Farris, A.C.J.

Claude Gilbert Utter was. charged by an information filed January 16,1969, with the crime of murder in the second degree. He was convicted by a jury of the crime of manslaughter. He appeals from that conviction.

Appellant and the decedent, his son, were living together at the tune of the latter’s death. The son was seen to enter his father’s apartment and shortly after was heard to say, “Dad, don’t.” Shortly thereafter he was seen stumbling in the hallway of the apartment building where he collapsed, having been stabbed in the chest. He stated, “Dad stabbed me” and died before he could be moved or questioned further.

Mr. Utter entered the armed services in December of 1942 and was honorably discharged in October of 1946. He was a combat infantryman. As a result of his service, he was awarded a 60 per cent disability pension.

Appellant testified that on the date of his son’s death he began drinking during the morning hours. He was at the liquor store at 9 a.m. and purchased a quart of Thunderbird wine and a quart of port wine and drank the bottle of port wine with the exception of two drinks. Mr. Utter went for more liquor around noon. At that time he purchased 2 quarts of whiskey and 4 quarts of wine. Upon his return from the liquor store, he and another resident of the apartment “sat around drinking whiskey out of water glasses.” *139Appellant remembers drinking with his friend and the next thing he remembers was being in jail subsequent to the death of his son. He has no recollection of any intervening events.

Appellant introduced evidence on “conditioned response” during the trial. Conditioned response was defined by Dr. Jarvis, a psychiatrist, as “an act or a pattern of activity occurring so rapidly, so uniformly as to be automatic in response to a certain stimulus.” Mr. Utter testified that as a result of his jungle warfare training and experiences in World War II, he had on two occasions in the 1950’s reacted violently towards people approaching him unexpectedly from the rear.

The trial court ruled that conditioned response was not a defense in Washington and instructed the jury to disregard all evidence introduced on this subject. Appellant contends that this evidence was not introduced as a defense. In this assertion, appellant is incorrect since if the evidence was received and believed by the jury, the result would be his exculpation. Therefore, it must be considered to be a defense to the crime.

The major issue presented on appeal is whether it was error for the trial court to instruct the jury to disregard the evidence on conditioned response. The trial court held that the defendant was attempting to present a defense of irresistible impulse — a theory of criminal insanity that has consistently been rejected in this state. In so holding, the trial court considered the defense to be one of mental incapacity. This was not so.

There are two components of every crime. One is objective — the actus reus; the other subjective — the mens rea. The actus reus is the culpable act itself, the mens rea is the criminal intent with which one performs the criminal act. However, the mens rea does not encompass the entire mental process of one accused of a crime. There is a certain minimal mental element required in order to establish the actus reus itself. This is the element of volition. See Sim, The Involuntary Actus Reus, 25 Modern L. Rev. 741 (1962).

*140In the present case, the appellant was charged with second-degree murder and found guilty of manslaughter. The actus reus of both is the same — homicide. Thus, in order to establish either, the fact of homicide must first be established.

Appellant contends that his evidence was presented for the purpose of determining whether in fact a homicide had been committed. He argues that his evidence, if believed, establishes that no “act” was committed within the definition of homicide, RCW 9.48.010 (since amended by Laws of 1970, Ex. Ses., ch. 49, § 1, p. 333):

Homicide is the killing of a human being by the act, procurement or omission of another and is either (1) murder, (2) manslaughter, (3) excusable homicide or (4) justifiable homicide.

What is the meaning of the word “act” as used in this statute?

It is sometimes said that no crime has been committed unless the harmful result was brought about by a “voluntary act.” Analysis of such a statement will disclose, however, that as so used the phrase “voluntary act” means no more than the mere word “act.” An act must be a willed movement or the omission of a possible and legally-required performance. This is essential to the actus reus rather than to the mens rea. “A spasm is not an act.”

(Footnotes omitted.) R. Perkins, Criminal Law 660 (1957).

[A]n ‘act’ involves an exercise of the will. It signifies something done voluntarily. It necessarily implies intention. We find these statements abundantly sustained by the text-writers and decisions of our courts.

Heiman v. Pan American Life Ins. Co., 183 La. 1045, 1061, 165 So. 195 (1935). See also Stokes v. Carlson, 362 Mo. 93, 240 S.W.2d 132 (1951); Brown v. Standard Casket Mfg. Co., 234 Ala. 512, 175 So. 358 (1937); Duncan v. Landis, 106 F. 839 (3d Cir. 1901).

Thus, to invert the statement of Perkins, the word “act” technically means a “voluntary act.” See State v. Peterson, 73 Wn.2d 303, 438 P.2d 183 (1968).

*141It is the appellant’s contention that any of the alleged “acts” he committed were not those which involved mental processes, but rather were learned physical reactions to external stimuli which operated automatically on his autonomic nervous system. Although the theory sought to be presented by the appellant is similar to one of mental incapacity, it is nevertheless distinct from that concept.

automatistic acts are concomitants of mental disturbance of some kind. The mental disturbance may or may not be sufficient to establish legal insanity. Indeed, it would generally appear to be true that where the defendant’s acts are automatistic in character he cannot be said to have capacity to know their nature, and where he lacks capacity to know the nature of his acts, those acts must be said to be automatistic. Yet the automatistic acts may not be the result of a mental disease [Mr. Utter claims here that they are the result of military training] and hence not sufficient to constitute legal insanity. In any event, it is important to emphasize that whether or not the mental disturbance associated with the acts of automatism is equivalent to legal insanity, it is universally recognized that evidence of this character goes toward the exculpation of the accused, rather than mitigation to a lesser offense. And the exculpation is not of the qualified character attached to a verdict of not guilty on grounds of insanity. It is complete.

