[Cite as In re T.B., 2016-Ohio-575.]
COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN RE: T.B., JUDGES: Hon. William B. Hoffman, P.J. ALLEGED DELINQUENT CHILD Hon. Patricia A. Delaney, J. Hon. Craig R. Baldwin, J.
Case No. 2015AP050022
OPINION
CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Juvenile Division
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 12, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
Tuscarawas County Prosecutor’s Office The Office of the Ohio Public Defender RYAN D. STYER BROOK M. BURNS Tuscarawas County Prosecutor Assistant State Public Defender AMANDA K. MILLER 250 Broad St., Suite 1400 Assistant Prosecuting Attorney Columbus, Ohio 43215 Tuscarawas County Courthouse Annex 125 E. High Ave. New Philadelphia, Ohio 44663 Tuscarawas County, Case No. 2015AP050022 2
Hoffman, P.J.
{¶1} Appellant T.B., a delinquent child, appeals his adjudication entered by the
Tuscarawas County Court of Common Pleas, Juvenile Division, on one count of burglary
and two counts of theft. Appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On August 13, 2014, T.P., Appellant’s mother, spent the night with her
husband in Pennsylvania and returned home to Tuscarawas County, Ohio, to find
firearms and an ATV missing from her house and property. Tuscarawas County Sheriff
Detective Jeff Moore investigated the theft. Following a tip, Moore found a number of
firearms, an ATV and a dirt bike at the home of Sara Raines. The firearms belonged to
T.P.’s husband.
{¶3} On September 2, 2014, Moore visited the Attention Center, where Appellant
was being held on an unrelated case. Appellant's mother, T.P., was present. Appellant
denied involvement in the theft.
{¶4} On September 16, 2014, Detective Moore returned to the Attention Center
upon Appellant’s request to speak to him, and Appellant’s attorney was present.
However, Detective Moore was met by Appellant’s attorney, and told Appellant did not
wish to speak with Moore. Accordingly, no interview took place.
{¶5} On September 29, 2014, Detective Moore spoke with Appellant at Linda
Martin Attention Center where he had been transferred. Appellant's other pending cases
had been disposed of, and Appellant did not have counsel or a parent present. After
again reading Appellant his Miranda rights, Moore asked Appellant if he wanted to speak Tuscarawas County, Case No. 2015AP050022 3
to him, falsely implying a friend had implicated him in the theft. Appellant then made
statements to Moore, and signed a written statement.
{¶6} On October 10, 2014, a complaint was filed in the Tuscarawas County
Juvenile Court alleging Appellant was delinquent of one count of burglary and two counts
of theft, in violation of R.C. 2911.12(A)(2) and 2913.02(A)(1), respectively.
{¶7} On February 14, 2015, Appellant filed a motion to suppress the statements,
admissions, and/or confessions made by Appellant to members of the Tuscarawas
County Sheriff's Department related to the charges herein. The trial court conducted a
hearing on the motion. Following hearing, the trial court overruled the motion via
Judgment Entry filed March 19, 2015.
{¶8} Following a trial to the court, Appellant was adjudicated delinquent of the
charges. The trial court did not appoint a guardian ad litem on behalf of Appellant prior
to trial. The trial court imposed two concurrent six month commitments to the Ohio
Department of Youth Services for the theft offenses consecutive to a one year
commitment for the burglary charge, for a total commitment of eighteen months.
