author: HANLON, J.

text:
    COMMONWEALTH v. Elvis GARCIA.
    No. 16-P-892
    Appeals Court of Massachusetts, Bristol County.
    Argued April 9, 2018 Decided September 24, 2018
    John J. Connors, Boston, for the defendant.
    Yul-mi Cho, Assistant District Attorney, for the Commonwealth.
    Present: Meade, Hanlon, & Blake, JJ.
   HANLON, J.

After a jury trial, the defendant, Elvis Garcia, was convicted of assault and battery on a child with substantial bodily injury, G. L. c. 265, § 13J (b ) ; assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b ) ; and reckless endangerment of a child, G. L. c. 265, § 13L. He now appeals, challenging the sufficiency of the evidence, various aspects of the judge's instructions to the jury, and the prosecutor's closing argument. We affirm, and address the defendant's claims in turn.

1. Background. The jury heard the following evidence. On January 29, 2011, James, the four year old victim, was admitted to Boston Children's Hospital (Children's Hospital) with a severe anal wound as well as extensive bruising over multiple areas of his body. James was seven years old at the time of trial and he testified that the defendant, a friend of his mother, inflicted the bruises as well as the anal injury by hitting him with a belt.

James's mother first developed a friendship with the defendant in the spring of 2010, shortly after the dissolution of her relationship with James's father. James, then three years old, lived with his mother and his older sister and brother in New Bedford. For a number of years, the mother had been addicted to "pills," but, prior to June of 2010, she was able to keep her life "in control" and maintain her job as a hair stylist.

Prior to June of 2010, the apartment where the family lived was clean and "nice." James attended day care full time, and his sister attended with him in the afternoon at the end of her school day. Prior to June of 2010, James and his brother and sister appeared happy, clean, and normal. James would see his maternal grandmother almost every day and, along with his siblings, would attend family parties and holiday gatherings.

After June of 2010, James's extended family saw the mother and James less frequently, and noticed that they attended fewer family events and parties. James's siblings would sometimes attend family events when the mother and James did not. Over the course of the summer and fall, on various occasions when family members did see James, some reported noticing bruises on his face. The cleanliness of the family's apartment deteriorated, and the mother was terminated from her job after being increasingly absent and late. During that time, both the mother and James were at the defendant's home almost every day. In addition, the mother frequently would leave James alone with the defendant, sometimes for hours or even days.

During the summer of 2010, James's day care teachers noticed that James began to change. When he returned from a June vacation in Florida, James was distant and not like his usual self. When he got in trouble, he would become particularly emotional and start to cry, which had not been the case previously. The defendant started dropping James off on some days, and at one point told his teacher, "[I]f he doesn't listen, just tell him that you guys can ... call me." At the end of July, his teacher noticed that James began to cling to her "more than usual." Also in July, a teacher noticed an apparent burn mark on James's inner thigh. In August, on one occasion, she noticed scratches on his face. Later that month, the defendant brought James in with a bruise on his cheek and said, "I'm sure he'll be perfect for you today."

Also, that month, the mother changed the emergency contacts and the list of individuals permitted to pick up James from day care; she removed all of the other family members who had been on the list, including James's grandmothers and others, leaving only herself and the defendant on the list. James, who had had very good attendance previously, began to be absent frequently in July and August of 2010. In September, the day care program discharged him because of excessive unexcused absences.

In July of 2010, James's maternal grandmother came to visit the mother at work. The grandmother saw the defendant waiting outside in a car with James in his car seat. She was happy to see James as she had not seen him for a long time, and she ran to the car. James looked sad and was very quiet, and not like his normal self. As the mother came out of her workplace, the defendant told her forcefully to get into the car, ending the encounter.

In August of 2010, the mother allowed James's paternal grandmother to take him on a vacation to Florida. During the trip, James complained frequently that his "bum" hurt. He would sit sideways, and would cry when he went to the bathroom. His grandmother looked at the area and saw a small cut.

In mid-October, after James turned four years old, he visited with his maternal grandmother after a family apple-picking trip; this was the first time that she had seen James since July. Although James seemed happy, he told her that "his butt hurt." She gave him a bath, and observed that "his butt was red" and that he had a short, deep cut in the area.

On October 25, 2010, the mother took James to his pediatrician. The pediatrician observed a rash on James's scrotum, buttocks, and anal area. He prescribed an antibiotic, an anti-inflammatory cream, and a medicine to protect the skin in the area. At a follow-up appointment on November 9, the doctor noted that there was a small ulcerative lesion around the anus, but that the rash did not seem worse, and had cleared on the buttocks. At a further follow-up visit three days later, he observed that the area appeared to be improving. On December 6, James returned to the office, and the doctor observed that the area appeared worse and had ulcers. He referred James to Children's Hospital the same day.

James was admitted to Children's Hospital on December 6, 2010, where doctors observed an irregularly shaped ulcer under the scrotum, and another ulcer on his anal area. James underwent various tests and examinations to rule out potential causes of the ulceration. Doctors ruled out infection but were ultimately unable to determine a cause for his condition. At the time of his discharge, after a six-day hospitalization, James's condition had "improved somewhat," although the ulcers were still present.

In late 2010, James's maternal grandmother obtained the assistance of James's second cousin, who is an attorney, in filing a petition for legal guardianship of James. On January 27, 2011, the petition was allowed after a hearing at which James's father assented to the guardianship and the mother did not appear. James's maternal grandmother had last seen James in the mother's car two days earlier at his sister's school. At that point, she noted that James was able to sit without complaining, and that he had no visible injuries.

After the cousin obtained guardianship of James on behalf of his maternal grandmother, the cousin was unable to locate either the mother or James until January 29, when the cousin was notified that the mother was in police custody. The mother refused to disclose James's specific location, but she eventually connected the cousin with Elizabeth Quinn, who was the girl friend of the defendant's best friend. The cousin engaged in "several conversations several minutes at a time" with Quinn over approximately twenty-five minutes, with male voices in the background of the telephone calls. Quinn eventually told the cousin to come to an intersection a couple of houses away from the defendant's home to receive James. Quinn directed her to report there with "no police."

Quinn then retrieved James from the defendant's apartment, where James was sleeping on the couch. She brought him to the agreed-upon street corner and handed him to the cousin, who was accompanied by a State police officer. James was having a difficult time walking. He was extremely upset and crying, saying, "Make it go away," and that his "bum" hurt. He could not sit down. The cousin and the officer brought James to St. Luke's Hospital, where, a nurse later testified, "[h]e appeared afraid to me, he wouldn't ... let me touch him." She observed "multiple bruises to his face, his eyes, a good per cent of his body, his back, his legs, arms." She identified photographs of the injuries she observed, including photographs of James's rectum, penis, and scrotum. The photographs were admitted in evidence. After several hours, hospital staff made a decision to transfer James to Children's Hospital.

At Children's Hospital, examination confirmed that James had extensive bruising and abrasions over multiple areas of his body, including his forehead, cheek, arms, back, waist, buttocks, inner and outer thighs, legs, and shins. Superimposed on the bruising on James's thigh were three curvilinear marks that were suggestive of having been struck by a "flexible implement that's been doubled" onto itself. He had a cut under his chin, and blood behind his right eardrum.

James also had a very deep anal wound : a widely split laceration extending from just behind his scrotum to his tailbone. His anus was completely detached from the skin around it and was "floating way up inside the buttocks." The wound had accumulated filth and fecal debris, and it appeared to be at least a couple of days old but was not infected. There was no abscess and no evidence of ulceration that could explain the injury. James ultimately required surgery to reconstruct the area.

Dr. Steven Fishman, James's surgeon, opined that James's anal wound was induced externally by blunt force trauma, and that no natural disease process or hygiene issues could have created it. Dr. Fishman testified that, in over twenty years of experience as a pediatric surgeon, he had previously only seen a completely "floating" anus as a result of surgery. Dr. Fishman noted that, because of the tensile strength in the tissues in the area, if there is impact, there is a particular susceptibility to tearing in that spot. Without successful surgery to reconstruct his anus and perineum, Dr. Fishman testified that James risked having no control over defecation, or being unable to defecate.

On January 31, 2011, police officers went to the defendant's apartment to search the premises. They knocked on the door, loudly said "Police," and waited. No one came to the door. They knocked and announced themselves several additional times and, receiving no answer, kicked the door in and entered the apartment. The defendant was in the living room of the apartment at the time they entered.

Officers recovered a number of items from the defendant's apartment, including a black belt with a red-brown stain on the buckle found in a white plastic trash bag in one of the apartment's bedrooms. Deoxyribonucleic acid analysis of the stain revealed a mixture of at least two individuals, with the profile of the major contributor to the sample matching James. The defendant and the mother were excluded as contributors to the mixture.

