State v. Brown

[Cite as State v. Brown, 2018-Ohio-2267.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY

STATE OF OHIO, :

Plaintiff-Appellant, : Case No. 17CA3603

vs. :

LARRY E. BROWN II, : DECISION AND JUDGMENT
ENTRY
Defendant-Appellee. :

_________________________________________________________________

APPEARANCES:

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.1

CRIMINAL CASE FROM COMMON PLEAS COURT
DATE JOURNALIZED:6-6-18
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.

1 Different counsel represented appellee during the trial court
proceedings.
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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
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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
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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
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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
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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
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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
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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 Hawaii 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.2

{¶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

2 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. Washington No. 17CA16,
2018-Ohio------.
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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
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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’
 11
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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.
 12
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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
 13
ROSS, 17CA3603

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., 2017-Ohio-8348,

2017 WL 4990584, ¶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., — Ohio St.3d —,

2018-Ohio-1561, — N.E.3d. —, ¶23, 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.
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“When the language of a statute is ambiguous, we resort to the rules of construction to discern its

meaning.” Turner v. Hooks, — Ohio St.3d —, 2018-Ohio-556, — N.E.3d —, ¶10, 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
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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.
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{¶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,
 17
ROSS, 17CA3603

“[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
 18
ROSS, 17CA3603

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, 3 especially when appellant never requested appellee to submit written

documentation to verify the screening and treatment-referral requirements.4

3 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.
4 We observe that the trial court also applied the “absurd-result” rule.
[Cite as State v. Brown, 2018-Ohio-2267.]

“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.
[Cite as State v. Brown, 2018-Ohio-2267.]
{¶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.
[Cite as State v. Brown, 2018-Ohio-2267.]
JUDGMENT ENTRY

It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Ross County
Common Pleas Court to carry this judgment into execution.

If a stay of execution of sentence and release upon bail has been previously granted by
the trial court or this court, it is temporarily continued for a period not to exceed sixty days upon
the bail previously posted. The purpose of a continued stay is to allow appellant to file with the
Supreme Court of Ohio an application for a stay during the pendency of proceedings in that
court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the appellant to file a notice of appeal with the Supreme Court
of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

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

For the Court

BY:
Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.