[Cite as In re Predmore, 187 Ohio App.3d 100, 2010-Ohio-1626.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

LOGAN COUNTY 

 

IN RE PREDMORE, 

 CASE NO. 8-09-03 

 APPELLANT. (Three cases.) 8-09-04, and 8-09-05 

 O P I N I O N 

 

 

Appeal from Logan County Common Pleas Court, 

Juvenile Division 

Trial Court No. 08-JD-0010 

Judgment Reversed and Cause Remanded in Case No. 8-09-03 

Judgments Affirmed in Case Nos. 8-09-04 and 8-09-05 

Date of Decision: April 12, 2010 

 

APPEARANCES: 

Elizabeth R. Miller, for appellant. 

Deborah K. Wolf, for appellee. 

ROGERS, Judge. 

{¶1} Appellant, Cody Predmore, appeals the judgment of the Court of 

Common Pleas of Logan County, Domestic Relations-Juvenile-Probate Division, 

adjudicating him a delinquent child and ordering him to serve a six-month 

minimum commitment at the Department of Youth Services (“DYS”) and two 90-

day commitments at the Juvenile Detention Center (“JDC”), suspended on the 

condition that he comply with all court orders upon his release from DYS. 
Case No. 8-09-03, 04, 05 

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Additionally, Predmore appeals the judgment of the Court of Common Pleas of 

Marion County, Domestic Relations-Juvenile-Probate Division, adjudicating him a 

delinquent child. In this consolidated appeal, Predmore contends that the trial 

court violated his right to counsel and to due process; that his admission to 

delinquency was not knowing, intelligent, and voluntary; that the trial court erred 

in failing to appoint him a guardian ad litem; that the trial court violated his right 

to due process when it adjudicated him delinquent of burglary absent proof of 

every element of the charge against him by sufficient, competent, and credible 

evidence; and that he was denied effective assistance of counsel. Based upon the 

following, we affirm Predmore’s adjudication as a delinquent child for burglary 

and six-month minimum commitment to DYS and his adjudication as a delinquent 

child for illegal possession of drug paraphernalia and one 90-day commitment to 

JDC, but we reverse his adjudication as a delinquent child for petty theft and the 

other 90-day commitment to JDC. 

I. Case No. 8-09-04 

{¶2} In October 2007, in case No. 8-09-04,1

 the Court of Common Pleas 

of Marion County, Domestic Relations-Juvenile-Probate Division (“Marion 

County court”), held a detention hearing pursuant to Juv.R. 7. The hearing arose 

from the Marion County police department’s filing of a complaint alleging that 

 

1

 Case No. 8-09-04 corresponds to the Court of Common Pleas of Marion County, Domestic RelationsJuvenile-Probate Division, case No. 07 DL 1123 and the Court of Common Pleas of Logan County, 

Domestic Relations-Juvenile-Probate Division, case No. 08JD0001. 
Case No. 8-09-03, 04, 05 

-3-

Predmore was a delinquent on one count of illegal possession of drug 

paraphernalia in violation of R.C. 2925.14(C)(1), a misdemeanor of the fourth 

degree if committed by an adult. The complaint related to an incident during 

which police discovered a marijuana bong in a vehicle in which Predmore had 

been riding. 

{¶3} At the hearing, Predmore and his father, Daniel Predmore, signed a 

record of statement of rights that stated “We, ______ and Dan, Parents, and Cody 

Predmore hereby acknowledge being advised of the foregoing items. We wish to: 

___ 1) Talk to an Attorney before going further. ___ 2) I am presently represented 

by __________. ___ 3) We wish t[sic] have an Attorney appointed by the Court. 

___ 4) We, ________ and ________ and Cody Predmore having been advised of 

our right to legal counsel on this 23rd day of October 2007, and (do) or (do not) 

desire the services of an Attorney, and (do) or (do not) knowingly waive the 

same.” None of the blanks were completed or checked to indicate Predmore’s and 

his father’s preferences regarding counsel. 

{¶4} In December 2007, the Marion County court transferred the case to 

the Court of Common Pleas of Logan County, Domestic Relations-JuvenileProbate Division (“Logan County court”). 

{¶5} In January 2008, the case came before the Logan County court for an 

initial hearing. Prior to the hearing, Predmore and his father signed a form that 
Case No. 8-09-03, 04, 05 

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enumerated the rights available upon denial of the offense: the right to an attorney, 

right to request an attorney at any stage in the proceedings, the right to remain 

silent, the right to court-appointed counsel when indigent, the right to crossexamine the state’s witnesses, and the right to subpoena witnesses to testify on 

one’s behalf. Additionally, Predmore indicated on the form that he denied the 

allegation. 

{¶6} In March 2008, the Logan County court transferred the case to the 

Marion County court for adjudication. 