James testified that he had lived with the defendant along with his mother, who was "sometimes" there. James testified that he did not like spending time with the defendant because the defendant used to put "salt" in James's "butt," put James in an attic closet, and stuck James's head in the toilet. James testified that the defendant did each of these things more than once. As to the salt, James testified that it "looked like salt and it was white," and it "stinged a little bit" when the defendant used it. The defendant would bend him over, hold him down, and swirl the salt in a glass cup. James said distinctly that the defendant put the "salt in my butt," rather than on it.

The defendant also would hit James "like everywhere" with a black belt. When he was shown images of the bruises on his body, James testified that the defendant had caused them with the belt. Shown an image of his anal wound, James testified that the defendant had caused that wound with the belt as well.

2. Discussion. a. Sufficiency of the evidence. The defendant argues that there was insufficient evidence for a reasonable jury to find him guilty of assault and battery on a child causing substantial bodily injury based on the theory that the defendant caused the injury by striking James with a belt on the buttocks. In particular, the defendant argues that the Commonwealth's medical evidence was insufficient to demonstrate that such a blow -- on the buttocks, as opposed to on the anus or scrotum -- could have caused the injury. He also points to his own expert's testimony in support of his argument.

In the light most favorable to the Commonwealth, there was ample evidence for the jury to draw the conclusion that a strike from the belt caused the injury; the judge limited the jury's consideration, saying, "[F]or this particular charge, you must be satisfied that the Commonwealth has proved beyond a reasonable doubt that the defendant touched [James] in the area of his anus, scrotum or buttocks with a belt and/or by spreading his buttock cheeks. No other alleged touching is within the scope of this indictment." James testified at trial that the defendant caused the anal wound by hitting him with a belt. In addition to other circumstantial evidence, James's testimony was corroborated both by that of Dr. Fishman, who opined that blunt force trauma caused the wound, and by evidence of James's blood on a belt found in the defendant's home in a plastic bag. Expert testimony proffered by the defendant, to the effect that a blow to the buttocks would not have caused the wound because the buttocks would have protected the perineal area, did not cause the Commonwealth's case to deteriorate, as the jurors were entitled to discredit that testimony. See Commonwealth v. Bush, 71 Mass. App. Ct. 130, 137, 879 N.E.2d 1247 (2008). We are satisfied that the judge's instructions fairly explained the charge to the jury; if there was any error in including a reference to the buttocks in the charge or on the verdict slip, the defendant did not object and we see no risk of a miscarriage of justice.

The defendant also argues that there was insufficient evidence for the jury to find him guilty on the charge of reckless endangerment of a child, because the Commonwealth did not provide evidence that "the injuries the Commonwealth included as conduct under this theory created the risk of additional injury." The defendant's argument appears to be premised on the mistaken belief that G. L. c. 265, § 13L, requires that the defendant's actions in creating the risk of injury not result in actual injury. This is not an element of the offense. A risk of injury may "come to fruition in the form of an actual injury." Commonwealth v. Roderiques, 462 Mass. 415, 423, 968 N.E.2d 908 (2012) (defendant properly convicted of reckless endangerment of child where infant had fractures of arm, legs, ribs, spine, and clavicle). Although actual injury is not required to satisfy the statute, it is not necessary that injury be absent. Here, the jury could have properly found that the defendant's conduct in causing James's injuries created substantial risk of serious bodily injury. There was no error.

b. Jury instructions. The defendant argues that it was improper for the judge to define bodily injury in the course of his instruction on the offense of assault and battery on a child causing substantial bodily injury. , The defendant did not object to the instruction at trial and, for that reason, "the claims he now raises on appeal are not preserved. See Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979). We therefore review to determine whether an error occurred and, if so, whether that error created a substantial risk of a miscarriage of justice." Commonwealth v. Arias, 84 Mass. App. Ct. 454, 464, 997 N.E.2d 1200 (2013).

"A trial judge is obligated to instruct the jury on all aspects of pertinent law applicable to issues raised in the case so that the [jurors] understand[ ] the basis for their verdicts." Commonwealth v. Allen, 54 Mass. App. Ct. 719, 724, 767 N.E.2d 1086 (2002). It is proper for a judge to define technical terms in jury instructions. Cf. Commonwealth v. Fuller, 421 Mass. 400, 411, 657 N.E.2d 1251 (1995) (judge has discretion to define "mental disease or defect"). As noted, the statute, G. L. c. 265, § 13J (a ), defines a substantial bodily injury as a "bodily injury which creates a permanent disfigurement, protracted loss or impairment of a function of a body member, limb or organ, or substantial risk of death." As "bodily injury" is a part of the definition of substantial bodily injury in the statute, the judge here acted properly in defining it. Her definition closely tracked the definition recited in the statute, and the defendant does not contest its accuracy. There was no error.

c. Closing argument. The defendant claims that the prosecutor's closing argument was improper in several respects. While the Commonwealth concedes some errors in the prosecutor's summation, it argues that any misstatements were minor, and therefore do not warrant reversal. As the defendant did not object at trial, we review the nine alleged errors individually to determine whether they were error and, if so, whether they created a substantial risk of a miscarriage of justice. Commonwealth v. Jones, 471 Mass. 138, 148, 28 N.E.3d 391 (2015). "Remarks made during closing arguments are considered in context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Andrade, 468 Mass. 543, 552, 11 N.E.3d 597 (2014), quoting Commonwealth v. Whitman, 453 Mass. 331, 343, 901 N.E.2d 1206 (2009). We also note that the judge told the jury that the opening statements and the closing arguments of counsel were not evidence, both before the arguments and again during her final instructions to the jury.

First, the defendant challenges the prosecutor's statement that the defendant and James's mother met in May of 2010. The Commonwealth concedes that this was a misstatement. The defendant is correct that no witness testified that the defendant and the mother first met in May of 2010. A friend of the defendant testified that the mother and the defendant spent time together in late 2009, and the defendant testified that he "knew of" the mother at the end of 2009. James's family members testified to meeting the defendant in May of 2010, or "late spring, early summer" of 2010. To the extent that the prosecutor's comment that the two met in May of 2010 constituted a misstatement, it was not a significant one. The defendant testified that he and the mother began to develop a friendship in May of 2010. That testimony supported with equal force the Commonwealth's argument that the relationship between the two coincided with a deterioration of the mother's parenting of James and with injuries and changes of behavior in James.

Second, the defendant challenges the prosecutor's statement that it took twenty minutes for Quinn and the defendant to "finally give up the child" after the arrival of James's cousin and the State trooper at the arranged meeting place; the cousin's testimony in fact was that it took two or three minutes after their arrival before Quinn arrived with James. The Commonwealth concedes that this also was a misstatement. As it points out, however, the cousin's testimony was that there were about twenty-five minutes of "back and forth" telephone calls with Quinn before arrangements were finally made to give James to her. Those arrangements included Quinn's demand that there be no police present at the transfer. Because there was ample evidence of the difficulty the cousin experienced in securing James, any prejudice arising from that misstatement was also minimal.

Third, the defendant claims that there was no basis for the prosecutor to argue that, on January 29, 2011, the defendant "knew" that police would be coming to his home. Here, given James's extensive injuries at the time the defendant relinquished him from his custody, as well as the contentious circumstances of the transfer of custody, the jury reasonably could infer that the defendant would expect police contact shortly after James's injuries were discovered. A prosecutor may "zealously argue in favor of those inferences favorable to his or her case." Commonwealth v. Rakes, 478 Mass. 22, 45, 82 N.E.3d 403 (2017). "The inferences for which counsel argues need not be necessary, or inescapable; they only need be reasonable and possible." Id. We see no error in this portion of the prosecutor's argument.

Also, given this context, and contrary to the defendant's argument, the judge did not err in giving a careful consciousness of guilt instruction based on testimony that the defendant "did not answer the door in response to repeated knocking by police." Commonwealth v. Bruneau, 472 Mass. 510, 519, 36 N.E.3d 3 (2015). The judge warned the jury, "You are not required to draw such an inference and must use great care and caution before you draw an inference of guilt from such evidence.... [Y]ou should always remember that there may be numerous reasons why an innocent person might do such things." It was the province of the jury to evaluate the credibility of the defendant's alternative explanation for his delay. See Commonwealth v. Morris, 465 Mass. 733, 738-739, 991 N.E.2d 1081 (2013).

Fourth, the defendant claims that the prosecutor mischaracterized his testimony by stating that he had claimed that, while he cleaned or attempted to medicate James's anal area, James was "screaming and writhing in pain," and yet he did not see James's injury. The defendant claims further that the prosecutor improperly stated that he testified that he put ointment on the injured area only once.

