[Cite as State v. Bell, 2011-Ohio-2479.]


                                         COURT OF APPEALS
                                      ASHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT

STATE OF OHIO                                      JUDGES:
                                                   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. Patricia A. Delaney, J.
-vs-
                                                   Case No. 10-COA-013
JOSHUA R. BELL

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                        Appeal from the Ashland Municipal Court,
                                                Case No. 09-CRB-1312


JUDGMENT:                                       Affirmed


DATE OF JUDGMENT ENTRY:                          May 20, 2011


APPEARANCES:


For Plaintiff-Appellee                          For Defendant-Appellant


W. DAVID MONTAGUE                               THOMAS L. MASON
Assistant Director of Law                       Mason, Mason & Kearns
1213 E. Main St.                                Post Office Box 345
Ashland, Ohio 44805                             153 West Main Street
                                                Ashland, Ohio 44805-0345
Ashland County, Case No. 10-COA-013                                                     2

Hoffman, J.


       {¶1}   Defendant-appellant Joshua R. Bell appeals his conviction entered by the

Ashland Municipal Court for underage consumption of alcohol in violation of R.C.

4301.69(E)(1). Plaintiff-appellee is the State of Ohio.

                           STATEMENT OF THE CASE AND FACTS

       {¶2}   Appellant was charged with underage consumption of alcohol in violation

of R.C. 4301.69(E)(1).      Following the presentation of the evidence, counsel for

Appellant requested the trial court instruct the jury Appellant was permitted to consume

alcohol if they found the consumption occurred under the supervision of a parent. The

trial court denied the request. The jury found Appellant guilty of the charge.

       {¶3}   A transcript of the trial was unavailable due to a malfunction of the

recording equipment, resulting in the trial court issuing a Statement of Evidence

pursuant to Ohio Rule of Appellate Procedure 9(C).

       {¶4}   The trial court’s 9(C) statement states Appellant, who was nineteen years-

old, admitted to consuming beer. He testified he had his father’s permission to drink

beer at home while his father was there in the residence they shared.            Appellant

consumed beer in the downstairs of the residence, while his father, Michael Bell, was

asleep in the bedroom upstairs. Michael Bell had given his son permission to drink

while he was in the residence, but was not aware his son was drinking at the time of the

alleged offense.

       {¶5}   On appeal, Appellant assigns as error:
Ashland County, Case No. 10-COA-013                                                      3


       {¶6}   “I.   THE   TRIAL    COMMITTED         PREJUDICIAL      ERROR      BY   NOT

INSTRUCTING THE JURY THAT THE APPELLANT WAS PERMITTED TO CONSUME

ALCOHOL UNDER PARENTAL SUPERVISION.”

                                                 I

       {¶7}   Where a defense has been raised and is supported by sufficient evidence,

a trial court errs in refusing to instruct the jury on the defense. State v. Atterberry

(1997), 119 Ohio App.3d 443; State v. Brady (1988), 48 Ohio App.3d 41. The decision

of the trial court whether to give jury instructions requested by the parties is reviewable

only for abuse of discretion. State v. Sims (1984), 13 Ohio App.3d 287.

       {¶8}   Ohio Revised Code Section 4301.69(E)(1) states:

       {¶9}   “(E)(1) No underage person shall knowingly order, pay for, share the cost

of, attempt to purchase, possess, or consume any beer or intoxicating liquor in any

public or private place. No underage person shall knowingly be under the influence of

any beer or intoxicating liquor in any public place. The prohibitions set forth in division

(E)(1) of this section against an underage person knowingly possessing, consuming, or

being under the influence of any beer or intoxicating liquor shall not apply if the

underage person is supervised by a parent, spouse who is not an underage person, or

legal guardian, or the beer or intoxicating liquor is given by a physician in the regular

line of the physician's practice or given for established religious purposes.”

       {¶10} The 9(C) statement of the trial court provides Appellant’s father was

asleep at the time of the offense in an upstairs bedroom, and not directly supervising

Appellant’s consumption of alcohol at the time. Michael Bell did not know his son was

drinking alcohol at the time.      The trial court concluded, and we agree, the fact
Ashland County, Case No. 10-COA-013                                                 4


Appellant’s father was asleep and unaware of Appellant’s drinking does not amount to

supervision.

      {¶11} Accordingly, we find the trial court did not abuse its discretion in not

instructing the jury as requested by Appellant.

      {¶12} The sole assignment of error is overruled.

By: Hoffman, J.

Gwin, P.J. and

Delaney, J. concur

                                             s/ William B. Hoffman _________________
                                             HON. WILLIAM B. HOFFMAN


                                             s/ W. Scott Gwin _____________________
                                             HON. W. SCOTT GWIN


                                             s/ Patricia A. Delaney _________________
                                             HON. PATRICIA A. DELANEY
Ashland County, Case No. 10-COA-013                                                5


            IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :        JUDGMENT ENTRY
                                            :
JOSHUA R. BELL                              :
                                            :
       Defendant-Appellant                  :        Case No. 10-COA-013


       For the reason stated in our accompanying Opinion, the judgment of the Ashland

Municipal Court is affirmed. Costs to Appellant.




                                            s/ William B. Hoffman _________________
                                            HON. WILLIAM B. HOFFMAN


                                            s/ W. Scott Gwin _____________________
                                            HON. W. SCOTT GWIN


                                            s/ Patricia A. Delaney _________________
                                            HON. PATRICIA A. DELANEY