{¶9} Appellant appeals, assigning as error:
{¶10} “I. THE TUSCARAWAS COUNTY JUVENILE COURT [SIC] WHEN IT
ALLOWED T.B.’S SEPTEMBER 29, 2014 STATEMENT TO LAW ENFORCEMENT TO
BE ADMITTED AT TRIAL BECAUSE T.B.’S WAIVER OF HIS MIRANDA RIGHTS WAS
NOT KNOWING, INTELLIGENT, OR VOLUNTARY. FIFTH AND FOURTEENTH
AMENDMENT TO THE U.S. CONSTITUTION; OHIO CONSTITUTION, ARTICLE I,
SECTION 16. Tuscarawas County, Case No. 2015AP050022 4
{¶11} “II. THE TUSCARAWAS COUNTY JUVENILE COURT VIOLATED T.B.’S
RIGHT TO DUE PROCESS OF LAW WHEN IT ADJUDICATED HIM DELINQUENT OF
BURGLARY WITHOUT SUFFICIENT, CREDIBLE, AND COMPETENT EVIDENCE OF
EACH ELEMENT OF THE OFFENSE, IN VIOLATION OF THE FOURTEENTH
AMENDMENT TO THE U.S. CONSTITUTION; OHIO CONSTITUTION, ARTICLE I,
SECTION 16; JUV.R. (E)(4).
{¶12} “III. THE TUSCARAWAS COUNTY JUVENILE COURT COMMITTED
PLAIN ERROR WHEN IT FAILED TO APPOINT A GUARDIAN AD LITEM TO PROTECT
T.B.’S BEST INTERESTS. R.C. 2151.281(A)(2); JUV.R. 4(B)(2); FOURTEENTH
AMENDMENT TO THE U.S. CONSTITUTION; OHIO CONSTITUTION, ARTICLE I,
SECTION 16.”
I.
{¶13} In his first assignment of error, Appellant maintains the trial court erred in
overruling his motion to suppress statements made while in custody as his waiver of his
Miranda rights was not knowing, intelligent or voluntary.
{¶14} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact. In
reviewing a challenge of this nature, an appellate court must determine whether the
findings of fact are against the manifest weight of the evidence. See: State v. Fanning
(1982), 1 Ohio St.3d 19, 437 N.E.2d 583; State v. Klein (1991), 73 Ohio App.3d 486, 597
N.E.2d 1141; State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726. Tuscarawas County, Case No. 2015AP050022 5
{¶15} Secondly, an appellant may argue the trial court failed to apply the
appropriate test or correct law to the findings of fact. See: State v. Williams (1993), 86
Ohio App.3d 37, 619 N.E.2d 1141.
{¶16} Finally, assuming the trial court's findings of fact are not against the manifest
weight of the evidence and it has properly identified the law to be applied, an appellant
may argue the trial court has incorrectly decided the ultimate or final issue raised in the
motion to suppress. When reviewing this type of claim, an appellate court must
independently determine, without deference to the trial court's conclusion, whether the
facts meet the appropriate legal standard in any given case. State v. Curry (1994), 95
Ohio App.3d 93, 96, 641 N.E.2d 1172; State v. Claytor (1993), 85 Ohio App.3d 623, 627,
620 N.E.2d 906; and State v. Guysinger (1993), 86 Ohio App.3d 592, 621 N.E.2d 726.
As the United States Supreme Court held in Ornelas v. U.S. (1996), 517 U.S. 690, 116
S.Ct. 1657, 134 L.Ed.2d 911, “... as a general matter determinations of reasonable
suspicion and probable cause should be reviewed de novo on appeal.”
{¶17} In Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85, 68
L. Ed. 2d 378 (1981), the United States Supreme Court held,
Miranda itself indicated that the assertion of the right to counsel was
a significant event and that once exercised by the accused, “the
interrogation must cease until an attorney is present.” 384 U.S., at 474, 86
S.Ct., at 1627. Our later cases have not abandoned that view. In Michigan
v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the Court
noted that Miranda had distinguished between the procedural safeguards
triggered by a request to remain silent and a request for an attorney and Tuscarawas County, Case No. 2015AP050022 6
had required that interrogation cease until an attorney was present only if
the individual stated that he wanted counsel. 423 U.S., at 104, n. 10, 96
S.Ct., at 326, n. 10; see also id., at 109–111, 96 S.Ct., at 329–330 (White,
J., concurring). In Fare v. Michael C., supra, 442 U.S., at 719, 99 S.Ct., at
2569, the Court referred to Miranda's “rigid rule that an accused's request
for an attorney is per se an invocation of his Fifth Amendment rights,
requiring that all interrogation cease.” And just last Term, in a case where a
suspect in custody had invoked his Miranda right to counsel, the Court again
referred to the “undisputed right” under Miranda to remain silent and to be
free of interrogation “until he had consulted with a lawyer.” Rhode Island v.