In fact, the defendant testified that he poured a mixture of warm water and "Epson [sic ] salt" onto James's buttocks, that it "hurt [James] a lot," and that James "cr[ied]," "yelled," and "screamed." He testified that, afterwards, he rinsed the area with plain water and put cream on it. He said that he cleaned James in that manner only one time, and otherwise only used wipes to clean the area directly. He testified that, when he was cleaning James in this way, he only saw James's scrotum area and not any of the anal wound, which would require spreading the cheeks of the buttocks to observe. Because the defendant's testimony supported the prosecutor's statements, there was no error.

Fifth, the defendant claims that the prosecutor made several misrepresentations about the testimony of Dr. Elizabeth Laposata, the defendant's medical expert. First, he argues that the prosecutor falsely stated that Dr. Celeste Wilson and Dr. Laposata both had opined that the wounds on the child were inflicted. In context, it would have been evident to the jury that this statement was a mere slip of the tongue, and that the prosecutor had intended to refer to the two medical experts called by the Commonwealth: Dr. Wilson and Dr. Fishman. This error did not create a substantial risk of a miscarriage of justice. See Commonwealth v. Thomas, 400 Mass. 676, 683, 511 N.E.2d 1095 (1987) (no reversal for prosecutor's "slip of the tongue" where judge instructed jury that closing arguments are not evidence).

Sixth, the defendant argues that the prosecutor wrongly stated that Dr. Laposata "could not give [the jury] an explanation at all" for the mechanism of James's injury, that she blamed the purported escalation of James's injury over time on moisture, and that she opined that the injury was caused by James sitting on a "doggie pee pad." In context, the prosecutor's claim that Dr. Laposata could not give the jury an explanation for the injury was in effect an argument that the doctor could offer no credible explanation for the injury. That statement "falls into the category of 'enthusiastic rhetoric, strong advocacy, and excusable hyperbole,' and is not grounds for reversal."

Commonwealth v. Silva, 455 Mass. 503, 515, 918 N.E.2d 65 (2009), quoting Commonwealth v. Wilson, 427 Mass. 336, 350, 693 N.E.2d 158 (1998).

Dr. Laposata did testify that moisture could contribute to the body's failure to heal an ulcer, and that an ulcer could be worsened by exposure to urine. The prosecutor's reference to that testimony therefore was proper. As to the statement about a dog pad, the prosecutor's remark in context is not wholly clear, but it appears that she intended to attribute this claim not to Dr. Laposata specifically, but to the defense more generally. The defendant elicited evidence of such pads being around James's mother's home, and introduced James's statement, admitted only for impeachment, that "he sat on a doggy's pee pee pad and his bum hurt[ ]." This section of the prosecutor's argument was inartful, but it was relatively brief. To the extent that it constituted error, we see no prejudice.

Seventh, the defendant claims that the prosecutor introduced her personal beliefs into her closing argument, citing two statements. He first challenges the statement, "You honestly don't believe, I don't, that that night ... there was no conversation between [Quinn] and the defendant. I submit to you, of course there was." The Commonwealth concedes that the remark "I don't" was "inappropriate."

"A prosecutor may not express [her] personal belief in the testimony or suggest that [she] has knowledge independent of the evidence at trial." Commonwealth v. Sanders, 451 Mass. 290, 296-297, 885 N.E.2d 105 (2008). Although we agree that the phrase "I don't" was inappropriate, it was immediately followed by the proper wording, "I submit to you." "The prosecutor was entitled to argue, as [she] was doing, that the jury should not arrive at particular interpretations of the evidence." Commonwealth v. Hogan, 375 Mass. 406, 408, 377 N.E.2d 917 (1978). In any event, the challenged remark was brief and unobtrusive, and it related to a tangential matter in the case. We note that such "[m]ere[ ] unfortunate and unartful isolated" remarks "are generally not enough to lead the jury to improper inferences drawn from presumed personal knowledge of the prosecutor." Commonwealth v. Raymond, 424 Mass. 382, 391-392, 676 N.E.2d 824 (1997), quoting Commonwealth v. Thomas, 401 Mass. 109, 115, 514 N.E.2d 1309 (1987). "The absence of objection from defense counsel further convinces us that taken in the context, the remark would not likely have misled the jury or prejudiced [the defendant]." Raymond, supra at 392, 676 N.E.2d 824.

Eighth, the defendant also challenges the prosecutor's sarcastic statement, "That really is a valid argument," as improper vouching. The statement at issue was made in the context of the prosecutor's argument that mere familial disputes did not fully explain James's mother's removal of family members from James's day care access list. The challenged remark was, in fact, a criticism of a defense argument rather than any intimation of personal knowledge. Though often better avoided, sarcasm is permitted in closing arguments. See Commonwealth v. Brum, 438 Mass. 103, 119, 777 N.E.2d 1238 (2002). There was no error.

Finally, the defendant challenges the prosecutor's characterization of the defendant as "a drug user" and his friends as "all drug users." The characterization was brief, not inflammatory, and based on the evidence. The defendant testified regarding his own drug use and that of his friends. He referred to this testimony during his own closing argument. The statement was proper.

d. Duplicative convictions. For the first time in his reply brief, the defendant claims that his convictions of assault and battery on a child with substantial bodily injury and reckless endangerment of a child are duplicative. "We need not pass on grounds for reversal raised for the first time in a reply brief." Commonwealth v. McGowan, 400 Mass. 385, 390 n.4, 510 N.E.2d 239 (1987). Nonetheless, the defendant's argument is unavailing, because the two crimes have separate elements.

A defendant "may properly be punished for two crimes arising out of the same course of conduct." Commonwealth v. Torres, 468 Mass. 286, 288-289, 10 N.E.3d 1065 (2014), quoting Commonwealth v. Valliere, 437 Mass. 366, 371, 772 N.E.2d 27 (2002). "A lesser included offense is one which is necessarily accomplished on commission of the greater crime." Commonwealth v. D'Amour, 428 Mass. 725, 748, 704 N.E.2d 1166 (1999). "As long as each offense requires proof of an additional element that the other does not, 'neither crime is a lesser-included offense of the other, and convictions on both are deemed to have been authorized by the Legislature and hence not [duplicative].' " Commonwealth v. Vick, 454 Mass. 418, 431, 910 N.E.2d 339 (2009), quoting Commonwealth v. Jones, 382 Mass. 387, 393, 416 N.E.2d 502 (1981). In this analysis, "[t]he actual criminal acts alleged are wholly irrelevant to the application of [the rule]; rather, the elements of the crimes charged are considered objectively, abstracted from the facts...." Commonwealth v. Jones, 441 Mass. 73, 76, 803 N.E.2d 319 (2004), quoting Commonwealth v. Jones, 59 Mass. App. Ct. 157, 162, 794 N.E.2d 1220 (2003).

We turn now to the statutes at issue in the case at bar. General Laws c. 265, § 13J (b ), second par., in relevant part, provides, "Whoever commits an assault and battery upon a child and by such assault and battery causes substantial bodily injury shall be punished." General Laws c. 265, § 13L, in relevant part, provides, "Whoever wantonly or recklessly engages in conduct that creates a substantial risk of serious bodily injury or sexual abuse to a child ... shall be punished." For purposes of § 13L, the statute specifies that wanton or reckless behavior occurs only where a defendant "is aware of and consciously disregards" the risk at issue. Id. The risk must be "of such nature and degree that disregard of the risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." Id.

Comparing the elements of the two offenses reveals that each offense requires an element that the other does not. Section 13J (b ), second par., requires both a touching and an injury, where § 13L requires only conduct that creates substantial risk of injury. Section 13L requires proof of a "defendant's subjective state of mind with respect to the risk involved. That is, he must be shown to have been actually aware of the risk" of serious bodily injury. Commonwealth v. Coggeshall, 473 Mass. 665, 670, 46 N.E.3d 19 (2016). Section 13J (b ), second par., a general intent crime, requires only that the defendant intended to engage in the touching. See Commonwealth v. Cabral, 46 Mass. App. Ct. 917, 918, 706 N.E.2d 314 (1999). Because each crime requires an element that the other does not, neither crime is a lesser included offense of the other.

In support of his argument, the defendant relies principally on Roderiques, 462 Mass. at 424, 968 N.E.2d 908, where the court held that G. L. c. 265, § 13L, is a lesser included offense of G. L. c. 265, § 13J (b ), fourth par. In Roderiques, however, the court compared the elements of § 13L with those of the fourth paragraph of § 13J (b ), which criminalizes "child abuse resulting from acts of omission" -- wantonly or recklessly permitting substantial bodily injury to a child, or wantonly or recklessly permitting another to commit an assault and battery on a child, causing substantial bodily injury. Roderiques, supra at 423, 968 N.E.2d 908. Because the elements compared in that case were different from those at issue here, the defendant's reliance is inapposite.