{¶7} In July 2008, the Marion County court held a hearing,2

 during which 

Predmore and his father signed another form entitled “Record of Statement of 

Rights,” which advised them that, among other things, he had a right to appointed 

counsel. The form reflected that the magistrate had read Predmore the statement 

of rights. However, the boxes reflecting elections pertaining to counsel were 

unchecked. Thereafter, the Marion County Court filed a judgment entry reflecting 

that Predmore had waived counsel and admitted to illegal use or possession of 

drug paraphernalia, a misdemeanor of the fourth degree if committed by an adult. 

 

2

 Predmore submitted to this court what purported to be a transcript of the July 17, 2008 hearing. However, 

this transcript was not certified by an appointed official court reporter nor does it otherwise comport with 

the requirements of App.R. 9, and therefore, this court may not consider it. See Flatt v. Atwood Manor 

Nursing Ctr., 3d Dist. No. 3-06-26, 2007-Ohio-5387, ¶ 35, fn. 3; Norwest Bank Minnesota, N.A. v. 

Saunders, 6th Dist. No. E-03-007, 2003-Ohio-6967; CitiFinancial, Inc. v. Budzik, 9th Dist. No. 

02CA008155, 2003-Ohio-4149. 
Case No. 8-09-03, 04, 05 

-5-

Additionally, the trial court transferred the case back to Logan County for 

disposition. 

{¶8} In August 2008, the Logan County court, at a combined hearing for 

case Nos. 8-09-04, 8-09-03, and 8-09-05, held the dispositional hearing in case 

No. 8-09-04. However, the trial court elected to continue disposition of case No. 

8-09-04 until December 2008 for a combined dispositional hearing for all three 

cases. 

{¶9} In December 2008, the case proceeded to the dispositional hearing 

on all three cases. In case No. 8-09-04, the trial court ordered Predmore to serve a 

90-day term in JDC, suspended on the condition that he “compl[y] with all orders 

of the court upon his release from the ODYS.” 

II. Case No. 8-09-03 

{¶10} In January 2008, in case No. 8-09-03,3

 the Logan County police 

department filed a complaint alleging that Predmore was a delinquent on one 

count of petty theft in violation of R.C. 2913.02(A)(1), a misdemeanor of the first 

degree if committed by an adult. The complaint arose from an incident during 

which Predmore allegedly took a DVD player and speakers from his mother’s 

home and attempted to sell them to a neighbor. Thereafter, at the initial hearing 

on the complaint, Predmore and his father signed a form advising them in part: 

 

3

 Case No. 8-09-03 corresponds to the Court of Common Pleas of Logan County, Domestic RelationsJuvenile-Probate Division, case No. 08JD10. 
Case No. 8-09-03, 04, 05 

-6-

The young person has a right to an attorney, the right to request an 

attorney at any stage of the proceedings, the right to remain silent, 

the right to court appointed counsel in appropriate cases where 

indigent, the right to cross-examine the prosecutor’s witnesses, in 

addition to the right to subpoena witnesses of their own to testify on 

their behalf. Upon request, the juvenile also has a right to a record 

of all proceedings at public expense, if indigent * * * 

Additionally, Predmore indicated on the form that he denied that the allegations 

made were true. 

{¶11} In August 2008, at the combined hearing, the trial court held the 

adjudicatory hearing in case No. 8-09-03. 

{¶12} Virginia Gammell, Predmore’s mother, testified that her surround 

sound and DVD player were missing; that a family friend in the home mentioned 

he had seen Predmore leave the home with “something silver”; that she never gave 

Predmore permission to remove the items from the home; and that she contacted 

law-enforcement officers, who recovered the property from an adjacent apartment. 

Officer Jason Lapp of the Bellefontaine police department testified that he 

investigated the incident and the neighbor informed him that Predmore had 

attempted to sell him the equipment missing from Gammell’s home. 

{¶13} After the close of testimony, the trial court found that Predmore was 

guilty beyond a reasonable doubt of petty theft in violation of R.C. 2913.02(A)(1), 

a misdemeanor of the first degree if committed by an adult, and adjudicated him a 

delinquent child. 
Case No. 8-09-03, 04, 05 

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{¶14} In December 2008, at the combined dispositional hearing, the trial 

court ordered Predmore to serve a 90-day term in JDC, suspended on the condition 

that he comply with “all orders of the court upon his release from the ODYS.” 

III. Case No. 8-09-05 

{¶15} In June 2008, in case No. 8-09-05,4

 the Logan County Police 

Department filed a complaint alleging that Predmore was delinquent on one count 

of burglary in violation of R.C. 2911.12(A)(4), a felony of the fourth degree if 

committed by an adult. The complaint arose from an incident during which 

Predmore allegedly entered an elderly woman’s home without her permission. 

