So,
today is the 23rd. If I could have that on my desk by the 30th at 3
o’clock I will rule shortly thereafter.
Anything else that you want to put on the record, sir?
[J.J.M.]: No, Your Honor.
THE COURT: Anything else, Mr. Washington?
MR. WASHINGTON: Just – just to make sure that I am clear on
exactly what issue we’re looking at, it’s solely on whether a State
Trooper jurisdictionally can assist an officer to – to obtain a PBT –
THE COURT: Right.
MR. WASHINGTON: -- test. Okay.
THE COURT: Is that what you’re arguing, sir?
[J.J.M.]: Yes.
THE COURT: Because I don’t want to put words into your
mouth.
[J.J.M]: Yes, that he was out of his jurisdiction to be there.
04/23/12 Suppression Tr. 21-22.
{¶55} Thus, the issue that he agreed was the sole issue to be resolved did not
address the potential inadmissibility of a PBT because it is not an approved
evidentiary breath test. In fact, a reading of the suppression transcript indicates that
appellant wanted to discuss the results of the test; he called his mother to testify and
she testified that she witnessed the administration of the PBT and that appellant blew
a zero. 04/23/12 Suppression Tr. 9. Thus, the issue regarding whether the PBT was
admissible because it is allegedly not an approved evidentiary breath test was not
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properly raised to the trial court in suppression. Consequently, the argument is
waived.
{¶56} However, for the sake of argument, we will address the admissibility of
the PBT results. On the record, the state agreed that the PBT can only be used for
probable cause. Tr. 44. Assuming without holding that this is a correct indication of
what the law is, this would mean that a PBT can be used to show that there is
probable cause for arrest. Thus, the PBT would not be relevant and would not be
admissible once probable cause is found. Thus, the PBT would not and could not be
used as evidence of guilt at the adjudication hearing.
{¶57} Therefore, if the state attempted to introduce the PBT and the results at
the adjudication hearing and appellant objected to that admission, by the state’s
admission, the court should have deemed the evidence inadmissible. That said, the
state did not introduce this evidence, rather it was appellant. The first discussion of
the portable breath test being administered on appellant comes from appellant during
the cross-examination of Officer Sable. Tr. 17-18.
{¶58} Thus, he is the one introducing the evidence. In fact, his opening
statement indicates that the testimony is going to show that he passed the breath
test. Tr. 10. Admitting testimony about the PBT and its results was part of his
defense. Once appellant asked Officer Sable what the results of the PBT were, that
allowed the state to ask that officer and any other witness about the PBT and the
results; his questions opened the door to the state asking questions about the PBT
and to admitting into evidence the handwritten document that contained the results.
As the state points out, appellant cannot have it both ways; he cannot question
witnesses about the PBT and test results and then claim that the state’s questions
and introduction of handwritten document evincing the results was not permitted.
{¶59} Furthermore, it must be noted that even if the admissibility of the PBT
had been raised by appellant during the suppression hearing and even if the trial
court deemed the PBT and its results inadmissible, at the point that appellant
questioned Officer Sable about the PBT and results, appellant would have been
inviting the error. The invited-error doctrine provides that a party cannot take
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advantage of any alleged error that the party invited or induced. State v. Lamar, 95
Ohio St.3d 181, 767 N.E.2d 166, 2002-Ohio-2128, ¶ 103; State v. Bell, Clermont
App. No. CA2008-05-044, 2009-Ohio-2335, ¶ 28. Thus, even if the PBT had been
suppressed, appellant’s questions would have amounted to invited error. For those
reasons this assignment of error lacks merit.
{¶60} At this point, we note that the state claims that the PBT results were not
being admitted to show what the level of alcohol was, but rather that alcohol
registered in the juvenile’s system. Thus, it appears to contend that it was admissible
to show that the juvenile consumed alcohol. There is no definitive case law
supporting that contention. The cases that discuss PBT always refer to their
unreliability. If the machine is not reliable as to the amount of alcohol in ones’
system, it is logical to conclude that the machine may not even be reliable as to
whether there is alcohol in a person’s system. The Fourth Appellate District has
stated, “PBT results are considered inherently unreliable because they ‘may register
an inaccurate percentage of alcohol present in the breath, and may also be
inaccurate as to the presence or absence of any alcohol at all.’” State v. Shuler, 168
Ohio App.3d 183, 2006-Ohio-4336, 858 N.E.2d 1254, ¶ 10 (4th Dist.), quoting State
v. Zell (Iowa App.1992), 491 N.W.2d 196, 197. Thus, we do not rely on this
argument to resolve this assignment of error.