Judgments affirmed.

      The defendant also was charged with one count of intimidation of a witness. The judge allowed his motion for a required finding of not guilty as to that offense at the close of the Commonwealth's case; there was no objection.

      We recite the facts in some detail, given the issues presented.

      A pseudonym.

      The mother invoked her privilege under the Fifth Amendment to the United States Constitution and did not testify at trial.

      There is nothing in the record to indicate more specifically what kind of pills were at issue.

      The mother did not revoke the access of at least some of these family members for James's sister.

      Medical staff noted during James's hospital stay that he had a faint black eye with some bruising underneath the left eye.

      James indicated that the salt was not wet or mixed with water.

      When presented with one image of his bruised hip area, James reported that the defendant caused the injuries "[w]ith the salt and the belt." For all of the other images, James testified that the defendant caused them with just a belt.

      The verdict slip for this charge offered the jury options to find the defendant guilty based on one or both of two theories: "[t]ouching [James] in the area of his anus, scrotum, or buttocks with a belt," and "[s]preading [James's] buttocks cheeks." The jury selected the former option and not the latter.

      Although the defendant frames his argument as a flaw in the judge's instructions offering the theory to the jury, we view the challenge essentially as based in the sufficiency of the evidence.

      Specifically, he contends, "When instructing the jury on the assault and battery on a child causing substantial bodily injury charge, the judge gave the statutory definitions of both substantial bodily injury and bodily injury and included the possibility that a blow with a belt to the buttocks caused the perineal injury. The definition of bodily injury was not pertinent to the charge and there was no evidence that a belt to the buttocks could have caused the perineal injury. These errors combined to lower the Commonwealth's standard of proof and undercut a central theory of the defense."

      General Laws c. 265, § 13J, provides as follows:
      "(a ) For the purposes of this section, the following words shall, unless the context indicates otherwise, have the following meanings: --
      " 'Bodily injury', substantial impairment of the physical condition including any burn, fracture of any bone, subdural hematoma, injury to any internal organ, any injury which occurs as the result of repeated harm to any bodily function or organ including human skin or any physical condition which substantially imperils a child's health or welfare.
      " 'Child', any person under fourteen years of age.
      " 'Person having care and custody', a parent, guardian, employee of a home or institution or any other person with equivalent supervision or care of a child, whether the supervision is temporary or permanent.
      " 'Substantial bodily injury', bodily injury which creates a permanent disfigurement, protracted loss or impairment of a function of a body member, limb or organ, or substantial risk of death.
      "(b ) Whoever commits an assault and battery upon a child and by such assault and battery causes bodily injury shall be punished ....
      "Whoever commits an assault and battery upon a child and by such assault and battery causes substantial bodily injury shall be punished ....
      "Whoever, having care and custody of a child, wantonly or recklessly permits bodily injury to such child or wantonly or recklessly permits another to commit an assault and battery upon such child, which assault and battery causes bodily injury, shall be punished ....
      "Whoever, having care and custody of a child, wantonly or recklessly permits substantial bodily injury to such child or wantonly or recklessly permits another to commit an assault and battery upon such child, which assault and battery causes substantial bodily injury, shall be punished ...."
      (Emphasis supplied.)

      If anything, including the statutory definition of bodily injury helped the defendant, by making it clear that the term has a specific meaning and forestalling any juror speculation about what might be sufficient to constitute bodily injury.

      The defendant claims in various portions of his brief that the prosecutor committed misconduct by falsely alleging that the defendant used salt on James's wound. He claims that the "salt" at issue was Epsom salt as explained in the defendant's testimony, and was therefore intended to help James. James's testimony supported the prosecutor's statements, and neither the prosecutor nor the jury were required to accept the defendant's explanation. See Commonwealth v. Cruz, 88 Mass. App. Ct. 206, 210, 37 N.E.3d 626 (2015).

      Dr. Wilson, the director of the child protection program at Children's Hospital, was called as a witness by the Commonwealth.

      Although the defendant did not raise this issue in his initial brief or below, the Commonwealth's brief addressed the issue.


source: Caselaw Access Project

author: HENRY, J.

license: Public Domain

text:
    Teresa KRUPIEN v. Elizabeth Anne RITCEY & another.
    No. 17-P-870.
    Appeals Court of Massachusetts, Suffolk.
    Argued March 1, 2018 Decided September 26, 2018
    Scott C. Gladstone, Chestnut Hill, for the plaintiff.
    Jessica L. Shaffer, Assistant Attorney General, for the defendants.
    Present: Trainor, Kinder, & Henry, JJ.

      Faith M. Kirkland.

   HENRY, J.

The plaintiff, Teresa Krupien, an employee of the Chelsea Soldiers' Home (the home), brought this action in Superior Court against the home's chief operating officer and acting superintendent, Elizabeth Anne Ritcey; and the home's human resources liaison, Faith M. Kirkland (collectively, defendants). Krupien alleges that Kirkland and Ritcey substantially burdened her right to the free exercise of her religion in violation of the Massachusetts Civil Rights Act, G. L. c. 12, §§ 11H and 11I (the MCRA). Ritcey and Kirkland barred Krupien from the home's campus, which includes Krupien's church, during an investigation of a claim by another employee that Krupien injured that employee's wrist while transferring a patient from a bed to a wheelchair. The stay-away directive, until subsequently modified, prohibited Krupien from attending her church for thirty-seven days, including Christmas. The sole issue before this court is whether the defendants, State actors, are entitled to qualified immunity. We conclude that they are not.

Background. In reviewing a grant of summary judgment, we view the evidence in the light most favorable to the nonmoving party. Curtis v. School Comm. of Falmouth, 420 Mass. 749, 753, 652 N.E.2d 580 (1995).

Krupien began working at the home, a Commonwealth facility, in 1994. The home's campus includes the Quigley building, from which the home operates. Also on the campus are the St. Michael's Chapel (chapel) and several other buildings. The chapel serves both patients from the home and outside persons. The buildings are distinct and not connected above ground; they are connected through an underground tunnel.

On December 21, 2013, a coworker of Krupien's, Marlene Ravanis, alleged that Krupien injured Ravanis's wrist while they were moving a patient into a wheelchair. Shortly after the alleged incident, Ravanis reported the allegation to the charge nurse, Beth Moon, and to the nurse supervisor, Michele Nickerson. Nickerson interviewed Ravanis and asked her if she felt uncomfortable working with Krupien. Ravanis replied, "No," and declined Nickerson's offer to move to a different part of the home. Although Ravanis repeatedly asserted that her wrist was bruised, Nickerson did not observe bruising on Ravanis's wrist on December 21, 2013, nor the following day. Ravanis and Krupien worked together uneventfully for the remainder of the shift, including when Ravanis again asked Krupien to help her move a patient, which they accomplished without incident.

On December 23, 2013, Kirkland learned of the alleged incident between Ravanis and Krupien when Ravanis gave her a medical record indicating "possible tendinitis" and recommending that Ravanis remain out of work for ten days. Kirkland reviewed written statements, interviewed Ravanis and Martin, and discussed this medical record with Ritcey. Kirkland did not know or ask Ravanis if Ravanis had a work-related need to enter the chapel, if she took patients from the home to the chapel, or if she herself attended the chapel. Kirkland did not review Krupien's personnel file.

Kirkland advised Ritcey what should be done -- that Krupien should be given a stay-away directive. As a result of her discussion with Kirkland, Ritcey suspended Krupien with pay and signed a letter that stated:

"I am ordering you to refrain from entering the property of the Chelsea Soldier[s'] Home and from contacting any of its employees. Failure to heed my directive will result in contacting appropriate law enforcement agencies and appropriate administrative action."

That same day, via a telephone call, Kirkland informed Krupien about the stay-away directive. Krupien alleges, and we take to be true for the purpose of summary judgment, that during this call she informed Kirkland that her church was located on the campus of the home; that she has attended services at the chapel continuously for nineteen years, since 1994; that she wanted to attend Christmas service in two days; and that she was very involved in that worship community. Kirkland advised Krupien to go to another church. As a result of the stay-away directive, Krupien was not able to attend services at the chapel, which she describes as her "spiritual home."

On January 31, 2014, Ritcey and Kirkland sought legal counsel for the first time concerning the alleged incident and, that same day, the home modified the directive (the modified directive) thereby allowing Krupien to return to the chapel and to her second job at the United States Department of Veterans Affairs facility under certain conditions. By the date of the modified directive, the stay-away directive had prevented Krupien from attending her church for thirty-seven days.