M. Paulsen and S. Kadish, Criminal Law and Its Processes. 347 (1962).

Appellant contends that a person in an automatistic or unconscious state is incapable of committing a culpable act —in this case, a homicidal act.

The question is not one of mental incapacity. “Criminal responsibility must be judged at the level of the conscious.” State v. Sikora, 44 N.J. 453, 470, 210 A.2d 193 (1965).

There is authority to support the proposition of the appellant.

Where, at the time of the killing, the slayer was clearly unconscious thereof, such unconsciousness will constitute a defense, as in the case of a homicide committed by one in a state of somnambulism, or while delirious from disease.

*142(Footnotes omitted.) O. Warren and B. Bilas, 1 Warren on Homicide § 61 (perm. ed. 1938).

If a person is in fact unconscious at the time he commits an act which would otherwise be criminal, he is not responsible therefor.

The absence of consciousness not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability.

(Footnotes omitted.) R. Anderson, 1 Wharton’s Criminal Law and Procedure § 50 (1957). A number of cases support these statements. State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969); People v. Wilson, 66 Cal. 2d 749, 427 P.2d 820, 59 Cal. Rptr. 156 (1967); People v. Anderson, 63 Cal. 2d 351, 406 P.2d 43, 46 Cal. Rptr. 763 (1965); Watkins v. Commonwealth, 378 S.W.2d 614 (Ky. 1964); Carter v. State, 376 P.2d 351 (Okla. Crim. 1962); People v. Gorshen, 51 Cal. 2d 716, 336 P.2d 492 (1959); Corder v. Commonwealth, 278 S.W.2d 77 (Ky. 1955); People v. Baker, 42 Cal. 2d 550, 268 P.2d 705 (1954); Smith v. Commonwealth, 268 S.W.2d 937 (Ky. 1954); Fain v. Commonwealth, 78 Ky. 183, 39 Am. Rep. 213 (1879). See also, 22 C.J.S. Criminal Law § 55 (1961); 21 Am. Jur. 2d Criminal Law § 29 (1965).

In State v. Strasburg, 60 Wash. 106, 110 P. 1020 (1910) the Washington Supreme Court considered the constitutionality of a statute which withdrew the defense of insanity from those defenses that could be raised in this state. In holding the statute unconstitutional, the court made an extensive review of basic tenets of criminal law and noted in part as follows:

“All the several pleas and excuses which protect the committer of a forbidden act from the punishment which is otherwise annexed thereto may be reduced to this single consideration, the want or defect of will. An involuntary act, as it has no claim to merit, so neither can it induce any guilt; the concurrence of the will, when it has its choice either to do or to avoid the fact in question, being the only thing that renders human actions either praiseworthy or culpable.

*143“Without the consent of the will, human actions cannot be considered as culpable; nor where there is no will to commit an offense, is there any just reason why a party should incur the penalties of a law made for the punishment of crimes and offenses.”

State v. Strasburg, supra at 113.

An “act” committed while one is unconscious is in reality no act at all. It is merely a physical event or occurrence for which there can be no criminal liability. However, unconsciousness does not, in all cases, provide a defense to a crime. When the state of unconsciousness is voluntarily induced through the use and consumption of alcohol or drugs, then that state of unconsciousness does not attain the stature of a complete defense. Thus, in a case such as the present one where there is evidence that the accused has consumed alcohol or drugs, the trial court should give a cautionary instruction with respect to voluntarily induced unconsciousness.

The issue of whether or not the appellant was in an unconscious or automatistic state at the time he allegedly committed the criminal acts charged is a question of fact. Appellant’s theory of the case should have been presented to the jury if there was substantial evidence in the record to support it.

It is the function and province of the jury to weigh evidence and determine credibility of witnesses and decide disputed questions of fact. State v. Dietrich, 75 Wn.2d 676, 453 P.2d 654 (1969). However, a court should not submit to the jury an issue of fact unless there is substantial evidence in the record to support it. State v. Brooks, 73 Wn.2d 653, 440 P.2d 199 (1968); State v. Collins, 66 Wn.2d 71, 400 P.2d 793 (1965).

We find that the evidence presented was insufficient to present the issue of defendant’s unconscious or automatistic state at the time of the act to the jury. There is no evidence, circumstantial or otherwise from which the jury could determine or reasonably infer what happened in the room at the time of the stabbing; the jury could only speculate on the existence of the triggering stimulus.

*144Appellant contends that- it was error for the trial court to instruct the jury on manslaughter. This assignment of error is founded upon the allegation that the record contains no evidence to support such an instruction.

Manslaughter includes all homicides not falling within the definitions of murder in the first or second degree, or excusable or justifiable homicide. State v. Hedges, 8 Wn.2d 652, 113 P.2d 530 (1941). The trial court ruled that the homicide was neither justifiable nor excusable. Evidence was introduced regarding appellant’s drinking habits, the amount he drank that day, and the fact that he was an alcoholic. Evidence of voluntary intoxication can be presented as a defense to a crime where intent is an element. RCW 9.01.114; State v. Byers, 136 Wash. 620, 241 P. 9 (1925). Furthermore, criminal intent is not an element of manslaughter. State v. Brubaker, 62 Wn.2d 964, 385 P.2d 318 (1963); State v. Hopkins, 147 Wash. 198, 265 P. 481, 59 A.L.R. 688 (1928). The evidence regarding appellant’s drinking was sufficient to negative the criminal intent required for a conviction of second-degree murder and necessitated the giving of the manslaughter instruction. It was therefore proper for the trial court to so instruct the jury.