{¶16} In August 2008, at the combined hearing, the trial court held the 

initial hearing in case No. 8-09-05. The trial court addressed case No. 8-09-05 

first, engaging in the following colloquy with Predmore and his father: 

THE COURT: All right. Let’s deal with the initial 

appearance first. Do you understand your rights? 

 [PREDMORE]: Yes, sir. 

 THE COURT: Did anybody discuss those with you? 

 [PREDMORE]: Yes, sir. 

 THE COURT: Tell me what you believe your rights are. 

 [PREDMORE]: I have the right to speak, get an attorney. 

 

4

 Case No. 8-09-05 corresponds to the Court of Common Pleas of Logan County, Domestic RelationsJuvenile-Probate Division, case No. 08JD144. 
Case No. 8-09-03, 04, 05 

-8-

 THE COURT: Okay. At an initial appearance, your Rule 5 

rights include, among other things, that you will be advised of the 

nature of the charge against you. * * * You have the right to an 

attorney, and you have a right for a reasonable continuance in the 

proceedings to secure counsel. And pursuant to Criminal Rule 4, 

you have a right to have counsel assigned to you without cost if 

you’re unable to employ counsel. You, further, have a right to make 

no statement, and any statement made may be used against you. 

Two other provisions of Rule 5 if you are an adult that would apply 

would be the requirement of a preliminary hearing * * * and, 

further, you would have a right in the adult court to a jury trial. * * * 

Do you have any questions about those rights? 

 [PREDMORE]: No, sir. 

 * * * 

 THE COURT: You have both your mom and dad here? 

 [PREDMORE]: Yes, sir. 

 * * * 

 THE COURT: * * * All right. Do you understand your rights 

to counsel in this case? 

 [PREDMORE]: Yes, sir. 

 THE COURT: What do [sic] wish to do with regard to the 

attorney? 

 [PREDMORE]: I don’t understand what you’re saying. 

 THE COURT: Statute gives you a right to have counsel 

involved. This is a serious felony, or would be a felony. Have you 

had any discussion with your dad or your mother about that? 

 [PREDMORE]: No, sir. 

 THE COURT: Dad, do you have any thoughts? 
Case No. 8-09-03, 04, 05 

-9-

 [DANIEL PREDMORE]: I never knew all of this was going 

on until he came to live with me, and that’s when all these cases 

started coming left and right. * * * 

 THE COURT: Okay. Do you understand the rights that I 

read to [Predmore]? 

 [DANIEL PREDMORE]: Yeah. 

 THE COURT: Do you have any thoughts about those rights? 

 [DANIEL PREDMORE]: I think he ought to get him an 

attorney because I don’t know what’s really going on, like I said. 

Thereafter, the trial court appointed counsel for Predmore in case No. 8-09-05. 

{¶17} In November 2008, the trial court held the adjudicatory hearing, at 

which Henrietta Kennedy, the victim, testified that she was 90 years old; that she 

lived in the same neighborhood as Predmore; that in April 2008, she was working 

in her yard when Predmore approached her and asked if he could have an old 

bench in her yard; that even though she did not know Predmore at that time, she 

told him he could have the bench. Several days later, he returned and asked if he 

could do some yard work for her. While he worked in her yard, she loaded trash 

cans into the trunk of her car so that she could drive them from the back of her 

home, around the block, and set them on the curb. She always did this because 

she could not physically carry the cans to the curb; the process took her 

approximately ten to 15 minutes. When she returned and entered her home, she 

was startled because Predmore was in the home and walking down the stairs from 
Case No. 8-09-03, 04, 05 

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the second floor. She asked him what he was doing in her home, and he 

responded by telling her he did not take anything and turned his pockets inside out 

to show her they were empty. He then told her he was using the restroom, even 

though his home was nearby. Predmore went out the back door and finished the 

yard work, and she wrote him a check for the work. She did not call the police 

because she was very startled and frightened. Approximately five to six months 

later, Predmore came to her home with a puppy and asked her if it belonged to her, 

and then came back several days later to ask about more yard work. She told her 

son about the incident, and he called the police. She never invited Predmore into 

her home or called him to work for her. Kennedy continued that she had not 

noticed anything missing from her home since the incident; she never invited 

people who work in her yard into her home; the restroom in her home is on the 

second floor; and Predmore would have no way of knowing where it was because 

she did not tell him. 

{¶18} Officer Neill Rhodes of the Bellefontaine police department testified 

that he investigated the incident at Kennedy’s home. Kennedy reported to him 

that she had told Predmore he could do some yard work for her, she had taken her 

trash around to the curb, and when she returned, Predmore was in her home 

coming down the steps from the second floor. He interviewed Predmore, who 

stated that he was there doing some work and Kennedy invited him into her 
Case No. 8-09-03, 04, 05 

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kitchen to receive his check. Predmore also told him that Kennedy had 

approached him numerous times to employ him after the incident. Rhodes 

testified that Kennedy’s home did not look ransacked but that Kennedy’s home 

was so large, he did not believe Predmore would have had time to go through the 

home to know what to take. 

