author: WOLOHOJIAN, J.

text:
    Guiseppe BALISTRERI v. Janine M. BALISTRERI.
    No. 17-P-1107
    Appeals Court of Massachusetts, Middlesex..
    Argued March 8, 2018 Decided June 29, 2018
    Brian J. Kelly, Sharon, for the wife.
    Mark L. Nestor, Gloucester, for the husband.
    Present: Wolohojian, Agnes, & Englander, JJ.
   WOLOHOJIAN, J.

The alimony reform act defines "length of the marriage" as the "number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support." G. L. c. 208, § 48, inserted by St. 2011, c. 124, § 3. At issue is how to apply this language where there are multiple support complaints (none resulting in a spousal support judgment), a predivorce complaint for modification that led to a spousal support judgment, a divorce complaint that did not lead to judgment, and a divorce complaint upon which judgment entered awarding alimony. We hold that, where there are one or more predivorce-judgment complaints (whether for support, modification, or divorce) that result in a judgment of spousal support, it lies within the judge's discretion-taking into account the totality of the circumstances-to determine which of these pleadings is to be used to calculate the length of a marriage for purposes of the alimony reform act (act or alimony reform act).

Background. The parties had a child in 1994 and were married on March 26, 1995. From October 1996 through April 2000, the wife filed two complaints for support and a complaint for divorce. The details of these various complaints are set out in the margin; of importance for our purposes here is that none of them led to a judgment.

On January 11, 2005, the wife filed a complaint for separate support that, based on the parties' agreement, led to a judgment requiring the husband to pay $400 each week in child support. No spousal support was awarded or agreed to.

On June 11, 2008, the wife filed a complaint for modification, seeking to modify the 2005 support judgment to require the husband to cover health costs for her and the child, and to pay spousal support. On July 31, 2009, a partial modification judgment entered in accordance with the parties' agreement with respect to all issues except spousal support. Because there was no agreement with respect to spousal support, the judge bifurcated that issue and scheduled it for trial.

After trial, the judge entered a supplemental judgment of modification which (1) restated the husband's existing child support obligation of $400 weekly, and (2) required the husband to pay $273.25 weekly to the wife as alimony until (a) the death of either party, (b) the wife's remarriage, (c) entry of an inconsistent divorce judgment, or (d) modification of the judgment.

On April 14, 2011, the husband filed a complaint for divorce pursuant to G. L. c. 208, § 1B, citing an irretrievable breakdown of the marriage. Judgment on this complaint entered on April 6, 2014, awarding the wife $298 weekly in alimony to terminate either in seventy months, or upon her remarriage, or either party's death. The wife appealed.

On appeal, a panel of this court vacated the alimony award because it was unclear whether the judge had intended to calculate the duration of the marriage by using the service date of the 2005 support complaint or of the 2011 divorce complaint, and remanded the case for reconsideration of that issue. We otherwise affirmed the judgment. See Balistreri v. Balistreri, 89 Mass. App. Ct. 1106 (2016).

The court held a trial on the issue remanded as well as additional matters not pertinent to this appeal. As relevant for our purposes here, the judge found that the parties did not "continue[ ] to have a relationship" after February 2, 2005-the date on which child support was first ordered. For this reason, the judge found that "it is appropriate that the length of the marriage be determined from the date of the service of the [c]omplaint" that led to that award of child support. The judge did not have the benefit of Sbrogna v. Sbrogna, 92 Mass. App. Ct. 639, 91 N.E.3d 1175 (2018), at the time of her decision.

Discussion. The alimony reform act limits the duration of general alimony by pegging it to the "length of the marriage," G. L. c. 208, § 49(b ), a phrase defined as "the number of months from the date of legal marriage to the date of service of a complaint or petition for divorce or separate support." G. L. c. 208, § 48. This language is in the disjunctive, see Miller v. Miller, 448 Mass. 320, 329, 861 N.E.2d 393 (2007) ("It is fundamental to statutory construction that the word 'or' is disjunctive ..." [citation omitted] ), meaning that either a qualifying support complaint or a qualifying divorce pleading may serve as the terminal event for purposes of the § 48 definition. The definition places both types of pleadings (divorce and support) on equal footing for its purposes; neither is given priority or additional weight, whether by virtue of earlier service, filing, or otherwise. See Chin v. Merriot, 470 Mass. 527, 537, 23 N.E.3d 929 (2015), quoting from Commissioner of Correction v. Superior Ct. Dept. of the Trial Ct. for the County of Worcester, 446 Mass. 123, 126, 842 N.E.2d 926 (2006) (court will not "read into the statute a provision which the Legislature did not see fit to put there"). Thus, assuming that more than one particular pleading qualifies for inclusion, the Legislature has chosen to allow each of them to be considered for purposes of § 48. This straightforward reading of the statutory language, however, begs two questions. The first is which pleadings qualify to be considered. The second is how to choose among competing qualifying pleadings. We reached a partial answer to the first question in Sbrogna. In that case, the husband filed a divorce complaint under G. L. c. 208, § 1B, that ultimately became inactive and upon which judgment never entered. Later, the parties filed a joint divorce petition under G. L. c. 208, § 1A, that led to a divorce judgment awarding alimony. On those facts, we held that the legally relevant divorce pleading for purposes of calculating the "length of the marriage" under G. L. c. 208, § 48, was the one upon which the divorce judgment entered. Sbrogna, 92 Mass. App. Ct. at 643, 91 N.E.3d 1175. We stated that "[t]o read the statute otherwise would lead to the nonsensical result that service of a pleading that leads neither to a valid divorce nor to an alimony award could nonetheless serve as the basis for calculating the length of a marriage and the duration of alimony, even if the parties reconciled and lived together for decades before ultimately divorcing" (emphasis supplied). Id. at 642, 91 N.E.3d 1175. Although Sbrogna involved only divorce pleadings, we see no reason why its reasoning should not apply with equal force to support complaints. Thus, we conclude that a support complaint that results in a judgment awarding spousal support qualifies to be considered for purposes of § 48, but that a support complaint that does not result in such a judgment does not.

Our conclusion that the Legislature's reference in § 48 to a "support complaint" encompasses only those resulting in a judgment awarding spousal support (as opposed to support judgments awarding other forms of relief, such as child support or health care costs) is buttressed by the over-all purpose and reach of the alimony reform act. See Chin, supra (court will not read provisions into statute). The act is limited to alimony, its provisions do not have "general or unlimited application outside the arena of alimony," and the definitions contained in § 48 do not apply outside of §§ 49 through 55 of the act.

Valaskatgis v. Valaskatgis, 87 Mass. App. Ct. 756, 757, 34 N.E.3d 1264 (2015). The act is not concerned, for example, with the division of marital assets, id. at 758, 34 N.E.3d 1264, quoting from Kittredge v. Kittredge, 441 Mass. 28, 43, 803 N.E.2d 306 (2004) (definitions of § 48 do not restrain judge's broad discretion to "weigh[ ] and balanc[e] ... the § 34 factors, and the resulting equitable division of the parties' marital property"), nor does it provide for child support. There is simply no indication that the Legislature intended to include within the definition of § 48 complaints that do not result in spousal support judgments. Nor would it make any sense to read the statute to encompass such complaints; otherwise, an award of temporary child support or health care under G. L. c. 208, § 19 (which is outside the alimony reform act) could, for example, inexplicably and illogically reduce the duration of alimony awarded at the time of divorce. Since even temporary alimony awards under G. L. c. 208, § 17, do not reduce the presumptive maximum duration of alimony under the act, see Holmes v. Holmes, 467 Mass. 653, 659, 6 N.E.3d 1062 (2014), there is even less reason for other types of support judgments to do so.

Before proceeding further, we pause to apply the principles we have set out above to the various pleadings that were filed in this case. The husband's April 14, 2011 divorce complaint is the pleading upon which the divorce judgment (including an alimony award) entered. It therefore qualified to be considered as the terminal date of the "length of the marriage" for purposes of § 48. The wife's January 11, 2005 separate support complaint led only to a judgment ordering child support. That complaint, therefore, cannot serve as a terminal date of the "length of the marriage" for purposes of § 48. By contrast, the wife's June 11, 2008 complaint for modification resulted in a judgment awarding spousal support. Although we acknowledge that § 48 does not refer to modification complaints, we conclude from the over-all structure and intent of the section and of the alimony reform act as a whole, see Zaleski v. Zaleski, 469 Mass. 230, 239-240, 13 N.E.3d 967 (2014), that a predivorce-judgment complaint for modification that results in an award of spousal support can qualify as the terminal date for the length of the marriage under § 48. Cf. Flor v. Flor, 92 Mass. App. Ct. 360, 366, 84 N.E.3d 877 (2017) (alimony award made on postdivorce modification complaint related back to divorce judgment because parties' separation agreement reserved right to future alimony). Thus, there were two qualifying complaints the judge could consider for purposes of § 48 : the husband's April 14, 2011 divorce complaint, and the wife's June 11, 2008 complaint for modification.

Where, as here, there is more than one qualifying pleading, it is within the judge's discretion to determine-taking into account the totality of the circumstances-which of them should be used to calculate the length of the marriage for purposes of § 48. See G. L. c. 208, § 48 (judge has discretion to increase length of marriage where marital partnership began during period of cohabitation). See also G. L. c. 208, § 53(a ) (in determining appropriate duration of alimony, judge may consider other factors that are "relevant and material"); Holmes, supra at 660, 6 N.E.3d 1062 (judge has discretion to reduce duration of alimony below presumptive maximum where temporary alimony has been paid for unusually long period of time or recipient spouse has unfairly delayed final resolution); Duff-Kareores v. Kareores, 474 Mass. 528, 538, 52 N.E.3d 115 (2016) (judge retains discretion under § 48 for period of premarital cohabitation). As noted above, the statute itself does not give any priority or weight to one particular qualifying pleading or the other; thus, although the temporal sequence of the pleadings may be considered as a factor, it is not necessarily dispositive. Instead, the judge should consider the totality of the circumstances to determine which is the appropriate pleading to use.

