author: Harsha, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Perry BROOKS, Defendant-Appellant.
    No. 17CA3
    Court of Appeals of Ohio, Fourth District, Jackson County.
    RELEASED: June 5, 2018
    Timothy Young, Ohio Public Defender, and Allen Vender, Ohio Assistant Public Defender, Columbus, Ohio, for appellant.
    Justin Lovett, Jackson County Prosecuting Attorney, and Nick Wille, Jackson County Assistant Prosecuting Attorney, Jackson, Ohio, for appellee.
    DECISION AND JUDGMENT ENTRY
   Harsha, J.

{¶ 1} On May 17, 2016, Perry Brooks was arrested and jailed on drug charges. His jury trial did not occur until almost a year later on May 11, 2017. Brooks asserts that the trial court erred by failing to grant his motion to dismiss the charges based on the denial of his statutory right to a speedy trial. We agree. Brooks established a prima facie speedy-trial violation, but the record does not affirmatively demonstrate that the court's next-to-last continuance of the trial date was reasonable in both purpose and length.

{¶ 2} We sustain his assignment of error, reverse the judgment, and remand with instructions to vacate the convictions and discharge him.

I. FACTS

{¶ 3} On May 17, 2016, Ohio State Trooper Atwood pulled over Perry Brooks for two traffic infractions. After Brooks advised the trooper that his driver's license was suspended, Atwood asked Brooks to step out of the vehicle. As Brooks started to comply, the trooper spotted a sandwich bag containing what appeared to be crack cocaine on the driver's floorboard near his feet. He then arrested Brooks, who admitted that the bag contained 190 grams of drugs, and took him to jail. A crime lab later determined that it tested positive for 191.863 grams of crack cocaine. The trooper filed complaints in the Jackson County Municipal Court charging Brooks with trafficking in and possessing cocaine. After a preliminary hearing, the court bound him over to the Jackson County Court of Common Pleas.

{¶ 4} On July 12, 2016, the Jackson County Grand Jury returned an indictment charging Brooks with one count of possessing cocaine and one count of trafficking cocaine in an amount exceeding 100 grams, both felonies of the first degree, and a major-drug-offender specification. Brooks entered a plea of not guilty to the charges at his arraignment on July 20, 2016. Brooks and the state represented to the common pleas court that he had been in jail since his May 17 arrest, i.e., around 60 days. The state advised that the deadline for Brooks to stand trial "looks like the middle of next month," i.e. mid-August 2016.

{¶ 5} By entry filed July 21, 2016, the trial court appointed an attorney to represent Brooks and continued his $150,000 full surety bond from municipal court. The court set an August 4 trial date. On July 25, Brooks filed a demand for discovery and a request for a bill of particulars. Brooks also filed a motion to continue the August 4 trial date and to waive the speedy-trial time because he needed "time to investigate this matter and time to file any motions that may be proper and necessary, including but not limited to a suppression motion challenging the probable cause for the traffic stop." On August 3, 2016, the state responded to Brooks's demand for discovery and filed a bill of particulars. On the same date the trial court granted Brooks's motion and continued the trial from August 4 to September 29, 2016, noting in its entry that Brooks waived time during the period of the continuance.

{¶ 6} On September 2, Brooks filed a motion to suppress the evidence seized as a result of the search of the automobile after the traffic stop. After conducting a hearing on the motion, the trial court denied it on September 26.

{¶ 7} On September 29, 2016, the date scheduled for trial, Brooks sought to represent himself because he felt that his court-appointed attorney was not effective and had refused to show him the evidence. The trial court decided not to proceed with the trial, and Brooks agreed to the appointment of new counsel. Based on his request for new counsel, the trial court tolled the speedy-trial time. On October 4, 2016, the trial court appointed new counsel for Brooks. On October 25, Brooks's new counsel filed a motion for leave to refile the motion to suppress and a request to review the evidence that was the subject of the prior suppression hearing.

{¶ 8} At a final pretrial hearing on October 31, 2016, new counsel raised the issue of whether a DVD he had of the traffic stop was the same as the DVD introduced in evidence at the suppression hearing. The purported conflict was the basis for his request to review the DVD in the court's possession. The trial court noted that it would deny Brooks's request to refile a suppression motion, unless he could point to a discrepancy in the DVDs or CDs.

{¶ 9} The trial court then discussed arranging a time for Brooks and his new counsel to view the DVD/CD in the upcoming few days:

JUDGE: And then Mr. Nash, if you get with Court Staff, we can make arrangements for you to view that CD.
ATTORNEY NASH: Can that be at a time that Mr. Brooks is here as well?
JUDGE: Uh... Mr. Brooks, where are they keepin' 'ya?
DEFENDANT: Right across the street.
JUDGE: Okay. Then, if you want to make arrangements about when you can come up, we'll make... I'm trying to think... we're full every day. Wednesday or Thursday the Magistrate's Courtroom may be available, but I guess we can... no, there's not a way to view it up there.
APA STORY: If you want to bring a laptop we could make a space available for him in our office. Um... the back office would be a private setting for him and his client.

{¶ 10} The trial court then asked the state whether it had a plea offer to resolve the case, and the state noted that it had offered to drop the major-drug-offender specification and recommend that Brooks serve nine years in prison. Brooks's counsel noted that Brooks did not want to accept the plea offer and "[w]hat he really wants to do before he accepts, or denies anything, is to review that DVD." The trial court stated that it would give Brooks 14 days to accept or reject the state's plea offer. Finally, upon Brooks's request, the trial court ordered the state to notify Brooks in seven days whether body camera footage existed of the traffic stop and arrest.

{¶ 11} On November 9, 2016, the trial court issued a pretrial order reflecting its October 31 actions: (1) ordering Brooks to notify the court within 14 days, in writing, whether he accepts or rejects the state's plea offer; and (2) ordering the state to provide highway patrol body camera video, if it exists, within seven days. Five days later, the state responded that the highway patrol did not use body cameras, but it did use dash/cruiser cameras; the state mailed a DVD of the dash/cruiser video and discovery documents to Brooks's new counsel. There is no written response from Brooks to the state's plea offer in the record.

{¶ 12} A December 6, 2016 notice issued by the court's assignment commissioner rescheduled the two-day jury trial from September 29 and 30, 2016 to February 16 and 17, 2017. The trial court did not issue an entry stating whether the speedy-trial time was tolled or the reason for the delay.

{¶ 13} In the meantime on December 23, 2016, the Supreme Court of Ohio in State v. Gonzales , 150 Ohio St.3d 261, 2016-Ohio-8319, 81 N.E.3d 405 (" Gonzales I "), held that in prosecuting cocaine-possession offenses under R.C. 2925.11(C)(4)(b) through (f) involving mixed substances, the state must prove that the weight of the actual cocaine, excluding the weight of any filler materials, meets the statutory threshold. The state applied for reconsideration of that judgment on January 3, 2017.

{¶ 14} On January 27, 2017, the Jackson County Prosecutor's Office filed a motion for a continuance of the February 16-17 trial pending the Supreme Court's reconsideration of Gonzales I . The state claimed that the request was reasonable and tolled the speedy-trial time because of the "far-ranging effect of the Gonzales holding on effective prosecutions of cocaine possession and trafficking, the extremely limited and expensive availability of labs performing the testing now required, and the possibility that the Supreme Court, on reconsideration, will reverse itself within a relatively short time." And in the event that the Supreme Court did not reconsider and vacate its decision in Gonzales I , the state contended it would need additional time for testing that comported with that decision to effectively prosecute Brooks. Brooks objected to the state's request for a continuance of the jury trial based on statutory speedy-trial requirements.

{¶ 15} By a February 21, 2017 pretrial order, the trial court granted the state a 60-day continuance of the trial date, which it determined to be reasonable for speedy-trial purposes. The court scheduled the matter for jury trial on May 11 and 12, 2017. The court explicitly stated in its entry that "[t]he trial date is the first available time due to the Court's docket."

{¶ 16} On March 6, 2017, the Supreme Court of Ohio vacated its decision in Gonzales I and held that "the entire compound, mixture, preparation, or substance,' including any fillers that are part of the usable drug, must be considered for the purpose of determining the appropriate penalty for cocaine possession under R.C. 2925.11(C)(4)." State v. Gonzales , 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419 (" Gonzales II "). That same day, the state filed a notice in the trial court of the Supreme Court's grant of reconsideration and reversal of Gonzales I . It also withdrew the balance of any requested continuance.

{¶ 17} On May 11, the first day of the rescheduled jury trial, Brooks filed a motion to dismiss the charges because of the violation of his statutory right to a speedy trial. He claimed that because he had been arrested on May 17, 2016 and held in jail since then, his trial should have occurred within 90 days thereafter, but that instead he was being tried nearly a year after he was arrested and jailed. More specifically, Brooks claimed that by November 9, 2016, all of his new counsel's pending motions had been resolved, but his trial did not begin until May 11, 2017. The state did not file a response to the motion, nor did the trial court issue a ruling on it.

{¶ 18} On May 11 and 12, 2017, the trial court finally held the scheduled trial. Upon deliberation the jury returned verdicts finding Brooks guilty of possession of cocaine, trafficking in cocaine, and the major-drug-offender specification accompanying the trafficking count. The trial court merged the counts for purposes of sentencing, and upon the state's election, sentenced Brooks to an 11-year mandatory prison term on the trafficking charge and the major-drug-offender specification, and a mandatory post-release control period.