{¶19} Predmore testified in his own defense that in April 2008, he 

approached Kennedy and asked if she needed help with her yard work. Kennedy 

agreed and, upon completion of the work, Kennedy gave him a check in the 

breezeway between her home and garage. Predmore stated that Kennedy 

approached him several times about doing yard work for her and that she also took 

a wooden bench from her yard and put it in his backyard, even though he did not 

ask her for it. He did not see her move the bench but assumed that she did. He 

stated that his father’s home, where he lived at the time, was only “a little 

alleyway” away from Kennedy’s house. Predmore testified that he was on 

probation for being an unruly child related to a theft offense, he was an honest and 

truthful person, and he had stolen from his mother. 
Case No. 8-09-03, 04, 05 

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{¶20} Thereafter, the trial court found Predmore guilty5

 beyond a 

reasonable doubt of burglary in violation of R.C. 2911.12(A)(4), a felony of the 

fourth degree if committed by an adult, and adjudicated him a delinquent child. 

{¶21} In December 2008, at the combined dispositional hearing, the trial 

court ordered Predmore to serve a minimum six-month term at DYS, not to exceed 

his 21st birthday. 

IV. Appeal 

{¶22} In January 2009, Predmore appealed from his adjudication and 

disposition in case Nos. 8-09-03, 8-09-04, and 8-09-05. 

{¶23} In March 2009, this court consolidated case Nos. 8-09-04 and 8-09-

05 with case No. 8-09-03. 

{¶24} In April 2009, Predmore filed a motion to supplement the appellate 

record with additional transcripts of the pleadings, specifically, the transcripts of 

the adjudicatory hearings in Marion County in July 2008, in Logan County in 

August 2008, and in Logan County in November 2008, which this court granted. 

{¶25} It is from the trial court’s December 2008 adjudication and 

disposition that Predmore appeals, presenting the following assignments of error 

for our review. 

 

5

 Although the trial court used the term “guilty” in its judgment entry, a juvenile court does not make a 

finding of guilty but determines the issues and renders an adjudication of delinquency. Nevertheless, the 

standard of proof used by the trial court was correct. See Juv.R. 29(E)(4). 
Case No. 8-09-03, 04, 05 

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Assignment of Error No. I 

 The trial court violated Cody P.’s right to counsel and to due 

process under the Fifth and Fourteenth Amendments to the United 

States Constitution, Section 16, Article I of the Ohio Constitution, 

Ohio Revised Code Section 2151.352, and Juvenile Rules 3, 4, and 

29. (July 17, 2008 T. pp. 2-5); (August 25, 2008, T. pp. 3-31). 

Assignment of Error No. II 

 Cody P.’s admission to his delinquency charge was not 

knowing, intelligent, and voluntary in violation of the Fifth and 

Fourteenth Amendments to the United States Constitution, Article I, 

Sections 10 and 16 of the Ohio Constitution, and Juvenile Rule 29. 

(July 17, 2008, T. pp. 2-5). 

Assignment of Error No. III 

 The trial court committed plain error when it failed to appoint 

a guardian ad litem for Cody P. in violation of Ohio Revised Code 

Section 2151.281(a) and Juvenile Rule 4(B). (July 17, 2008, T. pp. 

2-5); (August 25, 2008, T. pp. 3-31). 

Assignment of Error No. IV 

 The trial court violated Cody P.’s right to due process under 

the Fifth and Fourteenth Amendments to the United States 

Constitution, Article I, Section 16 of the Ohio Constitution, and 

Juvenile Rule 29(E)(4) when it adjudicated him delinquent of 

burglary absent proof of every element of the charge against him by 

sufficient, competent, and credible evidence. (November 3, 2008, T. 

pp. 44-47). 

Assignment of Error No. V 

 Cody P. was denied the effective assistance of counsel as 

guaranteed by the Sixth and Fourteenth Amendments to the United 

States Constitution and Section 16, Article I of the Ohio 

Constitution. (November 3, 2008, T. p. 27). 
Case No. 8-09-03, 04, 05 

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{¶26} For ease of discussion, we elect to address Predmore’s second and 

third assignments of error together. 

Assignment of Error No. I 

{¶27} In his first assignment of error, Predmore contends that both the 

Marion and Logan county courts violated his right to counsel and to due process. 

Specifically, Predmore argues that both the Marion and Logan county courts 

violated his right to counsel because they failed to appoint him counsel even 

though he was not counseled or advised by his parent or attorney, the Marion 

County court failed to obtain a proper written waiver of counsel, the Logan 

County court did not warn him of the dangers of self-representation before 

allowing him to represent himself, and neither court obtained a knowing, 

intelligent, and voluntary waiver under Juv.R. 29. 

