Defendant-appellant Marc A. Fenster appeals from his
38 conviction following a jury trial in Berea Municipal Court for
39 allowing underage persons to remain in his residence while
40 possessing or consuming beer or intoxicating liquor in violation of
41 R.C. 4301.69(B). Defendant claims error in that he was deprived of
42 due process and did not receive a fair trial because his privilege
43 against self incrimination was violated; the prosecutor was guilty
44 of misconduct; he was denied effective assistance of counsel; and
45 the evidence was insufficient to establish the violation. We find
46 no reversible error and affirm.
47 On the evening of May 9, 1997, defendant Fenster, age 51, was
48 at his residence located at 325 Berea Street, Apt. C., Berea, Ohio.
49 At or about 7:00 p.m., a group of approximately fifteen juveniles
50 ranging in age from thirteen to fifteen gathered at the neighboring
51 apartment of a Mr. James Hill to celebrate his son's birthday.
52 Sometime between 7:00 p.m. and 8:00 p.m., the party moved out of
53 the Hill apartment onto the lawn and porch of the apartment
54 building. It was at this time that a group decision was made to
55 go to Fenster's.
56 The group proceeded to shout and knock on the door of
57 defendant who allowed the adolescents into his apartment. The
58 juveniles remained in defendant's apartment for the next two and
59 one-half to three hours. Three juveniles testified that the group
60 had remained in the apartment during this time period and drank
61 beer out of forty ounce bottles. All three juveniles also
62 -3-
63 testified that defendant was sitting on the couch with them as they
64 were drinking the beer. One of the juveniles testified that the
65 defendant brought out two forty ounce bottles of beer, cigars and
66 cigarettes and handed them out to the juveniles. The defendant, on
67 the other hand, testified that he never saw any beer that night
68 being consumed by the juveniles, nor did he see any cigars or
69 cigarettes. Defendant further testified that there was only a half
70 bottle of beer in his refrigerator that night which later
71 disappeared.
72 During the time the juveniles were in the apartment, they
73 damaged the carpeting, threatened to break the television and
74 temporarily took possession of the keys to defendant's car. After
75 the juveniles left, defendant discovered that the half bottle of
76 beer which was in his refrigerator was missing. Based on the
77 discoloration of his fish tank, he assumed that the contents of the
78 bottle (approximately twenty ounces) had been poured into the
79 aquarium.
80 Based on previous inadequate police response to similar
81 incidents, defendant did not place a call to the police. Instead,
82
defendant, who had a history of psychological problems, tried to
83 manage the situation as best he could in the hopes that the
84 juveniles would decide to leave the apartment. Later that night,
85 parents of some of the youths reported the episode to the police
86 resulting in the charges.
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