Innis, 446 U.S. 291, 298, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297 (1980). We
reconfirm these views and, to lend them substance, emphasize that it is
inconsistent with Miranda and its progeny for the authorities, at their
instance, to reinterrogate an accused in custody if he has clearly asserted
his right to counsel.
The Fifth Amendment guarantees no person “shall be compelled
***to be a witness against himself” when he risks deprivation of his liberty.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.E.2d 694 (1966); In
re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed. 2d 527 (1967). The State
cannot use the custodial statements of a defendant made in response to
interrogation by law enforcement unless the record reflects the defendant
was first advised of his constitutional rights and then knowingly, intelligently
and voluntarily waived those rights. Id. Further, a “heavy burden rests on Tuscarawas County, Case No. 2015AP050022 7
the government to demonstrate the defendant knowingly and intelligently
waived his privilege against self-incrimination and his right to retain or
appoint counsel.” State v. Parker, 44 Ohio St.2d 172 (1975).
{¶18} At the November 18, 2014 hearing, Detective Moore testified on cross-
examination,
Q. Well, now wait a minute, are you saying that on the 16th, when I
was there with [T.B.], that you were there to interview him about matters not
involving the six complaints we’re dealing with here today?
A. I was investigating multiple burglaries in the southern part of
Tuscarawas County, and, I believed, that [T.B.] also had information on a
Drew Evans. And [T.B]. had given me indication, prior to that, that he was
willing to try to do some work, or, to help himself, to provide me information,
that maybe could help him get a deal. I believe that is why [T.B.] called for
me to be there. That’s why he asked for you to be there. That is the reason
we were there that day, and that’s when, I believe, that you told me we can’t
help you at this time, I’m not gonna let my client talk to you.
Q. So your testimony here today is, when you went to the Attention
Center on the 16th, you were not there to gather information about these
investigations, about these break-ins and thefts that we’re talking about
here today?
A. Here’s my testimony on that. Your client called me there. I don’t
know what your client was going to tell me, that’s why I was there. I was Tuscarawas County, Case No. 2015AP050022 8
hoping he was gonna provide me information on these cases, but I wasn’t
there to go interview him, I was there because he requested my presence.
Q. Okay, when he called to request your presence, was it because
he had a scheduled appointment with me, and he knew that, and he is that…
A. I believe that…
Q. …caused him to call…
A. …I believe that’s the probability, yes.
***
Q. Okay, so would you agree, at least as far as this report is
concerned, between September 16th and your interview with [T.B.] on
September 29th, you hadn’t got any information from other victims or
witnesses?
A. I could agree with that.
Q. Alright. So is it possible, in fact likely, that when you went out to
visit [T.B.] on September 29th, it was because you wanted another chance
to give [T.B.] an opportunity to make confessions, which you thought he
had?
A. It was my last chance effort to interview [T.B.], again, to see if he
would admit to the theft cases, yes.
Q. Even though, on the 16th, his attorney had indicated to you he did
not want to speak to you, correct?
A. I was well aware, and I spoke with Attorney, the Prosecuting
Attorney Miller, that, and learned, that his other case was resolved, and he Tuscarawas County, Case No. 2015AP050022 9
no longer had an attorney representing him. Also, it was ten days later, I
also checked that to make sure, and it was ten days later, in doing my
interview, so, um, even any right assertion at that point should not bind me
by any means.