{¶28} The Supreme Court of Ohio has acknowledged that juveniles have a 

right to the assistance of counsel in delinquency proceedings. In re Haggard, 3d 

Dist. Nos. 2-08-20, 2-08-21, 2-08-22, and 2-08-23, 2009-Ohio-3821, ¶ 25, citing 

In re Anderson (2001), 92 Ohio St.3d 63, 66, citing In re Gault (1967), 387 U.S. 1, 

31-57. Additionally, Juv.R. 4(A) provides that “[e]very party shall have the right 

to be represented by counsel.” Further, R.C. 2151.352 codifies the juvenile’s right 

to counsel, providing: 

A child * * * is entitled to representation by legal counsel at 

all stages of the proceedings under this chapter or Chapter 2152. of 
Case No. 8-09-03, 04, 05 

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the Revised Code. * * * If a party appears without counsel, the court 

shall ascertain whether the party knows of the party's right to counsel 

and of the party's right to be provided with counsel if the party is an 

indigent person. The court may continue the case to enable a party 

to obtain counsel, to be represented by the county public defender or 

the joint county public defender, or to be appointed counsel upon 

request pursuant to Chapter 120. of the Revised Code. Counsel must 

be provided for a child not represented by the child's parent, 

guardian, or custodian. If the interests of two or more such parties 

conflict, separate counsel shall be provided for each of them. 

{¶29} Recently, the Supreme Court of Ohio thoroughly discussed 

juveniles’ right to counsel and waiver in In re C.S., 115 Ohio St.3d 267, 2007-

Ohio-4919, observing that R.C. 2151.352 “[r]eflects the General Assembly's 

understanding that Gault held that the juvenile may waive his rights, including his 

right to counsel, * * * and that it codifies that right of waiver but only if the 

juvenile is advised by a parent in considering waiver.” In re C.S. at ¶ 95. The 

court continued that a juvenile’s waiver of his right to counsel must be voluntary, 

knowing, and intelligent, and that there is a strong presumption against waiver of 

the right to counsel. Id. at ¶ 105-106, citing State v. Gibson (1976), 45 Ohio St.2d 

366. In making the determination whether waiver was voluntary, knowing, and 

intelligent, the court directed appellate courts to apply a totality-of-thecircumstances test. In re Haggard, 2009-Ohio-3821, at ¶ 29, citing In re C.S. at ¶ 

108. In applying the test, “[t]he judge must consider a number of factors and 

circumstances, including the age, intelligence, and education of the juvenile; the 

juvenile's background and experience generally and in the court system 
Case No. 8-09-03, 04, 05 

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specifically; the presence or absence of the juvenile's parent, guardian, or 

custodian; the language used by the court in describing the juvenile’s rights; the 

juvenile's conduct; the juvenile's emotional stability; and the complexity of the 

proceedings.” In re C.S. at ¶ 108, citing In re Dalton S. (2007), 273 Neb. 504, 

514, 730 N.W.2d 816. Additionally, the Supreme Court noted that an important 

factor in the test is “the degree to which the juvenile’s parent is capable of 

assisting and willing to assist the juvenile in the waiver analysis.” Id. at ¶ 110, 

citing Huff v. K.P. (N.D.1981), 302 N.W.2d 779, 782. 

{¶30} Concerning written waivers of counsel, the Supreme Court of Ohio 

has held that when “a juvenile is charged with a serious offense, the waiver of the 

right to counsel must be made in open court, recorded, and in writing.” In re C.S.

at ¶ 109. Finally, the Supreme Court has defined “serious offense” as an offense 

carrying a penalty of confinement for more than six months. In re Ramon, 3d 

Dist. No. 4-07-03, 2007-Ohio-5768, ¶ 14, citing State v. Brooke, 113 Ohio St.3d 

199, 2007-Ohio-1533, paragraph two of the syllabus. Further, the court held that 

“[i]f a written waiver has been executed, the juvenile court judge must consider 

the form used and the juvenile's literacy level to ensure that the juvenile has an 

intelligent understanding of the document and an appreciation of the gravity of 

signing it.” In re C.S. at ¶ 109, citing, e.g., In re Shane (Jan. 26, 2001), 2d Dist. 

No. 1523, 2001 WL 62550. 
Case No. 8-09-03, 04, 05 

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{¶31} Additionally, the Twelfth Appellate District has found that a trial 

court failed to comply with Juv.R. 29(B)(3) in determining whether a juvenile 

waived his right to counsel when he signed a rights form, but provided incomplete 

and inaccurate responses to questions on the form concerning his right to counsel, 

and the trial court did not go over the information, questions, and responses set 

forth in the form to ensure the juvenile’s understanding of the proceedings. In re 

M.T., 12th Dist. No. CA 2006-04-018, 2007-Ohio-2446. 

