LOGSDON v. COMMONWEALTH (2020)

OPINION

Jeremy M. Logsdon (“Appellant”) appeals from a final judgment and sentence of imprisonment entered by the Boone Circuit Court. He argues that he should have been exempt from prosecution pursuant to Kentucky Revised Statutes (“KRS”) 218A.133, irrespective of whether a 911 caller remained with Appellant until medical assistance arrived. We agree, and for the reasons addressed below, REVERSE the judgment of the Boone Circuit Court.

FACTS AND PROCEDURAL HISTORY

The facts are not in dispute. On August 18, 2018, someone referring to himself as “Kyle” called 911 to report that Appellant was experiencing a heroin overdose. The caller stated that he would not stay with Appellant until medical assistance arrived because the caller had outstanding warrants. Boone County Deputy Sheriff Jennifer Crittenden responded to the call, and upon arrival observed that Appellant was conscious but confused. According to Deputy Crittenden, Appellant was holding a syringe with a needle and residue. On the table in front of Appellant was a used container of the narcotic overdose treatment Narcan, a spoon, and a folded paper with what appeared to be heroin residue. Another deputy arrived, as did Florence EMS. Appellant told EMS personnel that a friend had been over, and he gave conflicting statements as to who had administered the Narcan. Appellant refused medical treatment and would not cooperate with the deputies. Based on the foregoing, Appellant was charged with one count of possession of a controlled substance in the first degree, second offense,¹ and one count of possession of drug paraphernalia.²

The matter proceeded in Boone Circuit Court, where Appellant initially entered a plea of not guilty. On February 15, 2019, Appellant filed a motion to dismiss pursuant to KRS 218A.133. This statute exempts from prosecution for possession of a controlled substance or drug paraphernalia persons who have requested medical assistance, or one on whose behalf it has been requested. Appellant asserted that KRS 218A.133 does not require a third-party caller to remain with the person experiencing an overdose for the exemption to apply.

The circuit court conducted a hearing on February 19, 2019, and subsequently denied the motion by way of a written order entered the following day. The court first addressed KRS 218A.133, which states in pertinent part:

(2) A person shall not be charged with or prosecuted for a criminal offense prohibiting the possession of a controlled substance or the possession of drug paraphernalia if:

(a) In good faith, medical assistance with a drug overdose is sought from a public safety answering point, emergency medical services, a law enforcement officer, or a health practitioner because the person:

1. Requests emergency medical assistance for himself or herself or another person;

2. Acts in concert with another person who requests emergency medical assistance; or

3. Appears to be in need of emergency medical assistance and is the individual for whom the request was made;

(b) The person remains with, or is, the individual who appears to be experiencing a drug overdose until the requested assistance is provided; and

(c) The evidence for the charge or prosecution is obtained as a result of the drug overdose and the need for medical assistance.

The circuit court then interpreted KRS 218A.133(2) as not providing an exemption from prosecution for Appellant unless the person requesting medical assistance, in this case Kyle, remained with the person requiring assistance (Appellant) until medical assistance arrived. Said the court,

Put another way, because “Kyle” is the caller, he is also “the person” under Section (2)(a)(1). This makes “Kyle” “the person” under Section (2)(b). Thus, “Kyle” is the subject of the sentence. If the subject of the sentence (“Kyle”) stays with the overdosing party, immunity applies. Or, if the subject of the sentence (“Kyle”) is one and the same person as the overdosing party who is the object of the sentence (namely, the Defendant), immunity applies. In this case, the person seeking assistance “Kyle”, an otherwise unknown person, refused to remain with the individual experiencing a drug overdose, who was the Defendant (Mr. Logsdon). Because “Kyle” had outstanding warrants. Defendant likewise fails the alternative condition in Section (2)(b) because “Kyle” (the person seeking assistance) is not also Mr. Logsdon (the Defendant) who was the individual experiencing the drug overdose.

Having determined that Appellant was exempt from prosecution only if Kyle remained on scene until medical assistance arrived, and as Kyle left before such assistance arrived, the circuit court determined that Appellant was not exempt from prosecution under KRS 218A.133(2).

Based on the denial of this motion, Appellant appeared in open court on March 6, 2019, and entered a plea of guilty to one count of possession of a controlled substance in the first degree, second offense, and possession of drug paraphernalia. On May 20, 2019, the court sentenced Appellant to three years in prison, plus costs.³ Appellant's motion for probation was granted, and this appeal followed.

ARGUMENT AND ANALYSIS

Appellant now argues that the Boone Circuit Court erred in interpreting KRS 218A.133(2) as not providing Appellant with an exemption from prosecution. He maintains that the court misinterpreted KRS 218A.133(2) as requiring the reporting party, in this instance Kyle, to remain with Appellant until medical assistance arrived. Appellant asserts that the statutory language provides an exemption from prosecution irrespective of whether the reporting party stays at the scene, and that the circuit court erred in failing to so rule. Citing Maynes v. Commonwealth, 361 S.W.3d 922, 924 (Ky. 2012), Appellant argues that in construing statutes the goal is to give effect to the intent of the General Assembly. He maintains that the intent of the General Assembly, as evinced by the statutory language, is to protect the lives of persons experiencing drug overdoses by exempting them from prosecution when seeking medical assistance. Appellant argues that the statutory language clearly does not require a reporting party to remain with the victim until medical assistance arrives, that the language should be given its clear and obvious meaning, and that the Boone Circuit Court erred in failing to so rule.