Q. Because ten days had passed?
A. Yes, sir.
Q. Okay, is that, is that a…
A. I don’t know what the U.S. Supreme Court case is that documents
that, but that is a, yes, a Supreme Court case, yes.
Q. Okay, alright. And did you attempt to contact me that you were
going to interview [T.B.] on the 29th?
A. I did not.
Q. Why not?
A. You were no longer representing him.
Q. And why was that?
A. His case was resolved in Court. These were new cases.
Q. And did you indicate to [T.B.] that Trevor Duran implicated him?
A. Well, I told him that I had video of the two of them inside Trevor’s
truck together, with the stolen four-wheeler in the back.
Q. Which was, admittedly, not true, correct?
A. That was not true.
Tr. at 33-39. Tuscarawas County, Case No. 2015AP050022 10
{¶19} On redirect examination, Detective Moore testified,
Q. Detective Moore, you stated that you had spoken to a prosecutor
before you went to attempt to interview [T.B.] on the 29th?
A. Yes.
Q. Why did you consult a prosecutor before you went to talk to him?
A. Because I was concerned that he still had an attorney
representing him.
Q. Okay, and how were you advised?
A. I was told that he was no longer being represented by anyone,
and that I could proceed with a, a follow-up interview.
Q. Okay, after, on September 29th, when you went to interview [T.B.],
did you have reason to further investigate the breaking and entering of the
Brown’s gas station in Gnadenhutten?
Tr. at 46-47.
{¶20} Detective Moore was met by Appellant’s attorney prior to any interview
taking place on September 16, 2014. Appellant was not in custody on the charges herein,
and was not being held on the charges herein. Rather, Appellant was in custody pending
charges on unrelated matters. It is unclear from the record whether Appellant requested
Detective Moore come to the Attention Center on the matters relating to the charges at
hand or on the matters for which Appellant was being held in custody. However, no
interview took place, Appellant was never interrogated on the charges herein or held in Tuscarawas County, Case No. 2015AP050022 11
custody relative to the charges herein on September 16, 2014; therefore, we find
Appellant did not invoke his right to counsel on September 16, 2014, relative to these
charges.
{¶21} In State v. Johnson Licking App. No. 99-CA-26, (Nov. 5, 1999), this Court
held,
According to the court's findings of fact from the suppression hearing,
appellant went to the Newark Police Department at the request of Detective
Huffman on June 23, 1998. Arrangements for the interview were made
through telephone conversations. Upon appellant's arrival, Detective
Huffman asked appellant to have a seat in the lobby while they waited for
the arrival of a social worker, who was to participate in the interview.
Appellant remained in a lobby area, which was open to the public. After a
short time, appellant advised a secretary that he no longer wished to wait,
and that if Detective Huffman wanted to talk to him, he would have to contact
appellant's attorney. After making the statement, appellant proceeded to
leave the lobby area.
Detective Huffman, having overheard appellant's statement to the
secretary, followed appellant. He caught up with appellant near the stairway
leading out of the police department. Detective Huffman asked appellant
what the problem was. At this time appellant repeated his statement, telling
Detective Huffman he would have to speak to appellant's attorney. Based
upon the evidence he had acquired up to this point in the investigation,
Detective Huffman elected to arrest appellant. Appellant was taken into Tuscarawas County, Case No. 2015AP050022 12
custody, and brought down the stairway, back into the police department.
During this period of time, appellant offered to remain seated in the lobby
while waiting for his attorney. Detective Huffman did not respond.
While appellant was being taken back to the detective division with
the intention of processing his arrest, appellant said, “I don't even know what
all of this is about.” In response to that statement, Detective Huffman asked
appellant if he wished to talk without an attorney. Detective Huffman made
it clear to appellant that the decision as to whether or not he wished to talk
would have no bearing on whether he was going to be incarcerated.
