[Cite as In re J.J.M., 2012-Ohio-5605.]

STATE OF OHIO, HARRISON COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

IN THE MATTER OF: ) CASE NO. 12 HA 2 

) 

J.J.M., ) O P I N I O N 

) 

A DELINQUENT CHILD. ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas 

Court, Juvenile Division, Case No. 

 20122011. 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Appellee: Attorney T. Shawn Hervey 

Prosecuting Attorney 

Attorney Michael Washington 

Assistant Prosecuting Attorney 

111 West Warren Street 

P.O. Box 248 

Cadiz, Ohio 43907 

For Appellant: J.J.M., Pro se 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Dated: December 3, 2012
[Cite as In re J.J.M., 2012-Ohio-5605.]

VUKOVICH, J. 

{¶1} Appellant J.J.M. appeals a decision from the Harrison County Common 

Pleas Court, Juvenile Division that adjudicated him a delinquent child for committing 

the offense of underage consumption in violation of R.C. 4301.69. Appellant raises 

four arguments. First, he contends that the trial court’s decision is against the 

manifest weight of the evidence. Second, he argues that the trial court should have 

suppressed the results of the Portable Breath Test (PBT). Third, he asserts that 

there was insufficient evidence to convict him. Lastly, he argues that the trial court 

erred when it overruled his second motion to dismiss without holding a hearing. For 

the reasons expressed below, none of these arguments are meritorious. Thus, 

appellant’s delinquency adjudication and disposition are hereby affirmed. 

Statement of the Facts and Case

{¶2} On the night of February 19, 2012, the Cadiz Police received a noise 

complaint concerning a possible house party at 317 West Warren Street in the 

Village of Cadiz, Harrison County, Ohio. Tr. 11, 30. Officers Michael Sable and 

Rodney Taggart responded to the call and upon arriving at the address they heard 

loud music and a lot of people talking. Tr. 12. They gained access to the residence 

and observed open containers of alcohol and found underage people hiding in the 

house. Appellant, 16 at the time, was one of the underage people hiding in the attic. 

Tr. 13. 

{¶3} The officers called the Ohio State Highway Patrol to bring a portable 

breath test (PBT) to the address. Tr. 14, 30, 49. Trooper T.J. White responded to 

the call and administered the PBT to a number of individuals, including appellant. Tr. 

30, 34, 38, 50. Both Officers testified that appellant failed the PBT by blowing a .02. 

Tr. 18, 34. 

{¶4} As a result of that, appellant was issued a citation. Additionally, a 

complaint was filed in the Juvenile Division alleging that appellant is a delinquent 

child for committing the offense of underage consumption in violation of R.C. 

4301.69. 
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{¶5} Appellant, acting pro se, filed a motion to suppress and motion to 

dismiss. He argued that the results of the PBT must be suppressed because the 

Trooper had no authority to administer the test. Specifically, his argument was that 

an Ohio State Trooper has no jurisdiction to assist local law enforcement by 

administering a PBT. Appellant also argued that his Fourth Amendment Rights were 

violated by an illegal search and seizure. He claimed that the officers did not have 

permission to enter the house on Warren Street and thus, it was an illegal search and 

seizure. 

{¶6} A hearing was held on the matter. At the hearing, appellant 

acknowledged that his Fourth Amendment Rights were not violated because he was 

not the owner of the house. Thus, he dismissed the illegal search and seizure 

argument. The only issue left for the court to decide was the legal issue of whether 

the State Trooper had the authority to administer the PBT. The court instructed both 

the state and appellant to file briefs on that issue. 

{¶7} Both the state and appellant timely filed their briefs. However, in 

appellant’s brief, he attempted to add a second argument concerning why his Fourth 

Amendment Rights were violated. He claimed that he was not permitted to leave the 

residence until the PBT was administered on him. He asserted that there was no 

probable cause for the detention and thus, his rights were violated. 

{¶8} Following review of the briefs, the trial court held that State Troopers 

have authority to assist local law enforcement when requested to do so. Thus, it 

concluded that appellant’s argument did not provide a basis to suppress the PBT 

test. The trial court additionally overruled the supplemental Fourth Amendment 

argument. It concluded that appellant had every opportunity to argue this allegation 

in his first motion, but he did not. Furthermore, it noted that appellant had dismissed 

Fourth Amendment violation arguments at the hearing. 

{¶9} The matter then proceeded to an adjudication hearing. In addition to 

the officers testifying that appellant blew a .02 on the PBT, one of the individuals at 

the party that was also charged with and admitted to underage consumption, S.C., 
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testified that she witnessed him playing beer pong, drinking beer and taking at least 

one sip of Southern Comfort. Tr. 66-67. 