II. ASSIGNMENT OF ERROR

{¶ 19} Brooks assigns the following error for our review:

THE TRIAL COURT ERRED BY FAILING TO DISMISS PERRY BROOKS'S CASE FOR DENIAL OF A SPEEDY TRIAL UNDER R.C. 2945.71 AND 2945.73. STATE V. BUTCHER , 27 OHIO ST.3D 28, 500 N.E.2D 1368 (1986) ; STATE V. WHITT , 4TH DIST. SCIOTO NO. 04CA2962, 2005-OHIO-5154 [2005 WL 2389891].

III. STANDARD OF REVIEW

{¶ 20} Based on Ohio's statutory speedy-trial provisions, Brooks contests the trial court's failure to grant his motion to dismiss the charges against him. Because the trial court failed to rule on the pretrial motion we presume the court overruled it. State ex rel. Scott v. Streetsboro , 150 Ohio St.3d 1, 2016-Ohio-3308, 78 N.E.3d 809, ¶ 14 ("When a trial court fails to rule on a pretrial motion, it is presumed that the court overruled it").

{¶ 21} "Appellate review of a trial court's decision on a motion to dismiss for a violation of the speedy trial requirements presents a mixed question of law and fact." State v. Spencer , 2017-Ohio-456, 84 N.E.3d 106, ¶ 16 (4th Dist.) ; State v. Baugh , 5th Dist. Tuscarawas No. 2017AP030007, 2018-Ohio-857, 2018 WL 1216840, ¶ 71. "Thus, appellate courts will defer to a trial court's findings of fact as long as competent, credible evidence supports them." Spencer at ¶ 16, citing State v. Brown , 131 Ohio App.3d 387, 391, 722 N.E.2d 594 (4th Dist.1998). "Appellate courts then independently determine whether the trial court properly applied the law to the facts." Spencer at ¶ 16. And when reviewing the legal issues in a speedy trial claim, we must strictly construe the statutes against the state. See Brecksville v. Cook , 75 Ohio St.3d 53, 57, 661 N.E.2d 706 (1996) ; Spencer at ¶ 16 ; State v. Deacey , 2d Dist. Montgomery No. 27408, 2017-Ohio-8102, 2017 WL 4460984, ¶ 75.

{¶ 22} Because the trial court effectively overruled the motion without issuing any decision, the record does not include any findings of fact. Thus, we are free to make an independent factual review.

IV. LAW AND ANALYSIS

Statutory Speedy Trial Claim

{¶ 23} The Sixth Amendment to the United States Constitution (which is made applicable to the states through the Due Process Clause of the Fourteenth Amendment) and Article I, Section 10 of the Ohio Constitution guarantee a criminal defendant the right to a speedy trial; this guarantee is implemented by R.C. 2945.71, which provides specific statutory time limits within which a person must be brought to trial. State v. Blackburn , 118 Ohio St.3d 163, 2008-Ohio-1823, 887 N.E.2d 319, ¶ 10. R.C. 2945.71(C)(2)"requires that a person against whom a felony charge is pending shall be brought to trial within 270 days after the person's arrest." State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 81. "For purposes of calculating speedy-trial time, 'each day during which the accused is held in lieu of bail on the pending charge shall be counted as three days.' " State v. Ramey , 132 Ohio St.3d 309, 2012-Ohio-2904, 971 N.E.2d 937, ¶ 15, quoting R.C. 2945.71(E). "Thus, subject to certain tolling events, a jailed defendant must be tried within 90 days." Id.

{¶ 24} Brooks was arrested and jailed on May 17, 2016, and his trial commenced almost a year later, i.e., more than 350 days, on May 11, 2017. Because this exceeded the 90-day period, Brooks presented a prima facie speedy-trial violation. State v. Smith , 4th Dist. Lawrence No. 16CA10, 2017-Ohio-7864, 2017 WL 4284736, ¶ 21, citing State v. Squillace , 10th Dist. Franklin No. 15AP-958, 2016-Ohio-1038, 2016 WL 1051066, ¶ 14. Once a defendant establishes a prima facie case for dismissal, the burden shifts to the state to prove that the time was sufficiently tolled to extend the period. Smith at ¶ 21, citing Squillace and State v. Anderson , 4th Dist. Scioto No. 15CA3696, 2016-Ohio-7252, 2016 WL 5889176, ¶ 19.

{¶ 25} " R.C. 2945.72 contains an exhaustive list of events and circumstances that extend the time within which a defendant must be brought to trial." Ramey at ¶ 24. The pertinent tolling provisions in this case are R.C. 2945.72(E) ("Any period of delay necessitated by reason of a * * * motion, proceeding, or action made or instituted by the accused") and (H) ("The period of any continuance granted on the accused's own motion, and the period of any reasonable continuance granted other than upon the accused's own motion").

{¶ 26} The parties agree that the 67 days that Brooks spent in jail from the day following his May 17, 2016 arrest, until the day before Brooks's first appointed counsel filed a demand for discovery and request for a bill of particulars on July 25, 2016, are charged against the 90-day speedy trial period.

{¶ 27} The parties also agree that the period from July 25, 2016 until November 9, 2016 was tolled for three reasons: (1) Brooks's demand for discovery and request for a bill or particulars, State v. Brown , 98 Ohio St.3d 121, 2002-Ohio-7040, 781 N.E.2d 159, syllabus (a demand for discovery or a bill of particulars constitutes a tolling event under R.C. 2945.72(E) ), (2) the trial court's grant of Brooks's motion for a continuance of the trial, see Smith , 2017-Ohio-7864, at ¶ 26 (" R.C. 2945.72(H) tolls the time for 'any continuance granted on the accused's own motion' "), and (3) Brooks's request for the appointment of new counsel and his new counsel's filing of additional motions. Id. at ¶ 28 (days between when motion to withdraw as counsel and the appointment of new counsel tolled the speedy-trial period).

{¶ 28} However, after November 9, 2016, the date that Brooks claimed all of his new counsel's pending motions and requests were resolved, the parties disagree about the tolling of any of the remaining period up to May 11, 2017, when trial began.

{¶ 29} The state argues that the entire time between the original September 29, 2016 trial date and the rescheduled date of February 16, 2017 must be tolled because: (1) the September 29 trial was rescheduled in light of Brooks's request for a new attorney on that date; (2) on October 31, 2016, Brooks's new counsel requested that he and Brooks view the DVD submitted into evidence at the suppression hearing to determine whether to refile a suppression motion, or to accept the state's plea offer; and (3) February 16, 2017 was the next available trial date, as the court noted at the October 31 pretrial hearing that its schedule was "full every day."

{¶ 30} Brooks concedes that his request for a new attorney and his new counsel's filings tolled the speedy-trial time until he was appointed new counsel and his new counsel's filings were resolved, which occurred on November 9. We agree because these actions by the defendant necessitated a delay and tolled the time under R.C. 2945.72(E).

{¶ 31} Moreover, we agree with the state that the brief delay caused by Brooks's October 31 request to view the previously submitted DVD evidence and to determine whether to accept the state's plea offer was a delay attributable to the accused's actions. But the trial court's November 9, 2016 entry ordered Brooks to notify the court in writing within 14 days of his decision whether to accept the state's plea offer. Therefore, by November 23, when no written notification appears on the record, the trial court would have been ready to proceed the next business day thereafter, i.e., the day after Thanksgiving, on Friday, November 25, 2016. Thus, we are persuaded that the speedy-trial period began to run again on that date.

{¶ 32} On December 6, 2016, the court's assignment commissioner filed a notice rescheduling the trial to February 16, 2017. However, the trial court did not provide any journal entry noting this continuance and the reasons for it. In general, "[w]hen sua sponte granting a continuance under R.C. 2945.72(H), the trial court must enter the order of continuance and the reasons therefor by journal entry prior to the expiration of the time limit prescribed in R.C. 2945.71 for bringing a defendant to trial." State v. Mincy , 2 Ohio St.3d 6, 441 N.E.2d 571 (1982), syllabus. Clearly, the trial court's continuance on December 6, 2016 of the trial from September 29, 2016 until February 16, 2017, did not comply with Mincy .

{¶ 33} Nevertheless, the state cites an exception to the Mincy rule that provides that "an appellate court may affirm a conviction challenged on speedy-trial grounds even if the trial court did not expressly enumerate any reasons justifying the delay when the reasonableness of the continuance is otherwise affirmatively demonstrated by the record." Ramey , 132 Ohio St.3d 309, 2012-Ohio-2904, 971 N.E.2d 937, at ¶ 33. The state argues that after the September 29 trial was postponed because of Brooks's request for new counsel, the record affirmatively demonstrates that the next available trial dates were February 16 and 17, 2017, based on the trial court's statement at the October 31, 2016 pretrial hearing that "we're full every day."

{¶ 34} We disagree. The state takes this response by the trial court out of its limited context, which was a reply to making arrangements in the upcoming few days for Brooks and his new counsel to view the DVD/CD admitted into evidence at the suppression hearing. In that response the trial court noted that the magistrate's courtroom was available that same week, but it lacked the equipment for people to view the DVD/CD. The trial court did not state, and the record does not otherwise affirmatively demonstrate, that the court could not schedule a new trial date in the period starting from November 25, 2016 (the date after the deadline for Brooks to notify the court in writing of whether he accepted the state's plea offer and one day after Thanksgiving) to February 16, 2017 (the date the court rescheduled the trial by notice on December 6, 2016). In this regard the court's continuance of the trial to February 16, 2017 differs from its continuance of the trial from February 16, 2017 to May 11, 2017, where the court expressly stated in its entry that "[t]he trial date is the first available time due to the Court's docket."