Appellant then indicated that he did wish to talk. Appellant was thereafter
advised of his rights pursuant to Miranda v. Arizona, and gave a statement
to Detective Huffman.
In McNeil v. Wisconsin (1991), 501 U.S. 171, 182, 111 S.Ct. 2204,
115 L.Ed.2d 158, at footnote three, the United States Supreme Court noted
in dicta that the court had never held that a person can invoke his Miranda
right to counsel anticipatorially, in a context other than custodial
interrogation. The fact that the court had in the past allowed the Miranda
right to counsel, once asserted, to be effective with respect to future
custodial interrogation, did not necessarily mean that the court would allow
such right to be asserted initially outside the context of a custodial
interrogation. Id.
A number of federal courts have used this footnote, on various fact
patterns, to hold that a defendant may not invoke his right to counsel under Tuscarawas County, Case No. 2015AP050022 13
Miranda in the absence of both interrogation and custody. In United States
v. Barrett (Alaska 1992), 814 F.Supp. 1449, 1454, the court noted that the
McNeil footnote appeared to support the proposition that an accused cannot
invoke his right to counsel until he is taken into custody, and prior to
interrogation, warned of those rights. In United States v. Wright (9th
Cir.1992), 962 F.2d 953, 955, the court noted that the McNeil footnote
strongly suggests the Miranda rights may not be invoked in advance,
outside the custodial context. Likewise, the court in Alston v. Redman (3rd
Cir.1994), 34 F.3d 1237, 1248, cert. denied (1995), 513 U.S. 1160, 115
S.Ct. 1122, 130 L.Ed.2d 1085, the court concluded that there must be both
custody and interrogation before the right to counsel can be invoked. The
Seventh Circuit concurred, holding that the Miranda right to counsel
attaches only in the context of custodial interrogation and may not be
waived anticipatorially. United States v. LaGrone (7th Cir.), 43 F.3d 332,
337.
It is clear that appellant's first two statements in the instant case
regarding an attorney were not made when he was in custody, as he came
voluntarily and was free to go. In fact, appellant began to leave the police
station, before he was arrested. At the time he was sitting in a public lobby,
awaiting the arrival of the social worker, he was not in custody. After he was
taken into custody by Detective Huffman, he made no further request for an
attorney, and executed a valid waiver of his rights pursuant to Miranda. Tuscarawas County, Case No. 2015AP050022 14
Appellant signed a written Miranda form, without requesting his counsel be
present for questioning.
{¶22} Prior to the September 29, 2014 interview, Detective Moore contacted the
Prosecutor's Office and determined Appellant's previous cases were completed and no
new cases were pending in which Appellant was represented by counsel. The prosecutor
instructed Detective Moore to proceed with the interview, and the current charges were
not filed until after the interview. After Detective Moore arrived at the interview, he
Mirandized Appellant verbally and in writing. Appellant's signature appears on the waiver.
{¶23} As to Detective Moore's deceptive statements, the officer did tell Appellant
his adult co-conspirator had confessed to his part in the crimes and implicated Appellant
as a principal offender; however, the tactic was not coercive, cruel or a prohibited act.
{¶24} Based upon the foregoing, we do not find the trial court erred in overruling
Appellant's motion to suppress. The interview was conducted while Appellant was
incarcerated on unrelated charges. There is no evidence Appellant did not feel he was
free to refuse to make statements or to discontinue the interview, when in fact he had
exercised said rights in the past. The record reflects Appellant had a lengthy history with
the juvenile system and was aware of the procedures. Further, Appellant was not
represented by counsel at the time of the interview, and he did acknowledge and
intelligently waive his Miranda rights. He cannot and did not anticipatorily invoke his right
to counsel as it relates to the instant charges.
{¶25} The first assignment of error is overruled. Tuscarawas County, Case No. 2015AP050022 15
II.
{¶26} In the second assignment of error, Appellant T.B. maintains his convictions
are against the sufficiency of the evidence.