{¶10} On appellant’s behalf, two of his friends testified that they did not 

witness him drinking that evening and that instead of playing beer pong, they were 

playing water pong and were not drinking. Tr. 80, 83, 85, 91. Appellant’s mother 

testified that she witnessed the administration of the PBT and that appellant blew a 

0.00. Tr. 102-103. Appellant also testified that he did not consume any alcohol that 

evening. Tr. 116. 

{¶11} After taking the matter under advisement, the trial court found that the 

state proved the elements of underage consumption and adjudicated appellant a 

delinquent. The dispositional hearing was held a couple weeks later. The court 

ordered appellant to be detained for 90 days at Sargus Juvenile Detention Center, 

but suspended that detention period. Appellant was additionally ordered to pay court 

costs, was placed on probation for three months, ordered to perform 40 hours of 

community service, and ordered to undergo a Drug and Alcohol Evaluation. 06/22/12 

J.E. 

{¶12} Appellant, pro se, filed a timely appeal and brief. 

First Assignment of Error

{¶13} “In his Judgment Entry dated June 6, 2012, the judge lied repeatedly, 

failed to abide by multiple laws, including a law that was stipulated to by the assistant 

prosecutor, fraudulently attributed testimony to an Ohio Trooper, discredited a 

credible witness based upon untruthful accusations and wrongfully omitted almost 

every bit of testimony that supported appellant’s case. Since the final judgment was 

based upon the judge’s wrongful actions, the judge erred when he found the 

appellant to be a delinquent child.” 

{¶14} As the assignment of error indicates, appellant contends that the trial 

court acted improperly in adjudicating him a delinquent. The only law that appellant 

cites this court to in this assignment of error is the Ohio Supreme Court’s decision in 

In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177. 
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{¶15} In re C.S. is the Ohio Supreme Court’s decision on a juvenile’s ability to 

waive the right to counsel. Appellant contends that the Ohio Supreme Court’s 

decision in In re C.S. stands for the proposition that his mother could help and advise 

him during the delinquency proceedings while he was acting pro se. He asserts that 

the trial court violated the case law when it admonished his mother for advising him. 

{¶16} It is true that during the proceedings, the trial court did explain to both 

appellant and his mother that she could not represent him. In fact, when she was 

passing appellant notes during the adjudication hearing, the following colloquy 

occurred: 

THE COURT: [Appellant’s mother], you are here as a parent. 

[Appellant’s Mother]: Okay. 

THE COURT: I see you taking notes and handing them to you – 

your son. That is again verging very close to practicing law without a 

license. You’re not permitted to be doing that. You’re not permitted to 

be prompting him. 

[Appellant’s Mother]: I’m sorry. 

THE COURT: You’re not permitted to be doing those things. I 

just don’t want to get you crossing the line into something that you’re 

just – 

[Appellant’s Mother]: I’m sorry. 

THE COURT: I’m just trying to keep you safe on that point. 

Okay. Thank you. 

Tr. 18. 

{¶17} The trial court did not err in making this advisement and admonishing 

appellant’s mother from being careful that she did not engage in the unauthorized 
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practice of law. In discussing whether a parent can represent a minor child, the Court 

made the following statements: 

 In enacting this statute [R.C. 2151.352], we presume, the 

General Assembly was mindful of the common law. Cf. Meyer v. Holley

(2003), 537 U.S. 280, 285, 123 S.Ct. 824, 154 L.Ed.2d 753. Because 

the common law does not permit parents to appear pro se on behalf of 

their minor children in civil cases, see, e.g., Shepherd v. Wellman

(C.A.6, 2002), 313 F.3d 963, 970–971, a fortiori, the common law would 

not permit parents to act pro se on behalf of their children in a 

delinquency case. 

 Moreover, at the time it enacted R.C. 2151.352, the Ohio 

legislature was well aware that this court has the exclusive authority to 

regulate, control, and define the practice of law, including prohibitions 

on lay representation, see In re Unauthorized Practice of Law in 

Cuyahoga Cty. (1963), 175 Ohio St. 149, 151, 23 O.O.2d 445, 192 

N.E.2d 54, that we had held that “no one, other than an attorney, may 

appear in court as a representative of another, whether or not such 

representative is to receive a fee for his services,” id., and that we had 

defined the practice of law as including representation before a court, 

as well as other tasks, including “all advice to clients and all actions 

taken for them in matters connected with the law,” Land Title Abstract & 

Trust Co. v. Dworken (1934), 129 Ohio St. 23, 1 O.O. 313, 193 N.E. 

650, at paragraph one of the syllabus. We did not then, and we do not 

now, countenance a parent who is not an attorney representing a child 

in court in the capacity of counsel. 

