[Cite as State v. Brown, 2018-Ohio-4500.]


STATE OF OHIO                    )                  IN THE COURT OF APPEALS
                                 )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

CITY OF AKRON                                       C.A. No.     28629

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
JENNIFER L. BROWN                                   AKRON MUNICIPAL COURT
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   17CRB00632

                                 DECISION AND JOURNAL ENTRY

Dated: November 7, 2018



        SCHAFER, Presiding Judge.

        {¶1}    Defendant-Appellant, Jennifer L. Brown, appeals from her conviction in the

Akron Municipal Court. This Court affirms.

                                               I.

        {¶2}    On January 21, 2017, Ms. Brown’s son discovered her at home, unresponsive, and

called 9-1-1. Akron Police and paramedics responded, and the son informed them that Ms.

Brown had overdosed on heroin. Upon their arrival, paramedics were able to administer a dose

of NarCan to revive Ms. Brown. Responding officers found a syringe and plastic cap on the

ground next to Ms. Brown. Ms. Brown admitted to mixing heroin in the plastic cap and using

the syringe to inject heroin.

        {¶3}    Ms. Brown was charged with one count for possession of drug abuse instruments

in violation of Akron City Code 138.11 and one count for drug paraphernalia in violation of

Akron City Code 138.28. Ms. Brown entered an initial plea of not guilty to both charges. On
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March 2, 2017 Ms. Brown filed a motion to dismiss, which the trial court denied. Thereafter, on

April 6, 2017, Ms. Brown changed her plea to no contest as to the charge of possession of drug

abuse instruments in exchange for the City’s agreement to dismiss the drug paraphernalia charge.

The trial court accepted the plea, found Ms. Brown guilty of possession of drug abuse

instruments, and sentenced her according to law.

       {¶4}    Ms. Brown has filed a timely appeal of her conviction raising four assignments of

error for our review. For ease of analysis, we elect to address the last two assignments of error

together.

                                               II.

                                    Assignment of Error I

       The trial court erred by concluding that the immunity set forth in R.C.
       2925.11 does not apply to any offense other than a minor drug possession
       offense.

       {¶5}    Ms. Brown argues that the trial court erred by applying a narrow interpretation of

the immunity provision of R.C. 2925.11 and in concluding that Ms. Brown was not entitled to

immunity for the offenses charged as a result of her overdose. Ms. Brown refers to the trial

court’s order of March 27, 2017, wherein the trial court denied Ms. Brown’s pretrial motion to

dismiss and ruled that

       [t]he immunity set forth in R.C. 2925.11(B)(2)(b) does not apply to any offense
       other than a minor drug possession offense; therefore, immunity does not apply to
       the charges of [p]ossession of [d]rug [a]buse [i]nstruments and [p]ossession of
       [d]rug [p]araphernalia in this case.

In her merit brief, Ms. Brown contends that the statute should be interpreted to be “more

encompassing than just the minor drug possession charge” and suggests that R.C. 2925.11 is

worded such that it can be read either to “provide immunity from all charges in R.C. Chapter
                                                 3


2925 or it can be read to provide immunity from only minor drug possession charges.”

(Emphasis added.)

       {¶6}    Because a trial court’s interpretation of a statute presents us with a question of law

we review it on a de novo basis. State v. Crowe, 9th Dist. Summit No. 23192, 2006-Ohio-5526,

¶ 4. The cardinal rule of statutory construction requires a court to first look at the specific

language of the statute itself and, if the meaning of the statute is unambiguous and definite,

further interpretation is not necessary and a court must apply the statute as written. State v.

Jordan, 89 Ohio St.3d 488, 492, 2000-Ohio-225, quoting State ex rel. Savarese v. Buckeye Local

School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 1996-Ohio-291. Ambiguity exists only if the

language of a statute is susceptible of more than one reasonable interpretation, and the facts and

circumstances of a case do not permit a court to read ambiguity into a statute. Dunbar v. State,

136 Ohio St.3d 181, 2013-Ohio-2163, ¶ 16. “Thus, 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 absent an initial finding that the language of the statute is, itself,

capable of bearing more than one meaning.” Id.

       {¶7}    R.C. 2925.11(B)(2)(b) states in pertinent part “[s]ubject to division (B)(2)(f) of

this section, a qualified individual shall not be arrested, charged, prosecuted, convicted, or

penalized pursuant to this chapter for a minor drug possession offense if” the qualified individual

fulfills all three specific requirements described in R.C. 2925.11(B)(2)(b)(i),(ii), and (iii).

(Emphasis added.) “‘Minor drug possession offense’ means a violation of this section [R.C.

2925.11 ‘Possession of Drugs’] that is a misdemeanor or a felony of the fifth degree.”

(Emphasis added.)        R.C. 2925.11(B)(2)(a)(iv), see also R.C. 2925.01(EE).                  R.C.