{¶ 35} The state also relies on the following language from our decision in Smith , 2017-Ohio-7864, at ¶ 29 to assert that the entire time from September 29, 2016 until February 16, 2017 tolled the speedy-trial time:

Although counsel's motion to withdraw was not an explicit request for a continuance, it necessitated the cancellation of the December 7 scheduled trial and the rescheduling to a later date. Where a trial court must reschedule a trial because of a motion of the accused, regardless of whether it is styled as a motion for a continuance, the entire time between the motion and the rescheduled trial date is a delay is attributable to a motion filed by the accused under R.C. 2945.72(E).

(Emphasis added.)

{¶ 36} Again, the state is lifting language out of the context in which it was presented. In Smith at ¶ 31 we emphasized that any continuance warranting a rescheduled trial must be reasonable in both purpose and length for speedy-trial purposes, and that the peculiar circumstances of that case-including the defendant's statement that he did not care how long it took for his new counsel to prepare for trial-justified the tolling of the speedy-trial time for the entire period of the continuance for the rescheduled trial:

The reasonableness of the continuance from the December 7, 2015 (date that Smith's new counsel was appointed), until February 4, 2016 (when the trial commenced) is affirmatively demonstrated by the record. At the proceeding on the motion to withdraw, Smith noted that an attorney could not prepare his case in a week and that he was dissatisfied with his first attorney because counsel had not filed motions he had requested. When the trial court advised him that it would take time for his new lawyer to be prepared to represent him at trial, Smith specifically stated that he did "not care how long it takes." Smith appeared to acquiesce in the trial court's statement that it would take six or seven weeks to reschedule his trial. In fact, in substitute counsel's motion for extraordinary fees, which the trial court granted, he represented that these additional fees were warranted "[d]ue to the amount of time necessary to prepare for a trial with such serious charges along with the fact that extra time was necessary to investigate this matter [and] extra time was necessary to prepare this case for trial." * * * Under these circumstances the record affirmatively demonstrates that the continuance of the trial from the date of the appointment of new counsel until the rescheduled trial was reasonable in both purpose and length. See Ramey at ¶ 33 ; State v. Carr , 4th Dist. Ross No. 12CA3358, 2013-Ohio-5312, 2013 WL 6388440, ¶ 31.

{¶ 37} There was no similar acquiescence by Brooks here to the trial court's continuance of the trial date to February 16, 2017. Consequently, the state's reliance on Smith is misplaced.

{¶ 38} Because the record does not affirmatively demonstrate that rescheduling the trial to February 16, 2017 was reasonable in either purpose or length, we find that the speedy-trial time was not tolled beginning November 25, 2016. Thus, the 90-day trial deadline would have expired by Monday, December 19, 2016 at the latest.

{¶ 39} Because the trial court did not conduct a trial for Brooks within the applicable 90-day speedy-trial period, it erred by failing to dismiss the charges. Thus, we need not address the state's claim that the additional continuance granted by the trial court pending the Supreme Court's reconsideration of Gonzales I tolled the speedy-trial time. It had already expired. We sustain Brooks's assignment of error.

V. CONCLUSION

{¶ 40} After Brooks established a prima facie case of a speedy-trial violation, the state failed to meet its burden to establish that the time was tolled to extend the period to the date that Brooks was tried. Having sustained Brooks's assignment of error, we reverse the judgment of the trial court and remand the cause to that court with instructions to vacate his convictions and discharge him.

JUDGMENT REVERSED AND CAUSE REMANDED.

Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.

      Because this appeal concerns a challenge to Ohio's statutory speedy trial requirements, we provide a detailed statement of dates and procedures.

      "The day of arrest does not count when computing speedy-trial time." Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, at fn. 7.


source: Caselaw Access Project

author: ABELE, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellant, v. Larry E. BROWN II, Defendant-Appellee.
    No. 17CA3603
    Court of Appeals of Ohio, Fourth District, Ross County.
    DATE JOURNALIZED: June 6, 2018
    Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jeffrey C. Marks, Assistant Ross County Prosecuting Attorney, Chillicothe, Ohio, for Appellant.
    Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski, Assistant State Public Defender, Columbus, Ohio, for Appellee.
    DECISION AND JUDGMENT ENTRY

      Different counsel represented appellee during the trial court proceedings.

   ABELE, J.

{¶ 1} This is an appeal from a Ross County Common Pleas Court judgment that dismissed the indictment filed against Larry E. Brown II, defendant below and appellee herein. The State of Ohio, plaintiff below and appellant herein, assigns the following errors for review:

i.

ii.

iii. FIRST ASSIGNMENT OF ERROR:

iv. "THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT GRANTED THE APPELLEE'S MOTION TO DISMISS BY RETROACTIVELY APPLYING THE PROTECTIONS OF O.R.C. 2925.11(B)(2)(b) TO THIS OFFENDER, AS THE OFFENSE AT ISSUE OCCURRED APPROXIMATELY SIX (6) MONTHS PRIOR TO THE STATUTORY EFFECTIVE DATE OF THE PROTECTIONS AFFORDED OFFENDERS UNDER THE ABOVE LISTED STATUTE."
v. SECOND ASSIGNMENT OF ERROR:
vi. "THE TRIAL COURT ERRED WHEN IT GRANTED THE APPELLEE'S MOTION TO DISMISS BY FINDING THAT THE APPELLEE COMPLLIED [SIC] WITH O.R.C. 2925.11(B)(2)(b)(ii), BECAUSE NO EVIDENCE WAS OFFERED TO SHOW THE QUALIFIED INDIVIDUAL OBTAINED A SCREENING AND RECEIVED A REFERRAL FOR TREATMENT FROM A COMMUNITY ADDICTION SERVICES PROVIDER OR A PROPERLY CREDENTIALED ADDICTION TREATMENT PROFESSIONAL WITHIN THIRTY (30) DAYS OF HIS OVERDOSE."
vii. THIRD ASSIGNMENT OF ERROR:
viii. "THE TRIAL COURT ERRED WHEN IT GRANTED THE APPELLEE'S MOTION TO DISMISS BY FINDING THAT THE APPELLEE COMPLIED WITH O.R.C. 2925.11(B)(2)(b)(iii), BECAUSE THE QUALIFIED INDIVIDUAL DID NOT SUBMIT DOCUMENTATION TO THE PROSECUTING ATTORNEY TO VERIFY THAT HE SATISFIED THE REQUIREMENTS OF O.R.C. 2925.11(B)(2)(ii)."

{¶ 2} On May 27, 2016, a Ross County Grand Jury returned an indictment that charged appellant with fifth-degree felony cocaine-possession, in violation of R.C. 2925.11. In September 2016, the General Assembly amended the drug-possession statute, R.C. 2925.11, to generally grant immunity to a "qualified individual" who otherwise could be charged with a misdemeanor- or fifth-degree felony drug-possession offense. For immunity to attach, the individual must satisfy the statutory requirements.

{¶ 3} On January 25, 2017, appellee filed a motion to dismiss the indictment and alleged that he is a qualified individual who is immune from prosecution under R.C. 2925.11(B)(2). In particular, appellee asserted that on (1) March 15, 2016, he required medical assistance due to a drug overdose; (2) law enforcement officers obtained cocaine from his person as a result of appellee receiving that medical assistance; (3) after emergency personnel revived him with Narcan, appellee consented to a search of his person; (4) during the search, law enforcement officers discovered a bag that contained a white powdery substance that later testing revealed to be cocaine; and (5) within thirty days of needing medical assistance for his drug-overdose, he sought and obtained a screening and received a treatment-referral. Appellee alleged that on March 29, 2016, he entered a drug-treatment program through Pike County Recovery Council (PCRC).

{¶ 4} Appellee thus contended that he fulfilled the R.C. 2925.11(B)(2) requirements: (1) law enforcement officers obtained cocaine as a result of appellee experiencing an overdose and needing medical assistance; and (2) within thirty days of receiving medical assistance for his overdose, he sought and obtained a screening and received a treatment-referral. Appellee asserted that he is, therefore, immune under R.C. 2925.11(B)(2)(b).

{¶ 5} In support of his motion, appellee attached a document from SelfRefind that states that on August 29, 2016, appellee entered a drug-addiction treatment program and that he continues to participate in the program. Appellee also included a document from PCRC that lists appellee's dates of service. Appellee's first date of service was December 15, 2015, but the document reflects no other services provided to appellee until March 29, 2016. The document contains codes for the activities and procedures provided to appellee, but it does not reveal what the codes mean.

{¶ 6} On March 1, 2017, the trial court held a hearing to consider appellee's motion to dismiss. At the hearing, the parties stipulated that on December 15, 2015, appellee received an assessment from PCRC, and that when he returned on March 29, 2016, he received treatment. The parties further stipulated that in August 2016, appellee obtained an assessment through SelfRefind and he has been in treatment since that time.

{¶ 7} The trial court asked the parties whether R.C. 2925.11(B)(2)(b) applies when an individual overdoses before the effective date of the statute, as appellee did. The prosecutor responded:

i. I think that it does in this particular case because when you look at (B)(2)(b) of 2925.11, it says that a qualified individual shall not be arrested, charged, prosecuted, or convicted or penalized. So I think at least those last two or the last three sections apply to him being convicted or penalized, even though the act itself had occurred prior to the effective date of the [statute].