The trial court gave instruction 9:

The court instructs the jury that the law presumes that every man intends the natural and probable consequences of his own acts.

Appellant contends that this was a comment upon the evidence and denied him his right to a trial by jury. We do not agree. “Voluntary” is included in the definition of the word “act.”1 The insertion of the word “voluntary” might improve the instruction but it is not constitutionally required. Under our determination of the issues it was not error to submit the instruction.2

Affirmed.

James and Swanson, JJ., concur.

Philip M. Hess, Judge

Introduction

Jason Shell (Defendant) appeals the judgment of the Circuit Court of St. Charles County, entered after a jury trial, convicting him of one count of distribution of a controlled substance and one count of involuntary manslaughter. On appeal, Defendant argues that: 1) there was insufficient evidence to convict him of distribution of a controlled substance; 2) there was insufficient evidence to convict him of involuntary manslaughter; 3) the trial court erred by not declaring a mistrial, sua sponte, during the State’s closing argument; 4) the trial court erred by denying his motion to suppress his statements made to the police; and 5) the trial court erred by denying his motion for a trial continuance.

Concluding that the State failed to present sufficient evidence to support Defendant’s conviction of Count II—involuntary *25manslaughter—we reverse Defendant’s conviction on that count. We affirm Defendant’s conviction of Count I—distribution of a controlled substance.

Factual Background

In January 2012, Defendant and James Eyman (Decedent) were planning to buy heroin. In text messages, Decedent told Defendant that he had $40 to put toward the purchase. Combined with Defendant’s $80, the men were able to purchase seven doses of heroin. Defendant contacted his heroin dealer and purchased all $70 worth of heroin, to be paid back by Decedent when they met up later in the evening.

After buying the heroin, Defendant went to Decedent’s parents’ house—where Decedent was living at the time—and picked up Decedent. The men went to Defendant’s house; where they each injected themselves with heroin. Defendant took three doses, while Decedent took four. Defendant drove Decedent back to his parents’ house around 11:00 p.m. Decedent went inside, told his mother that he was tired and going to bed, and went into his bedroom.

At around 1:00 p.m. the next day, Decedent’s mother went to check on him because he had not gotten up yet. She discovered Decedent was dead. Detective William Parks went to the house and saw that Decedent had a puncture mark on his arm that was consistent with injecting heroin with a hypodermic needle. Decedent’s father told Detective Parks that Decedent had gone out with Defendant the night before. Detective Parks seized Decedent’s cell phone and sent it to the cyber-crime unit. The cell phone revealed Decedent’s texts with Defendant about their plans the evening before.

A few days later, Detective - Parks went to Defendant’s workplace to talk to Defendant about Decedent’s death. Defendant agreed to talk to Detective Parks at a nearby police station. Detective Parks drove both himself and Defendant to the police station. Pursuant to safety protocol, Detective Parks handcuffed Defendant on the drive to-the police station. When they arrived at the station, the men went to an interview room. Detective Parks read Defendant his Miranda1 rights, and Defendant said that he understood his rights and waived them by signing a Miranda waiver form.

Defendant told Detective Parks about how the men planned to buy heroin, how he picked Decedent up and how they went back to his house and injected heroin. Defendant said that he noticed that Decedent was nodding out2 and lethargic. The men drove to a movie theatre but decided not to see the movie. They returned to Defendant’s house, where Defendant offered Decedent to stay the night so that Defendant could keep an eye on him. Defendant was concerned with Decedent’s physical condition because of the amount of heroin that Decedent injected. Nonetheless, Decedent decided to return home because he had a curfew. After relating these details to Detective Parks, Defendant also wrote a statement. Detective Parks took Defendant back to work and told him he would be in contact.

Subsequently, Defendant was charged with distribution of a controlled substance and first-degree involuntary manslaughter. The indictment charged that Defendant *26“recklessly caused the death of [Decedent] by providing [Decedent] with heroin, knowing [Decedent] intended to inject the heroin into his body.” Thirteen days before trial, Defendant filed a pro se motion for a continuance, seeking to replace appointed trial counsel .with privately retained counsel. After a hearing, the trial court denied Defendant’s motion. The case proceeded to trial.

At trial, Decedent’s parents testified about the day that they found Decedent deceased in his bed. Debbie Sloan, a crime scene investigator who reported to the home, testified about taking pictures of the scene and seizing clothes and Decedent’s phone. She also testified that there was no drug paraphernalia in Decedent’s bedroom. Patrick Jackson, a member of the cyber-crime task force, testified about reviewing Decedent’s cell phone and accessing text messages between Decedent and Defendant. Dr. Mary Case, a forensic pathologist, testified about heroin overdoses, both generally and specifically regarding Decedent. Dr. Case stated that Decedent “could have been saved” had he been given a drug that reverses the effects of heroin. Three forensic toxicologists testified: Jamie Nazzoli, who prepared Decedent’s blood and urine samples; Mike Bru-der, who tested Decedent’s blood and urine; and Christopher Long, who prepared the toxicology report. The toxicologists’ testimonies, collectively, related that heroin was found in Decedent’s blood and that he most likely died two to six hours after injection.