{¶32} Here, Predmore first argues that in case No. 8-09-04, the Marion 

County court erred in failing to appoint him counsel because the transcript 

demonstrates that he was not advised or counseled by his father regarding his 

decision to waive counsel, the trial court did not comply with Juv.R. 29(B)(1) 

through (5) before permitting him to proceed without counsel, the waiver-ofcounsel form that he executed was not fully completed, and the trial court did not 

discuss the form with him. The state responds that Predmore and his father were 

aware of his right to counsel through a notification contained in the summons on 

the complaint with which they were served and a record of statement of right that 

they executed in the Marion County court. 

{¶33} Initially, we reiterate that we may not consider the transcript of the 

adjudicatory hearing in Marion County as the transcript did not comply with 

App.R. 9. The appellant bears the burden of producing an adequate record on 
Case No. 8-09-03, 04, 05 

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appeal, including any transcript required to evaluate the assignments of error. 

State v. West, 3d Dist. No. 2-06-04, 2006-Ohio-5834, ¶ 51, 53, citing App.R. 9(B); 

State v. Estrada (1998), 126 Ohio App.3d 553, 556. When such a transcript is not 

provided, this court is required to presume regularity of the trial court proceedings. 

Id. Accordingly, we must presume that the July 2008 hearing in the Marion 

County court was conducted with regularity and that Predmore was counseled by 

his father regarding his decision to waive counsel at this hearing, that the trial 

court complied with Juv.R. 29, and that the trial court discussed the waiver-ofcounsel form with Predmore, ensuring his understanding of waiver and eliciting 

his preference regarding counsel. Additionally, we cannot find that Predmore did 

not knowingly waive counsel at this hearing based on the sole fact that the waiver 

of counsel form was incomplete. Predmore’s fourth-degree misdemeanor charge 

was at issue at this hearing, which is not a “serious offense” requiring waiver of 

counsel to be in writing. See R.C. 2929.24(A)(4); In re C.S., 115 Ohio St.3d 267, 

¶ 109; Brooke, 113 Ohio St.3d 199, at paragraph two of the syllabus. Finally, the 

statement of rights and judgment entry filed in conjunction with the hearing 

indicate that the magistrate read Predmore a statement of rights, including his right 

to counsel, and that Predmore waived counsel. Consequently, we find that the 

Marion County court did not err in failing to appoint Predmore counsel at the 

adjudicatory hearing in case No. 8-09-04. 
Case No. 8-09-03, 04, 05 

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{¶34} Next, Predmore argues that in case No. 8-09-03, the Logan County 

court erred in failing to appoint counsel, because even though the court briefly 

discussed his rights in conjunction with case No. 8-09-05 at the combined 

adjudicatory hearing, the trial court did not advise him of his right to counsel in 

case No. 8-09-03, the record did not reflect that either parent counseled or advised 

him, and the court did not warn him about the dangers of self-representation. The 

state responds that Predmore and his father executed an advice-of-rights-andprocedures form at the initial hearing for case No. 8-09-03 and that at the 

combined adjudicatory hearing, Predmore was informed of his right to counsel in 

case No. 8-09-03 through the admonishments given in the burglary case. 

{¶35} The record indicates that Predmore signed a form advising him of 

his right to counsel in January 2008 at the initial hearing in case No. 8-09-03; 

however, Predmore failed to produce a transcript of the initial hearing. As 

discussed in our analysis of case No. 8-09-04, when the defendant has failed to 

produce an adequate record on appeal, this court is required to presume regularity 

of the trial court proceedings. See App.R. 9(B); West; Estrada. Accordingly, we 

presume, as we did in case No. 8-09-04, that the initial hearing was conducted 

with regularity; that Predmore was counseled by his father regarding his decision 

to waive counsel; that the trial court complied with Juv.R. 29; and that the trial 

court discussed the form advising Predmore of his right to counsel to ensure his 
Case No. 8-09-03, 04, 05 

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understanding. However, our analysis does not end with that presumption. At the 

adjudicatory hearing in August 2008, for which this court was provided a valid 

transcript, held nearly seven months after the initial hearing, the trial court did not 

even mention Predmore’s right to counsel in conjunction with case No. 8-09-03 

but proceeded directly to adjudication. Even further, nothing in the record 

demonstrates that Predmore indicated his desire to waive counsel in case No. 8-

09-03. This further differentiates case No. 8-09-03 from case No. 8-09-04, for 

which Predmore signed an advisement-of-rights form at the initial hearing and 

executed waiver-of-counsel forms at both the initial and the adjudicatory hearing, 

albeit incomplete. Here, Predmore merely signed an advisement-of-rights form at 

the initial hearing. The Supreme Court of Ohio has expressly noted the dangers 

presented when a juvenile signs a form advising him of his right to counsel but is 

not orally advised of the right and questioned on his wishes regarding the right. 