The prosecutor asserted, however, that appellee did not satisfy the conditions listed in the statute to be entitled to immunity. The prosecutor agreed that appellee met the first condition, i.e., that the cocaine was obtained as a result of receiving medical assistance. However, the prosecutor did not agree that appellee met the second condition, i.e., that he sought and obtained a screening and received a treatment-referral within thirty days of receiving medical assistance. The prosecutor asserted that appellee received "an assessment" three months before his overdose and then "appeared for treatment" two weeks after his overdose. The prosecutor contended that receiving an assessment three months before an overdose and entering a treatment program within thirty days after the overdose does not satisfy the second condition listed in the statute. The prosecutor asserted that the statute instead requires the individual to receive an assessment within thirty days after seeking or obtaining medical assistance, and that the statute does not include conduct that occurred before the individual seeks or obtains medical assistance.

{¶ 8} Appellee argued that he "went above and beyond what was required of him by the statute." He has undergone treatment, and he has followed-up with that treatment. Appellee recognized that PCRC completed an assessment three months before his overdose. He further asserted, however, that two weeks after his overdose, he returned to PCRC, "sign[ed] up, [obtained] a treatment plan and [went] to treatment." Appellee contended that he "clearly had some type of plan formed once he re-establishe[d his] relationship" with PCRC. Appellee alleged that his re-entry three months after his initial assessment sufficiently illustrates that PCRC screened him and that his subsequent treatment shows that PCRC referred him for treatment. Appellee also claimed that even though he completed an assessment three months before his overdose, he returned to PCRC within thirty days of his overdose and that his return to treatment shows that he sought and obtained a screening and received a treatment-referral.

{¶ 9} The trial court noted that the statute does not define the type of screening or assessment an individual must undergo. The court believed, however, that an individual "receives an assessment every time he goes for counseling, because they assess where he is in his addiction and they assess what they need to do at that hearing or at that meeting, and what's going to happen to him down the road." The court further believed that it would be "absurd" to read the statute so as to give immunity to an individual who seeks and obtains a screening and treatment-referral and who does not actually engage in a treatment program, but to deny immunity to an individual who obtained a screening and treatment-referral before the overdose that resulted in medical assistance and then actually engages in treatment after the overdose.

{¶ 10} The trial court thus granted appellee's motion to dismiss the indictment. The court noted that, even though appellee did not undergo an evaluation within thirty days, he had received one earlier. The court further found "that as part of ongoing treatment being received an assessment would be completed within the specified time." This appeal followed.

I

{¶ 11} Appellant's three assignments of error all challenge the trial court's decision to grant appellee's motion to dismiss the indictment. For ease of discussion, we first set forth the applicable standard of review.

{¶ 12} Generally, appellate courts conduct a de novo review of a trial court's decision regarding a motion to dismiss an indictment. State v. Wheatley , 2018-Ohio-464, 94 N.E.3d 578, ¶ 5 (4th Dist.) ; State v. Kirk , 8th Dist. Cuyahoga No. 104866, 2016-Ohio-8296, 2016 WL 7496605, ¶ 4 ; State v. Anderson , 148 Ohio St.3d 74, 2016-Ohio-5791, 68 N.E.3d 790, ¶ 20 ("Appellate courts apply a de novo standard of review when reviewing the denial of a motion to dismiss an indictment on the grounds of double jeopardy."); State v. Workman , 4th Dist. Athens No. 14CA25, 2015-Ohio-4483, 2015 WL 6549290, ¶ 9. Accordingly, an appellate court does not defer to a trial court's decision, but instead independently determines whether the trial court's decision is legally correct. Wheatley at ¶ 5.

II

{¶ 13} In its first assignment of error, appellant asserts that the trial court erred by granting appellee's motion to dismiss the indictment. Specifically, appellant contends that the trial court erred by determining that R.C. 2925.11(B)(2)(b) applies retroactively so as to render appellee immune from prosecution for a minor drug-possession offense. Appellant claims that the General Assembly did not expressly indicate that the statute applies retroactively, and thus, the statute applies prospectively only.

{¶ 14} Appellee points out, however, that during the trial court proceedings, appellant expressly agreed that R.C. 2925.11(B)(2)(b) applies retroactively. Appellee thus contends that appellant forfeited the right to argue that R.C. 2925.11(B)(2)(b) applies prospectively only, or alternatively, that appellant invited any error that the trial court may have committed by applying the statute to appellee's situation.

{¶ 15} We agree with appellee that appellant invited any error that the trial court may have committed by applying R.C. 2925.11(B)(2)(b). Our review of the record reveals that during the hearing, the court specifically questioned the parties whether the statute applied to appellee, who had overdosed and entered treatment before the effective date of the statute. Appellant asserted that the statute indeed applies to appellee and did not give any indication that it believed the statute could apply prospectively only. Under these circumstances, we believe that appellant invited any error that may have occurred. See State ex rel. Kline v. Carroll , 96 Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d 517, ¶ 27 ("Under [the invited-error] doctrine, a party is not entitled to take advantage of an error that he himself invited or induced the court to make").

{¶ 16} We additionally recognize that appellant argues that the trial court plainly erred by applying the statute to appellee. The invited-error doctrine is not, however, rendered inapplicable when a party claims plain error:

i. While invocation of the plain error doctrine is often justified in order to promote public confidence in the judicial process, "[it is doubtful that] the public's confidence in the jury system is undermined by requiring parties to live with the results of errors that they invited, even if the errors go to 'crucial matters.' In fact, the idea that parties must bear the cost of their own mistakes at trial is a central presupposition of our adversarial system of justice."

Goldfuss v. Davidson , 79 Ohio St.3d 116, 121-122, 679 N.E.2d 1099 (1997), quoting Montalvo v. Lapez , 77 Hawai'i 282, 305, 884 P.2d 345, 368 (1994) (Nakayama, J., concurring in part and dissenting in part); State v. Rohrbaugh , 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 10 (stating that even plain error is waived when error is invited). Thus, even if the trial court arguably erred by applying R.C. 2925.11(B)(2)(b), appellant cannot take advantage of a plain error that it invited.

{¶ 17} Accordingly, based upon the foregoing reasons, we overrule appellant's first assignment of error.

III

{¶ 18} Appellant's second and third assignments of error challenge the trial court's finding that appellee's conduct following his overdose satisfied the R.C. 2925.11(B)(2)(b)(ii) and (iii) requirements. For ease of discussion, we consider the two assignments of error together.

{¶ 19} In its second assignment of error, appellant contends that appellee did not present any evidence that he obtained a screening and received a treatment-referral within thirty days of receiving medical attention for his overdose. Instead, appellant asserts that the evidence shows that appellee received a screening and treatment-referral more than three months before his overdose. Appellant thus claims that appellee's pre-overdose screening and treatment-referral do not satisfy the plain language of the statute.

{¶ 20} Appellant recognizes that appellee entered treatment within thirty days of his overdose. Appellant further charges, however, that obtaining treatment within thirty days of the overdose without also presenting evidence that the individual received a screening and treatment-referral within that same time period does not satisfy the plain language of the statute.

{¶ 21} Appellee asserts that the documents he presented permitted the trial court to "reasonably infer[ ]" that appellant received a screening and treatment-referral. Appellee further contends that the trial court interpreted the "screening" requirement so as to avoid an "absurd" result: an individual who actually engages in treatment following an overdose would not be entitled to immunity under R.C. 2925.11(B)(2)(b), but an individual who seeks and obtains a screening and treatment-referral without engaging in treatment would be entitled to immunity. Appellee argues that the trial court had "discretion to interpret the 'screening' and 'referral for treatment' condition broadly so that evidence of a more onerous task-actual participation in treatment-satisfied it."

{¶ 22} In its third assignment of error, appellant contends that the trial court erred by concluding that appellee satisfied R.C. 2925.11(B)(2)(b)(iii). Appellant asserts that appellee did not present documentation to verify that he obtained a screening or treatment-referral within thirty days of his overdose. Instead, appellant argues, appellee submitted a document that shows he obtained a treatment-referral three months before his overdose.

{¶ 23} Appellee contends that appellant's failure to request that he produce written documentation to show that he sought and obtained a screening and received a treatment-referral means that the trial court could make reasonable inferences from the evidence appellee presented with his motion to dismiss.

{¶ 24} After appellee's indictment, the General Assembly amended R.C. 2925.11. The amendment added R.C. 2925.11(B)(2)(b), which grants immunity to "a qualified individual." See R.C. 2925.11(B)(2)(f) (describing R.C. 2925.11(B)(2)(b) as granting immunity). More specifically, the statute provides:

{¶ 25} [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. (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. (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.

{¶ 26} A " '[q]ualified individual' means a person who is not on community control or post-release control and is * * * a person who experiences a drug overdose and who seeks medical assistance for that overdose." R.C. 2925.11(B)(2)(a)(viii). A " '[m]inor drug possession offense' means a violation of this section that is a misdemeanor or a felony of the fifth degree." R.C. 2925.11(B)(2)(a)(iv).

