[Cite as In re T.B., 2016-Ohio-575.]

COURT OF APPEALS 

TUSCARAWAS COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN RE: T.B., 

ALLEGED DELINQUENT CHILD 

 

 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Patricia A. Delaney, J. 

Hon. Craig R. Baldwin, J. 

Case No. 2015AP050022 

O P I N I O N 

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 crossexamination, 

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