Detective William Parks also testified at trial. Detective Parks told the jury about the text messages between Decedent and Defendant and how the men planned to buy $70 worth of heroin and inject the drug together later in the evening. Additionally, he testified about his conversation with Defendant on February 2, following Decedent’s death. Detective Parks recalled going to Defendant’s workplace, asking Defendant if he would speak to him, and driving to the police station to interview Defendant. He further related what Defendant said in his verbal statement, including the following: that Decedent did four buttons of heroin;3 that “he noticed pretty quickly that [Decedent] was nodding out already, becoming lethargic”; that Decedent was'more intoxicated than Defendant anticipated; that Defendant “was concerned for [Decedent’s] wellbeing as the night progressed, because of his increased level of intoxication and the lethargy”; and that “[Defendant] was asking [Decedent] to spend the’ night so he could watch over him, because he was becoming increasingly concerned about [Decedent’s] physical condition due to the amount of heroin” that Defendant injected. Detective Parks also read a written statement that Defendant prepared.4

At the conclusion of trial, the jury found Defendant guilty of distribution of a controlled substance and first-degree involuntary manslaughter. The court sentenced Defendant to concurrent terms of eighteen years’ imprisonment for distribution and fifteen years’ imprisonment for involuntary manslaughter. Defendant appeals.. '

Standard of Review

In reviewing a challenge to the sufficiency of the evidence, we consider whether *27the State introduced sufficient evidence from which a reasonable juror could have found each element of the crime beyond a reasonable doubt. State v. Hosier, 454 S.W.3d 883, 898 (Mo. banc 2015). “In determining whether the evidence is sufficient to support a conviction, we view the evidence, and all reasonable inferences therefrom in the light most favorable to the verdict, and we disregard all contradictory evidence and inferences.” State v. Brown, 457 S.W.3d 772, 779 (Mo.App.E.D. 2014). We must consider the inferences favorable to the State unless the contrary inference is such that it would necessarily give rise to a reasonable doubt in the mind of a reasonable juror. State v. Grim, 854 S.W.2d 403, 413 (Mo. banc 1993).

When reviewing a trial court’s ruling on a motion to suppress, our inquiry is limited to. whether the. court’s decision is supported by substantial evidence. State v. Harris, 477 S.W.3d 181, 140 (Mo.App.E.D. 2015). We give deference to the trial court’s superior opportunity to determine the credibility of the. witness and to the court’s factual findings... Id. This Court views the facts and the reasonable inferences therefrom in the light, most.favorable to the trial court’s decision. State v. Kelly, 119 S.W.3d 587, 592 (Mo.App.E.D. 2003). Questions of law are reviewed de novo. Harris, 477 S.W.3d at 140. The trial court’s ruling on a motion to suppress evidence, will be affirmed unless it is clearly erroneous. Id.

Discussion

Point I: Sufficiency of the Evidence for Distribution ,of a Controlled Substance

In his first point on appeal, Defendant argues that there was insufficient evidence to- convict him of distribution of a controlled substance. Specifically, Defendant maintains that Decedent “exercised control over the heroin through” Defendant and, therefore, Decedent constructively possessed the heroin from the moment that Defendant purchased the drug. The State argues that Decedent did not constructively possess the heroin because Defendant and Decedent did not “simultaneously and jointly acquire possession,”

Section 195.211 RSMo Supp.2004 provides, “it is unlawful for any person to distribute,- deliver, manufacture, produce or attempt to distribute, deliver, manufacture or produce a controlled substance or to possess with intent to distribute, deliver, manufacture, or produce a controlled substance.” Section 195.010(12) RSMo Supp. 2010 defines distribute as “to deliver other than by administering or dispensing a controlled substance.” Section 195.010(8) defines deliver as “the actual, constructive, or attempted transfer from one person to another .of drug paraphernalia or of a controlled substance, or an imitation controlled substance, whether or not there is an agency relationship, and includes a sale.” Regarding constructive possession, § 195.010(34) provides, “A person who, although not in actual possession, has the power and the intention at a given time to exercise dominion or. control over the substance either directly or. through another person or persons is in constructive possession of it.” ■

Defendant argues that, pursuant to Missouri’s statutes defining - distribution, Defendant was required to have transferred the heroin to Decedent. -Defendant notes that while the term “transfer” ‘has not been defined by statute, the Southern District defined it as: “To convey or remove from one place, -person, etc., to another; pass or hand over from one to another; specifically, to change over the possession or control of (as, to transfer a title to land). To sell or give.” State v. Kellner, 103 S.W.3d 363, 365 (Mo.App.S.D. 2003). Ulti*28mately, Defendant argues that because Decedent constructively possessed the heroin, possession did not “change over” when Defendant brought the heroin to Decedent.

■ Neither Defendant nor the State cites to Missouri precedent addressing this issue. Hdwever, both parties cite to persuasive authority from other jurisdictions to support their arguments. Defendant relies on State v. Carithers, 490 N.W.2d 620 (Minn. 1992). In Carithers, the defendant purchased heroin, on her own, to share with her husband. Id. at 622-24. It was disputed whether the defendant could be guilty of distributing a controlled substance. Id. The Minnesota Supreme Court held: .

If a husband and wife jointly acquire the drug, each spouse- has constructive possession from the moment of acquisition, whether or not both are physically present at the transaction. The absent spouse could be charged with constructive possession at any time following the purchase by his or her confederate. That the absent spouse did not exercise physical control over the substance at the moment of-acquisition is an irrelevancy when there is no question that the absent spouse was then entitled to exercise joint physical possession.