Discussion. On appeal, summary judgment is reviewed de novo. See Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637, 977 N.E.2d 552 (2012). "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002).

"[T]he relevant inquiry on summary judgment as to the defense of qualified immunity is whether a reasonable official could have believed his actions were lawful, in light of clearly established law and the information possessed by the official at the time he acted." Clancy v. McCabe, 441 Mass. 311, 322, 805 N.E.2d 484 (2004). We apply a three-part test which asks "(1) whether the facts taken in the light most favorable to the plaintiff demonstrate that there was a violation of the plaintiff's ... constitutional or statutory rights; ... (2) if so, whether at the time of the violation those rights were clearly established; and (3) whether a reasonable person in the defendant's position would understand that his conduct violated those clearly established rights." Cristo v. Evangelidis, 90 Mass. App. Ct. 585, 590, 62 N.E.3d 94 (2016). Qualified immunity is an affirmative defense and the defendants have the burden of proof. Id.

It is undisputed that Ritcey and Kirkland implemented a stay-away directive that barred Krupien from the home's campus and, therefore, for a period of time, prohibited her from attending her place of worship. For purposes of this opinion, we take Krupien's allegations as true that she immediately told Kirkland that she worshipped at the chapel on the campus and that she wished to attend the Christmas services. The stay-away directive clearly interfered with Krupien's ability to worship in the church she identifies as her spiritual home. Accordingly, there is sufficient evidence for a trier of fact to find that Ritcey and Kirkland substantially interfered with Krupien's freedom of religion in violation of the MCRA.

At issue is whether it was clearly established that the prohibitions against Krupien violated her freedom of religion, and whether a reasonable person in Kirkland's and Ritcey's positions "would appreciate that the conduct in question was unlawful." LaChance v. Commissioner of Correction, 463 Mass. 767, 777, 978 N.E.2d 1199 (2012), quoting Longval v. Commissioner of Correction, 448 Mass. 412, 419, 861 N.E.2d 760 (2007). Ritcey and Kirkland argue, and the judge concluded, that it was not clearly established that an employer's stay-away directive, in place while the employer investigated an employee misconduct claim, violated a constitutional right because there were no cases at that time with similar issues on point. However, "general statements of the law are not inherently incapable of giving fair and clear warning, and in other instances a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though 'the very action in question has [not] previously been held unlawful.' " United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997), quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). See Caron v. Silvia, 32 Mass. App. Ct. 271, 273, 588 N.E.2d 711 (1992) ("To overcome a claim of immunity, it is not necessary for the courts to have previously considered a particular situation identical to the one faced by the government official. It is enough, rather, that there existed case law sufficient to clearly establish that, if a court were presented with such a situation, the court would find that the plaintiff's rights were violated") (citations omitted).

"When a fundamental right is at stake, the so-called 'strict scrutiny' formula for examining the constitutionality of State infringement on that right comes into play. See Aime v. Commonwealth, 414 Mass. 667, 673 [611 N.E.2d 204] (1993). This formula traditionally is stated in terms of requiring (1) a legitimate and compelling State interest to justify State action, and (2) careful examination to ascertain whether the action taken was 'narrowly tailored to further [that] interest.' [ Id. ]" Blixt v. Blixt, 437 Mass. 649, 655-656, 774 N.E.2d 1052 (2002). See Ahmad v. Department of Correction, 446 Mass. 479, 485, 845 N.E.2d 289 (2006) ; Rasheed v. Commissioner of Correction, 446 Mass. 463, 465, 845 N.E.2d 296 (2006) ; AttorneyGen. v. Desilets, 418 Mass. 316, 330-331, 636 N.E.2d 233 (1994) ; Commonwealth v. Martin, 417 Mass. 187, 193, 629 N.E.2d 297 (1994). "[O]nly those interests of the highest order ... can overbalance legitimate claims to the free exercise of religion." Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). "The state may justify an inroad on religious liberty [only] by showing that it is the least restrictive means of achieving some compelling state interest." Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981).

Although the exact factual circumstances presented here seemingly were unprecedented at the time of the stay-away directive, the standard to which the defendants were bound was clearly established by December, 2013, when the defendants issued that directive, and it would be difficult to imagine a situation where an employer so obviously impeded an employee's religious freedoms. See Lanier, 520 U.S. at 271, 117 S.Ct. 1219 ("the easiest cases don't even arise. There has never been ... a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal] liability") (citation omitted). Here, on its large multibuilding campus, the State chose to offer a place of worship open to all. In light of the absence of any evidence that Krupien would encounter Ravanis at the chapel, was a menace to others at the chapel, or was a general menace, a reasonable official in both Kirkland's and Ritcey's positions would have understood, with the information they possessed at the time or would have known with the information they failed to gather, that unilaterally barring Krupien from attending the chapel was not narrowly tailored. The stay-away directive thus violated clearly established religious rights.

Therefore, the defendants were not entitled to qualified immunity. So much of the judgment as dismisses Krupien's MCRA claims against Kirkland (count V) and Ritcey (count VI) is vacated. The remainder of the judgment is affirmed.

So ordered.

      The parties and the judge referred to the directive as a stay-away "[o]rder." To avoid confusion, we use the term "directive" because this was not a judicially imposed order.

      Other claims and other defendants were dismissed on summary judgment but are not at issue in this appeal.

      Nickerson wrote a report the next day that said that another employee, Lyneth Martin, witnessed the incident and said that Krupien "touched" Ravanis's hand and removed it from the wheelchair. Martin's December 21, 2013, written statement regarding the incident indicates that Krupien touched Ravanis or pushed or moved her hand from the wheelchair. At a deposition in this matter, Martin stated that Krupien "grabbed" Ravanis's hand and that Ravanis stumbled.

      In December, 2013, based on Ravanis's allegation, Kirkland had a concern Krupien might assault another employee. Ritcey did not have a concern that Krupien would hurt anyone.

      The stay-away directive also prevented Krupien from working a second job that she held at a United States Department of Veterans Affairs adult day care facility, which also was housed on the campus.

      Qualified immunity principles developed under 42 U.S.C. § 1983 apply equally to MCRA claims. Howcroft v. City of Peabody, 51 Mass. App. Ct. 573, 595, 747 N.E.2d 729 (2001).

      The defendants argue that the judge failed to consider the qualification of the right to worship set forth in art. 2 of the Massachusetts Declaration of Rights stating that a person has the right to worship "provided he doth not disturb the public peace." The defendants argue that a possible assault at Krupien's workplace qualifies as "disturb[ing] the public peace" for the purpose of art. 2. However, there is no claim that Krupien's manner of worship would qualify as "disturb[ing] the public peace" as the phrase has been defined. See Society of Jesus of New England v. Boston Landmarks Comm'n, 409 Mass. 38, 42-43, 564 N.E.2d 571 (1990), and cases cited. To the extent that a person's disturbance of the peace somewhere other than a place of worship and not during a person's exercise of religion could meet the limitation of art. 2, it would be a fact-specific inquiry which, on this record, is not suitable for summary judgment. Sause v. Bauer, --- U.S. ----, 138 S.Ct. 2561, 2563, 201 L.Ed.2d 982 (2018) (remanding free exercise and qualified immunity claims for factual development concerning how officers obtained access to plaintiff's apartment and what officers wanted her to do when they ordered her to stop praying).

      To the extent that the defendants contend that this was a general policy applicable to every employee accused of workplace violence, the facts belie that contention. The home's policy guide indicates that an employee may be removed from the campus for prohibited behavior. When there is an "actual act of violence," the policy guide provides that law enforcement must be immediately contacted to remove the individual from the premises. Krupien completed work that day and the next. Moreover, to the extent a general policy is applicable, once the party claiming an unconstitutional burden of the free exercise of religion establishes "(1) a sincerely held religious belief, which (2) conflicts with, and thus is burdened by, the [S]tate requirement ... [t]he [S]tate can prevail only by demonstrating both that (3) the requirement pursues an unusually important governmental goal, and that (4) an exemption would substantially hinder the fulfillment of the goal." Magazu v. Department of Children & Families, 473 Mass. 430, 443, 42 N.E.3d 1107 (2016) (citation omitted). As discussed infra, the defendants could not show that an exemption here to allow Krupien to attend worship services would substantially hinder the home's safety goal.

      We consider Federal cases concerning religious worship because the standard applied by Massachusetts courts for free exercise claims is the same as articulated by the Religious Freedom Restoration Act of 1993 (42 U.S.C. §§ 2000bb et seq. ), which requires "the least restrictive means of furthering that compelling governmental interest." Desilets, supra at 322 n.5, 636 N.E.2d 233.