 Indeed, “[i]t has long been recognized that the right to counsel is 

the right to the effective assistance of counsel.” McMann v. Richardson

(1970), 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763, fn. 4. Most 

parents are not attorneys and will not be able to provide effective 
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counsel because they are not trained in the law. See Gault, supra; 

Johnson v. Zerbst (1938), 304 U.S. 458, 462–463, 58 S.Ct. 1019, 82 

L.Ed. 1461; Powell v. Alabama (1932), 287 U.S. 45, 68–69, 53 S.Ct. 55, 

77 L.Ed. 158; In re Manuel R. (1988), 207 Conn. 725, 739, 543 A.2d 

719. Because even the best-intentioned parents will lack the skill and 

familiarity with law and procedure to adequately represent their children 

in delinquency proceedings, they may not do so. 

In re C.S. at ¶ 91-93. 

{¶18} Consequently, a parent that is not a licensed attorney is not permitted 

to act as counsel for his/her child in this context. When a parent is feeding a pro se

juvenile the questions to ask and the arguments to make, the juvenile is merely a 

puppet and the parent is actually engaging in the practice of law. 

{¶19} That said, we do acknowledge that the Ohio Supreme Court does 

discuss that a parent can advise or counsel their child. It is this portion of the 

decision that appellant seems to be relying on. However, when that discussion is 

read in context, the Ohio Supreme Court is solely discussing that when a juvenile is 

waiving counsel the parent is allowed to advise or counsel the child as to whether 

waiver is the appropriate course of action: 

 We believe that the fifth sentence of the statute reflects the 

General Assembly's understanding that Gault held that the juvenile may 

waive his rights, including his right to counsel, see Gault, 387 U.S. at 

41–42, 87 S.Ct. 1428, 18 L.Ed.2d 527, and that it codifies that right of 

waiver but only if the juvenile is advised by a parent in considering 

waiver. 

 We hold that the word “represent” in the fifth sentence of R.C. 

2151.352 means to counsel or advise the juvenile in a delinquency 

proceeding. We further hold that in a delinquency proceeding, a 

juvenile may waive his constitutional right to counsel, subject to certain 

standards articulated below, if he is counseled and advised by his 
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parent, custodian, or guardian. If the juvenile is not counseled by his 

parent, guardian, or custodian and has not consulted with an attorney, 

he may not waive his right to counsel. 

In re C.S. at ¶ 95, 98. 

{¶20} Here, the right to counsel was already waived. Thus, the advisements 

and counsel that appellant’s mother was making did not go to the choice of whether 

counsel should be waived. The record implies that the mother’s involvement was 

hinging on the unauthorized practice of law because she was telling the pro se

juvenile the questions to ask and the arguments to make. Therefore, we hold that 

the trial court did not err when it informed appellant’s mother that she would not be 

permitted to engage in the unauthorized practice of law in its courtroom. 

{¶21} As aforementioned, In re C.S. is the only law cited in this assignment of 

error. App.R. 16(A)(7) states that the arguments must contain citations to authorities 

and statutes that support the argument. As stated above, In re C.S. does not support 

reversal of the adjudication decision. Thus, this court could hold that under this 

assignment of error appellant has not presented this court with any other legal basis 

for reversing the court’s decision. 

{¶22} That said, the state asserts that appellant is claiming that reversal can 

occur because the trial judge violated the Ohio Code of Judicial Conduct. In 

appellant’s reply brief, he appears to admit that is his argument. 

{¶23} As the state correctly points out, a violation of the Judicial Code does 

not permit this court to reverse the trial court’s adjudication determination. Appellate 

Courts have consistently recognized that any allegation that the trial judge violated 

the Code of Judicial Conduct, acted in a manner demeaning to the judiciary, and 

engaged in unethical misconduct are not properly brought before the court of 

appeals. Wilburn v. Wilburn, 9th Dist. No. 05CA008798, 2006–Ohio–5820; Szerlip v. 

Szerlip, 5th Dist. No. 01CA16, 2002 WL 1270849 (May 20, 2002). “Any allegations of 

judicial misconduct are not cognizable on appeal, but is a matter properly within the 

jurisdiction of the Disciplinary Counsel.” Wilburn at ¶ 10, quoting Szerlip v. Spencer

(Mar. 14, 2002), 5th Dist. No. 01 CA30 (Mar. 14, 2002). 
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{¶24} Although it is not the duty of this court to make arguments for any party, 

including a pro se party, when reading this entire argument, it appears to this court 

that the argument appellant is really trying to assert is a manifest weight of the 

evidence argument. Or in other words, it seems that appellant is contending that in 

weighing the evidence, the trial court lost its way. Consequently, we will address that 

issue. 