Id. at 622. Carithers is derived from a Second Circuit Court of Appeals case, U.S. v. Swiderski, 548 F.2d 445 (1977). In Swiderski, the Court addressed “whether joint purchasers and possessors of a controlled substance, who intend to share it between themselves as- users, may be found guilty of the felony of possession with intent to distribute ... as distinguished from simple possession.” Id. at 447. The Court held that they cannot. Id. In so finding, the Court stated:

[W]here two individuals simultaneously and jointly acquire possession of a drug for their own use, intending only to share it together, their only crime is personal drug abuse simple joint possession, without any intent to distribute the drug further. Since both acquire possession from the outset and neither intends -to- distribute the drug to a third person, neither serves as a link in the chain, of distribution. For purposes of the Act they must therefore be treated as possessors for personal use rather than for further distribution.

Id. at 450 (emphasis added). The Court stated that their holding was “limited to the passing of a drug between joint possessors who simultaneously acquired possession at the outset for their own use.” Id. at 450-51.

Defendant compares his case to Carith-ers and Swiderski. Defendant claims that Decedent acquired joint possession of the heroin from the time that Defendant purchased the heroin from his drug dealer. As a result, Defendant argues that he could not have transferred the drug to Decedent. Defendant asserts that whether or not Decedent accompanied him to purchase the heroin is irrelevant because Defendant purchased the heroin for both himself and Decedent “to save time.”

The State differentiates the present case from Carithers and Swiderski. The State compares the present case to U.S. v. Wright, 593 F.2d 105 (9th Cir. 1979), in which the Ninth Circuit held that Swider-ski was not controlling precedent. In Wright, a woman asked the defendant to buy heroin so they could use it together; she gave the defendant $20 to purchase the heroin but did not tell him where to buy it; the defendant left, bought the heroin, returned, and the woman and the defendant took the drugs together. Id. at 108. The Court stated that the defendant “did not simply simultaneously and jointly acquire possession of a drug for their (his and another’s) own use,” but rather the *29defendant “facilitated the transfer of the narcotic.” Id. The States argues that the present case is like Wright, in that Defendant and Decedent did not simultaneously and jointly acquire possession of the hér-oin. Instead, Defendant purchased the heroin upon Decedent’s request, bought the heroin on his own, and then transported the heroin to, Decedent. The State contends that Defendant served as a link in the distribution chain of the heroin.

•We conclude that Defendant’s ease is more like Wright than Garithers and Swiderski. In Swiderski, the Court focused on the fact that the defendant and his fiancée purchased the illegal drugs together—-jointly and simultaneously—in order to ingest the drugs together. 548 F.2d at 450. The defendant and his fiancée did not intend to further distribute the purchased drugs to anyone, and therefore, neither the defendant nor his fiancée served “as a link in the chain of distribution.” Id. at 450. Garithers extended the reasoning of Swiderski to apply to situations where a defendant, alone, purchased drugs to' share with his spouse. 490 N.W.2d at 622. The factual differences between the present case and both Carith-ers and Swiderski lead us to adopt the reasoning laid out in Wright.

Here, Defendant and Decedent did not simultaneously and jointly acquire possession of the' heroin. The record reveals that while Decedent requested that Defendant purchase the heroin- for' both men, Defendant was the one who, on his own, purchased the heroin from his drug dealer with his own money and delivered it to Decedent. Given these facts, it is clear that Defendant played “a far more active role than [Decedent] did in the drug transaction; indeed, he acted as a go-between” for Decedent and the drug dealer. Long v. U.S., 623 A.2d 1144, 1148 (D.C. 1993). Accordingly, given the evidence presented at trial, a reasonable juror could have concluded that Defendant was guilty of Count I, distribution of a controlled substance, beyond a reasonable doubt. Point I is denied.

Points II and III: Sufficiency of the Evidence for Involuntary Manslaughter

In his second and third points on appeal, Defendant challenges the sufficiency of the evidence for his conviction for involuntary manslaughter. In Point II, Defendant contends that the evidence was insufficient to prove that he acted recklessly. In Point III, Defendant argues that he did not have a duty to seek medical care for Decedent. The State argues that not only did Defendant recklessly cause the death of Decedent by giving Decedent heroin, but also that Defendant did, in fact, have a duty to seek medical care for Decedent.

Under § 565.024.1 RSMo Supp. 2009, a person commits first-degree involuntary manslaughter if - he. “recklessly causes the death of another person.” Section 562.016.4 RSMo 2000 defines a reckless mental state:

A person “acts recklessly” or is reckless when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes,a gross deviation from the standard of care which a reasonable person would exercise in the situation.

In the context of involuntary manslaughter, a person, acts recklessly when “there is a conscious disregard of a risk of death to another and such disregard is a gross deviation from what a reasonable person would do in the circumstances.” State v. Beeler, 12 S.W.3d 294, 297-99 (Mo. banc 2000). “Recklessness resembles knowing conduct in one respect in that it involves awareness, but it is an awareness of risk, that is, *30of a probability less than a substantial certainty.” State v. Belton, 153 S.W.3d 307, 309 (Mo. banc 2005).