See In re C.S. Additionally, we do not find that Predmore was presumed to 

understand that the admonishments concerning his right to counsel in case No. 8-

09-05 applied to case No. 8-09-03 as well, particularly given that he invoked his 

right to counsel in case No. 8-09-05. In light of the totality of circumstances 

present, as well as the strong presumption against waiver, we find that Predmore 

was not adequately advised of his right to counsel and the Logan County court 

erred in failing to appoint him counsel in case No. 8-09-03. 
Case No. 8-09-03, 04, 05 

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{¶36} Accordingly, we overrule Predmore’s first assignment of error as to 

case No. 8-09-04 but sustain the assignment of error as to case No. 8-09-03. 

Assignments of Error Nos. II and III 

{¶37} In his second assignment of error, Predmore contends that his 

admission to delinquency in case No. 8-09-04 was not knowing, intelligent, and 

voluntary. Specifically, Predmore argues that the Marion County court failed to 

inform him of his rights pursuant to Juv.R. 29 before it allowed him to proceed 

unrepresented and accepted his admission. In his third assignment of error, 

Predmore contends that both the Marion and Logan County courts erred in failing 

to appoint him a guardian ad litem in cases Nos. 8-09-03 and 8-09-04. 

Specifically, Predmore argues that because he had a conflict of interest with his 

parents, both courts should have appointed him a guardian ad litem pursuant to 

R.C. 2151.281(A) and Juv.R. 4(B). 

{¶38} Our disposition of Predmore’s first assignment of error renders his 

second and third assignments of error moot as to case No. 8-09-03, and we decline 

to address them as to that case. App.R. 12(A)(1)(c). 

{¶39} Regarding case No. 8-09-04, as we stated in our analysis of 

Predmore’s first assignment of error, we may not consider the transcript of the 

adjudicatory hearing in Marion County as the transcript did not comply with 

App.R. 9. Consequently, we will presume regularity of the trial court proceedings 
Case No. 8-09-03, 04, 05 

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and presume that Predmore was informed of his rights pursuant to Juv.R. 29, and 

we find no conflict of interest with his parents evident from the record properly 

before this court. See West, 2006-Ohio-5834, at ¶ 51, 53, citing App.R. 9(B); 

Estrada, 126 Ohio App.3d at 556. Further, the record of statement of rights in the 

record provides that that the magistrate read Predmore a statement of his rights 

under Juv.R. 29. 

{¶40} Accordingly, we overrule Predmore’s second and third assignments 

of error. 

Assignment of Error No. IV 

{¶41} In his fourth assignment of error, Predmore contends that the Logan 

County court violated his right to due process when it adjudicated him delinquent 

of burglary in case No. 8-09-05 absent proof of every element of the charge 

against him by sufficient, competent, and credible evidence. Specifically, 

Predmore argues that the state failed to prove beyond a reasonable doubt that he 

acted with force, stealth, or deception to gain entry to the victim’s home regarding 

the burglary charge. We disagree. 

{¶42} When an appellate court reviews a 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.’ ” State v. Monroe, 105 Ohio 
Case No. 8-09-03, 04, 05 

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St.3d 384, 2005-Ohio-2282, ¶ 47, quoting State v. Jenks (1981), 61 Ohio St.3d 

259, paragraph two of the syllabus, superseded by state constitutional amendment 

on other grounds as stated in State v. Smith (1997), 80 Ohio St.3d 89, 1997-Ohio355. Sufficiency is a test of adequacy, State v. Henry, 3d Dist No. 13-08-10, 

2009-Ohio-3535, ¶ 20, and the question of whether evidence is sufficient to 

sustain a verdict is one of law. State v. Robinson (1955), 162 Ohio St. 486, 

superseded by state constitutional amendment on other grounds as stated in Smith.

{¶43} Predmore was adjudicated delinquent on one count of burglary in 

violation of R.C. 2911.12(A)(4), which provides: 

(A) No person, by force, stealth, or deception, shall do any of the 

following: 

* * * 

(4) Trespass in a permanent or temporary habitation of any person 

when any person other than an accomplice of the offender is present 

or likely to be present. 

{¶44} R.C. 2913.01(A) defines “deception” as “knowingly deceiving 

another or causing another to be deceived by any false or misleading 

representation, by withholding information, by preventing another from acquiring 

information, or by any other conduct, act, or omission that creates, confirms, or 

perpetuates a false impression in another, including a false impression as to law, 

value, state of mind, or other objective or subjective fact.” Additionally, although 

the Revised Code does not define “stealth,” the Supreme Court of Ohio has set 
Case No. 8-09-03, 04, 05 

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forth the proper definition as “‘any secret, sly or clandestine act to avoid discovery 

and to gain entrance into or to remain within a residence of another without 

permission.’” State v. Ward (1993), 85 Ohio App.3d 537, 540, quoting State v. 