      The chapel was not restricted, for example, for use only by patients and employees of the home. Nothing in this decision would prohibit the State as a property owner from offering a place of worship restricted to the users of a State-owned facility.

      This is not a case where Krupien was alleged to have been violent at a religious facility or violated the rules of the religious facility itself. There also was no indication that Krupien would come into contact with Ravanis at the chapel. Nothing in this decision limits the ability of the State to issue a stay-away directive that includes a place of worship at the campus of a State employer where the employee is alleged to be a general menace or if the employee had intentionally injured someone at the place of worship or who frequented the place of worship. See Rogers v. Johnson-Norman, 466 F.Supp.2d 162, 168 (D.D.C. 2006) (noting that United States Court of Appeals for the District of Columbia held that restraining order that barred defendant from plaintiff's church did not violate free exercise clause).

      Moreover, we think it clear that a reasonable official would have understood that employees of the Commonwealth would have at least as much protection as those confined in the Commonwealth's correctional facilities. Under that standard, policies of a facility that burden the right to the free exercise of religious beliefs "must advance compelling State interests and be tailored narrowly in pursuit of those interests." Ahmad, 446 Mass. at 485, 845 N.E.2d 289.

      Kirkland argues that, at the least, her actions were ministerial and she therefore cannot be liable for the issuance of the stay-away directive. The judge did not reach this issue. We decline to reach it particularly where the record indicates that Ritcey has testified that Kirkland advised Ritcey as to what should be done.


author: ABELE, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Nathan P. SIMMONS, Defendant-Appellant.
    No. 17CA16
    Court of Appeals of Ohio, Fourth District, Washington County.
    DATE JOURNALIZED: May 15, 2018
    Brian A. Smith, Akron, Ohio, for Appellant.
    Kevin A. Rings, Washington County Prosecuting Attorney, and Nicole Tipton Coil, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
    DECISION AND JUDGMENT ENTRY
   ABELE, J.

{¶ 1} This is an appeal from a Washington County Common Pleas Court judgment of conviction and sentence. The trial court found Nathan Simmons, defendant below and appellant herein, guilty of five fifth-degree felony drug-possession offenses. Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR FINDING OF IMMUNITY FROM PROSECUTION."
SECOND ASSIGNMENT OF ERROR:
"APPELLANT'S SENTENCE WAS CONTRARY TO LAW."

{¶ 2} On July 29, 2016, a Washington County grand jury returned an indictment that charged appellant with five drug-possession offenses, each a fifth-degree felony. In September 2016, the General Assembly amended the drug-possession statute, R.C. 2925.11. The amendment generally grants 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} Appellant filed a motion to request the court to find him immune from prosecution under the amended statute. Appellant argued that he is a "qualified individual" under the statute and that he meets all of the requirements outlined in the statute. Appellant asserted that on July 5, 2015, he was found unresponsive due to a suspected heroin overdose and emergency medical personnel revived him with Narcan. Appellant further claimed that he returned to his drug treatment program less than three weeks later, and remained in treatment until September 19, 2016. Appellant thus contended that he is a "qualified individual" and is therefore immune from prosecution under the amended statute.

{¶ 4} In support of his motion, appellant attached a letter from his drug-treatment counselor that stated: "[Appellant] entered treatment in 2004 [sic] and had left treatment for 30 days in June 2015 due to non-compliance and then returned for treatment on July 23, 2015. He was then discharged from treatment on September 19, 2016."

{¶ 5} Appellant thus alleged that the evidence shows that: (1) he was charged after a drug overdose and was treated by emergency medical personnel; (2) he "returned to counseling for his addiction within thirty (30) days of his overdose"; and (3) he remained in treatment until September 19, 2016. Appellant further asserted that he "is ready, willing and able to provide the prosecuting attorney any necessary documentation required under the statute."

{¶ 6} The state, however, opposed appellant's motion for immunity under R.C. 2925.11(B)(2)(b). The state first asserted that appellant is not a "qualified individual" under 2925.11(B)(2)(b)(ii). That provision specifies that to be entitled to immunity, the "qualified individual" must seek or obtain a screening and receive a referral for treatment within thirty days of obtaining medical treatment. The state argued that appellant did not present evidence that he sought a screening and received a referral for treatment within thirty days of his overdose, but instead, he showed only that he returned to his previous counseling.

{¶ 7} The state also claimed that even if appellant is a "qualified individual," the amended statute does not apply to individuals, like appellant, who committed a drug possession offense before the amendment's effective date. The state asserted that the General Assembly did not explicitly indicate that the statute applies retroactively, and thus, the statute applies prospectively only.

{¶ 8} The state also asserted that R.C. 1.58(B) does not apply. The state noted that R.C. 1.58(B) provides that if a statutory amendment reduces the penalty, forfeiture, or punishment for any offense, then "the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended." The state claimed, however, that R.C. 2929.11(B)(2)(b) did not reduce the penalty or punishment for a drug possession offense. The state maintained that R.C. 2929.11(B)(2)(b) immunity is not the same as a reduction in penalty or punishment.

{¶ 9} In response, appellant asserted that he had received a screening and a referral for treatment within thirty days of his overdose. Appellant included a second letter from his drug-treatment provider. This letter stated that when appellant "entered treatment [on] July 27, 2015[,] he had to provide a drug screen analysis along with having a bio-psychosocial assessment. After assessment, patient met criteria to be referred into treatment. Patient stated he needed to be in treatment due to an overdose. [Appellant] continued to be compliant in treatment until 9/9/2016."

{¶ 10} Appellant further disputed the state's assertion that R.C. 1.58(B) is inapplicable to R.C. 2929.11(B)(2)(b). Appellant argued that immunity, by definition, prevents a person from being prosecuted or penalized, and as such, immunity constitutes a reduction in penalty.

{¶ 11} On March 9, 2017, the trial court overruled appellant's motion. The court determined that the amendment is more in the nature of a repeal of criminal conduct, rather than a reduction in penalty. The court found that under R.C. 1.58(A), "if a criminal statute is repealed and no longer defines a crime, a person can be prosecuted and convicted of the violation of the former statute. However, under R.C. 1.58(B), if the penalty is reduced under the amendment, then the reduced penalty shall be imposed if the penalty has not yet been imposed." The court reasoned: "If immunity were to apply to the Defendant, then the Court would not have the ability to follow R.C. 1.58(B) and impose a reduced penalty upon the Defendant since the Defendant would not be subject to criminal prosecution at all. Therefore, the Court finds that immunity is more in the nature of a repeal of criminal conduct and that R.C. 1.58(A) applies. The General Assembly did not explicitly state that the amendment to R.C. 2925.11(B) is to be applied retroactively."

{¶ 12} Appellant subsequently entered no contest pleas to the five counts of the indictment. The court found appellant guilty and sentenced him in accordance with the parties' agreement. This appeal followed

I

{¶ 13} In his first assignment of error, appellant asserts that the trial court abused its discretion by overruling his motion for immunity under R.C. 2925.11(B)(2)(b). He contends that the trial court incorrectly determined that the amendment is more in the nature of a repeal of criminal conduct subject to R.C. 1.58(A), rather than a reduction in penalty subject to R.C. 1.58(B). Appellant argues that the amendment does not repeal the offense of drug possession, but instead, the amendment reduces the penalty for qualified individuals.

{¶ 14} The state argues that R.C. 2925.11(B)(2)(b) does not apply to appellant. The state points out that appellant's offenses occurred before the effective date of R.C. 2925.11(B)(2)(b) and that the statute does not contain any indication that it applies retroactively. The state further asserts that even if the statute did apply retroactively, appellant failed to satisfy all of the requirements specified in the statute.

A

{¶ 15} We initially note that both parties advocate that we apply an abuse-of-discretion standard to the trial court's decision regarding the statute's applicability to appellant's situation. The state cites two cases to support its assertion that an abuse-of-discretion applies: Urbana ex rel. Newlin v. Downing , 43 Ohio St.3d 109, 113, 539 N.E.2d 140 (1989), and State v. Brumback , 109 Ohio App.3d 65, 77, 671 N.E.2d 1064 (9th Dist. 1996). Both cases indicate that appellate courts review trial court decisions regarding evidence-admissibility for an abuse of discretion. Neither case, however, addresses the standard of review that applies when reviewing a trial court's decision concerning the applicability of a statute. Appellant simply asserts that appellate courts "review[ ] the denial of a motion for an abuse of discretion." We do not believe that the abuse-of-discretion standard applies in the case sub judice.