In other circumstances, we would remand to allow the judge to exercise discretion in the first instance as to which of the two qualifying pleadings in this case to use as the terminal date for purposes of § 48. Here, however, we already have the judge's detailed findings after trial, which included an explicit finding that she did not credit the wife's testimony that the parties lived together after 2005, and also her ultimate discretionary assessment not to use the divorce complaint as the terminal date of the marriage for purposes of § 48. We see no abuse of discretion in the judge's rejection of the divorce complaint as the appropriate event, and therefore there is no cause for remand. That said, for the reasons set out above, it is the service date of the complaint for modification-not the service date of the complaint for support-that should have been used to calculate the length of the marriage, resulting in a marriage of 159 months, and a presumptive duration of alimony of 111 months under G. L. c. 208, § 49(b )(3).

We briefly address the wife's remaining argument that her constitutional due process rights were violated when the judge, on the basis of spousal disqualification, did not permit her to testify to conversations she had with the husband after 2009. See Mass. G. Evid. § 504(b)(1) (2018). In essence, her argument is that no spousal disqualification could exist after the terminal date of the marriage under § 48. However, as we have previously held, "the § 48 definition of 'length of the marriage' applies only when the phrase appears" in the provisions of the alimony reform act. Valaskatgis, 87 Mass. App. Ct. at 757, 34 N.E.3d 1264. For all other purposes, the common-law rule remains that a marriage is not over until the divorce judgment becomes absolute. See Ross v. Ross, 385 Mass. 30, 35, 430 N.E.2d 815 (1982) ; Sbrogna, 92 Mass. App. Ct. at 642, 91 N.E.3d 1175.

We remand with instructions that the duration of alimony awarded in the supplemental judgment of divorce be amended to conform with this opinion. In all other respects, the judgment is affirmed.

So ordered.

      We note that all three of the wife's complaints were on preprinted forms of the Probate and Family Court. The first and third were entitled "[c]omplaint for [s]eparate [s]upport;" the second was entitled "[c]omplaint for [s]upport." Whatever distinction there may be between the two names is immaterial to our analysis.

      The record does not contain the service date for any of the various pleadings. However, neither party challenges the fact of service, and we thus accept that the various pleadings were timely and properly served.

      In October 1996, the wife filed a complaint for separate support after obtaining a restraining order against the husband. The complaint alleged that the parties had last lived together three days earlier (when, apparently, the husband had been taken into custody for four days following his arrest). No support judgment entered on this complaint, which appears to have been dismissed.
      On May 27, 1997, the wife filed a complaint for divorce under G. L. c. 208, § 1B, citing an irretrievable breakdown of the marriage. The complaint alleged that the parties were still living together. No judgment entered on this complaint, which was dismissed under rule 408 of the Probate and Family Court Rules in 2002 due to inactivity.
      On April 20, 2000, the wife filed a complaint for support pursuant to G. L. c. 209, § 32F. The complaint alleges that the husband did not reside in the marital home. No judgment entered, and the complaint appears to have been dismissed.

      The complaint alleged that abuse prevention orders had entered in 2004 and 2005, and that the husband resided in Gloucester while the wife remained in the marital home in Everett.

      On June 3, 2005, the wife filed a complaint for divorce under G. L. c. 208, § 1B, citing cruel and abusive treatment. The complaint alleged that the parties had last lived together in Everett on April 10, 2005, approximately two months earlier. This complaint was dismissed, apparently due to inactivity.

      The complaint alleged as a change in circumstances that the husband refused to pay health expenses and "refuses to maintain current expenses."

      Also on June 11, 2008, the wife filed a contempt complaint alleging that the husband had failed to comply with the 2005 support judgment.

      Specifically, the parties agreed that the husband was in arrears on his child support obligation, setting a payment schedule for the arrearage, requiring the husband to provide medical and dental insurance for the wife and child, and requiring the husband to pay all uninsured health costs.

      The judge found that the parties had not "lived together" after February 2, 2005, the date of the judgment of separate support, and accordingly that they "lived together" for less than 118 months.

      Specifically, the husband filed a modification complaint seeking to terminate his child support obligation as well as medical coverage for the child. The mother filed a counterclaim for modification seeking an increase in alimony and other relief.

      On this basis, the judge concluded that the length of the marriage was 118 months, and awarded seventy months of alimony.

      Sbrogna was decided after briefing in this appeal was complete, but before oral argument. We requested, and received, postargument supplemental briefing on the decision's application to this case.

      We also held that, despite the fact that the § 48 definition hinges upon the "date of service," divorces initiated by joint petition (which do not require service) nonetheless are within the statute's reach. See Sbrogna, 92 Mass. App. Ct. at 643, 91 N.E.3d 1175.

      Even within the field of alimony, the act did not result in a wholesale displacement of our existing law. For example, it did not "displace or ... alter our established legal principle that surviving alimony obligations are not subject to modification." Lalchandani v. Roddy, 86 Mass. App. Ct. 819, 822, 22 N.E.3d 166 (2015). See Van Arsdale v. Van Arsdale, 477 Mass. 218, 219, 75 N.E.3d 1123 (2017), quoting from G. L. c. 208, § 48 ("The act changed neither the essential purpose nor the basic definition of alimony: 'the payment of support from a spouse, who has the ability to pay, to a spouse in need of support' "); Hassey v. Hassey, 85 Mass. App. Ct. 518, 524, 11 N.E.3d 661 (2014) (same).

      The husband's argument that the duration of alimony is to be reduced by the duration of predivorce spousal support was rejected in Holmes, supra at 659-660, 6 N.E.3d 1062. Neither of the exceptions identified in Holmes were found by the judge. Specifically, the judge did not find either "that temporary alimony ha[d] been paid for an unusually long period of time or that the recipient spouse ha[d] unfairly delayed final resolution of the case in an attempt to prolong the payment of alimony." Id. at 660, 6 N.E.3d 1062.

      At oral argument, the wife waived her contention that the judge exceeded the scope of our previous remand order by revisiting the issue of health insurance. We therefore do not consider the issue.


source: Caselaw Access Project

author: ENGLANDER, J.

license: Public Domain

text:
    COMMONWEALTH v. Carlos SILVA.
    No. 16-P-867.
    Appeals Court of Massachusetts, Worcester..
    Argued March 2, 2018. Decided July 20, 2018.
    Michael L. Tumposky, Boston (Andrew Courossi also present) for the defendant.
    Nathaniel R. Beaudoin, Assistant District Attorney, for the Commonwealth.
    Present: Wolohojian, Massing, & Englander, JJ.
   ENGLANDER, J.

The defendant was convicted by a Superior Court jury of separate incidents of indecent assault and battery on three of his step-granddaughters. During trial, a fourth alleged victim, one of the defendant's daughters, took the stand and gave some testimony that was inculpatory to the defendant, but ultimately balked and was relieved from testifying further on self-incrimination grounds. The trial judge accordingly struck all of the daughter's testimony, instructed the jury to disregard it, and denied the defendant's motion for a mistrial. The defendant appeals, claiming, among other grounds, that a mistrial was required because the daughter's testimony was "ineradicable" from the minds of the jurors. Because the judge did not abuse his discretion in denying a mistrial, and because there was no other reversible error, we affirm.

1. Background. We recite the material facts in the light most favorable to the Commonwealth. The defendant was charged, inter alia, with multiple counts of indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B, as to four separate alleged victims; the defendant was also charged with one count of rape of one of the victims. As discussed below, while there were some factual differences in the allegations as to each victim, all accused the defendant of indecent touching beginning when they were around four years old, and continuing for many years.

a. Trial testimony. The charges as to all four victims were joined for trial, and the judge denied the defendant's motion to sever. The sequence of trial witnesses then proceeded as follows.

i. Maria. The first trial witness was Maria, a victim who was nineteen years old at the time of trial. Maria testified to a number of occasions where the defendant, her step-grandfather, touched her in way that made her feel "uncomfortable."

The first incident Maria described occurred in the defendant's bedroom in his home in Milford when Maria was about six years old. She stated that the defendant "lure[d]" her upstairs by whispering her name, and that the defendant then touched her vagina over her clothes.

Maria testified that the touchings continued at the defendant's home in Bellingham, from when she was seven or eight years old until she was thirteen years old. Maria remembered one particular occurrence when the defendant led her into the basement, placed her up on a ledge, and rubbed her vagina over her favorite shorts, which were ruined because the defendant had motor oil on his hands.

Finally, Maria testified that when she was a sophomore in high school, on the morning of Thanksgiving she woke up to the defendant licking the right side of her ear, inserting his fingers inside her vagina, and continuously saying, "Give me your pussy." When Maria realized what was occurring she became angry, pushed the defendant off of her, and yelled at the defendant; the defendant then left the room.

ii. Karen and the motion for a mistrial. The next witness was Karen, the defendant's daughter, an alleged victim who was eighteen at the time of trial. After answering some initial questions posed by the prosecutor, Karen remained silent in response to questions regarding the defendant's conduct, as follows:

PROSECUTOR : "Has [the defendant] ever touched you in a way that made you feel uncomfortable?"
KAREN : "Well, like ..."
PROSECUTOR : "Has he ever touched you in a sexual way that's made you feel uncomfortable?"
(Pause.)
...
PROSECUTOR : "So, let me narrow the time frame. Prior to 2012, when you were a young child living with your father, did he ever touch you in a sexual way that made you feel uncomfortable?"
(Pause.)
PROSECUTOR : "Would you like a glass of water?"
(Pause.)
PROSECUTOR : "Let me withdraw that question, and ask you, [Karen], how do you feel about testifying today?"
KAREN : "I don't want to.... Because I just ... don't feel comfortable doing this.... I don't feel comfortable testifying against my own father."
...
PROSECUTOR : "Well, let me just ask you that question again, then: did [the defendant] ever touch you in a sexual way that made you feel uncomfortable?"
(Pause.)
DEFENSE COUNSEL : "Your Honor, may we approach ..., please?"
THE COURT : "Yes."

There were four separate pauses in this testimony, and the judge stated that each of them lasted one to one and one-half minutes. When the prosecutor resumed questioning, Karen stated that she did not remember if her father had "touched [her] in a sexual way." The prosecutor then sought to refresh Karen's memory by showing her grand jury testimony to her, after which Karen stated that her memory was refreshed but also that she could not remember if her father had sexually abused her as a child:

PROSECUTOR : "After reading that, is your memory refreshed as to withhold on [sic ] [the defendant] sexually assaulted you as a child?"
KAREN : "Yes."
PROSECUTOR : "So, has your father, [the defendant], ever sexually abused you as a child?"
KAREN : "I said 'yes', so -- I don't remember --"
PROSECUTOR : "I didn't hear you; I'm sorry, [Karen]."
KAREN : "I said 'I said "yes," but I don't remember.' "
PROSECUTOR : "Okay; but then I asked you if your memory was refreshed, and you said yes."
KAREN : "I said yes, but I just .... I can't remember, but I said yes."