Lane (1976), 50 Ohio App.2d 41, 47. See also State v. Stone (Nov. 10, 1999), 5th 

Dist. No. 1999AP030012, 1999 WL 1072199; State v. LaFrance, 6th Dist. No. 

WD-04-025, 2005-Ohio-4882; State v. Stewart, 8th Dist. No. 86396, 2006-Ohio1072. 

{¶45} Here, Predmore argues that the state failed to prove beyond a 

reasonable doubt that he acted with force, stealth, or deception to gain entry to the 

victim’s home regarding the burglary charge. He argues that there was no 

evidence heard as to how he entered the home, even though Kennedy testified that 

he was in her home when she returned from driving her trash to the curb. 

However, evidence was heard that Predmore approached the 90-year-old victim, 

asking if he could do yard work for her. When the victim loaded trash cans into 

her car to drive around to the curb, as she customarily did, and returned ten to 15 

minutes later, Predmore was in her home walking down the stairs from the second 

floor. The victim never invited Predmore into her home. Predmore told the victim 

he had been using the restroom and told the investigating officer that the victim 

had invited him into the home to receive his check for the yard work. We find that 

this constituted sufficient evidence to establish that Predmore planned to 
Case No. 8-09-03, 04, 05 

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burglarize the victim under the guise of assisting her with yard work and waited to 

enter her home until she departed to move her trash cans. Thus, Predmore 

engaged in a “secret, sly or clandestine act to avoid discovery and to gain entrance 

into” Kennedy’s home without her permission. See Lane, 50 Ohio St.2d at 47. 

{¶46} Accordingly, we overrule Predmore’s fourth assignment of error. 

Assignment of Error No. V 

{¶47} In his fifth assignment of error, Predmore contends that he was 

denied effective assistance of counsel in case No. 8-09-05. Specifically, Predmore 

argues that trial counsel was ineffective for failing to move to dismiss the burglary 

charge because the state failed to prove he acted with force, stealth, or deception, 

and for failing to zealously advocate on his behalf. We disagree. 

{¶48} An ineffective-assistance-of-counsel claim requires proof that trial 

counsel’s performance fell below objective standards of reasonable representation 

and that the defendant was prejudiced as a result. State v. Bradley (1989), 42 Ohio 

St.3d 136, paragraph two of the syllabus. To show that a defendant has been 

prejudiced by counsel’s deficient performance, the defendant must prove that there 

exists a reasonable probability that but for counsel’s errors, the outcome at trial 

would have been different. Id. at paragraph three of the syllabus. “Reasonable 

probability” is a probability sufficient to undermine confidence in the outcome of 

the trial. State v. Waddy (1992), 63 Ohio St.3d 424, 433, superseded by 
Case No. 8-09-03, 04, 05 

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constitutional amendment on other grounds as recognized by State v. Smith 

(1997), 80 Ohio St.3d 89, 103. 

{¶49} Furthermore, the court must look to the totality of the circumstances 

and not isolated instances of an allegedly deficient performance. State v. Malone

(Dec. 13, 1989), 2d Dist. No. 10564, 1989 WL 150798. “Ineffective assistance 

does not exist merely because counsel failed ‘to recognize the factual or legal 

basis for a claim, or failed to raise the claim despite recognizing it.’” Id. at 4, 

quoting Smith v. Murray (1986), 477 U.S. 527, 535. 

{¶50} In our analysis of Predmore’s fourth assignment of error, we 

concluded that sufficient evidence was presented to demonstrate that he acted with 

force, stealth, or deception to gain entry to the victim’s home in conjunction with 

the burglary offense. Thus, we do not find that trial counsel was ineffective for 

failing to move to dismiss the charge because the state failed to prove this element. 

Additionally, although Predmore baldly asserts that trial counsel failed to 

zealously advocate on his behalf, he points to no other alleged errors of counsel, 

and we find none apparent from the record. 

{¶51} Accordingly, we overrule Predmore’s fifth assignment of error. 

{¶52} Having found error prejudicial to the appellant, in the particulars 

assigned in his first assignment of error regarding case No. 8-09-03, we reverse 

Predmore’s adjudication as a delinquent child for petty theft and one of his 90-day 
Case No. 8-09-03, 04, 05 

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commitments to JDC. Having found no error prejudicial to the appellant, in the 

particulars assigned regarding case Nos. 8-09-04 and 8-09-05, we affirm 

Predmore’s adjudication as a delinquent child for illegal possession of drug 

paraphernalia and burglary and, his other 90-day commitment to JDC and sixmonth minimum commitment to DYS. 

Judgment reversed and cause 

remanded as to case No. 8-09-03. 

Judgments affirmed as to 

case Nos. 8-09-04 and 8-09-05. 

 WILLAMOWSKI, P.J., concurs. 

SHAW, J., concurs in judgment only.