This is an appeal by defendant-appellant, James E. Mihm ("appellant") from the judgment of the Van Wert Municipal Court, finding him guilty of underage consumption of alcohol in violation of R.C. 4301.632, a misdemeanor in the first degree. *Page 243
Appellant and the state1 stipulated to the following facts:
"1. James E. Mihm [appellant] is (a) resident in [sic] the State of Ohio, County of Van Wert and was born on June 1, 1974.
"2. That Defendant was charged with violating ORC 4310.632, Underage Consumption, for consuming alcohol on or about June 23, 1993.
"3. That Defendant did consume some alcohol at his home and home of his parents on or about June 23, 1993, and departed with some friends to attend a concert in Fort Wayne, Indiana.
"4. At no time did Defendant consume any alcoholic beverage outside the confines of his parents home [sic] in the presence of his parents.
"5. After attending the concert in Fort Wayne, Indiana, the vehicle in which Defendant was riding was stopped by the Van Wert Sheriff's Department and some of the occupants, including Defendant, were giving [sic] an alcohol test by the Portable Alcohol Test Unit, which disclosed that the Defendant had consumed some alcohol by giving an indication of a solid green light.
"6. At the time that the vehicle was stopped, the Defendant was not with his parent or parents."
In addition to the above stipulations, appellant, in his brief, stated that he consumed the alcoholic beverages with his parent's permission. As the state failed to file a brief in this matter, we are adopting appellant's facts as true and correct. See App.R. 18(C).
Appellant pled "no contest" based upon the above stipulated facts and the trial court found him guilty. The trial court then sentenced appellant to sixty days in jail (fifty suspended), two years' probation with a condition that he have weekly contact with the Alcohol Center for one year, and a fine of $400 with credit up to $200 paid for counselling.
It is from this judgment that appellant now timely appeals and asserts the following sole assignment of error.
ASSIGNMENT OF ERROR "The trial court erred in finding defendant-appellant guilty of underage consumption of alcohol."
Appellant asserts that the trial court could not find him guilty of underage consumption when he has an affirmative defense contained in R.C. 4301.69, offenses involving underage persons. *Page 244
R.C. 4301.632 states:
"Except as otherwise provided in this chapter, no person under the age of twenty-one years shall order, pay for, share the cost of, or attempt to purchase any beer or intoxicating liquor, or consume any beer or intoxicating liquor, either from a sealed or unsealed container or by the glass or by the drink, or possess any beer or intoxicating liquor, in any public or private place."
R.C. 4301.69 states:
"(A) Except as otherwise provided in this chapter, no person shall sell beer or intoxicating liquor to an underage person, or buy beer or intoxicating liquor for, or furnish it to, an underage person, unless given by a physician in the regular line of his practice or given for established religious purposes, or unless the underage person is accompanied by a parent, spouse who is not an underage person, or legal guardian."
The sole question presented on appeal is whether appellant's consumption of an alcoholic beverage with his parent's permission in the confines of his parent's residence is an affirmative defense to underage consumption when the minor has left the control of his parents. For the reasons below, we reverse the judgment of the trial court.
In State v. Kirby (1972), 34 Ohio Misc. 18, 61 O.O.2d 273,292 N.E.2d 336, the trial court stated that the intent of the legislature in enacting the statute forbidding the sale or furnishing of alcoholic beverages to a minor except by a physician, parent or legal guardian was to protect minors from being furnished alcoholic beverages by irresponsible persons when there was not anyone present or available who was legally invested with the power and charged with the duty of taking care of and acting in the best interest of the minor.
R.C. 4301.69 does not prohibit a parent or legal guardian from furnishing alcoholic beverages to a minor. See State v.Ellis (1989), 64 Ohio App.3d 158, 167, 580 N.E.2d 1112, 1117.
Herein, there is no dispute that appellant only consumed the alcoholic beverage in his parents' residence with their permission. The trial court found that the affirmative defense was not applicable once the minor left the control of his parents. The trial court stated in its journal entry:
"The Court finds that the affirmative defense contained in the Ohio Revised Code 4301.69 of consuming or possessing alcohol while in the presence of a parent or legal guardian is waived when the underage youth removes himself from being in the presence and control of the parent or guardian. If such were not the case(,) this Defendant would have to be found Not Guilty under the stipulations. The Court finds that that [sic] such analysis would allow an under age [sic] youth *Page 245 to consume to the point of being under the influence, leave his parent's control, go into the public, and not be in violation of any O.R.C. statute. * * *"
The trial court's reasoning that the affirmative defense is waived once a minor is no longer under the control of his parents is not persuasive. It is true that the minor could not be found guilty under R.C. Chapter 4301; however, the minor could be found guilty under other criminal statutes (e.g., driving under the influence or public intoxication).
In order to find appellant guilty of underage consumption, the state needs to demonstrate that he consumed alcohol and that an affirmative defense is not applicable. The facts, herein, establish that appellant did not consume any alcohol outside the presence or permission of his parents. Therefore, the state has failed to establish that appellant consumed any alcoholic beverage outside the scope of the affirmative defenses contained in R.C. 4301.69. Consequently, the judgment of the trial court is reversed and this cause is hereby remanded to the trial court for dismissal of the charge.
Judgment reversedand cause remanded.
THOMAS F. BRYANT, J., concurs.
EVANS, P.J., dissents.
1 The state did not file a brief in this matter.