Karen's testimony was then suspended. Counsel was appointed, who informed the court the following day that Karen would be invoking her privilege under the Fifth Amendment to the United States Constitution. The judge conducted a hearing pursuant to Commonwealth v. Martin, 423 Mass. 496, 504-505, 668 N.E.2d 825 (1996), after which he determined that Karen had properly invoked her Fifth Amendment right and would not be compelled to testify. The result of these actions was that Karen was excused, her testimony was terminated midstream, and she was never cross-examined.

The defendant moved for a mistrial. Defendant's counsel argued that the pauses in Karen's testimony were "the most prejudicial and pregnant pauses [she had] ever seen in the history of ... trying cases." She argued that this prejudice was heightened because in the Commonwealth's opening statement the prosecutor had previewed Karen's anticipated testimony. Defense counsel also pointed out that she had been unable to cross-examine Karen, and that she had useful cross-examination material because Karen had previously recanted to a defense investigator. The judge denied the motion for a mistrial. He agreed that the circumstances were "unfortunate," but believed that they could not "have been dealt with any other way than bringing [Karen] up to the stand."

The judge instead addressed the situation with a curative instruction, as follows:

"Yesterday, you saw that [Karen] was on the stand, and she is no longer going to testify. You are to make no inference against [the defendant] as [sic ] the reason for [Karen's] absence. You are to disregard [Karen's] testimony in its entirety, and disregard any reference to [Karen's] allegations entirely. You may not consider any reference to [Karen's] prior testimony or her demeanor while on the witness stand. You shall strike it from your memories as if she never testified and will never testify in this trial, and you shall not speculate as to the reason for that. The reason was a legal ruling on my part, so you shall not speculate any further on that, and you shall not consider it at all in your deliberations." (Emphasis supplied.)

iii. Naomi and Laura. Following Karen's appearance, both Naomi and Laura testified. Each of them was a step-grandchild of the defendant, as was Maria, the first witness.

Naomi was eighteen years old at the time she testified. She testified that the defendant began touching her in a way that made her feel uncomfortable when she was four years old, at the defendant's house in Milford. She testified to multiple instances where the defendant touched her buttocks and vagina with his hands over her clothes. She also testified to a specific occasion when she was nine years old, in the basement of the defendant's home in Bellingham, where he zipped down her jacket, stared at her breasts, and touched her vagina under her clothes with his hand.

Laura was fifteen years old at the time of her testimony. Laura testified that the defendant touched her multiple times in a way that made her feel uncomfortable, from when she was four years old until she was eight years old. She also testified to two specific incidents that occurred at the home in Bellingham. One of those occurred in the defendant's bedroom. Laura testified that she found the defendant lying on his back in bed in just his underwear. The defendant asked her to give him a hug, and when she did the defendant put his hands on her buttocks and "made [her] move up and down on him."

b. Verdicts. The jury found the defendant guilty, inter alia, of multiple counts of indecent assault and battery on a child, with respect to each of Maria, Naomi, and Laura. The jury also found the defendant guilty of rape with regards to Maria. The defendant appeals.

2. Discussion. a. Motion for a mistrial/Karen's testimony. The defendant first argues that Karen's testimony and the events surrounding it were so prejudicial that a mistrial was required. Picking up on language from one of our cases, the defendant argues that despite the judge's instruction to disregard Karen's testimony in its entirety, here the prejudice was "ineradicable." See Commonwealth v. Thad T., 59 Mass. App. Ct. 497, 508, 796 N.E.2d 869 (2003) ("Only a compelling showing of ineradicable prejudice would cause us to conclude that the judge's instructions to disregard [the witness's] testimony were inadequate").

We review the denial of a motion for a mistrial for abuse of discretion. See Commonwealth v. Santana, 477 Mass. 610, 625, 82 N.E.3d 986 (2017), citing Commonwealth v. Gallagher, 408 Mass. 510, 517, 562 N.E.2d 80 (1990). The test is not whether we would have made a different decision, but whether the judge "made 'a clear error of judgment in weighing' the [relevant] factors" such that his decision "falls outside the range of reasonable alternatives." Commonwealth v. Bryan, 476 Mass. 351, 357, 67 N.E.3d 705 (2017), quoting from L.L. v. Commonwealth, 470 Mass. 169, 185 n.27, 20 N.E.3d 930 (2014). Further, "[w]hen a jury have been exposed to inadmissible evidence, the judge may rely on a curative instruction to correct any error and to remedy any prejudice." Commonwealth v. Durand, 475 Mass. 657, 668, 59 N.E.3d 1152 (2016) (quotation omitted).

We discern no abuse of discretion in the denial of the motion for a mistrial. Without doubt, Karen's testimony, and the events surrounding it, needed to be addressed by the judge. The lengthy pauses by Karen, the prosecution's effort to refresh her recollection with grand jury testimony, and the fact that Karen left the stand without being cross-examined certainly held the potential for unfair prejudice. The jury could well have inferred from Karen's abbreviated testimony that she had previously testified that her father had abused her, but that she no longer was willing to testify against him. This possibility of prejudice was exacerbated because the jury had heard, in the prosecutor's opening, about some of Karen's expected testimony.

Here, however, the trial judge acted forcefully to avert this potential prejudice. The judge struck Karen's testimony in its entirety, and instructed the jury to "strike it from your memories as if she never testified." The instruction was clear and direct. In law, Karen's testimony did not exist for purposes of the defendant's trial. "As long as the judge's instructions are prompt and the jury do not again hear the inadmissible evidence ... a mistrial is unnecessary." Durand, supra, quoting from Commonwealth v. Garrey, 436 Mass. 422, 435, 765 N.E.2d 725 (2002).

The defendant argues, however, that the jury could not put the testimony out of their minds despite the judge's instruction. But the fundamental difficulty with the defendant's contention is that it requires this court to conclude that the jury did not follow the judge's very specific instruction to disregard all of Karen's testimony. Such a conclusion would be at odds with both our case law and our basic assumptions about how jurors perform their function. Jurors are presumed to follow the law as instructed. See Commonwealth v. Williams, 450 Mass. 645, 651, 880 N.E.2d 768 (2008) ("Jurors are presumed to follow a judge's instructions, including instructions to disregard certain testimony"). Indeed, our jury system is in many ways built on this assumption-on the structure that the judge provides the law, and that the jurors then follow that law. See Commonwealth v. Leno, 374 Mass. 716, 719, 374 N.E.2d 572 (1978). "[We] shall not assume that jurors will slight strong and precise instructions of the trial judge to disregard the matters which have been withdrawn from their consideration." Thad T., 59 Mass. App. Ct. at 508, 796 N.E.2d 869, quoting from Commonwealth v. Gordon, 356 Mass. 598, 604, 254 N.E.2d 901 (1970).

Indeed, the defendant has not pointed to a single Massachusetts case, and we have found none, where an appellate court has concluded that a mistrial was required because the jury would not be able to disregard evidence they were instructed to disregard in its entirety. The principal case relied upon by the defendant, Commonwealth v. Funches, 379 Mass. 283, 292, 397 N.E.2d 1097 (1979), provides him no help. Funches is relevant in that it involved a situation where, as here, a witness began testifying and provided inculpatory testimony, but then was not able to be cross-examined as to that testimony (as the witness refused to answer). Id. at 287-288, 397 N.E.2d 1097. Unlike in this case, however, in Funches the witness's inculpatory testimony was not struck, and the jury were never instructed to disregard it. See id. at 287, 397 N.E.2d 1097. The testimony in Funches thus was before the jury, and infected their verdict. Id. at 291-294, 397 N.E.2d 1097. Funches is inapposite where, as here, the testimony was struck in its entirety during trial.

The defendant also points to the decision in Bruton v. United States, 391 U.S. 123, 135-137, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), where the United States Supreme Court concluded that a jury would be unable to follow a judge's instructions as to the use of evidence in a criminal trial. While the analogy has some force, we think Bruton and its line of cases are distinguishable. Bruton addressed circumstances where criminal codefendants were tried together, and where the prosecution introduced an out-of-court statement of one of the codefendants that directly inculpated the other. Id. at 124, 88 S.Ct. 1620. Prior to Bruton, this evidence would often be admitted, with judges instructing the jury that the out-of-court statement was admissible only against the codefendant who made the statement, while it must be disregarded as to the other defendants.

Id. at 126, 88 S.Ct. 1620. Bruton held that the admission of a codefendant's out-of-court statement in a joint trial, where that statement directly implicated his codefendant, violated the confrontation clause of the United States Constitution; part of Bruton's rationale was that the limiting instruction given to the jury was not sufficient to cure the confrontation clause issue, because the parsing required of the jury was asking too much of them. Id. at 126, 128-129, 88 S.Ct. 1620. It was in that context-where the jury were instructed to consider the evidence against some defendants but not others-that Judge Learned Hand wrote that he doubted the jury could engage in the "mental gymnastic" required by such an instruction. Id. at 132 n.8, 88 S.Ct. 1620, quoting from Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932).

Here, unlike in the Bruton cases, the judge struck the testimony and the jury were instructed to disregard it in its entirety. It was simply not evidence. The judge was of course able to assess the jury when they heard Karen's testimony, and when he gave his corresponding instruction to disregard that testimony. The decision to deny the motion for a mistrial was not outside the range of reasonable outcomes on the facts here.

2. Motion to sever. The defendant next argues that the judge erred by not granting the defendant's pretrial motion to sever the charges into four separate trials, one for each victim. The charges were joined as "related" under Mass.R.Crim.P. 9(a)(3), 378 Mass. 859 (1979). Offenses are "related" if they are "based on the same criminal conduct or episode or arise out of a course of criminal conduct or series of criminal episodes connected together or constituting parts of a single scheme or plan." Rule 9(a)(1). The purpose of the rule is to promote judicial economy and efficiency, and to avoid multiple similar trials and their concomitant burdens on witnesses and the courts. See Commonwealth v. Hoppin, 387 Mass. 25, 32, 438 N.E.2d 820 (1982) ; Commonwealth v. Hernandez, 473 Mass. 379, 394, 42 N.E.3d 1064 (2015). Related offenses accordingly "shall" be joined for trial unless the judge "determines that joinder is not in the best interests of justice." Rule 9(a)(3).