{¶ 16} "When a court's judgment is based on an erroneous interpretation of the law, an abuse-of-discretion standard is not appropriate." Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13 ; accord State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 16. Instead, when the "trial court decision being challenged d[oes] not involve the exercise of discretion, but [i]s based on a question of law, no deference is afforded." Wagner v. Roche Laboratories, 85 Ohio St.3d 457, 460, 709 N.E.2d 162 (1999) ; accord Wray v. Wessell , 4th Dist. Scioto No. 15CA3724, 2016-Ohio-8584, 2016 WL 7912885, ¶ 13.

{¶ 17} In the case at bar, appellant challenges the trial court's decision to overrule his motion that requested R.C. 2925.11(B)(2)(b) immunity. The trial court examined R.C. 1.58 and determined that R.C. 2925.11(B)(2)(b) operated as a repeal of an existing statute, rather than a reduction in penalty. The court thus concluded that under R.C. 1.58(A), the recently-amended 2925.11(B)(2)(b) did not apply to an individual who, like appellant, committed the offense and was arrested or charged before the statute's effective date. Appellant's first assignment of error thus, in essence, questions whether the trial court correctly interpreted R.C. 1.58 and R.C. 2925.11(B)(2)(b).

{¶ 18} The abuse-of-discretion standard does not apply to a trial court's interpretation of a statute. Rather, the correct interpretation of a statute is a question of law subject to de-novo review. State v. Pountney , 152 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶ 20 ; State v. Pariag , 137 Ohio St.3d 81, 2013-Ohio-4010, 998 N.E.2d 401, ¶ 9. We therefore independently review a trial court's interpretation of a statute and do not defer to its interpretation. E.g., Gyugo v. Franklin Cty. Bd. Of Dev. Disabilities , 151 Ohio St.3d 1, 2017-Ohio-6953, 84 N.E.3d 1021, ¶ 13 ; State v. Vanzandt , 142 Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d 1267, ¶ 6 ; State v. Bundy , 2012-Ohio-3934, 974 N.E.2d 139, ¶ 46 (4th Dist.) ; see also Hudson v. Petrosurance, Inc. , 127 Ohio St.3d 54, 2010-Ohio-4505, 936 N.E.2d 481, ¶ 29, citing MCI Telecommunications Corp. v. Pub. Util. Comm. , 38 Ohio St.3d 266, 268, 527 N.E.2d 777 (1988) (stating that appellate courts have "complete and independent power of review as to all questions of law"). Consequently, we disagree with the parties that the abuse-of-discretion standard of review applies. Instead, the de-novo standard of review guides our decision.

B

{¶ 19} In the case at bar, appellee charged appellant with five, fifth-degree felony drug-possession offenses. After appellant's indictment but before his conviction, 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:

[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.

{¶ 20} 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).

{¶ 21} In the case sub judice, the parties dispute whether R.C. 2925.11(B)(2)(b) applies to an individual, like appellant, who committed the alleged drug-possession offense prior to the effective date of the amendment, but who had not yet been convicted or penalized. The state asserts that the amendment is prospective only and cannot apply to an individual who committed the drug-possession offense before the effective date of the amendment. Appellant argues that both the language of the statute and R.C. 1.58(B) show that the amendment applies to his situation.

C

{¶ 22} The Ohio Constitution prohibits the General Assembly from passing retroactive laws. Ohio Constitution, Section 28, Article II; State v. Williams , 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108, ¶ 8. Moreover, the general rule is that "[a] statute is presumed to be prospective in its operation unless expressly made retrospective." R.C. 1.48 ; accord State v. Roberts , 134 Ohio St.3d 459, 2012-Ohio-5684, 983 N.E.2d 334, ¶ 27.

{¶ 23} Additionally, R.C. 1.58 sets forth specific rules that apply when the General Assembly reenacts, amends, or repeals statutes. Generally, "the substantive provisions of the former law apply to all pending prosecutions, but the defendants receive the benefit of a reduced 'penalty, forfeiture, or punishment' in the statute as amended, unless the General Assembly expresses another intent." State v. Solomon , 2012-Ohio-5755, 983 N.E.2d 872, ¶ 16 (1st Dist.), citing R.C. 1.58, and State v. Rush, 83 Ohio St.3d 53, 697 N.E.2d 634 (1998) (noting and giving effect to the General Assembly's stated intent that the amended sentencing provisions of Am.Sub.S.B. No. 2 apply only to crimes committed on or after July 1, 1996).

{¶ 24} R.C. 1.58(A) states:

The reenactment, amendment, or repeal of a statute does not, except as provided in division (B) of this section:
* * * *
(3) Affect any violation thereof or penalty, forfeiture, or punishment incurred in respect thereto, prior to the amendment or repeal;
(4) Affect any investigation, proceeding, or remedy in respect of any such privilege, obligation, liability, penalty, forfeiture, or punishment; and the investigation, proceeding, or remedy may be instituted, continued, or enforced, and the penalty, forfeiture, or punishment imposed, as if the statute had not been repealed or amended.

{¶ 25} Accordingly, unless R.C. 1.58(B) provides otherwise, "[t]he reenactment, amendment, or repeal of" R.C. 2925.11 does not "[a]ffect any violation thereof or penalty, forfeiture, or punishment incurred in respect thereto, prior to the amendment or repeal."

{¶ 26} R.C. 1.58(B) states: "If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended." Thus, " R.C. 1.58(B) identifies which law to apply when a statute is amended after the commission of a crime but before sentence is imposed[.]" State v. Kaplowitz , 100 Ohio St.3d 205, 2003-Ohio-5602, 797 N.E.2d 977, ¶ 8.

{¶ 27} In the case sub judice, we therefore must determine whether R.C. 2925.11(B)(2)(b) reduces "the penalty, forfeiture, or punishment" for fifth-degree felony drug-possession. This requires that we ascertain the meaning of "penalty, forfeiture, or punishment."

{¶ 28} 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.).

{¶ 29} 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. "Terms that are undefined in a statute are accorded their common, everyday meaning." Stewart at ¶ 25, citing R.C. 1.42.

{¶ 30} 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. 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. "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.

{¶ 31} In the case sub judice, the General Assembly did not define the terms "penalty, forfeiture, or punishment" as used in R.C. 1.58(B). We therefore "first consider the dictionary definition[s] of the term[s]." Stewart at ¶ 26.

{¶ 32} The term "penalty" generally means "the punishment inflicted by a law for its violation. The term is most applied to a pecuniary punishment.' " In re Lange's Estate , 164 Ohio St. 500, 505, 132 N.E.2d 96 (1956). Black's Law Dictionary indicates that the word, "penalty," is "[a]n elastic term with many different shades of meaning," but it typically "involves the idea of punishment, corporeal or pecuniary, or civil or criminal, although its meaning is generally confined to pecuniary punishment." Black's Law Dictionary 1133 (6th Ed. 1990); accord State v. Solomon , 1st Dist., 2012-Ohio-5755, 983 N.E.2d 872, ¶ 38.

{¶ 33} "Forfeiture" is "[a] comprehensive term which means a divestiture of specific property without compensation," and it includes the "[l]oss of some right or property as a penalty for some illegal act." Black's at 650; accord Solomon at ¶ 39 ; State v. Whitaker , 111 Ohio App.3d 608, 615, 676 N.E.2d 1189 (6th Dist.1996), quoting Webster's Third New International Dictionary (1986) 891, (defining " '[f]orfeiture' * * * as 'the loss of property or money on account of one's breach of [a] * * * legal obligation' ").

{¶ 34} The term "punishment" means "[a]ny fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court, for some crime or offense committed by him * * *." Black's at 1234; accord Solomon at ¶ 40.

{¶ 35} Inserting the plain and ordinary meaning of the above terms into R.C. 1.58(B) reveals that when a statutory reenactment or amendment reduces (1) the "punishment, corporeal or pecuniary, or civil or criminal," (2) the "divestiture of specific property without compensation," or (3) "[a]ny fine, penalty, or confinement inflicted," then "the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended." In the case at bar, therefore, if R.C. 2925.11(B)(2)(b) reduces any of the foregoing, the trial court must apply R.C. 1.58(B), not R.C. 1.58(A).

{¶ 36} We find the Ohio Supreme Court's decisions that address R.C. 1.58(B)'s applicability to the General Assembly's overhaul of Ohio's sentencing laws instructive. In State v. Thomas , 148 Ohio St.3d 248, 2016-Ohio-5567, 70 N.E.3d 496, for example, the court determined that a defendant who committed his offenses before the effective date of statutory amendments that reduced the potential prison sentences for the offenses was "entitled to the benefit of the shorter potential sentences under the law in effect at the time of sentencing," rather than the longer sentences in effect at the time he committed the offenses.