{¶25} A review of a manifest weight of the evidence claim in juvenile 

delinquency adjudication is the same as for criminal defendants. In re N.Z., 11th 

Dist. No. 2010-L-023, 2011-Ohio-6845, ¶ 78; In re P.G., 12th Dist. No. CA2006–05–

009, 2007–Ohio–3716, ¶ 13–14; In re D.R., 10th Dist. No. 05AP–492, 2006–Ohio–

5205; In re R.S., 9th Dist. No. 21177, 2003-Ohio-1594, at ¶ 10. 

{¶26} In determining whether a verdict is against the manifest weight of the 

evidence, a court of appeals must review the entire record, weigh the evidence and 

all reasonable inferences, and determine whether, in resolving conflicts in the 

evidence, the trier of fact clearly lost its way and created such a manifest miscarriage 

of justice that the conviction must be reversed and a new trial ordered. State v. 

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “Weight of the evidence 

concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, 

to support one side of the issue rather than the other.’” Id. A conviction will only be 

reversed as against the manifest weight of the evidence in exceptional 

circumstances. Id. This is so because the trier of fact is in a better position to 

determine credibility issues, since it personally viewed the demeanor, voice 

inflections and gestures of the witnesses. State v. Hill, 75 Ohio St .3d 195, 204, 661 

N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212 

(1967). 

{¶27} At the hearing, both Officer Sable and Officer Taggart testified that 

appellant failed the PBT and blew a .02. Tr. 18, 34. Officer Sable also indicated that 

it seemed to him that some of appellant’s inhibitions were gone because while other 

people were reserved during the officers’ questions, appellant was chatting with 
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people like nothing was going on. Tr. 14. Other than that, he explained that 

appellant did not exhibit any other signs of alcohol use or intoxication. Tr. 15. 

{¶28} There were some discrepancies between the two officer’s testimonies. 

For instance, Officer Sable testified appellant admitted to drinking by raising his hand 

when he and others were asked if they had been drinking. Tr. 13. Officer Taggart 

testified that individuals that admitted to drinking got their citation that night. Tr. 39. 

However, individuals that denied drinking were given the PBT. Tr. 39-40. He also 

testified that he personally witnessed appellant take the PBT. Tr. 38. Trooper White 

confirmed that testimony by indicating that he remembered administering appellant’s 

breath test. Tr. 50. 

{¶29} Officer Taggart’s testimony insinuates that appellant denied drinking 

and that is the reason he had to take the PBT. However, Officer Sable testified that 

appellant admitted to drinking, but still had to take the breath test. Regardless of this 

discrepancy, both officers clearly indicate that appellant failed the breath test. 

{¶30} The trial court, in addition to relying on the officers’ testimony 

concerning the fact that appellant consumed alcohol that night, also stated that 

Trooper White testified that appellant tested positive for alcohol usage on the PBT. 

Appellant argues that the Trooper did not testify that he tested positive on the PBT. 

Rather, appellant claims the Trooper testified that he did not recall the results of 

every test he gave. 

{¶31} A review of the transcript reveals that Trooper White testified that he did 

not “recall the results of each and every individual that [he] tested that night.” Tr. 52. 

However, Trooper White was never specifically asked if he remembered the results 

of appellant’s test. During a discussion on the admissibility of the PBT results, 

Trooper White explained that the PBT is not accurate as to the amount of alcohol in a 

person’s system, rather it is just registers whether there is alcohol in a person’s 

system. Tr. 56. He also stated: 

 You was [sic] not given a breathalyzer test that night. You are 

not being convicted of a DUI. You were not driving a vehicle. You are 

being charged with underage alcohol consumption, that you were 
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consuming alcohol underage. So, the PBT shows that you had alcohol 

in your system that night. 

Tr. 57-58. 

{¶32} Given this testimony we do not find that the trial court’s statement was 

incorrect. Regardless, even if the trial court should not have relied on this testimony, 

as is discussed below there is other evidence to support the adjudication. 

{¶33} In addition to the Officers and Trooper’s testimonies, the state called 

S.C. to testify. She avowed that she witnessed appellant drinking beer and at least 

one sip of Southern Comfort. Tr. 65-66. Appellant claims that her testimony was not 

credible. He asserts that S.C.’s testimony is not credible because she admitted to 

drinking, her voice was barely audible and she was hunched over in her chair, with 

her shoulders drooping and her head down. 

{¶34} In discussing this argument, the first thing we must note is that we are a 

court of record and thus, can only review the record; we cannot consider matters 

outside the record. State v. Oliver, 7th Dist. No. 07MA169, 2008–Ohio–6371, ¶ 90. 