Third Assignment of Error
{¶61} “The trial court erred when it found, in its Judgment Entry dated June 6,
2012, that the State of Ohio had met its burden of proof and proved beyond a
reasonable doubt that the youth did consume or possess beer or an intoxicating
liquor that evening because the evidence and testimony certainly left considerable
doubt that appellant had committed the offense.”
{¶62} This argument raises a sufficiency of the evidence argument.
Sufficiency of the evidence is the standard applied to determine whether the case
may go to the trier of fact or whether the evidence is legally sufficient as a matter of
law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668(1997). Thus, sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio St.3d
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380, 386, 678 N.E.2d 541 (1997). Whether the evidence is legally sufficient to
sustain a verdict is a question of law. Id. In reviewing the record for sufficiency, 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. Smith at 113.
{¶63} In performing a sufficiency review, an appellate court must consider “all
of the testimony before the jury, whether or not it was properly admitted.” State v.
May, 7th Dist. No. 10CO23, 2011-Ohio-6637, 970 N.E.2d 1029, quoting State v.
Peeples, 7th Dist. No. 07MA212, 2009-Ohio-1198, 2009 WL 737922, at ¶ 17. See
also State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, at ¶ 19.
{¶64} Underage consumption as defined under R.C. 4301.69(E)(1) provides
that, “[n]o underage person shall * * * consume any beer or intoxicating liquor in any
public or private place.” Underage person is defined as a person under the age of
21. R.C. 4301.69(H)(5).
{¶65} Under the first assignment of error we discussed at length the trial
testimony. Officer Sable testified that appellant admitted to drinking and his talkative
nature given the circumstances showed that his inhibitions were lowered. He also
testified and appellant admitted that he was 16 years old at the time of the offense.
Tr. 23, 117. Officer Taggart testified that appellant failed the breath test by blowing a
.02. Also, S.C. testified that she witnessed appellant drinking at the party.
{¶66} Viewing this evidence in the light most favorable to the state, there was
sufficient evidence to support a finding that appellant committed the offense of
underage consumption. Thus, this assignment of error is without merit.
Fourth Assignment of Error
{¶67} “The trial court erred when it overruled the appellant’s motion to
Dismiss filed with the court on April 30, 2012.”
{¶68} As aforementioned, at the suppression hearing, appellant dismissed his
argument that a Fourth Amendment violation occurred, i.e. that the officers did not
have permission to enter the house located on Warren Street. At the suppression
hearing, the trial court ordered the parties to brief the only remaining issue, which
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was whether the Trooper had jurisdiction to perform the PBT. In the April 30, 2012
brief that addressed that issue, appellant raised a new argument that he asserted
warranted dismissal of the complaint. He contended that his Fourth Amendment
rights were violated when the officers detained him to have the Trooper administer
the PBT. He contended that there was no probable cause for the detention and thus,
dismissal of the charge was warranted. The trial court overruled the motion. It stated
that appellant had every opportunity to argue these allegations in his first motion to
dismiss and that he voluntarily dismissed the alleged Fourth Amendment violations at
the suppression hearing. It also indicated that the appellant is once again misstating
Ohio law.
{¶69} Appellant is correct that at the suppression hearing he did not state that
there were not any Fourth Amendment violations. All appellant stated was that his
Fourth Amendment rights were not violated because he was not the owner of the
house. 04/23/12 Suppression Tr. 18.
{¶70} That said, we do not hold that the trial court erred when it overruled the
motion. The state is correct that Juv.R. 22(D) does not require a hearing for a
secondary motion to dismiss.
{¶71} Furthermore, as the trial court correctly stated, appellant misstates Ohio
law. Appellant claims in the motion that there must be probable cause to detain him
to take the breath test. That is incorrect. The standard is reasonable, articulable
suspicion, which is a lesser standard. A warrantless detention is reasonable under
the Fourth Amendment to the United States Constitution if there was some
articulable, reasonable suspicion of criminal activity to justify further investigation.
Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769 (1996), citing Delaware v.
Prouse, 440 U.S. 659, 99 S.Ct. 1391 (1979), and Terry v. Ohio, 392 U.S. 1, 21–22,
88 S.Ct. 1868, (1968). See also State v. Erickson, 76 Ohio St.3d 3, 7, 665 N.E.2d
1091 (1996).
{¶72} The testimony shows that appellant was found hiding in an attic of a
house where a house party was occurring. There were open beer and intoxicating
liquor containers found in the house. Appellant admitted to drinking and one officer
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stated that appellant exhibited signs of diminished inhibitions, i.e. he was talkative in
a somber situation. These facts present a reasonable, articulable suspicion that
appellant may have been drinking. Thus, the officers were permitted to detain him for
a breath test. This assignment of error lacks merit.
Conclusion
{¶73} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.
Donofrio, J., concurs.
Waite, P.J., concurs.