Criminal liability “is premised on a defendant’s conduct involving voluntary acts.” State v. Voss, No. ED101396, 488 S.W.3d 97, 110, 2016 WL 145727, at *6 (Mo.App.E.D. 2016) (citing State v. Gargus, 462 S.W.3d 417, 421 (Mo.App.E.D.2013)). A voluntary act can be an omission to perform an act. Id. However, a defendant' cannot be guilty of an offense “based solely upon an omission to perform an act unless the law defining the offense expressly so provides, or a duty to perform the omitted' act is otherwise imposed by law.” Id. (citing § 562.011.4 RSMo 2000). Because Missouri’s involuntary manslaughter statute does not explicitly consider a defendant’s failure to act, a duty to perform the omitted act must be otherwise imposed by law. Id. “[W]here evidence to support a defendant’s conviction for first-degree involuntary manslaughter consists of the defendant’s affirmative acts as well as his omissions, the defendant may still be found guilty of the offense even if a duty to perform the omitted act is not otherwise imposed by law.” Id.

In the present case; the evidence presented'to the jury supporting Defendant’s conviction for first-degree involuntary manslaughter consists of Defendant’s affirmative acts as well as his omission. As noted, Defendant’s conviction may still stand even if we conclude that the duty to perform the omitted act is not imposed by law. Therefore, we must determine whether Defendant- had a duty to seek medical care for Decedent, and if so, whether he satisfied said duty (Point III). If we determine that Defendant did not have a duty to seek medical care for Decedent, we still must determine whether the evidence was sufficient to convict Defendant of involuntary manslaughter for his affirmative acts alone, i.e., whether Defendant recklessly caused Decedent’s death (Point II).

A. Did Defendant have a duty to act?

As noted, because Missouri’s involuntary manslaughter statute does not explicitly consider a defendant’s failure to act, a duty to perform the omitted act must be otherwise imposed by law. Voss, Id. at 110, 2016 WL 145727 at *6; § 562.011.4 (“A person is not guilty of an offense based solely upon an omission to perform an act unless the law defining the offense expressly so provides, or a duty to perform the omitted act is otherwise imposed by law.”). There are at least four situations that may give rise to a duty to act: (1) where a statute imposes a duty to care for another; (2) where the defendant stands .in a certain status relationship to another; (3) where the defendant assumed a contractual duty to care for another; and (4) where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid. Gargus, 462 S.W.3d at 422 (citing Jones v. U.S., 308 F.2d 307, 310 (D.C.Cir. 1962)). A defendant stands in a “certain status relationship” with the victim in eases “where some act or omission on the part of the defendant either created or increased the risk of injury to [another]” Voss, Id. at 112, 2016 WL 145727 at *8.

Here, Defendant argues that he did not have a duty to seek medical help for Decedent because none of the situations as laid out in Gargus apply to the facts of his case, and specifically that he did not stand in a “certain status relationship” to Decedent. Defendant maintains that even if the law did impose a duty to act, he satisfied any duty by inviting Decedent to stay the night, and once Decedent rejected Defendant’s offer, Defendant had no further *31duty to provide help. The State counters that Defendant did, in fact, have a duty to act because he voluntarily assumed the care of a vulnerable person (Decedent) and Decedent was reliant upon Defendant for medical care.5

In Voss, this Court held that the defendant had a duty to act because he “created and/or increased the risk of injury to [the victim]” by providing the victim with heroin, suggesting how much heroin the victim should use, helping the victim prepare the heroin for ingestion, and “leaving the hotel room after [the victim] exhibited signs of an overdose which [the defendant] recognized as such.” Voss, Id. at 112, 2016 WL 145727 at *8. Accordingly, the Court concluded that because the law imposed a duty to act, a reasonable juror could have concluded that the defendant breached said duty by failing to go back to the hotel room or obtain medical help for the victim. Id. at *8.

Here, we cannot conclude that Defendant “created and/or increased the risk of injury” to Decedent. The present case is factually distinguishable from Voss, where the defendant played a much more active role in the victim’s drug overdose. Unlike Voss, Defendant’s role in Decedent’s heroin use was simply that of distributor. During Defendant’s trial, there was no evidence that Defendant suggested how much heroin for Decedent to use or that Defendant actively helped Decedent ingest the drugs. While we certainly do not condone Defendant’s delivery of heroin to Decedent, the present case does not rise to the level of creating or increasing the risk of injury. Under this Court’s holding in Voss, such a special relationship' requires more than just delivery of the heroin. Therefore, we conclude that the law did not impose a duty because Defendant did not create and/or increase the risk of injury to Decedent.

Regardless, we next consider the State’s argument that the law imposed a duty because Defendant voluntarily assumed the care, of a vulnerable person who was reliant upon him for medical care. This Court’s reasoning in State v. Gargus, 462 S.W.3d 417 (Mo.App.E.D. 2013), is instructive. In that case, the defendant was convicted of elder abuse following, the death of her diabetic, bedbound, eighty-one-year-old mother (the victim). Id. at 418. On appeal, the defendant argued that the' State failed to present-' sufficient evidence'to support her- conviction because she did not have a duty to act to protect the victim: Id. at 421. The Court concluded that the defendant voluntarily assumed care of and secluded the victim. Id: at 422.' However, the Court stated that Missouri law “suggests a duty to act arises, whether or not the defendant has secluded the victim, when the defendant voluntarily assumes the care of a vulnera-blé person who is dependent upon the defendant for basic necessities, such as food, clothing, shelter, and medical care.” Id. at 423,' The Court concluded that, even if the defendant had not secluded the victim, the defendant had a duty to act because the defendant “voluntarily assumed the care of [the victim], knowing [the victim] was entirely dependent on [the defendant] for her care,” and as a result, the, defendant had a duty to act reasonably in providing that care. Id. at 424. As a result, the Court found there to be sufficient evidence to support criminal liability for the defendant’s omissions. Id.