How S.C. was sitting at the witness stand and the inflection of her voice is a matter 

outside of the record. We only have a written transcript of the proceedings before us 

that does not explain the witness’s demeanor or tone of voice. This is why the Ohio 

Supreme Court has clearly indicated that credibility is a decision that is best left to the 

trier of fact to decide. Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 

461 N.E.2d 1273 (1984). The trier of fact has the opportunity “to view the witnesses 

and observe their demeanor, gestures and voice inflections, and use these 

observations in weighing the credibility” of their testimonies. Id. Thus, for that reason 

we will typically not find a witness to not be credible when a trial court has already 

determined them to be credible. 

{¶35} As to the fact that S.C.’s voice was barely audible, the record does 

disclose that both the trial court and the state during the beginning of her testimony 

were having trouble hearing her. The trial court did ask her to pull the microphone up 

a bit and indicated she was “soft spoken.” Tr. 61. Likewise, the state asked her to 

use her “outside voice” because it was having trouble hearing her. Tr. 62. During 
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her 10 pages of testimony these were the only two instances where there were 

comments about the volume of her speech. 

{¶36} The fact that a person is “soft spoken” is not a clear indication of lying. 

We see in many transcripts that witnesses are asked to speak louder and to pull the 

microphone in. For instance, even in this transcript appellant’s mother was asked to 

pull the microphone closer. Tr. 102. 

{¶37} Likewise, the fact that S.C. admitted to drinking that night does not 

necessarily make her testimony less credible. S.C. acknowledged that she was 

charged with underage consumption and that she accepted the deal that was offered 

to everyone. Tr. 63-64. She had to take a class, pay a fine and do community 

service. Tr. 63. She testified she had already completed the diversion program. Tr. 

63. 

{¶38} These facts do not necessarily make her less credible. She is admitting 

what she had done. Furthermore, nothing in the record suggests that she was 

offered a deal to testify against appellant. Rather the testimony shows she got the 

same deal everyone else did that admitted to underage consumption. Thus, she 

received no benefit from testifying and there is no indication that she has a reason for 

lying. 

{¶39} Appellant argues that since she admittedly was consuming alcohol, her 

testimony is less credible because alcohol affects ones’ memory. Appellant did not 

offer testimony from an expert as to the effect that alcohol has on a person’s 

memory. Furthermore, S.C. testified that she only drank one beer. There was no 

testimony from anyone else to refute that testimony. Appellant now attempts to 

attach an affidavit from his friend stating that S.C. had consumed more than that. 

However, we cannot consider that affidavit. As previously mentioned, we can only 

consider what is in the record, i.e. what was before the trial court. That affidavit was 

not before the trial court and as such is not part of the record. Thus, considering her 

testimony, we cannot find that the trial court was wrong in finding S.C. credible. 

{¶40} Additionally, concerning S.C.’s testimony, appellant argues that there 

were no other witnesses brought forth to testify that appellant was consuming alcohol 
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that night. The state subpoenaed approximately 20 juveniles to testify. Tr. 7. 

However, prior to trial the state released all but two. The reason those 18 were 

released was because they “do not have substantive information to give, either 

through lack of memory or through non-observation in the beginning.” Tr. 8. 

Appellant argues that not a single one of the witnesses released corroborated S.C.’s 

story. The subpoenaed witnesses who did not testify are inconsequential in our 

review because they did not testify. While their testimony allegedly would not 

corroborate S.C.’s testimony, there is nothing to suggest that it would corroborate 

appellant’s testimony that he did not drink. Those witnesses may either have not 

seen him that night or do not remember whether he was drinking. Thus, the 

argument does not support appellant’s position and/or discredit the state’s position. 

{¶41} Appellant’s theory of this case was that he had not been drinking and 

that the officers “doctored” the report that shows that he blew a .02 on the PBT 

and/or they mixed up his name by putting it in the pile with the individuals being 

charged with underage consumption when it should have been put with the 

individuals being charged with curfew violation. 

{¶42} The testimony of Officer Taggart confirms that minors who blew zero on 

the PBT were told that they would be charged with a curfew violation. Tr. 41. 

However, when asked whether the complaint forms for the juveniles that were 

supposed to be charged with just a curfew violation were put together with the 

complaint forms for the underage consumption violations, the Officer stated that the 

information goes all in one report and they could not be mistaken. Tr. 41-42. 

{¶43} At the hearing, an exhibit was offered by the state that contained Officer 

Taggart’s handwritten notes of the results of the administered breath tests. Appellant 

objected to the introduction of this exhibit because it was not provided in discovery. 

