[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?

                A. I did not.

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