{¶ 27} In the case sub judice, appellant asserts that the trial court erred by determining that appellee (1) within thirty days after he received medical treatment for his overdose, sought and obtained "a screening and receive[d] a referral for treatment," and (2) "submit[ted] documentation to the prosecuting attorney that verifies that [appellee] satisfied the requirements of [ R.C. 2925.11(B)(2)(ii) ]." Appellant claims that appellee's re-entry into a treatment program after being assessed three months earlier does not satisfy the "screening" requirement.

{¶ 28} Appellee, on the other hand, argues that the trial court applied an appropriate interpretation of the term "screening" and found that appellant's re-entry into treatment on March 29, 2016, would have involved additional screening and treatment-referral. Resolving the parties' dispute requires us to consider the meaning of the terms "screening" and "referral to treatment" as used in R.C. 2925.11(B)(2)(b).

{¶ 29} A court that is ascertaining the meaning of a statute first must "consider the 'plain meaning of the statutory language.' " State v. D.B. , 150 Ohio St.3d 452, 2017-Ohio-6952, 82 N.E.3d 1162, ¶ 10, quoting Portage Cty. Bd. of Commrs. v. Akron, 109 Ohio St.3d 106, 2006-Ohio-954, 846 N.E.2d 478, ¶ 52. "If that language is 'unambiguous and definite,' we apply it 'in a manner consistent with the plain meaning of the statutory language.' " Id. , quoting State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 9. Accordingly, a court's first step when considering the meaning of a statute "is always to determine whether the statute is 'plain and unambiguous.' " Jacobson v. Kaforey , 149 Ohio St.3d 398, 2016-Ohio-8434, 75 N.E.3d 203, quoting State v. Hurd , 89 Ohio St.3d 616, 618, 734 N.E.2d 365 (2000) ; see also State ex rel. Cordray v. Midway Motor Sales, Inc. , 122 Ohio St.3d 234, 2009-Ohio-2610, 910 N.E.2d 432, ¶ 15, quoting Slingluff v. Weaver , 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the syllabus (stating that if words used in statute " 'be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation' "). " 'If [the statute] is not ambiguous, then we need not interpret it; we must simply apply it.' " Wilson v. Lawrence , 150 Ohio St.3d 368, 2017-Ohio-1410, 81 N.E.3d 1242, ¶ 11, quoting State v. Hairston , 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶ 13. When the language used in a statute " 'is plain and unambiguous, and conveys a clear and definite meaning, we must rely on what the General Assembly has said.' " Id. , quoting Jones v. Action Coupling & Equip., Inc. , 98 Ohio St.3d 330, 2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12, citing Symmes Twp. Bd. of Trustees v. Smyth , 87 Ohio St.3d 549, 553, 721 N.E.2d 1057 (2000). Additionally, courts must "give effect only to the words the legislature used, making neither additions to, nor deletions from, the statutory language." Id. , citing Columbia Gas Transm. Corp. v. Levin , 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 19. Furthermore, " '[t]he interpretation of statutes and administrative rules should follow the principle that neither is to be construed in any way other than as the words demand.' " State ex rel. Baroni v. Colletti , 130 Ohio St.3d 208, 2011-Ohio-5351, 957 N.E.2d 13, ¶ 18, quoting Morning View Care Ctr.-Fulton v. Ohio Dept. of Human Servs. , 148 Ohio App.3d 518, 2002-Ohio-2878, 774 N.E.2d 300, ¶ 36 (10th Dist.).

{¶ 30} Consequently, when interpreting a statute, courts first look to the text of the rule, "reading words and phrases in context and construing them according to the rules of grammar and common usage." State ex rel. Steele v. Morrissey , 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 21. When, however, a legislative "definition is available, we construe the words of the statute accordingly." State v. Gonzales , 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419, ¶ 4, citing R.C. 1.42 ; accord Stewart v. Vivian , 151 Ohio St.3d 574, 2017-Ohio-7526, 91 N.E.3d 716, ¶ 25. Additionally, "[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." R.C. 1.42 ; accord State ex rel. Natl. Lime & Stone Co. v. Marion Cty. Bd. of Commrs. , 152 Ohio St.3d 393, 2017-Ohio-8348, 97 N.E.3d 404, ¶ 14 ; Hoffman v. State Med. Bd. of Ohio , 113 Ohio St.3d 376, 2007-Ohio-2201, 865 N.E.2d 1259, ¶ 26 ; State v. Reyes-Rosales , 4th Dist. Adams No. 15CA1010, 2016-Ohio-3338, 2016 WL 3216241, ¶ 21. Terms that are not statutorily-defined or that have not acquired a technical or particular meaning "are accorded their common, everyday meaning." Stewart at ¶ 25, citing R.C. 1.42.

{¶ 31} In general, a statute is ambiguous when the language "is 'capable of bearing more than one meaning.' " Jacobson at ¶ 8, quoting Dunbar v. State , 136 Ohio St.3d 181, 2013-Ohio-2163, 992 N.E.2d 1111, ¶ 16 ; see Dana Corp. v. Testa, Tax Commr. , 152 Ohio St.3d 602, 2018-Ohio-1561, 99 N.E.3d 393, quoting Pittsburgh Steel Co. v. Bowers , 173 Ohio St. 74, 77, 179 N.E.2d 915 (1962) (explaining that ambiguity may result not only from " 'the indefiniteness of the meaning of a word or phrase,' " but also "from a word or phrase that by itself is 'perfectly clear in its meaning' but that becomes 'clouded with obscurity when considered in relation to other words in a statement containing the word or phrase' "). A court that is reviewing a statute for ambiguity should direct its " 'attention * * * beyond single phrases, and * * * should consider, in proper context, all words used by the General Assembly in drafting [the relevant statute] with a view to its place in the overall [statutory] scheme.' " Gonzales at ¶ 5, quoting D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health , 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d 536, ¶ 19. "When the language of a statute is ambiguous, we resort to the rules of construction to discern its meaning."

Turner v. Hooks , 152 Ohio St.3d 559, 2018-Ohio-556, 99 N.E.3d 354, citing Cline v. Ohio Bur. of Motor Vehicles , 61 Ohio St.3d 93, 96, 573 N.E.2d 77 (1991). "Without 'an initial finding' of ambiguity, 'inquiry into legislative intent, legislative history, public policy, the consequences of an interpretation, or any other factors identified in R.C. 1.49 is inappropriate.' " Jacobson at ¶ 8, quoting Dunbar at ¶ 16.

{¶ 32} In the case sub judice, the General Assembly did not define the terms "screening" or "referral to treatment." We therefore "first consider the dictionary definition of the term[s]." Stewart at ¶ 26.

{¶ 33} The dictionary definition of "screening" does not yield a satisfactory meaning of the word as used within R.C. 2925.11(B)(2)(b)(ii). Merriam-Webster's Dictionary offers the following four definitions of "screening": (1) "the act or process of one that screens"; (2) "material (such as waste or fine coal) separated out by means of a screen"; (3) "metal or plastic mesh (as for window screens)"; and (4) "a showing of a motion picture." https://www.merriam-webster.com/dictionary/screening. The term "screen" includes "a system for examining and separating into different groups." https://www.merriam-webster.com/dictionary/screens. Reading these definitions together suggests that "screening," as used in R.C. 2925.11(B)(2)(b)(ii), could mean the act or process of examining and separating into different groups. We do not believe, however, that this definition fully explains the meaning of "screening" as used in R.C. 2925.11(B)(2)(b)(ii). Instead, we believe that the word "screening," in addition to the phrase "referral to treatment," is a term of art commonly used in the field of substance abuse treatment services. We therefore believe that the terms "screening" and "referral to treatment" as used in R.C. 2925.11(B)(2)(b) have acquired technical or particular meanings that we should employ to ascertain the meaning of the statute.

{¶ 34} The United States Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Center for Substance Abuse Treatment, has issued several publications regarding substance abuse that offer insight into the meaning of the terms "screening" and "referral to treatment" as used in R.C. 2925.11(B)(2)(b)(ii). As used in the field of substance abuse services, "screening" generally means

a process of identifying patients with possible substance misuse or abuse problems and determining the appropriate course of future action for these individuals. The screening process does not exactly identify what kind of problem a person might have or how serious it might be; screening simply determines whether a problem exists or whether further assessment is needed.

Systems-Level Implementation of Screening, Brief Intervention, and Referral to Treatment, Technical Assistance Publication (TAP) Series 33, HHS Publication No. (SMA) 13-4741, Rockville, MD: Substance Abuse and Mental Health Services Administration (2013), 8 ("TAP 33"), available at https://store.samhsa.gov/shin/content//SMA13-4741/TAP33.pdf.

{¶ 35} While screening aims to identify individuals with possible substance abuse issues,

[t]he primary goals of referral to treatment (RT) are to identify an appropriate treatment program and to facilitate engagement of the patient in treatment. RT can be a complex process involving coordination across different types of services. It requires a proactive and collaborative effort between SBIRT [Screening, Brief Intervention, and Referral to Treatment] providers and those providing specialty treatment to ensure that a patient, once referred, has access to and engages in the appropriate level of care. To facilitate patient engagement, SBIRT providers may use motivational enhancement techniques to help patients with any ambivalence toward treatment, provide transportation to intake appointments, follow up with patients after an appointment, and maintain contact with the specialty treatment provider.

Id. at 9.

{¶ 36} In the case at bar, the parties also appear to have used the term "assessment" synonymously with "screening." "Assessment" generally means

[a] process for defining the nature of a problem and developing specific treatment recommendations for addressing the problem. A basic assessment consists of gathering key information and engaging in a process with the client that enables the counselor to understand the client's readiness for change, problem areas, any diagnosis(es), disabilities, and strengths. The assessment process typically requires trained professionals to administer and interpret results, based on their experience and training.