Tr. 31-32. The state explained that it just received it that day. Tr. 32. The court gave 

appellant the opportunity to review the document. Tr. 31-32. After reviewing the 

document, appellant renewed his objections by stating he did not know if the 

document was just created recently or not. Tr. 32. The trial court informed him that 

he could ask the witness that question. Tr. 32. Appellant did ask that question. 
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Officer Taggart explained that this document was originally attached to the report, but 

they did not realize until that day that it was not included in the information that was 

given to the prosecutor. Tr. 35-36. He also explained that no information was added 

to this document later. Tr. 36. Officer Taggart testified that he was the one who 

wrote the test results on the document. Tr. 33. This document indicates that 

appellant was tested and that he blew a .02. Tr. 34. 

{¶44} Trooper White was also asked about this document. He stated on both 

direct and cross-examination that Officer Taggart was standing beside him and he 

saw him write down the test results. Tr. 51-53, 55. He explained that it was a 

handwritten piece of paper with names written on it and the test results. Tr. 52. On 

cross-examination he further stated that the results were not added later. Tr. 55. 

{¶45} Later when the state offered this handwritten document into evidence, 

the trial court asked appellant if he objected to the admission of the document. Tr. 

78. He indicated he did not. Tr. 78. Thus, despite appellant’s insistence to the 

contrary, the document was admitted without objection. 

{¶46} Appellant’s case also included testimony from two of his friends, his 

mother and himself. He testified that he did not drink alcohol and was playing water 

pong, not beer pong. Tr. 116. 

{¶47} His mother testified that she personally witnessed the administration of 

the PBT and that his result was zero. Tr. 103. She also testified that appellant is a 

straight A student and an exceptional athlete. Tr. 105. He is the only member of the 

track team to qualify for Regionals in an individual event and that he is currently 

going to State on the 4X4 relay team. Tr. 105. 

{¶48} His friend R.R. also testified that he did not see appellant drink and that 

they were playing water pong. Tr. 80, 83. However, R.R. admitted that he was not 

with the appellant the entire evening and that he would not know if appellant 

consumed any alcohol while appellant was not around him. Tr. 80, 84. 

{¶49} Similarly, K.S. testified that appellant was not drinking that evening and 

that they were playing water pong. Tr. 91. K.S. also claimed that he was not drinking 

that evening and that he blew a zero on the breath test, yet he was still charged with 
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underage consumption. Tr. 90. However, instead of defending the charge, K.S. 

admitted to drinking and accepted the plea deal. Tr. 91. 

{¶50} It is true that the trial court specifically indicated that K.S. was not 

credible because he earlier admitted to the charge of underage consumption, but 

was now claiming he did not drink or commit that offense. As explained above, 

credibility is a decision best left to the trier of fact. The trial court’s conclusion that 

K.S. was not credible is upheld; the trial court’s reasoning can justify its decision that 

K.S. is not credible. 

{¶51} As the above testimony shows, this is a classic credibility case. There 

are two versions of what happened and the trial court, as the trier of fact, must 

determine which one it believes. Appellant and his two friends testified that he was 

not drinking. Appellant’s mother testified that she witnessed the administration of the 

PBT and appellant blew a zero. The state offered testimony from two officers that 

appellant failed the breath test by blowing a .02. Furthermore, Officer Sable testified 

that appellant admitted to drinking and that his inhibitions were diminished. S.C., one 

of the party goers, testified that she witnessed appellant drinking. 

{¶52} Considering everything, we cannot hold that the trial court lost its way. 

There was evidence to support the conclusion that was reached. In all, this 

assignment of error lacks merit. 

Second Assignment of Error

{¶53} “The trial court erred when it overruled Appellant’s Motion to Suppress 

in its Judgment Entry dated May 11, 2012, because Ohio Administrative Code 3701-

53-02 ‘Breath Tests’ does not approve Preliminary Breath Tests (PBTs) as 

evidentiary breath testing instruments.” 

{¶54} At the motion to suppression/motion to dismiss hearing, appellant 

agreed that the sole issue that he was arguing was whether the Trooper had the 

jurisdiction to go to Cadiz and administer the PBT: 

 THE COURT: Mr. Washington [assistant prosecutor], then at 

that point the only thing that I’m going to ask of you is I will take the 

motion for -- to dismiss under review pending the briefs for both of you 
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to submit me within the next week on why a State Trooper has no 

authority to do a PBT test or assist an officer in their investigation. So, 

today is the 23rd. If I could have that on my desk by the 30th at 3 

o’clock I will rule shortly thereafter. 

 Anything else that you want to put on the record, sir? 

 [J.J.M.]: No, Your Honor. 

 THE COURT: Anything else, Mr. Washington? 

 MR. WASHINGTON: Just – just to make sure that I am clear on 

exactly what issue we’re looking at, it’s solely on whether a State 

Trooper jurisdictionally can assist an officer to – to obtain a PBT – 

 THE COURT: Right. 

 MR. WASHINGTON: -- test. Okay. 

 THE COURT: Is that what you’re arguing, sir? 