Statutory construction is an issue of law rather than fact; as such, we apply a de novo standard of review to the trial court's decision. Rhodes v. Commonwealth, 417 S.W.3d 762, 764-65 (Ky. App. 2013). Having closely examined the record and the law, we conclude that KRS 218A.133(2) provides an exemption from prosecution for possession of a controlled substance or drug paraphernalia irrespective of whether the reporting party remains with the person experiencing the overdose. When removing the extraneous language, KRS 218A.133(2) provides that

[a] person shall not be ․ prosecuted for a criminal offense prohibiting the possession of a controlled substance or the possession of drug paraphernalia if ․ medical assistance with a drug overdose is sought ․ because the person ․ [a]ppears to be in need of emergency medical assistance and is the individual for whom the request was made; [and] (b) The person ․ is ․ the individual who appears to be experiencing a drug overdose until the requested assistance is provided[.]

When applied to the facts before us, Appellant, not Kyle, is “the person” addressed in KRS 218A.133(2)(a) and (b). The circuit court erred in failing to so rule. The statute provides an exemption for Appellant's prosecution because he is the person for whom “medical assistance with a drug overdose is sought,” and he is “the individual who appears to be experiencing a drug overdose[.]” KRS 218A.133(2)(a) provides the exemption from prosecution only in the limited circumstance where “[i]n good faith, medical assistance with a drug overdose is sought[.]” Kyle called 911 in apparent good faith seeking medical assistance for Appellant, and it can reasonably be inferred from the used Narcan container on the table in front of Appellant that he was experiencing a drug overdose. Further, the Commonwealth “concedes that giving the words of the statute their literal meaning is contrary to the finding of the trial court.”⁴ We agree. The literal application of KRS 218A.133(2) is in opposition to the circuit court's finding, thus rendering the circuit court's decision erroneous.

We must also address the unpublished opinion in Allen v. Commonwealth, No. 2017-CA-000389-MR, 2018 WL 4523207 (Ky. App. Sept. 21, 2018), as cited by the circuit court and the parties. In Allen, George Roe, who was located in Florida, was on a phone call with Niki Allen in Kentucky when Roe heard Allen's speech begin to slur. Believing that Allen required medical attention, Roe placed a 911 call which resulted in medical personnel and police responding to Allen's address. Upon arrival, Allen's husband attempted to refuse entry to the responders. Medical personnel and police entered the residence, where the police observed heroin, fentanyl, and marijuana in plain sight. Allen was conscious and refused treatment. She was charged with possession offenses.

The trial court later determined that Allen was not entitled to an exemption from prosecution pursuant to KRS 218A.133(2). On appeal, a panel of this Court affirmed upon finding that the three elements of KRS 218A.133(2) are, 1) the good-faith seeking of emergency medical assistance for a drug overdose, 2) the caller either remaining with the overdose victim until medical assistance is provided, or being the overdose victim, and 3) law enforcement obtaining the evidence supporting the charge as the result of the call for help. Allen, supra, at *2-3. In finding that Allen was not entitled to exemption, the panel noted that Roe, the caller, was located in Florida and was not physically present with Allen. As such, the panel concluded that what it characterized as the second element of KRS 218A.133(2), i.e., the caller remaining with the overdose victim, was not satisfied. In so doing, the panel stated:

The legislature intentionally selected the phrasing “remains with” in this provision, and giving that phrase the plain meaning of the words, we interpret that language to require the caller to be physically present in close proximity to the overdose victim. This interpretation conforms to the legislative purpose, as a person who is present when emergency responders arrive will likely be able to provide information that a potentially unconscious overdose victim cannot, thus facilitating treatment and presumably increasing the odds of a positive medical outcome. This element is not satisfied here, where Roe was not physically present with the person he believed to have been suffering from a drug overdose, nor did Allen make the call seeking aid for herself. Allen, in fact, refused medical assistance from emergency responders at the scene.

Id. at *3.

Returning to the matter at bar, and contrary to the holding in Allen, we do not interpret KRS 218A.133(2)(b) as requiring the caller to remain with the person experiencing the overdose, if the person experiencing the drug overdose is the person seeking the exemption. KRS 218A.133(2)(b) requires that, “[t]he person remains with, or is, the individual who appears to be experiencing a drug overdose until the requested assistance is provided[.]” (Emphasis added.) Thus, “the person” in this instance can refer either to the caller, if it is he who is seeking an exemption from prosecution, or to the person experiencing the overdose. This is apparent from the General Assembly's usage of the disjunctive word “or.” In the matter before us, Appellant is the person for whom medical attention was sought, and is the person seeking the exemption from prosecution. Kyle's geographic location when responders arrived is of no consequence.

CONCLUSION

Accordingly, we conclude that the person experiencing a drug overdose may be entitled to the exemption irrespective of whether the caller is present when medical personnel arrive. The statutory language does not require the caller's presence in this circumstance, and the apparent legislative purpose – i.e., to encourage the summoning of medical assistance without fear of prosecution – is given effect. This holding is in opposition to that of Allen, and the resolution thereof, if any, must be found via the General Assembly or on motion for discretionary review to the Kentucky Supreme Court.

We agree with both Appellant and the Commonwealth that the Boone Circuit Court's ruling is not supported by a strict interpretation of KRS 218A.133(2). Throughout this statute, “the person” may reasonably be construed as the individual experiencing a drug overdose, and for whom a third-party caller requested medical assistance. When read in this light, KRS 218A.133(2) does not require a third-party caller to be present with the individual experiencing a drug overdose when medical personnel arrive. As such, the circuit court erred in concluding that Appellant was not entitled to the KRS 218A.133(2) exemption from prosecution. Accordingly, we REVERSE the judgment of the Boone Circuit Court.

FOOTNOTES

1.   KRS 218A.1415.

2.   KRS 218A.500(2).

3.   Appellant was also sentenced to ten days in jail for contempt.

4.   Appellee's brief at p. 5. The Commonwealth nonetheless argues that the judgment should be affirmed.

THOMPSON, L., JUDGE:

ALL CONCUR.