Center for Substance Abuse Treatment. Substance Abuse Treatment for Adults in the Criminal Justice System. Treatment Improvement Protocol (TIP) Series 44. HHS Publication No. (SMA) 13-4056. Rockville, MD: Substance Abuse and Mental Health Services Administration (2005), 8 ("TIP 44"), available at https://store.samhsa.gov/shin/content//SMA13-4056/SMA13-4056.pdf.

{¶ 37} Thus,

[s]creening differs from assessment in the following ways:
i. Screening is a process for evaluating the possible presence of a particular problem. The outcome is normally a simple yes or no.
ii. Assessment is a process for defining the nature of that problem, determining a diagnosis, and developing specific treatment recommendations for addressing the problem or diagnosis.

of Women, Treatment Improvement Protocol (TIP) Series, No. 51 Center for Substance Abuse Treatment, Substance Abuse and Mental Health Services Administration (2009), 58 ("TIP 51"), available at https://www.ncbi.nlm.nih.gov/books/NBK83252/pdf/Bookshelf_NBK83252.pdf/.

{¶ 38} Furthermore, "[s]creening and assessment are not single events but continuous processes that can be repeated by a variety of professionals in a variety of settings." TIP 44 at 14. Thus, "[s]creening can be repeated at intervals, as needed." TAP 33 at 10. Likewise, "[a]ssessment should be a fluid process throughout treatment. It is not a once-and-done event. Considering the complexity of withdrawal and the potential influence of alcohol and drugs on physical and psychological functioning, it is very important to reevaluate as the client engages into recovery." TIP 51 at 75. "Another key reason for conducting multiple screenings and assessments over time is that previous information obtained may become outdated and may not include recent events that are relevant to treatment, such as relapse episodes, undetected mental disorders, or domestic violence." TIP 44 at 16.

{¶ 39} After considering the foregoing definitions, we believe that the term "screening" as used in R.C. 2925.11(B)(2)(b) means the "process of identifying patients with possible substance misuse or abuse problems and determining the appropriate course of future action for these individuals." The phrase "referral to treatment" means the process that identifies an appropriate treatment program and facilitates patient engagement. Therefore, we believe that the plain language of the statute requires a qualified individual to seek and undergo, within thirty days of seeking medical assistance for a drug overdose, a "process" to identify possible substance misuse or abuse problems and to determine the appropriate course of future action. In addition, the individual must receive a treatment-referral, which involves identifying an appropriate treatment program and facilitating patient engagement. Although the parties appear to use the terms "screening" and "assessment" interchangeably, we point out that the published literature indicates that the terms are not synonymous.

{¶ 40} Having defined the terms used in R.C. 2925.11(B)(2)(b)(ii), we now can determine whether the trial court correctly concluded that appellant sought and obtained a screening and treatment-referral within the thirty-day window. The evidence appellee submitted shows that he received services at PCRC on December 15, 2015, and that his next service did not occur until March 29, 2016. The documentary evidence does not reveal what type of services appellee received during his visits to PCRC. The parties stipulated, however, that appellee received an "assessment" on December 15, 2015, and that he began a treatment program on March 29, 2016. The trial court found it logical to conclude that when appellee began the treatment program on March 29, 2016, PCRC would have administered a screening and would have referred appellee to treatment; otherwise, PCRC would not have admitted appellee into a treatment program. The trial court believed that given the three-month interval between appellee's December 2015 "assessment" and his March 2016 treatment, PCRC likely re-screened and re-referred appellee to treatment, assuming that is what PCRC had, in fact, done in December 2015.

{¶ 41} The technical meanings of "screening" and "referral to treatment" appear to support the trial court's conclusions. The literature indicates that a person may undergo more than one screening to account for lapses in time, relapses, overdoses, etc. This is precisely what happened to appellee. He visited PCRC in December 2015. Three months elapsed without any evidence that appellee engaged in treatment. He then overdosed. Two weeks later, he returned to PCRC. Given this set of circumstances, we do not find the trial court's conclusion that appellee satisfied the screening and treatment-referral requirements to be unreasonable or contrary to the plain language of the statute, especially when appellant never requested appellee to submit written documentation to verify the screening and treatment-referral requirements.

{¶ 42} With respect to appellant's assertion that the trial court improperly concluded that appellee complied with R.C. 2925.11(B)(2)(b)(iii)'s requirement to submit documentation verifying the screening and treatment-referral requirements, the statute plainly requires the prosecuting attorney to make a request for verification. In the case sub judice, the trial court specifically found that appellant never made any request. Thus, according to the plain meaning of the statute, appellee did not have a duty to submit documentation verifying the requirements.

{¶ 43} Finally, we find it appropriate to note:

i. Because our role as members of the judiciary is not " 'to establish legislative policies or to second-guess the General Assembly's policy choices,' " Stetter v. R.J. Corman Derailment Servs., L.L.C. , 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, ¶ 35, quoting Groch v. Gen. Motors Corp. , 117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 212, or to declare that the General Assembly by way of inadvertence or inattention made a slip of the pen in an attempt to rewrite the statute in a manner that is pleasing to us, we must adhere to the plain language of the statute. If after reflection on our decision, the General Assembly finds that its original intention was not accomplished in the words that it chose, then it, and it alone, has the constitutional authority to amend the statute to conform to its intention.

State ex rel. Clay v. Cuyahoga Cty. Med. Examiner's Office , 152 Ohio St.3d 163, 2017-Ohio-8714, 94 N.E.3d 498, ¶ 40.

{¶ 44} Accordingly, based upon the foregoing reasons, we overrule appellant's second and third assignments of error and affirm the trial court's judgment.

JUDGMENT AFFIRMED.

Hoover, P.J. & Harsha, J.: Concur in Judgment & Opinion

      Assuming, arguendo, appellant had not invited any error, we recently determined that R.C.2925.11(B)(2)(b) may apply to individuals who committed the minor drug possession offense before the amendment's effective date. State v. Simmons , 4th Dist., 2018-Ohio-2018, 112 N.E.3d 327.

      The parties have not fully developed arguments concerning the standard of review that appellate courts should apply to evaluate a trial court's screening and treatment-referral findings. We therefore do not address the issue at this time.

      We observe that the trial court also applied the "absurd-result" rule.
      "The absurd result principle in statutory interpretation provides an exception to the rule that a statute should be interpreted according to its plain meaning." (Emphasis added.) Dougherty, Absurdity and the Limits of Literalism: Defining the Absurd Result Principle in Statutory Interpretation, 44 Am.U.L.Rev. 127 (1994). It is premised on a guiding principle of statutory construction: that when the General Assembly enacts a statute, it does not intend to produce an absurd result. See R.C. 1.47(C).
      State ex rel. Clay v. Cuyahoga Cty. Med. Examiner's Office , 152 Ohio St.3d 163, 2017-Ohio-8714, 94 N.E.3d 498, ¶ 22.
      The absurd-result exception to the plain-meaning rule of construction "entails the imputation of legislative intent based on the judge's perception" and "vastly expands the [c]ourt's authority." Manning, The Absurdity Doctrine, 116 Harv.L.Rev. 2387, 2476 (2003). Therefore, all courts should exercise restraint in the application of the absurd-result exception, employing it in only those cases in which the plain language of a statute results in an obviously unintended result. Scalia & Garner, Reading Law: The Interpretation of Legal Texts 239 (2012) ("The doctrine of absurdity is meant to correct obvious unintended dispositions, not to revise purposeful dispositions that, in light of other provisions of the applicable code, make little if any sense").
      Id. at ¶ 26 (2017).
      In the case sub judice, we do not believe that the plain language of the statute leads to an obviously unintended result. We therefore need not consider the absurd-results rule.


author: CYNTHIA WESTCOTT RICE, J.

text:
    ILLUMINATING COMPANY, Plaintiff-Appellee, v. James J. WISER, et al., Defendants-Appellants.
    NOS. 2017-A-0082 2017-A-0083 2017-A-0084
    Court of Appeals of Ohio, Eleventh District, Ashtabula County.
    Decided June 11, 2018
    Amanda R. Yurechko, Weltman, Weinberg & Reis Co., L.P.A., 323 West Lakeside Avenue, Suite 200, Cleveland, OH 44113 (For Plaintiff-Appellee).
    Mitchell M. Tallan and Lori Elaine Thomson, Gallagher Gams Pryor Tallan & Littrell, 471 East Broad Street, 19th Floor, Columbus, OH 43215 (For Defendants-Appellants).
   CYNTHIA WESTCOTT RICE, J.

{¶ 1} Appellants, James J. Wiser, et al., appeal the summary judgment entered by the Ashtabula County Court of Common Pleas in favor of appellee, the Illuminating Company ("CEI"), and against appellants on CEI's complaint for negligence. At issue is whether the trial court erred in its determination of CEI's damages. For the reasons that follow, we affirm.

{¶ 2} Between November and December 2014, appellants, James J. Wiser, Tyler Riddle, and Richard Diedrich, were involved in three unrelated, single-car accidents in which each appellant drove his vehicle into a CEI utility pole, destroying the pole and causing loss of electrical service to CEI customers.

{¶ 3} In May 2016, CEI filed three separate complaints, each alleging negligence against one of the appellants. In each complaint, the utility alleged the appellant was liable for the costs incurred in replacing the pole. Appellants filed their answers, denying the material allegations of the complaints.