Our review of a judge's decision on a motion to sever is for a "clear abuse of discretion." Commonwealth v. Pillai, 445 Mass. 175, 180, 833 N.E.2d 1160 (2005) (citation omitted). "[T]o prevail on a claim of misjoinder, the defendant 'bears the burden of demonstrating that the offenses were unrelated, and that prejudice from the joinder was so compelling that it prevented him from obtaining a fair trial.' " Id., quoting from Commonwealth v. Gaynor, 443 Mass. 245, 260, 820 N.E.2d 233 (2005).

There was no clear abuse of discretion here. In considering the question, we are guided by several prior decisions of this court and the Supreme Judicial Court that have allowed the joinder of charges involving multiple victims of sexual offenses, against a single defendant. See, e.g., Gaynor, supra at 259-263, 820 N.E.2d 233 ; Pillai, supra at 179-184, 833 N.E.2d 1160 ; Commonwealth v. Souza, 39 Mass. App. Ct. 103, 110-112, 653 N.E.2d 1127 (1995) ; Commonwealth v. Torres, 86 Mass. App. Ct. 272, 275-276, 15 N.E.3d 778 (2014). These cases collectively identify the factors to consider in deciding whether joinder is appropriate: whether the victims were of similar age and gender, or shared other characteristics; the proximity in time of the assaults; and whether there were similarities in the details of the crimes-for example, in terms of location, the manner in which the defendant gained access, or the acts themselves.

The facts here fall comfortably within those cases that have allowed joinders to stand. Here, each of the victims was one of the defendant's stepchildren or daughters, and the abuse of each occurred within the defendant's home. Each of the victims was first assaulted at around the same age-between four and six years old-and for each victim the assaults were repeated over years. And there were similarities, as well, in the defendant's behavior both leading up to and during the incidents; for example, the defendant often would find means to isolate the child victims in a room in his home (such as the basement) before beginning the assault. Similar facts are echoed in the cases that have previously upheld joinders of charges involving multiple victims of sexual assault. See Souza, 39 Mass. App. Ct. at 111-112, 653 N.E.2d 1127 ; Torres, 86 Mass. App. Ct. at 276, 15 N.E.3d 778.

In determining the propriety of joinder, one important consideration is whether, if the cases were severed into trials of individual victims, the testimony of the other victims of assault nevertheless would have been admitted in each trial regarding an individual victim. See Souza, 39 Mass. App. Ct. at 111, 653 N.E.2d 1127. The question is material, because if the assaults on the other victims would not have been admitted in the trials of an individual victim, the Commonwealth should not benefit from joinder by thereby gaining the admission of otherwise inadmissible evidence.

We believe the testimony of each of the victims likely would have been admissible at any individual trial. Evidence of prior bad acts may not be used to show bad character or the general propensity to commit crime, but it may be admissible to prove opportunity, intent, preparation, plan, knowledge, pattern of operation, or common scheme or course of conduct, as long as the probative value of the evidence is not outweighed by the risk of unfair prejudice. See Commonwealth v. Mazariego, 474 Mass. 42, 56, 47 N.E.3d 420 (2016) ; Mass. G. Evid. § 404(b) (2018). Here, there was sufficient identity of location, time periods, relationships to the defendant, and similarities in the acts charged such that the other assault evidence likely would have been admissible to show a common pattern or course of conduct. See Commonwealth v. King, 387 Mass. 464, 471-472, 441 N.E.2d 248 (1982) (evidence of prior acts of sexual abuse, forming "temporal and schematic nexus," properly admitted [citation omitted] ).

In short, the judge did not abuse his discretion in refusing to sever these cases for trial, and we discern no reversible error in the conduct of the trial, either.

Judgments affirmed.

      A pseudonym.

      A pseudonym.

      In opening, the prosecutor identified Karen as a victim, and described her expected testimony of sexual abuse at the hands of her father.

      Later, at the close of the Commonwealth's case-in-chief, the judge granted an assented-to motion for required findings of not guilty as to the charges related to Karen.

      Both names are pseudonyms.

      There are a few cases in other jurisdictions where the striking of testimony was held inadequate, and thus a mistrial was required. Toolate v. Borg, 828 F.2d 571, 572-575 (9th Cir. 1987), is one such decision, but in Toolate it was a codefendant who initially took the stand, implicated both the defendant and himself, and then refused cross-examination. Toolate thus is distinguishable from this case. Id. at 572. See also United States v. Ritz, 548 F.2d 510, 520-521 (5th Cir. 1977) (reversal required where witness who was husband of one codefendant and father of two others was compelled to invoke Fifth Amendment privilege in front of jury).

      The defendant argues that a mistrial was also required due to a question the prosecutor asked on cross-examination of Karen's sister (another of the defendant's daughters): "And you know what [your mother] is charged with?", to which the sister answered, "Yes." The question should not have been asked. Indeed, it is difficult to understand how the prosecutor thought it was proper to bring up pending, unproven, and unspecified charges against the defendant's wife. The testimony does not change our view, however, that a mistrial was not required. The judge sustained an objection made immediately after the answer was given, and no further questions were asked on the subject. The testimony itself told the jury very little, even in context. It was within the judge's discretion not to order a mistrial based upon the testimony, either taken alone or in combination with Karen's testimony.

      The defendant also contends that the prosecutor, in closing, improperly cited to certain testimony from the defendant's son as evidence of the defendant's bad character. There was no objection to the prosecutor's statement at trial, however, and we find no substantial risk of a miscarriage of justice in this case. See Commonwealth v. Brown, 479 Mass. 600, 609-610, 97 N.E.3d 349 (2018).
      To the extent we have not explicitly discussed them, we have carefully considered the defendant's remaining arguments, and we find them to be without merit.


text:
    In the MATTER OF the APPLICATION OF the METROPOLITAN TRANSPORTATION AUTHORITY, etc.,
    S.H. Knight, LLC, Appellant, v. Metropolitan Transportation Authority, Respondent.
    2018-398
    Court of Appeals of New York.
    June 14, 2018
    Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.


text:
    The PEOPLE etc., Respondent, v. Jamall SAMUEL, Appellant.
    2018-436
    Court of Appeals of New York.
    June 14, 2018
    Motion for leave to appeal denied.


author: HENDRICKSON, P.J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Thomas E. WILSON, Defendant-Appellant.
    NO. CA2017-08-125
    Court of Appeals of Ohio, Twelfth District, Warren County.
    February 26, 2018
    Steven M. Runge, Franklin City Prosecutor, P.O. Box 292, Franklin, Ohio 45005, for plaintiff-appellee
    Thomas E. Wilson, 1217 Brookside Drive, Beavercreek, Ohio 45434, defendant-appellant, pro se
   HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, Thomas E. Wilson, appeals from his conviction in the Franklin Municipal Court for one count of speeding in violation of R.C. 4511.21(D)(3), a minor misdemeanor. For the reasons set forth below, we affirm Wilson's conviction.

{¶ 2} On May 13, 2017, Trooper Robert Todd Bailey of the Ohio State Highway Patrol was operating an UltraLyte LR B laser device while doing routine traffic enforcement on Interstate 75 in Franklin Township, Warren County, Ohio. At approximately 12:39 p.m., Bailey observed a blue Chevrolet operated by Wilson traveling above the posted speed limit of 65 m.p.h. Bailey activated his UltraLyte LR B device and received a reading that Wilson's vehicle was traveling 82 m.p.h. Bailey initiated a traffic stop and issued Wilson a citation for speeding in violation of R.C. 4511.21(D)(3).

{¶ 3} At his June 2, 2017 arraignment, Wilson entered a not guilty plea to the charge and executed a written "Waiver of Time," indicating he needed additional time to prepare his defense. Wilson filed a request for discovery with the prosecutor, seeking information relating to the specific laser device used in issuing the speeding ticket and Trooper Bailey's certification and training on said device. Wilson's request for discovery was filed May 30, 2017.

{¶ 4} A bench trial was scheduled for June 30, 2017. At this time, Wilson appeared before the court and moved for dismissal of the charge on the basis that the speeding citation had not been signed. The court denied Wilson's request, finding that the citation was not required to be signed "because it came through electronically to the Court." Wilson also asked the court to dismiss the case because the prosecutor had not provided the requested discovery. The prosecutor opposed the motion, stating that he had been unable to provide the discovery because Trooper Bailey had been on vacation and had just recently returned. The prosecutor indicated the requested discovery would be provided to Wilson by the end of the following week. The court denied the motion to dismiss and rescheduled Wilson's bench trial for July 11, 2017.

{¶ 5} Prior to the trial commencing on July 11, 2017, Wilson moved for a dismissal on the basis that his statutory speedy trial rights had been violated as he had not been brought to trial within 30 days. The court denied the motion, finding that the speedy-trial time period had been tolled and the time extended by Wilson's request for discovery. Thereafter, the trial commenced and the state called Trooper Bailey as its only witness.

{¶ 6} Bailey testified he has been a trooper with the Ohio State Highway Patrol for 24 years and has received training in speed enforcement through the police academy and postgraduate training courses. Annually he undergoes a written and visual estimation training course, and he has been certified in the use of the following speed detection instruments: "laser, radar, ultralight laser, ultralight laser LTI 2020, * * * laser LTI 2020, K Band, [and] X Band radar."

{¶ 7} Prior to using the UltraLyte LR B laser on May 13, 2017, Bailey stated he made sure the device was in proper working order. At approximately 12:39 p.m., he observed the Chevrolet operated by Wilson traveling above the posted speed limit of 65 m.p.h. and activated his UltraLyte LR B device. Using the device in accordance with his training, he recorded Wilson traveling 82 m.p.h.

{¶ 8} Wilson objected to the "introduction of evidence or testimony based on the use of a[n] electronic measuring device, specifically the ultra light * * * [as it] has not been established as scientifically reliable or accurate in measuring the vehicle speed." The trial court overruled the objection after the following discussion was held:

THE COURT: To the best of my recollection it's been accepted by the Twelfth District Court of Appeals as scientifically accurate. The motion's been overruled.
[PROSECUTOR]: Your Honor, this Court has also taken judicial notice of it.
THE COURT: Taken judicial notice of it.
[PROSECUTOR]: Those instruments being scientifically accurate.
THE COURT: Correct. Overruled.
WILSON: Your Honor, I have two case studies I have two over [sic] appeals in the Twelfth Appellate Court that were overruled on the basis of the ultra light.
[PROSECUTOR]: And both of those cases proceeded [sic] this Court's determination that the ultra light is scientifically reliable.
THE COURT: It was a finding. We had an expert witness come down from Columbus. I did find that it was scientifically reliable and accurate. Overruled.