{¶27} In State v. Jenks, the Ohio Supreme Court set forth the standard of review
when a claim of insufficiency of the evidence is made. 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 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. Jenks, supra, at paragraph two
of the syllabus. When applying the aforementioned standard of review to the case sub
judice, based upon the facts noted supra, we do not find, as a matter of law, appellant's
conviction was based upon insufficient evidence.
{¶28} Appellant specifically asserts the State failed to present sufficient evidence
of a trespass or that the theft occurred when the victim was present or likely to be present.
{¶29} Appellant was convicted of burglary, in violation of R.C. 2911.12(A)(2),
which reads,
(A) No person, by force, stealth, or deception, shall do any of the
following:
(2) Trespass in an occupied structure or in a separately secured or
separately occupied portion of an occupied structure that is a permanent or Tuscarawas County, Case No. 2015AP050022 16
temporary habitation of any person when any person other than an
accomplice of the offender is present or likely to be present, with purpose
to commit in the habitation any criminal offense;
{¶30} A person is guilty of criminal trespass when he “knowingly, recklessly, or
negligently enters or remains on the land or premises of another without privilege to do
so.” R.C. 2911.11(A)(1)-(4).
{¶31} Appellant argues he did not commit trespass because he also lived at the
house with his mother and stepfather. The complaint filed in this matter reflected T.B.
lived at the property with his mother. Appellant’s mother was not home when the thefts
were alleged to have occurred.
{¶32} The record demonstrates T.B. was not allowed to live in the home with his
mother while his stepfather was at the residence. T.B. would not live in the home on
weekends when his stepfather came home according to the testimony of T.P., T.B.’s
mother. T.P. testified she did not know where T.B. lived when he did not stay with her,
but he would sometimes stay with his girlfriend. T.P. testified the stepfather did not know
T.B. would stay at the house, and did not give permission for T.B. to stay at the house.
T.P. testified T.B. did not have keys to the house. T.P. testified on the night of the incident,
the house was secured when she left to visit her husband and no one was supposed to
be in the home. T.P. testified T.B. was not supposed to be in the house while she was
away visiting her husband, and she had not told anyone she was leaving town. Therefore,
the record demonstrates T.B. did not have permission to be on the premises at the time
the acts occurred. Tuscarawas County, Case No. 2015AP050022 17
{¶33} As to T.P.’s absence from the residence at the time the incident occurred,
in State v. Kilby, 50 Ohio St.2d 21, (1977), the Ohio Supreme Court held at Syllabus 1,
Where the state proves that an occupied structure is a permanent
dwelling house which is regularly inhabited, that the occupying family was
in and out on the day in question, and that such house was burglarized
when the family was temporarily absent, the state has presented sufficient
evidence to support a charge of aggravated burglary under R.C. 2911.11.
{¶34} The record is sufficient to demonstrate T.P., T.B.’s Mother, regularly
inhabited the house, she was in and out of the house on the day in question and T.B. had
no reason to believe his mother was not present at the time of the theft offense.
{¶35} We find the evidence is sufficient, when viewed in a light most favorable to
the prosecution, to convince the average mind of T.B.’s guilt beyond a reasonable doubt
of one count of burglary, in violation of R.C. 2911.12(A)(2).
{¶36} The state also set forth sufficient evidence of T.B.’s guilt on two counts of
theft, in violation of R.C. 2913.02(A)(1). The record demonstrates T.B. confessed to
Detective Moore in a written statement to the theft of the property at issue herein. As set
forth in our analysis and disposition of the first assignment of error, the trial court properly
considered the written statement.
{¶37} The second assignment of error is overruled.
III.
{¶38} Finally, Appellant maintains the trial court erred in failing to appoint a
guardian ad litem to protect his interests in the proceedings pursuant to R.C.