 [J.J.M.]: Yes. 

 THE COURT: Because I don’t want to put words into your 

mouth. 

 [J.J.M]: Yes, that he was out of his jurisdiction to be there. 

04/23/12 Suppression Tr. 21-22. 

{¶55} Thus, the issue that he agreed was the sole issue to be resolved did not 

address the potential inadmissibility of a PBT because it is not an approved 

evidentiary breath test. In fact, a reading of the suppression transcript indicates that 

appellant wanted to discuss the results of the test; he called his mother to testify and 

she testified that she witnessed the administration of the PBT and that appellant blew 

a zero. 04/23/12 Suppression Tr. 9. Thus, the issue regarding whether the PBT was 

admissible because it is allegedly not an approved evidentiary breath test was not 
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properly raised to the trial court in suppression. Consequently, the argument is 

waived. 

{¶56} However, for the sake of argument, we will address the admissibility of 

the PBT results. On the record, the state agreed that the PBT can only be used for 

probable cause. Tr. 44. Assuming without holding that this is a correct indication of 

what the law is, this would mean that a PBT can be used to show that there is 

probable cause for arrest. Thus, the PBT would not be relevant and would not be 

admissible once probable cause is found. Thus, the PBT would not and could not be 

used as evidence of guilt at the adjudication hearing. 

{¶57} Therefore, if the state attempted to introduce the PBT and the results at 

the adjudication hearing and appellant objected to that admission, by the state’s 

admission, the court should have deemed the evidence inadmissible. That said, the 

state did not introduce this evidence, rather it was appellant. The first discussion of 

the portable breath test being administered on appellant comes from appellant during 

the cross-examination of Officer Sable. Tr. 17-18. 

{¶58} Thus, he is the one introducing the evidence. In fact, his opening 

statement indicates that the testimony is going to show that he passed the breath 

test. Tr. 10. Admitting testimony about the PBT and its results was part of his 

defense. Once appellant asked Officer Sable what the results of the PBT were, that 

allowed the state to ask that officer and any other witness about the PBT and the 

results; his questions opened the door to the state asking questions about the PBT 

and to admitting into evidence the handwritten document that contained the results. 

As the state points out, appellant cannot have it both ways; he cannot question 

witnesses about the PBT and test results and then claim that the state’s questions 

and introduction of handwritten document evincing the results was not permitted. 

{¶59} Furthermore, it must be noted that even if the admissibility of the PBT 

had been raised by appellant during the suppression hearing and even if the trial 

court deemed the PBT and its results inadmissible, at the point that appellant 

questioned Officer Sable about the PBT and results, appellant would have been 

inviting the error. The invited-error doctrine provides that a party cannot take 
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advantage of any alleged error that the party invited or induced. State v. Lamar, 95 

Ohio St.3d 181, 767 N.E.2d 166, 2002-Ohio-2128, ¶ 103; State v. Bell, Clermont 

App. No. CA2008-05-044, 2009-Ohio-2335, ¶ 28. Thus, even if the PBT had been 

suppressed, appellant’s questions would have amounted to invited error. For those 

reasons this assignment of error lacks merit. 

{¶60} At this point, we note that the state claims that the PBT results were not 

being admitted to show what the level of alcohol was, but rather that alcohol 

registered in the juvenile’s system. Thus, it appears to contend that it was admissible 

to show that the juvenile consumed alcohol. There is no definitive case law 

supporting that contention. The cases that discuss PBT always refer to their 

unreliability. If the machine is not reliable as to the amount of alcohol in ones’ 

system, it is logical to conclude that the machine may not even be reliable as to 

whether there is alcohol in a person’s system. The Fourth Appellate District has 

stated, “PBT results are considered inherently unreliable because they ‘may register 

an inaccurate percentage of alcohol present in the breath, and may also be 

inaccurate as to the presence or absence of any alcohol at all.’” State v. Shuler, 168 

Ohio App.3d 183, 2006-Ohio-4336, 858 N.E.2d 1254, ¶ 10 (4th Dist.), quoting State 

v. Zell (Iowa App.1992), 491 N.W.2d 196, 197. Thus, we do not rely on this 

argument to resolve this assignment of error. 

Third Assignment of Error

{¶61} “The trial court erred when it found, in its Judgment Entry dated June 6, 

2012, that the State of Ohio had met its burden of proof and proved beyond a 

reasonable doubt that the youth did consume or possess beer or an intoxicating 

liquor that evening because the evidence and testimony certainly left considerable 

doubt that appellant had committed the offense.” 

{¶62} This argument raises a sufficiency of the evidence argument. 