Here, it is clear that Defendant did not seclude Decedent. ; In fact, the evidence shows that Defendant did the opposite—he *32returned Decedent to his parents’ house, where Decedent interacted with his mother. Nonetheless, under Gargus, Defendant may have had a duty' to act if he voluntarily assumed the care of Decedent and Decedent was dependent upon Defendant for medical care. Id. at 423. In Gargus, the victim was diabetic, unable to walk, confined to a bed. Id. at 419. These particular facts, combined with the “egregious” circumstances giving rise to criminal liability, differ from the present case. Id. at 424. Here, we cannot conclude that Defendant voluntarily assumed the care of Decedent and that Decedent was entirety dependent upon Defendant for his medical care. While Defendant and Decedent engaged in drug use together, various other facts established at trial support our conclusion. After Defendant dropped Decedent back at his parents’ house, Decedent had a conversation with his mother. Decedent may have started a load of laundry, and then he told his mother that he was tired, said goodnight, and told her that he loved her. These facts, when considered in the context of Decedent’s entire evening, show that Decedent was not entirely dependent upon Defendant. Furthermore, Defendant was not the only person with whom Decedent had interactions after ingesting the drugs. Accordingly, we conclude that the law did not impose a duty to act because Defendant did not seclude Decedent, and Decedent was not dependent upon Defendant for medical care.

B. Were Defendant’s affirmative acts reckless?

Having concluded that the law did not impose a duty for Defendant to act, we now turn to whether Defendant’s affirmative acts rose to the level of recklessness. Defendant argues that the State did not prove that his actions were reckless because there was no evidence presented at trial that the amount of heroin .Decedent injected created a substantial risk of death. The State counters that Defendant acted recklessly by giving Decedent heroin because injecting heroin exposes the user to a substantial and unjustifiable risk of death, Defendant was aware of this risk, and Defendant consciously disregarded the risk by giving Decedent heroin.

As noted previously, a person acts recklessly when “there is a conscious disregard of a risk of death to another and such disregard is a gross deviation from what a reasonable person would do in the circumstances.” Beeler, 12 S.W.3d at 297-99. “Recklessness resembles knowing conduct in one respect in that it involves awareness, but it is an awareness of risk, that is, of a probability less than a substantial certainty.” Belton, 153 S.W.3d at 309 (emphasis added). In the present case, Defendant’s affirmative act was delivering heroin to Decedent.6 Accordingly, it was incumbent upon the State to prove, beyond *33a reasonable doubt, that Defendant was aware of the risk that Decedent’s death was probable as a result of injecting heroin. The evidence presented at trial, specifically the testimony of Dr. Mary Case, the forensic pathologist, established the following: she had seen many heroin overdoses; doctors are not permitted to dispense heroin; and heroin is highly addictive. Dr. Case did not specifically address whether or not the dose ingested by Decedent created a known probability that Decedent would die; rather, Dr. Case spoke generally about the inherent dangers of heroin use. Given the lack of concrete evidence establishing that the amount of heroin injected by Decedent created a substantial risk of death, we cannot conclude that the evidence was sufficient to support Defendant’s conviction. While we 'recognize the concern of the heroin epidemic and the rise in deaths as a result of heroin use, the State failed to provide sufficient evidence that death by injecting heroin is a “probability less than a substantial certainty.” Belton, 153 S.W.3d at 309.

Further, we note the factual differences between the present case and Foss, in which we concluded that the defendant’s affirmative acts were reckless. In Foss, the defendant’s affirmative acts consisted of more than providing heroin to the victim. Beyond providing the drugs, the defendant also suggested the amount of heroin for the victim to use, helped the victim prepare the heroin by crafting a beer can and mixing the heroin with water and heating it, and loaded the heroin into a syringe. In the present case, there was no evidence presented to the jury that Defendant played such an active role in Decedent’s heroin injection. To rule as the State suggests and hold that Defendant acted recklessly simply by providing Decedent with heroin would create a per se involuntary manslaughter rule, which we are unwilling impose upon criminal defendants absent clear legislative intent.7

Accordingly, we conclude that the evidence was insufficient to convict Defendant of involuntary manslaughter. The State not only failed to prove that Defendant had a duty to provide medical care for the Decedent, but also that Defendant’s actions were criminally reckless. Therefore, Defendant’s conviction for involuntary manslaughter cannot stand, and we grant his claim of error. We reverse the trial court’s judgment on Count II, involuntary manslaughter, and vacate Defendant’s conviction on that count.8

Point V: Admissibility of Defendant's Statements to Police

In his fifth point on appeal, Defendant argues that the trial court erred in overruling his motion to suppress his oral and written statements to Detective Parks. Specifically, Defendant alleges that the submission of these statements violated his Fourth Amendment rights, in that Detec*34tive Parks illegally made a de facto arrest of Defendant without probable cause. The State counters that Defendant was not under arrest and that his statements were voluntary.

In support of his argument, Defendant cites to State v. Pfleiderer, 8 S.W.3d 249 (Mo.App.W.D. 1999), In Pfleiderer, an officer had reasonable suspicion to subject the defendant to an investigative Terry 9 stop. 8 S.W.3d at 254. The defendant argued that the officer detained him for longer than necessary and, as a result, the police placed him under de facto arrest. Id. at 255. The Court, in addressing when a Terry stop turns into a de facto arrest, stated:

Even if no formal arrest is made, a de facto arrest occurs when the officers’ conduct is more intrusive than necessary for an investigative stop. In deciding whether this standard is met, we look at whether the police used the least intrusive means of detention reasonably nee-éssary to achieve their investigative purpose. The factors to be considered in determining whether police conduct constitutes a de facto arrest include the duration of the stop, whether the suspect was handcuffed or confined in a police car, whether the suspect was transported or isolated, and the degree of fear, and humiliation that the police conduct engenders.