2151.281(A)(2) and Juvenile Rule 4(B)(2). Tuscarawas County, Case No. 2015AP050022 18
{¶39} R.C. 2151.281(A)(2) reads,
(A) The court shall appoint a guardian ad litem, subject to rules
adopted by the supreme court, to protect the interest of a child in any
proceeding concerning an alleged or adjudicated delinquent child or unruly
child when either of the following applies:
(1) The child has no parent, guardian, or legal custodian.
(2) The court finds that there is a conflict of interest between the child
and the child's parent, guardian, or legal custodian.
{¶40} Juvenile Rule 4(B)(2) reads,
(B) Guardian ad litem; when appointed
The court shall appoint a guardian ad litem to protect the interests of
a child or incompetent adult in a juvenile court proceeding when:
(2) The interests of the child and the interests of the parent may
conflict;
{¶41} Our standard of reviewing the court's decision whether to appoint a
guardian ad litem is the abuse of discretion standard. In re: Sappington (1997), 123 Ohio
App.3d 448, 454, 704 N.E.2d 339. The Supreme Court has repeatedly defined the term
“abuse of discretion” as implying the court's attitude is unreasonable, arbitrary, or
unconscionable. See, e.g., Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450
N.E.2d 1140
{¶42} Juv. R. 4 requires the appointment of a guardian ad litem where there is a
possibility of conflict, while the statute requires appointment only if the court finds there is Tuscarawas County, Case No. 2015AP050022 19
an actual conflict of interest. Therefore, the relevant question on appeal is whether the
record reveals an actual or potential conflict of interest which required the appointment of
a guardian ad litem.
{¶43} R.C. 2151.281(H), and Juv. R. 4(C) permit an attorney to serve both as
counsel and as guardian ad litem for a child in a juvenile court proceeding, provided the
court makes an explicit dual appointment and no conflicts arise in the dual representation.
Here, the court did not order dual representation.
{¶44} This Court in In re: Sargent, 5th Dist. Licking App. No. 00CA91 and 00CA92,
addressing a similar factual situation found at least a potential conflict where a parent
struggles with being the parent of the offender and the victim. This Court held,
Unlike the mother in Shaw, Carla does not appear to be in an overtly
adversarial relationship with appellant; in fact, as the trial court noted in
ruling on appellant's objection, she made several positive comments.
Nonetheless, no further inquiry was pursued by the magistrate as to Carla's
obvious dual concern for her daughter, as manifested in particular by
Carla's desire to “look out” for her. “A parent may clearly have her own
agenda, or be advocating her own best interest, which may or may not also
be the child's.” In re Howard (1997), 119 Ohio App.3d 201, 206. See also,
In re McQuitty (May 5, 1986), Butler App. No. CA85–04–016, unreported.
While we expressly decline to adopt a bright-line rule necessitating the
appointment of a guardian ad litem in every situation where a parent is the
custodian of both the victim and the alleged juvenile perpetrator, we are
persuaded under the facts in this case that the possibility of conflict of Tuscarawas County, Case No. 2015AP050022 20
interest was present to the extent that the trial court abused its discretion in
failing to make an appointment pursuant to R.C. 2151.281(A), prior to
acceptance of the pleas.
{¶45} Here, we note Appellant was 18 years of age at the time he appeared at
trial herein. A review of the record does not demonstrate a conflict of interest to the extent
to cause us to find the trial court abused its discretion in failing to make an appointment
of a guardian ad litem pursuant to R.C. 2151.281(A). The record does not reflect Appellant
was not zealously represented by his attorney or that any conflicts arose in his
representation. Further, the record does not demonstrate any actual conflict between
Appellant and his mother. Therefore, we do not find the trial court abused its discretion in
failing to appoint a guardian ad litem herein.
{¶46} The third assignment of error is overruled.
{¶47} Appellant’s adjudication in the Tuscarawas County Court of Common Pleas,
Juvenile Division, is affirmed.
By: Hoffman, P.J.
Delaney, J. and
Baldwin, J. concur