{¶ 4} Appellants did not dispute their liability and, in March 2017, the cases were consolidated on the issue of CEI's damages. Each appellant was represented by the same insurance defense counsel as each appellant was covered by a policy of automobile insurance issued by the same insurer.

{¶ 5} On April 17, 2017, CEI filed a motion for summary judgment against appellants, supported by the affidavit of the utility's accountant, Tim Wojtowicz; CEI's records demonstrating the amount of damages caused by each appellant; the affidavit of CEI's records custodian, authenticating the foregoing records; and the affidavits of the three supervisors responsible for work performed at each collision site.

{¶ 6} Appellants filed a brief in opposition and a cross-motion for summary judgment, supported by the affidavit of Keith Hock, appellants' retained accountant.

{¶ 7} CEI argued that it was entitled to the full amount of the damages caused by appellants' negligence and that none of this amount was subject to depreciation. Alternatively, CEI argued that if the trial court were to find that any depreciation applies as a credit to appellants, that depreciation should apply only to the cost of the damaged poles and the facilities attached thereto, not to the total amount of the utility's damages. CEI also argued it was entitled to recover its indirect damages, i.e., overhead.

{¶ 8} In contrast, appellants argued that depreciation should apply to CEI's full replacement cost, not just to the cost of the damaged poles and attached facilities. Appellants also argued that CEI was not entitled to recover its indirect damages because it failed to prove such damages with reasonable certainty.

{¶ 9} After considering the parties' competing briefs, the trial court entered summary judgment in favor of CEI, finding that the correct measure of damages is the cost to repair the three utility poles and the facilities attached thereto, less any accrued depreciation of the damaged poles and facilities. The court also found that depreciation does not apply to any other costs that the utility was entitled to recover.

{¶ 10} Further, with respect to indirect damages, the trial court found that CEI met its burden on summary judgment to demonstrate the absence of a genuine issue as to whether it correctly calculated its indirect damages to a reasonable degree of certainty. Further, the court found that appellants failed to meet their reciprocal burden to set forth specific facts demonstrating that a genuine issue of fact remained for trial on this issue. The court entered judgment in favor of CEI and against Appellant Wisner in the amount of $5,689; against Appellant Riddle in the amount of $20,532; and against Appellant Diedrich in the amount of $15,071.

{¶ 11} Appellants appeal the trial court's judgment, asserting the following for their sole assignment of error:

{¶ 12} "The trial court erred when it granted summary judgment to Appellee and held that depreciation applied only to the cost of Appellee's utility pole and that Appellee had proven its indirect costs with reasonable certainty when there existed competing reasonable inferences from the facts and conflicting expert affidavits which created a genuine issue of material fact, rendering summary judgment improper."

{¶ 13} As a preliminary matter, we note the trial court's judgment states that CEI is to prepare a proposed final judgment entry consistent with the court's ruling and provide it to the court. This apparently was not done; however, since the court signed and filed its judgment; that entry contains all findings necessary for a final order; and the parties do not challenge the entry on this ground, we deem the language about a future entry to be surplusage and disregard it.

{¶ 14} A trial court's decision to grant a motion for summary judgment is reviewed by an appellate court under a de novo standard of review. Duncan v. Hallrich, Inc. , 11th Dist. Geauga No. 2006-G-2703, 2007-Ohio-3021, 2007 WL 1732287, ¶ 10.

{¶ 15} Pursuant to Civ.R. 56(C), summary judgment is proper if (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and, viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to that party. Temple v. Wean United, Inc. , 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977).

{¶ 16} The party seeking summary judgment initially bears the burden of informing the trial court of the basis for the motion and identifying those portions of the record that demonstrate the absence of genuine issues of material fact as to the essential elements of the nonmoving party's case. Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). The movant must point to some evidence in the record of the type listed in Civ.R. 56(C) in support of his motion. Dresher, supra. These evidentiary materials must show that there is no genuine issue as to any material fact. Id. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. Id. However, if this burden is satisfied, the nonmoving party has the burden, as set forth in Civ.R. 56(E), to offer specific facts showing a genuine issue for trial. Id.

{¶ 17} "The purpose of a damage award is to make the injured party whole." Illuminating Co. v. Burns , 8th Dist. Cuyahoga No. 100235, 2014-Ohio-502, 2014 WL 585254, ¶ 6, citing Columbus Finance, Inc. v. Howard , 42 Ohio St.2d 178, 184, 327 N.E.2d 654 (1975). "An injured party 'should be neither undercompensated nor overcompensated,' and bears the burden of proving the pecuniary value of the injury." Ohio Edison Co. v. Royer , 9th Dist. Summit, 2018-Ohio-75, 92 N.E.3d 912, ¶ 11, quoting Howard, supra . It is undisputed that the utility poles in question have no real market value. "When property has no real market value, 'damages [can] be awarded based on the reasonable cost of restoration, with consideration of the condition of the property prior to the damage.' " Royer, supra , quoting Martin v. Design Constr. Servs. , 121 Ohio St.3d 66, 2009-Ohio-1, 902 N.E.2d 10, ¶ 21.

{¶ 18} I. DEPRECIATION APPLIES ONLY TO CEI'S MATERIAL COSTS.

{¶ 19} The parties essentially repeat their arguments below. They agree the appropriate measure of damages is the cost of repair. They disagree, however, on what measure of damages will make CEI whole without overcompensating it. CEI argues that in order to be made whole, it is entitled to recover the entire cost of repair without any depreciation. This is because the poles can last indefinitely if they are not damaged and there is no added benefit to the utility to replace any pole early, although they have a life expectancy of 80 years for accounting purposes. CEI argues that replacement of the poles merely allowed it to continue providing electricity to its customers, making it whole again, without providing it with any additional benefit.

{¶ 20} Conversely, appellants argue that a proper damage award must apply depreciation to all of CEI's repair costs. They argue the utility lost aging poles and that it would be overcompensated by new poles providing additional years of anticipated service. Appellants argue the trial court should have compensated CEI for the value of the remaining years of useful life that it expected from the damaged poles, and depreciated the repair costs to account for the additional years of service CEI will receive from the new poles.

{¶ 21} Contrary to appellant's argument, this court has previously ruled on how depreciation is to be applied in determining a utility's damages. In Ohio Edison Co. v. Cutright , 11th Dist. Portage No. 90-P-2238, 1991 WL 179589 (Sep. 13, 1991), this court held: " 'The measure of damages for the negligent destruction of a utility pole is the cost of the pole and the facilities attached thereto based on reproduction cost less accrued depreciation of the damaged pole and the facilities attached thereto. ' " (Emphasis added.) Id. at *2, quoting Ohio Power Co. v. Zemelka , 19 Ohio App.2d 213, 251 N.E.2d 2 (7th Dist.1969), syllabus. Thus, this court in Cutright limited depreciation to the cost of the damaged pole and its attached facilities.

{¶ 22} The Sixth District applied this court's holding in Cutright, supra , in Toledo Edison v. Teply , 6th Dist. Erie No. E-02-022, 2003-Ohio-1417, 2003 WL 1466924, ¶ 34.

{¶ 23} Similarly, this court, in Ohio Edison Co. v. Ford , 11th Dist. Portage No. 92-P-0052, 1993 WL 199256 (May 21, 1993), held: "When it has been found that the defendant had negligently hit a utility pole, the 'measure of damages is the reasonable cost of repairs, limited only to the extent that such amount does no more than make the plaintiff whole. * * *.' " (Emphasis added.) Id. at *3, quoting Cincinnati Bell, Inc. v. Hinterlong , 70 Ohio Misc. 38, 44, 437 N.E.2d 11 (Hamilton County M.C.1981).

{¶ 24} In 2018, the Ninth District, in Royer, supra , applied the same standard this court applied in Cutright, supra . Royer at ¶ 18. In Royer , after determining that depreciation applies only to the cost of the pole and its facilities, the Ninth District held: "[t]he trial court erred when it allowed for depreciation of all of Ohio Edison's direct repair costs, rather than limiting depreciation to those costs which it recognized as depreciable under Ohio Law," i.e., the cost of the damaged pole and the facilities attached thereto. Id. at ¶ 21.

{¶ 25} Curiously, while CEI asks us to affirm the trial court's judgment, which allowed depreciation for the poles and attached facilities, it also asks us to adopt the "majority rule" in the United States, namely, that a utility is permitted to recover the full cost of pole-replacement, without any depreciation. See e.g. , Kansas Power & Light v. Thatcher , 14 Kan. App.2d 613, 619-620, 797 P.2d 162 (1990). However, since CEI did not file a cross appeal, it waived its right to seek a change in the trial court's judgment to deny appellants any depreciation. App.R. 3(C)(1).

{¶ 26} CEI argues that no court which has applied depreciation to utility equipment has depreciated the entire amount of the utility's repair costs, and appellants do not cite any case law holding that depreciation applies to the entire cost of pole repair. Moreover, while appellants cite Royer, supra , they fail to acknowledge that the Ninth District in that case rejected their argument that depreciation applies to all of CEI's costs to replace the poles and facilities. Id. at ¶ 21.