2925.11(B)(2)(e) provides that “[n]othing in division (B)(2)(b) of this section shall be construed
                                                4


to * * * [l]imit the admissibility of any evidence in connection with the investigation or

prosecution of a crime with regards to a defendant who does not qualify for the protections of

division (B)(2)(b) of this section or with regards to any crime other than a minor drug possession

offense committed by a person who qualifies for protection pursuant to division (B)(2)(b) of this

section for a minor drug possession offense[.]” (Emphasis added.)

       {¶8}    The plain language of R.C. 2925.11(B)(2)(b) clearly provides qualified

individuals with immunity for a minor drug possession offense pursuant to R.C. Chapter 2925.

A minor drug possession offense is defined, definitely and unambiguously, as a misdemeanor or

fifth degree felony violation of R.C. 2925.11. Furthermore, R.C. 2925.11(B)(2)(e) explicitly

prohibits construing R.C. 2925.11(B)(2)(b) so as to limit the admissibility of any evidence in

connection with the investigation or prosecution of a crime * * * with regards to any crime other

than a minor drug possession offense committed by a person who qualifies for protection * * *

for a minor drug possession offense.” This Court lacks authority to ignore the plain and

unambiguous language of R.C. 2925.11(B)(2)(b) “under the guise of either statutory

interpretation or liberal construction[.]” Morgan v. Ohio Adult Parole Auth., 68 Ohio St.3d 344,

347, 1994-Ohio-380.

       {¶9}    Despite Ms. Brown’s contention that the immunity provision of R.C. 2925.11 is

susceptible to a broader interpretation, she has failed to identify any ambiguous language or to

demonstrate that any ambiguity exists in the statute. If this Court “were to brazenly ignore the

unambiguous language of a statute, or [to find] a statute to be ambiguous only after delving

deeply into the history and background of the law’s enactment, we would invade the role of the

legislature: to write the laws.” Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, ¶ 8.

Ms. Brown’s argument attempts to bypass the threshold consideration of ambiguity and instead
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resorts to discussing the statute’s legislative history, policy consideration, and a comparative

analysis to other statutory immunity. Thus, Ms. Brown prematurely relies on sources beyond the

statute itself for interpretation, without having first established that the statute is ambiguous.

       {¶10} We conclude that because R.C. 2925.11(B)(2)(b) is plain and unambiguous, there

is no cause to look beyond the plain language of the statute for interpretation. See State ex rel.

Celebrezze v. Bd. of Cty. Commrs., 32 Ohio St.3d 24, 27 (1987). Consequently, this Court

rejects Ms. Brown’s argument that the trial court should have interpreted the statute or expanded

its application beyond that which is permitted by the plain language of the statute. This Court’s

application of the plain language of the statute confirms the trial court’s conclusion that R.C.

2925.11(B)(2)(b) applies only to minor drug possession offenses under R.C. 2925.11, that Ms.

Brown was not charged with a minor drug possession offense in this case, and that the statute

does not provide immunity for the possession of drug abuse instruments or drug paraphernalia

offenses with which Ms. Brown was charged. The trial court did not err in its application of R.C.

2925.11(B)(2)(b).

       {¶11} Ms. Brown’s first assignment of error is overruled.

                                      Assignment of Error II

       The trial court erred by concluding that the immunity set forth in R.C.
       2925.11 does not apply to allied offenses of similar import.

       {¶12} In her second assignment of error, Ms. Brown argues that the immunity provision

of R.C. 2925.11 should apply to her charges for possession of drug abuse instruments or drug

paraphernalia because, she contends, they are allied offense of similar import to the minor drug

possession offenses afforded immunity under R.C. 2925.11(B)(2)(b). Ms. Brown reasons that “a

defendant who is immune from prosecution for a specific offense should also be immune from

prosecution for any allied offenses of similar import.” The essence of Ms. Brown’s argument is
                                               6


that she could have been charged with minor drug possession for her possession of heroin in this

incident. Ms. Brown theorizes that if she had been charged with minor drug possession the

doctrine of merger would have applied, her charge for minor drug possession would have been

dismissed based on grounds of immunity, and then her charges for possession of drug abuse

instruments or drug paraphernalia would also have been dismissed as allied offenses.

       {¶13} Ms. Brown raised this below in her pretrial motion to dismiss. The trial court, in

concluding that immunity did not apply to Ms. Brown’s charges, overruled that motion. We

review a trial court’s conclusions of law in ruling on a pretrial motion to dismiss criminal

charges using the de novo standard. State v. Sieminski, 9th Dist. Lorain No. 16CA011048, 2017-

Ohio-5480, ¶ 7; State v. Saxon, 9th Dist. Lorain No. 09CA009560, 2009-Ohio-6905, ¶ 5. Even

if, for the purpose of our review, this Court were to assume that Ms. Brown’s charged offenses

are allied offenses of similar import to minor drug possession, and further assume that a

hypothetical charge for minor drug possession would have been dismissed on the grounds of

immunity based on the circumstances underlying this matter, for the reasons that follow we

determine that Ms. Brown’s argument still lacks merit.