{¶ 37} The Thomas court began its analysis by observing that if a statutory amendment reduces the punishment for an offense, the "punishment, if not already imposed, shall be imposed according to the statute as amended." Id. at ¶ 8, quoting R.C. 1.58(B). The court noted that before the trial court convicted and sentenced appellant, the General Assembly amended the felony sentencing statutes so as to reduce the length of a prison term for first-degree-felony offenders, such as Thomas. The court observed that the uncodified law indicated that the "penalty-reduction provisions apply to those offenders to whom R.C. 1.58 applies." 2011 Am.Sub.H.B. 86, Sections 3-4. The court thus determined that Thomas was entitled to be sentenced under the law in effect at the time of his sentencing, rather than the law in effect when he committed the offenses.

{¶ 38} In State v. Taylor , 138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, the court considered "whether the defendant may benefit from the decrease in a classification and penalty of an offense enacted by the General Assembly that becomes effective after the commission of the offense but before sentencing on that offense." Id. at ¶ 1. In reaching its decision, the court rejected the state's assertion that a statutory amendment that decreases the classification of an offense does not constitute an amendment to the penalty, forfeiture, or punishment within the meaning of R.C. 1.58(B). The court explained "[t]he flaw" in the state's position "is that implicit in a decrease in the classification of an offense from a felony of the fifth degree to a misdemeanor of the first degree is a corresponding reduction in the penalty or punishment for that conduct." Taylor at ¶ 16. The court thus determined that the defendant was entitled to the reduced penalty provided in the amendment.

{¶ 39} In State v. Limoli , 140 Ohio St.3d 188, 2014-Ohio-3072, 16 N.E.3d 641, the court likewise determined that a defendant was entitled to be sentenced in accordance with the law in effect at the time of her sentencing, and not with the law in effect at the time of her offense-or at the time she entered her no-contest plea. In Limoli , the state charged the defendant with third-degree felony crack-cocaine-possession, which carried a mandatory prison term. Before the defendant's sentencing, the General Assembly amended the statute to eliminate any reference to crack-cocaine. As amended, possession of cocaine-crack or otherwise-constituted a fourth-degree felony.

{¶ 40} The state argued that R.C. 1.58(B) did not apply to the General Assembly's amendment to the cocaine-possession statute. The state claimed that the amendment did not reduce the penalty for crack cocaine, but rather, the amendment eliminated any reference to crack cocaine and thus changed the nature of offense. The supreme court disagreed. The court explained:

[U]nder the logic employed by the state, it would no longer be a crime to possess crack cocaine. We disagree. Crack cocaine is simply another form of cocaine. See R.C. 2925.01(X). To conclude otherwise would be absurd. Crack cocaine still exists, and under R.C. 2925.11(C)(4) ©, it is still illegal to possess it. There is no reason to believe that the legislature intended to legalize its possession.

Id. at ¶ 11. The court therefore determined that R.C. 1.58(B) entitled the defendant to receive the reduced penalty provided in the amended statute.

{¶ 41} In the case sub judice, we agree with appellant that R.C. 2925.11(B)(2)(b) operates to reduce the penalty/punishment for a minor drug possession offense. Before the General Assembly amended R.C. 2925.11, appellant's offense was classified as a fifth-degree felony, and the trial court could have sentenced appellant to community control or prison. See R.C. 2925.11(B)(6)(a) ; 2929.13(B); 2929.14(A)(5). After the amendment, possession of the amount of heroin charged in appellant's indictment still constitutes a crime. Under the amendment, however, appellant cannot be prosecuted, convicted, or penalized at all for fifth-degree felony drug-possession, provided he meets the definition of a "qualified individual" and satisfies the statutory requirements. The amendment thus reduces the penalty/punishment for a "qualified individual" who meets the statutory requirements from a prison sentence-at worst-to no penalty/punishment whatsoever.

{¶ 42} R.C. 2925.11(B)(2)(b) thus 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); 2016 Ohio Laws File 87 (Sub. H.B. 110) (stating that purpose of amendment is "to provide immunity from arrest, prosecution, or conviction * * * for a minor drug possession offense for a person who seeks or obtains medical assistance for self"). "Immunity" means "[f]reedom or exemption from penalty * * *." Black's at 751. Immunity, therefore, not only reduces the penalty, but it completely removes the penalty. We hence believe that the immunity contemplated in R.C. 2925.11(B)(2)(b) not only reduces, but completely eliminates, "the penalty, forfeiture, or punishment" a qualified individual would otherwise face for a minor drug possession offense. Consequently, because R.C. 2925.11(B)(2)(b) reduces by elimination "the penalty, forfeiture, or punishment" a qualified individual would otherwise face for a minor drug possession offense, R.C. 1.58(B) applies and requires the trial court to ascertain whether appellant is entitled to immunity under R.C. 2925.11(B)(2)(b).

{¶ 43} We do not agree with the trial court that the amendment is more in the nature of a repeal of a statute subject to R.C. 1.58(A)(3). R.C. 2925.11 continues to define drug-possession as a crime, and R.C. 2925.11(B)(2)(b) does not state that drug-possession no longer is a crime. Instead, the amendment defines the types of individuals not subject to arrest, prosecution, conviction, or punishment for committing a minor drug-possession offense.

{¶ 44} We observe that the Ninth and the Twelfth District Courts of Appeal also have considered whether R.C. 2925.11(B)(2)(b) applies to defendants whose offenses occurred before the effective date of the amendment, but who were not prosecuted, convicted, or sentenced until after the amendment became effective. State v. Vineyard , 2018-Ohio-705, 106 N.E.3d 780 (12th Dist.) ; State v. Sieminski , 2017-Ohio-5480, 92 N.E.3d 1252 (9th Dist.). Neither court, however, examined the import of R.C. 1.58(B).

{¶ 45} In Sieminski , the appellate court reversed the trial court's decision that dismissed the defendant's R.C. 2925.11(A) indictment. The court did not consider R.C. 1.58(B) at all, but instead, limited its analysis to whether the General Assembly expressed an intent to apply the statute retroactively. The court determined that R.C. 2925.11(B)(2)(b) did not apply retroactively so as to preclude the prosecution of a defendant who committed the offense before the statute's enactment. The court stated: " '[t]he General Assembly's failure to clearly enunciate retroactivity ends the analysis, and the relevant statute may be applied only prospectively.' " Id. at ¶ 12, quoting State v. Consilio , 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 10.

{¶ 46} In Vineyard , the court also did not consider R.C. 1.58(B). Instead, the court examined the plain language used in R.C. 2925.11(B)(2)(b). The court concluded that the defendant was entitled to R.C. 2925.11(B)(2)(b) immunity, even though the defendant overdosed, received emergency medical assistance, and subsequently completed drug addiction treatment before the effective date of the amendment. The court determined that "[t]he 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?" The court explained:

According to the plain language of [ R.C. 2925.11(B)(2)(b) ], "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.

Id. at ¶ 12.

{¶ 47} The Vineyard court did not believe that applying the statute to the defendant's circumstances resulted in a retroactive application of the statute. Instead, the court concluded that the statute's plain terms applied to the defendant's situation. The court stated: "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." Id. at ¶ 13. The court determined that the date of the overdose did not govern the statute's applicability, but rather, so long as the person had yet to be convicted or penalized, the statute would apply.

{¶ 48} Although neither Sieminski nor Vineyard addressed R.C. 1.58(B), the Vineyard decision appears congruent with the Ohio Supreme Court's decisions discussing R.C. 1.58(B)'s applicability to the General Assembly's sentencing overhaul.

{¶ 49} Consequently, we believe that R.C. 1.58(B) applies and allows appellant to seek the benefit of immunity offered under R.C. 2925.11(B)(2)(b). We therefore reverse the trial court's decision that R.C. 2925.11(B)(2)(b) cannot apply to appellant.

{¶ 50} To the extent appellant claims that the trial court erred by failing to conclude that he fulfilled the requirements set forth in R.C. 2925.11(B)(2)(b), this issue is not yet ripe for review. Instead, on remand the trial court may determine, in the first instance, whether appellant notified all of the statutory requirements for immunity to attach. We express no opinion regarding the factual merit of appellant's claim to immunity under R.C. 2925.11(B)(2)(b).

{¶ 51} Accordingly, based upon the foregoing reasons, we (1) sustain appellant's first assignment of error to the extent he asserts that the trial court incorrectly interpreted R.C. 1.58(B) and 2925.11(B)(2)(b) ; and (2) overrule appellant's first assignment of error to the extent he contends that the trial court erred by failing to conclude that he satisfied the statutory requirements for immunity to attach.

II

{¶ 52} In his second assignment of error, appellant argues that his sentence is contrary to law. We believe, however, that our disposition of appellant's first assignment of error renders his second assignment of error moot. We therefore do not address it. See App.R. 12(A)(1)(c).

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

JUDGMENT REVERSED AND CAUSE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

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