{¶ 27} Contrary to appellants' argument, the determination of whether depreciation applies to the utility's full replacement costs or just the cost of the pole is a question of law that we review de novo, not a question of fact to be resolved from a determination of the credibility of competing experts. Royer, supra, at ¶ 7. The opinion of appellants' expert that depreciation should be applied to all of the utility's repair costs in determining its damages is a legal conclusion and, as such, cannot be considered on summary judgment. Warren v. Libbey , 6th Dist. Lucas No. L-09-1040, 2009-Ohio-6686, 2009 WL 4893282, ¶ 15-16.

{¶ 28} The rule adopted by this court in Cutright, supra , and subsequently adopted by the Sixth District in Teply and the Ninth District in Royer , provides a fair and equitable balance by allowing the utility to recover its repair costs, but limiting that recovery by allowing depreciation of the materials actually damaged. We therefore hold that the trial court did not err in finding that appellants were entitled to depreciation, but that this depreciation was limited to the cost of the damaged poles and their attached facilities and does not apply to any other costs CEI is entitled to recover.

{¶ 29} II. CEI DEMONSTRATED THE ABSENCE OF A GENUINE ISSUE AS TO WHETHER IT WAS ENTITLED TO ITS INDIRECT DAMAGES AND APPELLANTS FAILED TO DEMONSTRATE AN ISSUE FOR TRIAL.

{¶ 30} "Damages include both direct and indirect costs. Direct costs are the expenses incurred as a result of the actual project and include materials, labor, mileage, and equipment costs." Burns, supra , citing Ohio Edison Co. v. Peebles , 7th Dist. Mahoning No. 93 C.A. 92, 1994 WL 424085 (Aug. 1, 1994). "Indirect costs are the expenses involved in running a business and are not attributable to any one project." Burns, supra , citing Complete Gen. Constr. Co. v. Ohio Dept. of Transp., 94 Ohio St.3d 54, 57, 760 N.E.2d 364 (2002). "Indirect costs may include salaries of executive or administrative personnel, general insurance, rent, utilities, telephone, * * * professional fees, legal and accounting expenses, advertising, and interest on loans." Id. "Indirect costs of repairs 'are a proper element of damage for which recovery may be had, where such costs can be proved with reasonable certainty and have been correctly made in accordance with sound accounting principles.' " Burns, supra , quoting Warren Tel. Co. v. Hakala , 105 Ohio App. 459, 460, 152 N.E.2d 718 (11th Dist.1957), syllabus; accord Ohio Edison Co. v. Beavers , 11th Dist. Trumbull No. 96-T-5568, 1997 WL 401541, *3 (Jun. 27, 1997).

{¶ 31} Appellants concede that CEI would generally be entitled to recover its indirect damages; however, they argue the trial court erred in awarding CEI its indirect damages because it did not prove them with reasonable certainty. In support, appellants rely on Toledo Edison Co. v. Czajka , 6th Dist. Lucas No. L-02-1393, 2003-Ohio-3684, 2003 WL 21570336, and the affidavit of Keith Hock, their accountant. In Czajka , the Sixth District held the evidence was insufficient to prove indirect damages with reasonable certainty because the annual study from which the indirect costs were calculated took into consideration other construction projects, not just pole repairs. Id. at ¶ 7. Mr. Hock's affidavit echoed the Sixth District's holding and reasoning in Czajka .

{¶ 32} However, in Burns, supra , the Eighth District held that evidence virtually identical to the evidence presented here regarding the utility's direct and indirect damages was sufficient to prove indirect costs to a reasonable degree of certainty. Id. at ¶ 12-13.

{¶ 33} Here, CEI submitted the affidavit of its records custodian, who authenticated CEI's business records regarding its claims against appellants. As to each collision, CEI presented a Claim Invoice, which set forth the cost of materials, labor, and equipment caused by the appellant's negligence. A Claims Work Summary was also presented as to each incident, which specified the dates and hours of each CEI employee who worked on the repairs; the dates and times vehicles were used on the job; and the materials used and their cost. CEI also presented a Damage Cost Breakdown as to each incident, setting forth the direct costs for labor, equipment, and materials, and the utility's calculation of indirect costs for each job.

{¶ 34} The three supervisors who oversaw work on the repairs at each accident site also submitted affidavits in which they substantiated the repair costs listed in CEI's Claim Invoices. The supervisors testified about the repairs that were performed and explained that the Claims Work Summary accurately reflected the materials used, the hours employees worked, and the hours vehicles were used on the job.

{¶ 35} Further, Tim Wojtowicz, an accountant employed by CEI, verified that the Claim Invoice for each accident accurately reflected the costs incurred by the utility as a result of each collision. He also testified the Damage Cost Breakdown for each incident accurately reflected the costs determined by CEI for each project.

{¶ 36} Mr. Wojtowicz said the cost of labor as shown on the foregoing documents is determined by union and other contracts based on the job classification, known as the "activity price," and is entered in CEI's accounting system. The cost of benefits provided to the employee for that job classification is added to the hourly wage paid the employee to reflect the true cost per hour of the employee performing that job.

{¶ 37} Mr. Wojtowicz said the cost of the materials listed on the invoices reflects the actual cost of the item "coming out of the warehouse."

{¶ 38} As to indirect damages, Mr. Wojtowicz testified the "accounting and general expense," commonly known as overheads or indirect expenses, is determined by a study measuring the cost of doing business, or the cost of maintaining employees who perform work to support the construction projects, but whose time is not directly chargeable or tracked for each project. The overhead rate reflects support services provided by the human resources, information technology, accounting and legal support groups.

{¶ 39} Mr. Wojtowicz testified that accounting and general overheads are applied to the cost of each construction job. Construction jobs include responding to and repairing damaged equipment, whether or not the cost of the construction job can be recovered from a third party, such as appellants here. He said CEI builds no profit into the cost of these jobs, but strives to accurately reflect the true cost of a construction job.

{¶ 40} Mr. Wojtowicz said that all studies used to determine costs are performed according to generally accepted accounting principles as mandated by the Public Utilities Commission of Ohio and the Federal Energy Regulatory Commission. He said that CEI updates the studies annually and reviews them quarterly. The studies are audited internally and externally to ensure their accuracy.

{¶ 41} To calculate CEI's overhead, the utility takes the total cost of its support groups attributable to all construction projects and divides it by the total cost of all construction work. The resulting percentage ("the overhead multiplier"), which in this case was 11.33 percent, is multiplied by the direct costs for a specific project in determining the overhead costs for that project. That amount is then added to the cost of the project. This percentage represents the cost of "support functions," which, as noted, include human resources, information technology, accounting and legal services. The accounting management department determines what cost for these support functions should be added to the cost of doing business, i.e., overhead costs.

{¶ 42} As noted above, the appellate court in Burns, supra , held that evidence virtually identical to the foregoing was sufficient to demonstrate that CEI's direct and indirect costs were determined to a reasonable degree of certainty. Id. at ¶ 13.

{¶ 43} In support of its opposition to summary judgment, appellants presented the affidavit of their accountant, Keith Hock. In his affidavit, Mr. Hock admitted that CEI's approach in determining its overhead multiplier is "an appropriate approach for [CEI] to take in the ordinary course of its business and in its general accounting for its construction related costs." However, Mr. Hock said it was not an appropriate approach in this case because he lacks sufficient information to tell if there was a causal connection between the collisions and the utility's indirect damages. This is because, according to him, CEI did not (1) identify what support groups were included in the overhead costs for construction projects in general; (2) identify which support groups are required for pole-replacement work; and (3) confirm there is no difference between the support groups needed for pole-replacement and those needed for other construction projects.

{¶ 44} However, as noted above, Mr. Wojtowicz listed the specific groups that perform work to support the construction projects and explained that, based on CEI's business model, pole repair jobs cannot be separated from other types of construction services. The employees performing pole replacement are part of the construction services department. He said no employees are dedicated just to pole repair, as opposed to other construction jobs. There is no separate training provided by CEI for pole repairs as opposed to other construction services. The applicable amount of time from the various departments used to support construction services cannot be apportioned to just pole repairs as opposed to other construction projects. For example, the human resources and information technology support for all construction services is the same, whether the construction crew is performing pole replacement or another construction job.

{¶ 45} Appellants' attempt to challenge Mr. Wojtowicz by referring to an alleged inconsistency between his testimony and the testimony of another CEI employee, who testified in an unrelated case two years earlier in the Akron Municipal Court , is unavailing. That witness was unable to answer the question regarding what part of the overhead for construction jobs was related to the pole-repair job in that case, but said he could possibly do this by researching the issue. That witness' conjectural comment was not inconsistent with Mr. Wojtowicz' unequivocal testimony that the support provided by the various support groups for pole replacement and other construction jobs is the same.

{¶ 46} As a result, CEI met its burden to demonstrate that it was entitled to recover its indirect damages, and appellants had the reciprocal burden to point to specific evidence which showed an issue of fact. However, appellants failed to meet this burden. For example, they failed to present any evidence: (1) that there is a difference between the support groups needed for pole-replacement and those needed for other construction projects; (2) that there is a difference between the support provided for pole-replacement and the support provided for other construction projects; (3) that the indirect expenses for pole-repair work would be different from the indirect expenses shown by CEI; and (4) that an alternative multiplier based solely on pole-repair jobs is possible.

{¶ 47} For the reasons stated in this opinion, the assignment of error lacks merit and is overruled. It is the order and judgment of this court that the judgment of the Ashtabula County Court of Common Pleas is affirmed

TIMOTHY P. CANNON, J.,

COLLEEN MARY O'TOOLE, J.,

concur.