{¶ 9} On cross-examination, Wilson introduced the user's manual for the UltraLyte LR B into evidence and questioned Bailey about the maintenance of the device and whether the device had displayed any error codes or malfunctioned on the day his citation was given. Bailey did not recall receiving an error code on May 13, 2017, and explained that if the device malfunctioned and displayed an error code when it was in use, he would not have been able to measure Wilson's speed as the error code would have "blocked" the speed to prevent an erroneous reading. Bailey also testified that on the day the citation was issued, he performed a display integrity test, scope alignment test, reference frequency test, fixed distance test, and Delta distance test using the UltraLyte LR B before using the device to issue citations. Bailey explained that doing these tests is "routine" for law enforcement and that if, in doing the tests, "it doesn't match up, [he] would turn the machine in, * * * write it up [to] * * * say what it didn't do correctly and [he would] go get another [device] and check it and use it * * * [while] the other one [is] in for repair."

{¶ 10} Wilson also cross-examined Bailey about his training and certification to use the UltraLyte LR B and introduced Bailey's certification logs into evidence. The logs provided that Bailey was most recently certified on "Radar/Laser" by Sergeant R.L. Burd on June 28, 2016, and again on June 2, 2017 by Sergeant Crisafi. The logs further provided certifications by the sergeants that Bailey "has demonstrated a satisfactory level of proficiency in the operation of the Ohio State Highway Patrol's Electronic Speed Measuring Devices" and "has a knowledge and understands the policies and procedures set forth to govern the operation of the devices." When questioned about whether he was certified specifically on the UltraLyte LR B model that he used in issuing Wilson's speeding citation, Bailey testified as follows:

BAILEY: I have to be re-certified on theory. Okay. So whether I use a LTI 2020 and a LL, a UL LTI 2020 or LR B an ultra light laser, whatever one, it's still on the theory. It's still on the same principle. It doesn't change the theory here; the principle doesn't differ due to the model of the laser they give me. * * * As far as the laser itself, I was certified, I was re-certified by Sergeant Crisafi who went out with me as I spoke before, made me give him a visual estimation of vehicles before he (A) activated the radar or (B) I was able to pull the trigger on the laser gun and I had to be within the tolerance that he was askin[g] for or else I would have failed and [h]e wouldn't have signed off on my training.

{¶ 11} Following Bailey's testimony, the state rested and Wilson moved for acquittal pursuant to Crim.R. 29(A). His motion was overruled. Wilson then rested his defense after the trial court accepted the UltraLyte LR B's user manual into evidence, along with Bailey's certification logs, and emails exchanged by Wilson and the prosecutor. Prior to the court rendering judgment, Wilson and the trial court engaged in the following discussion:

WILSON: The only question I have was uh, when expert testimony was provided with respect to this specific unit because I had two cases in the Twelfth Appellate Court that reversed a conviction based on the ultra light and one of them was as recent as last April, 2016.
THE COURT: We took judicial notice of it about two or three years ago.
[PROSECUTOR]: I got a copy of that case (inaudible).

Thereafter, the court rendered its verdict, finding Wilson guilty of the speeding violation. Wilson was ordered to pay a $100 fine and $102 in court costs.

{¶ 12} Subsequent to the court rendering its verdict, Wilson filed a written motion for acquittal pursuant to Crim.R. 29(C). Wilson argued the state failed to present expert testimony concerning the "suitability of the specific laser device as a speed measurement device" and failed to demonstrate Bailey had an "intent to sign" the electronic citation when it was issued. The state opposed the motion on the basis that Crim.R. 29(C) only applies to cases where there has been a jury trial. Alternatively, the state opposed the motion as judicial notice of the scientific reliability of the UltraLyte laser had been taken, as established in Franklin v. Brown , Franklin M.C. No. 14-01-TRD-0267 (Sept. 16, 2014), and the local rules of court authorized the filing of electronically produced tickets without a signature.

{¶ 13} The trial court denied Wilson's motion for acquittal, stating that Crim.R. 29(C) did not apply and Wilson's request was nothing more than a motion seeking reconsideration of the court's previous guilt determination. In denying Wilson's motion, the court noted it had addressed the issue of the scientific reliability of the UltraLyte device at trial. The court stated:

The argument [made at trial] was that the State failed to produce any expert witness to testify to the scientific reliability and accuracy of the Lidar devices and in particular the Lidar 20/20 Ultralight. At that time, the Court informed Mr. Wilson that the court had taken judicial notice of the scientific accuracy and reliability of all Lidar units in a decision tilted City of Franklin vs. Douglas Brown . Said decision was decided on September 16, 2014 and filed for record.

The court attached a copy of the Brown decision to its denial of Wilson's Crim.R. 29(C) motion for acquittal.

{¶ 14} Wilson timely appealed from his conviction, raising four assignments of error.

{¶ 15} Assignment of Error No. 1:

{¶ 16} THE TRIAL COURT ERRED BY TAKING JUDICIAL NOTICE OF A SPECIFIC SPEED MEASUREMENT DEVICE BASED ON PREVIOUS EXPERT TESTIMONY WHERE NO PREVIOUS CASE WAS IDENTIFIED AT TRIAL AND THE PREVIOUS DEVICE WAS NOT IDENTIFIED AS THE SAME DEVICE USED IN THE CURRENT CASE.

{¶ 17} In his first assignment of error, Wilson argues the trial court erred by taking judicial notice of a speed-measuring device "based on expert testimony in a previous case [without] identify[ing] the case and the previous device so noticed." He further contends that the trial court erred in taking judicial notice as "expert testimony on a laser speed measuring device previously heard in the [t]rial [c]ourt is only applicable to the same device."

{¶ 18} "In order to be convicted of speeding based on laser-device evidence, there must be evidence introduced at trial that the device is scientifically reliable." State v. Starks , 196 Ohio App.3d 589, 2011-Ohio-2344, ¶ 21, 964 N.E.2d 1058 (12th Dist.), citing State v. Palmer , 1st Dist. Hamilton No. C-050750, 2006-Ohio-5456, 2006 WL 2987715, ¶ 10. "[T]he scientific reliability of a laser device used to measure speed is a fact that is subject to judicial notice." Id. , citing State v. Dawson , 12th Dist. Madison No. CA98-04-021, 1998 WL 883802, 1998 Ohio App. LEXIS 6141 (Dec. 21, 1998). Evid.R. 201(B) provides that "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."

{¶ 19} As this court has previously recognized, the reliability of a particular speed-measuring device can be established through judicial notice in one of three ways: "(1) a reported municipal court decision, (2) a reported or unreported case from the appellate court; or (3) the previous consideration of expert testimony about a specific device where the trial court notes it on the record." Starks at ¶ 22 ; see also State v. Sweat , 12th Dist. Butler No. CA2015-10-184, 2016-Ohio-2680, 2016 WL 1622826, ¶ 9.

{¶ 20} This court has previously noted that a trial court may take judicial notice of the scientific reliability of the LTI 20-20 laser device. Dawson , 1998 WL 883802, 1998 Ohio App. LEXIS 6141 at *5-7. However, we have not recognized the reliability of the UltraLyte LR B laser-device. In addition, our survey of the reported municipal court case law in this district has not revealed a decision that considered the scientific reliability of this particular device. Therefore, the only way for the reliability of the UltraLyte LR B device to be established by judicial notice is through the trial court's previous consideration of expert testimony, which the trial court must mention on the record.

{¶ 21} When Wilson objected to Trooper Bailey's testimony about the UltraLyte LR B on the basis that it had not been established as scientifically reliable or accurate in measuring vehicle speed, the trial court erroneously stated that this appellate court had accepted it as scientifically reliable. However, the court then also took judicial notice that it had found the device scientifically reliable in a prior case it heard, stating, "We had an expert witness come down from Columbus. I did find that it was scientifically reliable and accurate." When denying Wilson's motion for acquittal, the court again referenced its prior case, noting that it took judicial notice of the scientific reliability of the device "about two or three years ago." The court did not, however, mention the prior case by name at trial. In fact, the case the trial court was referencing was not identified on the record by name by the trial court until the court denied Wilson's written Crim.R. 29(C) motion for acquittal.

{¶ 22} Although the better practice would have been for the court to mention the case it was taking judicial notice of by name at trial, we find no error in the court's actions. See State v. Pellettiere , 2d Dist. Montgomery No. 21070, 2006-Ohio-1606, 2006 WL 827401, ¶ 9 (finding it "unnecessary for the trial court to specifically state the case in which it heard expert testimony on the device" when taking judicial notice that the specific laser speed measurement device was reliable). The trial court previously heard expert testimony on the laser device at issue, determined it was scientifically accurate and reliable, and relayed this information to Wilson. The court, therefore, properly took judicial notice of prior expert testimony establishing the reliability of the laser device.

{¶ 23} Wilson argues, however, that the expert testimony the trial court previously heard in Franklin v. Brown , Franklin M.C. No. 14-01-TRD-0267, was insufficient to establish the scientific reliability and accuracy of the UltraLyte LR B because the device in Brown was a different laser device model. In Brown , the officer issuing the speeding citation used a "Lidar Ultralight 20/20" laser device. See id. In Brown,

the [expert] witness * * * testified [about] how the Lidar Ultralight 20/20 worked and testified that it had been accepted as scientifically reliable in multiple other courts throughout the State. The witness testified that he had been qualified as an expert witness in more than fifty courts throughout the State of Ohio. He further testified that he had an electrical engineering degree plus thirty years in law enforcement and periodic factory training provided by the major equipment manufacturers. He further testified that he had repaired and tested the Lidar systems. He further testified that it was his opinion and his testimony in courts throughout Ohio, that the Lidar units and the Ultralight 20/20 are scientifically accurate and reliable for both speed and distance. He testified regarding sighting through the Lidar which has a scope in which the officer operating the 20/20 can zero in on a specific vehicle without difficulty.
The expert further testified that * * * in his opinion, the Lidar Ultralight 20/20 and other Lidar laser units are both scientifically accurate and scientifically reliable.
[The expert] testified that the product has been in production and use for a number of years and had demonstrated scientifically based, reliable and accurate operation since its release on the market. Further, that prior generations of the model were found to be similarly reliable and accurate and that the current Lidar 20/20 incorporated production changes that incorporated more use options and conveniences.
[The expert] further testified that the Lidar Ultralight 20/20 had been exhaustively tested and evaluated by the National Institute of Standards and Technology, a federal agency accountable for technological expertise by federal government, military, and most industrial manufacturing intelicommunications [sic] industries.