Sufficiency of the evidence is the standard applied to determine whether the case 

may go to the trier of fact or whether the evidence is legally sufficient as a matter of 

law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 

(1997). Thus, sufficiency is a test of adequacy. State v. Thompkins, 78 Ohio St.3d 
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380, 386, 678 N.E.2d 541 (1997). Whether the evidence is legally sufficient to 

sustain a verdict is a question of law. Id. In reviewing the record for sufficiency, the 

relevant inquiry is whether, after viewing the evidence in a light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the 

crime proven beyond a reasonable doubt. Smith at 113. 

{¶63} In performing a sufficiency review, an appellate court must consider “all

of the testimony before the jury, whether or not it was properly admitted.” State v. 

May, 7th Dist. No. 10CO23, 2011-Ohio-6637, 970 N.E.2d 1029, quoting State v. 

Peeples, 7th Dist. No. 07MA212, 2009-Ohio-1198, 2009 WL 737922, at ¶ 17. See 

also State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, at ¶ 19. 

{¶64} Underage consumption as defined under R.C. 4301.69(E)(1) provides 

that, “[n]o underage person shall * * * consume any beer or intoxicating liquor in any 

public or private place.” Underage person is defined as a person under the age of 

21. R.C. 4301.69(H)(5). 

{¶65} Under the first assignment of error we discussed at length the trial 

testimony. Officer Sable testified that appellant admitted to drinking and his talkative 

nature given the circumstances showed that his inhibitions were lowered. He also 

testified and appellant admitted that he was 16 years old at the time of the offense. 

Tr. 23, 117. Officer Taggart testified that appellant failed the breath test by blowing a 

.02. Also, S.C. testified that she witnessed appellant drinking at the party. 

{¶66} Viewing this evidence in the light most favorable to the state, there was 

sufficient evidence to support a finding that appellant committed the offense of 

underage consumption. Thus, this assignment of error is without merit. 

Fourth Assignment of Error

{¶67} “The trial court erred when it overruled the appellant’s motion to 

Dismiss filed with the court on April 30, 2012.” 

{¶68} As aforementioned, at the suppression hearing, appellant dismissed his 

argument that a Fourth Amendment violation occurred, i.e. that the officers did not 

have permission to enter the house located on Warren Street. At the suppression 

hearing, the trial court ordered the parties to brief the only remaining issue, which 
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was whether the Trooper had jurisdiction to perform the PBT. In the April 30, 2012 

brief that addressed that issue, appellant raised a new argument that he asserted 

warranted dismissal of the complaint. He contended that his Fourth Amendment 

rights were violated when the officers detained him to have the Trooper administer 

the PBT. He contended that there was no probable cause for the detention and thus, 

dismissal of the charge was warranted. The trial court overruled the motion. It stated 

that appellant had every opportunity to argue these allegations in his first motion to 

dismiss and that he voluntarily dismissed the alleged Fourth Amendment violations at 

the suppression hearing. It also indicated that the appellant is once again misstating 

Ohio law. 

{¶69} Appellant is correct that at the suppression hearing he did not state that 

there were not any Fourth Amendment violations. All appellant stated was that his 

Fourth Amendment rights were not violated because he was not the owner of the 

house. 04/23/12 Suppression Tr. 18. 

{¶70} That said, we do not hold that the trial court erred when it overruled the 

motion. The state is correct that Juv.R. 22(D) does not require a hearing for a 

secondary motion to dismiss. 

{¶71} Furthermore, as the trial court correctly stated, appellant misstates Ohio 

law. Appellant claims in the motion that there must be probable cause to detain him 

to take the breath test. That is incorrect. The standard is reasonable, articulable 

suspicion, which is a lesser standard. A warrantless detention is reasonable under 

the Fourth Amendment to the United States Constitution if there was some 

articulable, reasonable suspicion of criminal activity to justify further investigation. 

Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769 (1996), citing Delaware v. 

Prouse, 440 U.S. 659, 99 S.Ct. 1391 (1979), and Terry v. Ohio, 392 U.S. 1, 21–22, 

88 S.Ct. 1868, (1968). See also State v. Erickson, 76 Ohio St.3d 3, 7, 665 N.E.2d 

1091 (1996). 

{¶72} The testimony shows that appellant was found hiding in an attic of a 

house where a house party was occurring. There were open beer and intoxicating 

liquor containers found in the house. Appellant admitted to drinking and one officer 
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stated that appellant exhibited signs of diminished inhibitions, i.e. he was talkative in 

a somber situation. These facts present a reasonable, articulable suspicion that 

appellant may have been drinking. Thus, the officers were permitted to detain him for 

a breath test. This assignment of error lacks merit. 

Conclusion

{¶73} For the foregoing reasons, the judgment of the trial court is hereby 

affirmed. 

Donofrio, J., concurs. 

Waite, P.J., concurs.