       {¶14} R.C. 2941.25(A) provides that “[w]here the same conduct by defendant can be

construed to constitute two or more allied offenses of similar import, the indictment or

information may contain counts for all such offenses, but the defendant may be convicted of only

one.” “[F]or purposes of R.C. 2941.25, a ‘conviction’ consists of a guilty verdict and the

imposition of a sentence[.]” (Emphasis sic.) State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-

2669, ¶ 12, quoting State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 12. Ms. Brown has

failed to demonstrate how, had she been charged with minor drug possession, a pre-conviction
                                                7


dismissal of that particular charge on the grounds of immunity would have required dismissal of

any allied offenses.

       {¶15} “To ensure compliance with both R.C. 2941.25 and the Double Jeopardy Clause,

‘a trial court is required to merge allied offenses of similar import at sentencing.’” State v.

Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 15, quoting State v. Underwood, 124 Ohio

St.3d 365, 2010-Ohio-1, ¶ 27. “However, ‘[b]ecause R.C. 2941.25(A) protects a defendant only

from being punished for allied offenses, the determination of the defendant’s guilt for

committing allied offenses remains intact, both before and after the merger of allied offenses for

sentencing.’” State v. Harmon, 9th Dist. Summit No. 26502, 2013-Ohio-1769, ¶ 17, quoting

Whitfield at paragraph three of the syllabus. Therefore, even if Ms. Brown had been charged

with minor drug possession, that offense would not merge with any allied offenses of similar

import other than for the purpose of sentencing. Accordingly, if Ms. Brown had qualified for

immunity and, consequently, dismissal of a charge for minor drug possession, any allied offenses

would not “merge” for that purpose and there would be no grounds to extend immunity or

dismiss any charges not covered by the immunity provision of R.C. 2925.11.

       {¶16} In her reply brief, Ms. Brown acknowledges that “there is no authority that

specifically says when a defendant is immune from prosecution for one of a series of allied

offenses they should be immune from prosecution for each of the allied offenses.” Ms. Brown

instead asserts an additional policy argument suggesting that “there is nothing that prevents

immunity from being extended.”        However, based upon our discussion in the previous

assignment of error, we reject Ms. Brown’s argument because the plain language of R.C.

2925.11(B)(2)(b) limits its application. Further, R.C. 2925.11(B)(2)(e)(i) precludes such an

extension of immunity by prohibiting R.C. 2925.11(B)(2)(b) from being applied to “[l]imit the
                                                8


admissibility of any evidence in connection with the investigation or prosecution of a crime * * *

with regards to any crime other than a minor drug possession offense committed by a person who

qualifies for protection pursuant to division (B)(2)(b) of this section for a minor drug possession

offense[.]”

       {¶17} Accordingly, this Court concludes that immunity provision of R.C. 2925.11

cannot be construed to extend immunity beyond minor drug offenses to provide immunity from

prosecution for any allied offenses of similar import not covered by R.C. 2925.11(B)(2)(b). Ms.

Brown’s second assignment of error is overruled.

                                    Assignment of Error III

       The trial court erred by denying [Ms. Brown]’s motion to dismiss.

                                    Assignment of Error IV

       The trial court erred by finding [Ms. Brown] guilty of possessing a drug
       abuse instrument.

       {¶18} In her third assignment of error, Ms. Brown contends that the trial court erred

denying her motion to dismiss. Inasmuch as her motion to dismiss was based exclusively on the

arguments Ms. Brown asserted in her first two assignments of error, she has not asserted any

additional issues or argument in her third assignment of error. Furthermore, Ms. Brown’s fourth

assignment of error is also predicated entirely on her arguments in the first and second

assignments of error. Therefore, we conclude that our resolution of the first two assignments of

error renders Ms. Brown’s third and fourth assignment of error moot and we decline to address

them. See App.R. 12(A)(1)(c).
                                                 9


                                                III.

       {¶19} Ms. Brown’s first and second assignments of error are overruled. This Court

declines to address her moot third and fourth assignments of error. The judgment of the Akron

Municipal Court is affirmed.



                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Akron Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT
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HENSAL, J.
CONCURS.

CARR, J.
CONCURRING.

       {¶19} I write separately to note that I have very strong reservations regarding whether

the language in R.C. 2925.11 is ambiguous and, furthermore, whether a plain meaning

construction of the statutory language could lead to absurd results. Unfortunately, however,

neither argument was raised in the trial court and may not be raised for the first time on appeal.

See JPMorgan Chase Bank, Natl. Assn. v. Burden, 9th Dist. Summit No. 27104, 2014-Ohio-

2746, ¶ 12.


APPEARANCES:

PATTI MICHELLE SCHACHTER, Attorney at Law, for Appellant.

EVE V. BELFANCE, Director of Law, and BRIAN D. BREMER, Assistant Director of Law, for
Appellee.