Id. Relying on the expert's testimony, the trial court in Brown "declared the Lidar Ultralight 20/20 and Lidar laser devices to be scientifically accurate and reliable for purposes of taking judicial notice in the future." Id.

{¶ 24} "Although the underlying principles of laser technology may be the same from one device to another, generally judicial notice as to the reliability of a speed-measuring device is device specific. * * * Therefore, expert testimony is necessary, 'whether it be a new device or an upgrade of an existing device, before the court may take judicial notice of that particular device in future proceedings.' " Starks, 196 Ohio App.3d 589, 2011-Ohio-2344 at ¶ 25, 964 N.E.2d 1058, quoting State v. Kincaid , 124 Ohio Misc.2d 92, 2003-Ohio-4632, ¶ 15, 796 N.E.2d 89. However, as we noted in a recent opinion, as "the UltraLyte appears to be a newer model or version of the LTI 20/20, and * * * this court has previously taken judicial notice of the scientific reliability of the LTI 20/20 * * * the state would only need to offer expert testimony that the fundamental operation and operating principles are the same so that the two lasers could be 'deemed different models of the same device.' " Sweat , 2016-Ohio-2680 at ¶ 9, fn. 1, quoting Starks at ¶ 24.

{¶ 25} We find that the state did offer testimony that the fundamental operation and operating principles of the LTI 20/20 and the UltraLyte LR B are the same, such that the reliability of the UltraLyte LR B was established. Trooper Bailey, an officer with more than 24 years of experience who has received annual training and certification on speed-measuring devices, testified that he has been certified in the use of laser, radar, and ultralight laser speed-measuring devices. In testifying that the UltraLyte LR B device was in proper working condition on May 13, 2017, Bailey described his compliance with, and the purpose of, the display integrity test, scope alignment test, reference frequency test, fixed distance test, and Delta distance test. Bailey also testified that regardless of what model of laser he uses, the fundamental operation and operating principles are the same. Specifically, Bailey testified, "whether I use a LTI 2020 and a LL, a UL LTI 2020 or LR B an ultra light laser, whatever one, it's still on the theory. It's still on the same principle. It doesn't change the theory here; the principle doesn't differ due to the model of the laser they give me." Accordingly, given his experience and training on laser and ultralight laser devices, his annual certifications on such devices, and his understanding and frequent use of said devices, we find that Bailey possessed the knowledge and was qualified to opine that the fundamental operation and operating principles of the UltraLyte LR B was the same as the LTI 2020. See, e.g., State v. Yaun , 3d Dist. Logan No. 8-07-22, 2008-Ohio-1902, 2008 WL 1789892, ¶ 9-19 (finding that the trial court did not err in taking judicial notice of the Python II radar device when it had previously taken judicial notice of the K-55 device and the officer testifying at trial stated that the Python II radar operated on the same principals as the other radar device as it was "exactly the same radar as the K-55").

{¶ 26} For the foregoing reasons, we find no merit to Wilson's arguments and conclude that the trial court was entitled to take judicial notice of the expert testimony previously heard in Franklin v. Brown , Franklin M.C. No. 14-01-TRD-0267. This prior testimony, combined with Trooper Bailey's trial testimony established the scientific reliability of the UltraLyte LR B. Wilson's first assignment of error is, therefore, overruled.

{¶ 27} Assignment of Error No. 2:

{¶ 28} THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO DISMISS BASED ON A SPEEDY TRIAL VIOLATION.

{¶ 29} In his second assignment of error, Wilson contends the trial court erred in denying his motion to dismiss as his statutory speedy-trial rights were violated by the state's failure to bring him to trial within the time prescribed by R.C. 2945.71.

{¶ 30} The right to a speedy trial is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and by Section 10, Article I the Ohio Constitution. State v. Taylor , 98 Ohio St.3d 27, 2002-Ohio-7017, ¶ 32, 781 N.E.2d 72 ; State v. Miller , 12th Dist. Warren No. CA2009-01-008, 2009-Ohio-4831, 2009 WL 2936279, ¶ 8. "[T]he General Assembly * * * enacted Ohio's speedy-trial statutes to preserve this right." Id. , citing R.C. 2945.71, et seq. Compliance with these statutes is mandatory and the statutes "must be strictly construed against the state." Id. , citing State v. Cox , 12th Dist. Clermont No. CA2008-03-028, 2009-Ohio-928, 2009 WL 501564, ¶ 12.

{¶ 31} R.C. 2945.73(B) provides that "[u]pon motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged if he is not brought to trial within the time required by sections 2945.71 and 2945.72 of the Revised Code." Pursuant to R.C. 2945.71(A), "a person against whom a charge is pending in a court not of record, or against whom a charge of minor misdemeanor is pending in a court of record, shall be brought to trial within thirty days after the person's arrest or the service of the summons."

{¶ 32} Once a defendant demonstrates he was not brought to trial within the permissible time period, the accused presents a prima facie case for dismissal based on a speedy-trial violation. Miller , 2009-Ohio-4831 at ¶ 9, citing State v. Masters , 172 Ohio App.3d 666, 2007-Ohio-4229, ¶ 10, 876 N.E.2d 1007 (3d Dist.). The burden then shifts to the state to prove that time was sufficiently tolled and the speedy-trial time period extended. Id. R.C. 2945.72 enumerates specific instances in which the time period that a defendant must be brought to trial in is extended and includes "[a]ny period of delay necessitated by reason of a plea in bar or abatement, motion, proceeding, or action instituted by the accused." R.C. 2945.72(E). Additionally, the state may show that the defendant has waived his speedy-trial rights. State v. Schuster , 12th Dist. Clermont Nos. CA2015-05-040 and CA2015-05-041, 2015-Ohio-4818, 2015 WL 7430215, ¶ 17. "To be effective, an accused's waiver of his or her constitutional and statutory rights to a speedy trial must be expressed in writing or made in open court on the record." State v. King , 70 Ohio St.3d 158, 637 N.E.2d 903 (1994), syllabus.

{¶ 33} Appellate review of speedy-trial issues involves a mixed question of law and fact. State v. Messer , 12th Dist. Clermont No. CA2006-10-084, 2007-Ohio-5899, 2007 WL 3243535, ¶ 7. An appellate court must give due deference to the trial court's findings of fact if they are supported by competent, credible evidence, but will independently review whether the trial court correctly applied the law to the facts of the case. Id.

{¶ 34} Wilson received his speeding citation and summons on May 13, 2017. At the time Wilson's trial commenced on July 11, 2017, 59 days had elapsed-29 days more than that permitted by R.C. 2945.71(A). However, the record establishes that a portion of this time period was tolled and the time chargeable to Wilson. On May 30, 2017, Wilson filed a demand for discovery, which tolled the speedy-trial clock until the state complied with Wilson's request on July 5, 2017. See State v. Brown , 98 Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d 159, syllabus (holding that "[a] demand for discovery * * * is a tolling event pursuant to R.C. 2945.72 [E]"). During this time period, Wilson also executed a written waiver of time, indicating he needed time for "further case preparation."

{¶ 35} Contrary to Wilson's arguments, the 36 days that passed between the filing of his demand for discovery and the state's compliance with said demand is properly chargeable to Wilson. " R.C. 2945.72(E) implicitly recognizes that when a motion is filed by a defendant, there is a 'period of delay necessitated'-at the very least, for a reasonable time until the motion is responded to and ruled upon." State v. Sanchez , 110 Ohio St.3d 274, 2006-Ohio-4478, ¶ 26, 853 N.E.2d 283. Wilson's demand for discovery tolled the speedy-trial time until the state responded to the request 36 days later, which was a reasonable time period to respond given Trooper Bailey's unavailability while on vacation for nearly three weeks and Wilson's specific request for Bailey's employment and training information. See State v. Johnson , 12th Dist. Butler No. CA2011-09-169, 2013-Ohio-856, 2013 WL 938598, ¶ 33-34 ; see also State v. Saffell , 35 Ohio St.3d 90, 91-92, 518 N.E.2d 934 (1988) (finding that delay caused by an arresting officer's unavailability due to the officer's vacation was reasonable and tolled the speedy trial time period). The fact that Wilson indicated at the June 30, 2017 hearing that he no longer wished to waive time is of no consequence. The state was still entitled to a reasonable period of time to respond to Wilson's discovery request, and this time was chargeable to Wilson in accordance with R.C. 2945.72(E).

{¶ 36} Once the tolling event of Wilson requesting discovery is taken into consideration, the record reveals that Wilson was brought to trial 23 days after the summons was served. Therefore, as the state brought Wilson to trial within the 30-day requirement, Wilson's statutory speedy trial rights were not violated and the trial court did not err in denying Wilson's motion to dismiss. Wilson's second assignment of error is overruled.

{¶ 37} Assignment of Error No. 3:

{¶ 38} THE TRIAL COURT ERRED BY ACCEPTING AN ELECTRONICALLY SIGNED CITATION WITHOUT ESTABLISHING THE ESSENTIAL ELEMENT OF INTENT TO SIGN.

{¶ 39} In his third assignment of error, Wilson challenges the validity of his speeding citation and his subsequent conviction for speeding on the basis that the state failed to introduce evidence that Trooper Bailey intended to sign the citation.

{¶ 40} R.C. 2935.26(D) provides that "[a] law enforcement officer who issues a citation shall complete and sign the citation form , serve a copy of the completed form upon the offender and, without unnecessary delay, file the original citation with the court having jurisdiction over the offense." (Emphasis added.) On July 29, 2014, the Franklin Municipal Court adopted a local rule of court, as permitted by Traf.R. 3(F), that allows for the use of electronically produced tickets. The Franklin Municipal Court rule provides as follows:

The use and filing of a ticket that is produced by computer or other electronic means is hereby authorized in the Franklin Municipal Court. The electronically produced ticket shall conform in all substantive respects to the Ohio Uniform Traffic Ticket. If an electronically produced ticket is issued at the scene of an alleged offense, the issuing officer shall provide the defendant with a paper copy of the ticket.

