I respectfully dissent because I believe the majority has misapplied App.R. 18(C) to support the holding in this case.
The appellant is charged with consumption of alcohol in violation of R.C. 4301.632. There is no question that appellant did in fact consume alcohol on the date in question. Thus, to avoid a finding of guilty, the appellant must establish one of the affirmative defenses set forth in R.C. 4301.69. In pertinent part this section provides that no person shall furnish beer or intoxicating liquor to an underage person unless it is given by a physician in his practice or given for religious purposes, or the underage person is accompanied by a parent.
The appellant attempted to establish the defense that the alcohol he consumed was furnished to him by his parents. A careful reading of the stipulation will reveal that the affirmative defense is not established. Stipulation No. 3 proves only that appellant consumed the alcohol in the home of his parents. The plain language of R.C. 4301.69 requires that a parent be present when the alcohol is furnished to the underage person. There is nothing in the statute that varies this requirement when the alcohol is furnished in the home of the parents. Under the statute it is essential that a parent be present when the alcohol is furnished to the *Page 246 underage person if that affirmative defense is to be established. Since this essential fact is not in the stipulation,2 I conclude that appellant has failed to establish his affirmative defense.
Appellant apparently recognized the deficiency in the stipulation and attempted to cure this flaw by stating in his brief that he consumed the alcohol with the permission of his parents. The majority accepts this additional fact under the authority of App.R. 18(C) and holds that the affirmative defense is established. This is not a proper application of the appellate rule. It is never proper to add facts to the record after the case has been decided in the trial court. This court must review the same record that was before the trial court when that court reached its decision. See Phung v. Waste Mgt., Inc. (1986), 23 Ohio St.3d 100, 102, 23 OBR 260, 261, 491 N.E.2d 1114, 1116.
App.R. 18(C) is not a license to add facts to the record at the appellate level. App.R. 16(A)(6) and 16(D) require the statement of facts in a brief to contain references to the record, indicating that the statement of facts must come from the evidence in the trial court. The purpose of App.R. 18(C) is to allow this court to accept the appellant's version of disputed facts presented in the trial court if the appellee neglects to file a brief. Thus, if there is a dispute in the facts in the trial court about which litigant had the green light in an intersection accident, this court could accept the appellant's version of the facts on that point under App.R. 18(C) if the appellee failed to file a brief. However, an appellate court may not assume the truth of assertions in a brief which are unsupported by the record. Phung,23 Ohio St.3d at 102, 23 OBR at 261, 491 N.E.2d at 1116.
It is defendant's burden to establish his affirmative defense. Appellant failed to do this. Thus, although the wrong reason was assigned to support the finding of guilt, the trial court was correct in finding appellant guilty of the offense charged.
I would affirm the conviction and sentence of the trial court.
2 It is apparent that the majority has misconstrued the plain language of the stipulation. The parties agreed only that appellant consumed alcohol in his parents' home (stipulation No. 3), and that he did not consume alcohol outside the home in his parents' presence (stipulation No. 4). Nowhere is it stipulated that the alcohol which appellant admits consuming was consumed in his parents' presence, or with their permission, or that the alcohol was given to him by his parents. See R.C. 4301.69. *Page 247