{¶ 41} Wilson was issued an electronic speeding citation on May 13, 2017. The citation was generated in compliance with the requirements of R.C. 2935.26(B) and Traf.R. 3, and contains Bailey's printed name as the "Charging Law Enforcement Officer" underneath the statement that, "[t]his issuing/charging law enforcement officer states under the penalties of perjury and falsification that he/she has read the above complaint and that it is true." Despite this, Wilson argues that there is no evidence in the record indicating Bailey's "intent to sign" the citation, and in support of his argument, he cites to R.C. 1306.01(H).

{¶ 42} We find that R.C. 1306.01(H) is inapplicable to the present case as this provision provides a definition of "electronic signature" as it is used in R.C. 1306.01 through 1306.23, in reference to commercial transactions. The definition of "electronic signature" relevant to Wilson's speeding violation is set forth in R.C. 4501.01(QQ). This provision provides that as used in Chapter 4511. of the Revised Code, "electronic signature" means "a signature in electronic format attached to or logically associated with an electronic record."

{¶ 43} Here, Bailey's electronic signature appeared on the citation and was logically associated with the citation. As Bailey explained at trial,

We used to hand write tickets. They came up with a new system that verifies that you logged in, you're the you're the [sic] issuing citation, issuer, under your prescribed login. I have to go through about five passwords * * *. But once I log in whoever issues a ticket from that computer is me. Nobody else is signed in. * * * So I'm, I'm verified through the process of having an electronic signature that I am the person that's issuing and charging the person I'm stopping.

Bailey had to log into the program that issues the citation, fill out the information set forth in the citation regarding Wilson's name, address, and driver's license number, the make, model, and license plate number associated with Wilson's car, and provide a description of the traffic violation Bailey observed Wilson commit before certifying that the information set forth in the complaint was true. As Bailey's electronic signature was logically associated with the citation, his electronic signature was valid.

{¶ 44} Accordingly, we find that Wilson's argument is without merit and his third assignment of error is overruled.

{¶ 45} Assignment of Error No. 4:

{¶ 46} THE TRIAL COURT ERRED BY DENYING DEFENDANT'S [CRIM.R.] 29(A) MOTION FOR JUDGMENT OF ACQUITTAL WHEN THE EVIDENCE PRESENTED WAS INSUFFICIENT TO SUSTAIN A CONVICTION.

{¶ 47} In his fourth assignment of error, Wilson argues the trial court erred by denying his Crim.R. 29 motion for acquittal as there was insufficient evidence to support his conviction for speeding in violation of R.C. 4511.21(D)(3). In support of his argument, Wilson argues that the speed recorded by the UltraLyte LR B should be excluded from evidence as the speed-measuring device was scientifically unreliable. Absent this evidence, Wilson contends his conviction is supported by insufficient evidence as "[t]he unaided visual observation of a peace officer is insufficient to support a conviction for speeding."

{¶ 48} Crim.R. 29(A) provides that "[t]he court on motion of a defendant or on its own motion, after the evidence on either side is closed, shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or offenses." An appellate court reviews the denial of a Crim.R. 29(A) motion under the same standard as that used to review a sufficiency-of-the-evidence claim. State v. Mota , 12th Dist. Warren No. CA2007-06-082, 2008-Ohio-4163, 2008 WL 3823719, ¶ 5 ; State v. Huston , 12th Dist. Fayette Nos. CA2006-05-021 and CA2006-06-022, 2007-Ohio-4118, 2007 WL 2296481, ¶ 5.

{¶ 49} Whether the evidence presented at trial is legally sufficient to sustain a verdict is a question of law. State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997) ; State v. Grinstead , 194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10, 958 N.E.2d 177 (12th Dist.). When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. State v. Paul , 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, 2012 WL 2877754, ¶ 9. Therefore, "[t]he 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. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 50} Pursuant to R.C. 4511.21(D)(3), a person is guilty of speeding if that person operates a motor vehicle on an expressway or freeway at a speed exceeding 65 m.p.h. In the present case, the state introduced evidence that on May 13, 2017, Wilson was driving his 2002 Chevrolet on Interstate 75 at a speed exceeding 65 m.p.h. Trooper Bailey testified that pursuant to his visual estimation, Wilson's vehicle was traveling "above the posted speed limit," and that using the UltraLyte LR B, Wilson was recorded traveling 82 m.p.h. As discussed in our resolution of Wilson's first assignment of error, the trial court properly took notice of the scientific reliability of the UltraLyte LR B. Therefore, given the speed recorded on the speed-measuring device, and Bailey's visual observation of Wilson's vehicle's speed, we find that the state presented sufficient evidence to prove the offense of speeding. The trial court did not error in denying Wilson's motion for acquittal, and Wilson's fourth assignment of error is overruled.

{¶ 51} Judgment affirmed.

S. POWELL and RINGLAND, JJ., concur.

      Pursuant to Loc.R. 6(A), we hereby sua sponte remove this case from the accelerated calendar for purposes of issuing this opinion.

      The laser device Trooper Bailey operated was also referred to as an "ultra light LT LTI 2020 LRB" at trial. The user's manual for the device Trooper Bailey operated before effectuating a traffic stop on Wilson referred to the device as an "UltraLyte LR B." See LTI's UltraLyte LR B User's Manual (2d Ed. 2002). Therefore, for consistency, we will refer to the device as an "UltraLyte LR B."

      We agree with the trial court's determination that Wilson's motion for acquittal pursuant to Crim.R. 29(C) was, in essence, a request for the trial court to reconsider its previous denial of his motion for acquittal and its judgment of conviction. The trial court's judgment of conviction, filed July 11, 2017, was a final appealable order and the trial court did not have jurisdiction to reconsider its determination. See State v. Boles , 12th Dist. Brown No. CA2016-07-014, 2017-Ohio-786, 2017 WL 878687, ¶ 17 (noting that a motion for reconsideration of a final judgment is a nullity). As a judgment entered on a motion for reconsideration is also a nullity that a party cannot appeal from, our review of Wilson's arguments is limited to his appeal of the trial court's July 11, 2017 "Entry of Conviction After Trial to Court."

      "Lidar" is defined as "a device that is similar in operation to radar but emits pulsed laser light instead of microwaves." Merriam-Webster's Online: Dictionary and Thesaurus , https://www.merriamwebster.com/dictionary/lidar (accessed Feb. 9, 2018).

      {¶ a} In finding the UltraLyte LR B scientifically reliable, we take note of the Ohio Supreme Court's decision in East Cleveland v. Ferell , 168 Ohio St. 298, 154 N.E.2d 630 (1958). In Ferell , the court was asked to determine whether a defendant could be convicted of speeding based upon evidence obtained from a radar speed meter when there was not expert testimony provided with respect to the construction of the meter and its method of operation. Id. at 299, 154 N.E.2d 630. The court answered this question in the affirmative, holding that "it is sufficient to show that the [radar speed] meter was properly set up and tested by a technician trained by experience to do so, and that at the time it was functioning properly. * * * [I]t is not essential to the admissibility of such evidence to show, by independent expert testimony, the nature and function of or the scientific principles underling such speed meter ." (Emphasis added.) Id. at syllabus. The court determined that "readings of a radar speed meter may be accepted into evidence, just as we accept photographs, X rays, electroencephalographs, speedometer readings, and the like, without the necessity of offering expert testimony as to the scientific principles underlying them." Id. at 303, 154 N.E.2d 630.
      {¶ b} We recognize there is a difference between radar speed-measuring devices and laser-speed measuring devices. Our holding in this case in no way suggests that all laser-based speed-measuring devices should be judicially noticed or deemed scientifically reliable. We continue to hold that judicial notice as to the reliability of a speed-measuring device is device specific. See Starks, 196 Ohio App.3d 589, 2011-Ohio-2344 at ¶ 25, 964 N.E.2d 1058. However, as discussed above, Trooper Bailey's testimony combined with the expert testimony previously heard by the trial court in Brown established the scientific reliability of the UltraLyte LR B. Under the circumstances presented in the present case, we conclude the state was not required to present independent expert testimony of the nature and function of or the scientific principles underlying the UltraLyte LR B-as it had previously done so in Brown .

      At trial, Wilson introduced Exhibit C, which was comprised of email communications between himself and the prosecutor. This exhibit indicates the state responded to Wilson's discovery request on July 5, 2017.

      Pursuant to R.C. 1306.01(H), an "electronic signature" consists of "an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record."


author: PIPER, J. M. POWELL, J., dissenting.

text:
    STATE of Ohio, Plaintiff-Appellant, v. Thomas J. VINEYARD, Defendant-Appellee.
    NO. CA2017-05-021
    Court of Appeals of Ohio, Twelfth District, Clermont County.
    February 26, 2018
    D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellant
    W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East Main Street, Batavia, Ohio 45103, for defendant-appellee
   PIPER, J.

{¶ 1} Plaintiff-appellant, the state of Ohio, appeals a decision of the Clermont County Court of Common Pleas dismissing charges against defendant-appellee, Thomas Vineyard.

{¶ 2} Vineyard overdosed on heroin, and was later revived after first responders gave him Narcan. After his release from the hospital, Vineyard admitted himself into a drug addiction treatment center in California. Vineyard completed three months of in-patient care, and three months of out-patient care in California before returning to his home in Ohio.

{¶ 3} During the time that Vineyard was seeking treatment in California, the Clermont County Grand Jury indicted Vineyard on charges of possession of heroin and fentanyl, both fifth-degree felonies. However, given Vineyard's stay in California, the state did not serve the indictment upon Vineyard until he returned to Ohio.

{¶ 4} Three months after the indictment was issued, the Ohio Legislature enacted a 'Good Samaritan' statute, which enabled certain offenders who sought medical assistance for drug overdose to avoid being arrested for, charged with, prosecuted for, convicted of, or penalized for possession of drugs that would constitute a misdemeanor or fifth-degree felony. Vineyard filed a motion to dismiss the charges against him based upon the statute.

{¶ 5} The state opposed Vineyard's motion to dismiss, arguing that Vineyard's offenses occurred before the Good Samaritan statute was enacted and that the statute could not be applied retroactively. The trial court found that the Good Samaritan statute applied to Vineyard, and dismissed the case. The state now appeals the trial court's decision, raising the following assignment of error.

{¶ 6} THE TRIAL COURT ERRED IN DISMISSING APPELLEE'S CASE AS IT UNCONSTITUTIONALLY APPLIED THE IMMUNITY AFFORDED BY SECTION 2925.11(B)(2) TO APPELLEE RETROACTIVELY.

{¶ 7} The state argues in its assignment of error that the trial court erred in determining that R.C. 2925.11(B)(2)(b) applies to Vineyard.

{¶ 8} According to R.C. 2925.11(B)(2)(b)

Subject to division (B)(2)(f) of this section, a qualified individual shall not be arrested, charged, prosecuted, convicted, or penalized pursuant to this chapter for a minor drug possession offense if all of the following apply:
(i) The evidence of the obtaining, possession, or use of the controlled substance or controlled substance analog that would be the basis of the offense was obtained as a result of the qualified individual seeking the medical assistance or experiencing an overdose and needing medical assistance.
(ii) Subject to division (B)(2)(g) of this section, within thirty days after seeking or obtaining the medical assistance, the qualified individual seeks and obtains a screening and receives a referral for treatment from a community addiction services provider or a properly credentialed addiction treatment professional.
(iii) Subject to division (B)(2)(g) of this section, the qualified individual who obtains a screening and receives a referral for treatment under division (B)(2)(b)(ii) of this section, upon the request of any prosecuting attorney, submits documentation to the prosecuting attorney that verifies that the qualified individual satisfied the requirements of that division. The documentation shall be limited to the date and time of the screening obtained and referral received.

R.C. 2925.11(B)(2)(a)(viii) defines a qualified person as "a person who is not on community control or post-release control and is a person acting in good faith * * * who is experiencing a drug overdose * * *."

{¶ 9} The record indicates that Vineyard is a qualified individual because he was a person who experienced a drug overdose and received medical assistance for that overdose. Three days after his overdose, Vineyard admitted himself into a drug addiction treatment center, and completed six months of treatment. Vineyard had not yet been "convicted" or "penalized" for the offenses contained in his indictment when he filed his motion to dismiss. As such, Vineyard could seek protection from being prosecuted, convicted, or penalized pursuant to R.C. 2925.11(B)(2)(b).

{¶ 10} Understandably, the state relies on a decision from the Ninth District Court of Appeals where the defendant overdosed and was charged, but not prosecuted, before the enactment of the Good Samaritan statute. State v. Sieminski , 9th Dist. Lorain No. 16CA011048, 2017-Ohio-5480, 2017 WL 2743473. The trial court in that case determined that the Good Samaritan statute applied to Sieminski and dismissed the charges against her. On appeal by the state, the Sieminski Court reversed the trial court's decision to dismiss the case against Sieminski because the Good Samaritan statute "shows no express intention that it should apply retroactively." Id. at ¶ 12. However, and despite the Sieminski Court's cursory determination that the statute could not apply retroactively, the court never analyzed the statute's current application specific to whether Sieminski was a qualified individual who met the statutory requirements for protection from being prosecuted, convicted, or penalized.

{¶ 11} After addressing the state's retroactivity argument, the trial court sub judice determined, and we agree, "the statute has a current, non-retroactive application." The dissent relies upon State v. Sieminski as precedent establishing that Vineyard is not a "qualified person" under the statute due to the date of Vineyard's overdose. It is undisputed below that Vineyard had overdosed, received emergency medical assistance, and subsequently completed drug addiction treatment. The date of an overdose is not relevant in order for a person to seek treatment and comply with all the requirements of R.C. 2925.11(B)(2)(b). Rather, the question is: has the person seeking protection of R.C. 2925.11(B)(2)(b) been prosecuted, convicted, or penalized yet? Vineyard had not.

{¶ 12} According to the plain language of the Good Samaritan statute, "a qualified individual shall not be" charged, tried, or punished for petty drug offenses when certain requirements are met. There is nothing in the plain language of the statute that makes the prohibitions of being tried, convicted, or punished applicable only to those who overdosed after a specific date, nor does the plain language of the statute disqualify one who overdosed before the statute's effective date. Even if charged prior to the statute's enactment, the statute specifically dictates that trial courts shall not convict, or penalize one who overdoses if the treatment conditions have been met. We find the application of the statute as performed by the trial court was a correct application of the law.

{¶ 13} The trial court found that Vineyard met each of the requirements set forth in the statute, and he therefore could not be convicted or penalized. This is a present application of the statutory requirements to Vineyard's circumstances, rather than a retroactive one espoused by the state and adopted by the dissent. The statute, as written, instructs trial courts that a person who overdosed from drugs but sought medical treatment should not be prosecuted, convicted, or penalized if that person meets all the requirements set forth in the statute. Vineyard met these requirements, and the state does not challenge such.

{¶ 14} In urging us to reject a plain reading and current application of the statute, the dissent suggests its "interpretation of the statute" dictates Vineyard is not a "qualified person" because his overdose occurred prior to the statute's enactment. However, nothing in the statute, which is designed to prohibit a person's conviction or punishment after treatment, predicates the application of the statute upon the date of his or her overdose. Reaching beyond the issues litigated before us, the dissent expresses concerns for the Legislature's wisdom and the statute's parity due to dubious situations unlikely to occur. Yet, our aim is not to construe legislative intent, but rather, apply the statute as written. If the legislation was not written as intended, it is for the Legislature to correct, not the judiciary. State v. Fillinger , 12th Dist. Madison No. CA2016-04-015, 2016-Ohio-8455, 72 N.E.3d 671, ¶ 15 (where we reasoned that inequity from disparate treatment resulting from a statute's application is a matter to be resolved by the Legislature, not the judiciary).

{¶ 15} As such, the trial court correctly granted Vineyard's motion to dismiss on the basis of R.C. 2925.11(B)(2)(b) given that at the time of Vineyard's motion to dismiss, he had not been convicted or penalized for drug possession and he met all other requirements for protection from punishment. The law as written, does not require a reversal of the trial court. The state's single assignment of error is overruled.

{¶ 16} Judgment affirmed.

S. POWELL, P.J., concurs.

M. POWELL, J., dissents.

M. POWELL, J., dissenting.

{¶ 17} Because the trial court erred in dismissing Vineyard's drug-related offenses pursuant to newly-enacted R.C. 2925.11(B)(2)(b), I dissent.

{¶ 18} R.C. 2925.11(B)(2) became effective on September 13, 2016, approximately five months after Vineyard overdosed and gave his heroin to the police. The trial court held that Vineyard was immune under the statute because he had not yet been convicted or penalized at the time the statute became effective.

{¶ 19} A statute is presumed to be prospective in its operation unless it is expressly made retroactive. State v. Consilio , 114 Ohio St.3d 295, 2007-Ohio-4163, ¶ 15, 871 N.E.2d 1167 ; State v. Sieminski , 9th Dist. Lorain No. 16CA011048, 2017-Ohio-5480, 2017 WL 2743473, ¶ 9. As the Ninth Appellate District properly found, a review of R.C. 2925.11(B)(2)(b) reveals no legislative indication that it is to be applied retroactively. Sieminski at ¶ 11. The statute therefore applies only prospectively.

{¶ 20} Like Vineyard, Sieminski overdosed and the police found contraband in her house before R.C. 2925.11(B)(2)(b) became effective. Like Vineyard, Sieminski moved to dismiss her drug-related charges after the effective date of the statute. At the time the trial court dismissed the charges, Sieminski had not yet been convicted or penalized. The trial court reasoned that "the clear intent" of the statute was "to assist those with a drug addiction into a treatment program as opposed to criminal prosecution if the evidence obtained resulted from a call for medical assistance." Sieminski at ¶ 11. The trial court then inferred that this intent, coupled with the statute's language that no qualified individual shall be "arrested, charged, prosecuted, convicted, or penalized," plainly showed the legislature's intention for the statute to apply in situations where the alleged offense predates the effective date of the statute. Id. The Ninth Appellate District squarely rejected the trial court's reasoning, finding that because R.C. 2925.11(B)(2)(b) applies only prospectively, it cannot apply to defendants whose offenses predate the effective date of the statute. Id. at ¶ 12. I agree with the reasoning of the Ninth Appellate District.

{¶ 21} Applying the statute as suggested by the majority necessarily results in a retroactive application. The majority focuses upon when a person is "prosecuted, convicted, or penalized" in concluding that the statute is being applied prospectively, as Vineyard's "prosecution, conviction, and penalization" all would occur after the effective date of the statute. However, the statute establishes criteria which must be satisfied if a person is to enjoy the immunity it provides. Among the criteria is that the person seek medical assistance for a drug overdose and within thirty days thereafter be screened and referred for addiction treatment. R.C. 2925.11(B)(2)(a)(viii) and (b)(ii). In order for Vineyard to have the benefit of the statute, it would have to be applied retrospectively, as his satisfaction of the foregoing criteria is based entirely upon facts predating its effective date. Thus, considering the entire statute, it is apparent that retroactive application is necessary if Vineyard is to enjoy the immunity the statute affords.

{¶ 22} Furthermore, construing the statute as applying to offenses occurring prior to its effective date leads to absurd results. First, similarly situated, eligible defendants committing offenses prior to the effective date of the statute would be treated differently depending upon whether their cases are disposed of before or after the effective date. This disparity in outcomes certainly could not have been intended by the General Assembly. Second, those persons who have been convicted and sentenced prior to the effective date of the statute, and who otherwise satisfy the statutory criteria, would be entitled to having any unserved portion of their sentences vacated, as such continued penalization after the statute's effective date would be a prospective application of the statute in the majority's view.

{¶ 23} In summary, the statute contains no express legislative indication that it be applied retroactively; extending the statute's immunity to individuals whose qualifications are based upon facts predating the statute's effective date is retroactive application; and applying the statute to persons committing offenses prior to the statute's effective date leads to illogical results that could not have been intended by the legislature.

{¶ 24} With regard and respect for my colleagues in the majority, I dissent.

      While this situation is practically possible only during the months immediately preceding the effective date of the statute, the possibility of such an anomalous situation demonstrates why the more reasonable interpretation of the statute is that it applies only to offenses committed after the statute's effective date.

      Applying the statute to offenses occurring prior to its effective date might also entitle those who are otherwise "qualified individuals" to the vacation of their convictions.