If. an arrest is made, either expressly or defacto, it must be based on probable cause. Without probable cause, an arrest is illegal. Probable cause exists when the arresting officer is aware of facts and circumstances that are reasonably trustworthy and would lead a person of reasonable caution to believe an offense had been committed. If the government does not argue that the officers had' probable cause[,] if we find an, arrest, we must find error in the failure to suppress [evidence] as the fruit of the illegal seizure.

Id. at 255-56 (internal quotations and citations omitted). , ,'

Here, applying the factors as provided in Pfleiderer, Defendant argues that he was placed under de facto arrest because of the following: the “significant” length of time of his interview with Detective Parks; Defendant was handcuffed while in. Detective Park’s car; Defendant was transported from his place of work to the police station; and the humiliation of being handcuffed and escorted, in a police car, away from his place of employment. Defendant maintains that because this amounted to a de facto arrest, it must have been supported by probable cause. Defendant argues that Detective Parks did not have probable cause, and that the State never argued that Detective Parks had probable cause to arrest Defendant.

However, Defendant fails to address a crucial fact included in the record—that Defendant was not subjected to an investigative Terry stop but rather voluntarily went with Detective Parks to the police station to be interviewed. The present case is more analogous to the cases cited by the State, State v. Glass, 136 S.W.3d 496 (Mo. banc 2004), and State v. Hill, 247 S.W.3d 34 (Mo.App.E.D. 2008). In Glass, the Missouri Supreme Court noted:

A person who voluntarily accompanies officers to the police station for questioning is not subject to arrest-like restraints. If a person is free to go at any time prior to the actual arrest, then the person is not under “arrest.” The issue turns on whether the seizure is sufficiently like arrest to invoke the traditional rule that arrests may constitution*35ally be made only on probable cause. Police are simply not required to have probable cause to interrogate persons who are neither-formally arrested nor “seized”—that is, persons who are not subject to arrest-like restraints.

Glass, 136 S.W.3d at 509 (internal citations omitted). Turning to the facts presented in Glass, a non-uniformed police officer engaged the defendant in a conversation outside of the defendant’s home. Id. at 509. The police officer asked the defendant to accompany him to the police station to provide a written statement. Id. The defendant agreed to do so, and another police officer drove the defendant to the station. Id. On the way, the defendant was able to purchase cigarettes, and during the interview, the defendant was given food and was permitted to smoke a cigarette unaccompanied by officers. Id. The Court concluded that based upon these facts, it was clear that the defendant was not under arrest, de . facto or otherwise. Id. In Hill, this Court noted the following facts: the defendant voluntarily went to the police station for an interview; he was told he was not under arrest and was free to leave; he was not physically restrained during the interview; the interview lasted about an hour; and the defendant was not arrested after the interview. 247 S.W.3d at 51-52. The Court concluded that, under those circumstances, a reasonable person “would not have understood the situation to be one of custody.” Id. at 51.

In the present case, given the evidence presented at trial, a reasonable person would not have believed he was in custody, nor was the “seizure” of Defendant sufficiently like an arrest. When Detective Parks went to Defendant’s workplace, he was in an unmai'ked police car and was not in uniform. Defendant agreed to accompany Detective Parks to the police station. We recognize that generally, when placed in handcuffs, a reasonable person would believe that he is not free to leave and is under arrest. Peters v. Dir. of Revenue, 35 S.W.3d 891, 896 (Mo.App.S.D. 2001). However, Detective Parks informed Defendant that he was only handcuffing him in accordance with safety protocol. See Jones v. Dir. of Revenue, 204 S.W.3d 709, 712 (Mo.App.W.D. 2006) (“An officer’s handcuffing a suspect alone does not constitute an arrest when the officer’s purpose is to ensure his safety.”). Defendant did not object to being handcuffed. There was no evidence that Detective Parks questioned Defendant in the car. Defendant was not handcuffed during the interview, and the interview lasted only 30 minutes. At no point in the record is there evidence that Defendant wished to leave the interview or that Detective Parks forced Defendant to stay and speak with him. Like in Glass, Defendant was not arrested after the interview, Under these unique circumstances, where Defendant voluntarily acquiesced to a brief restraint, in accordance with 'safety protocol, while accompanying Detective Parks to the police station for an interview, we cannot conclude that Defendant was subjected to an illegal, de facto arrest. Therefore, the trial court did not err in concluding that Defendant’s statements were admissible and denying Defendant’s motion.to suppress. Point V is denied.

Point VI: Denial of Defendant’s Motion for Continuance

In his final point on appeal, Defendant argues that the trial court plainly erred by denying his pro se motion for a 90-day continuance so that he could hire private counsel. Defendant maintains that this ruling violated his right to counsel, because he had an “irreconcilable conflict” with trial counsel. The State counters that Defendant failed to prove that there was an irreconcilable conflict.

*36Defendant concedes that he did not preserve this claim of error in his motion for new trial and, therefore, requests plain error review under Rule 30.20.10 Under this standard, we will reverse only if a plain error affecting substantial rights results in manifest injustice or a miscarriage of justice. State v. Floyd, 347 S.W.3d 115, 123-24 (Mo.App.E.D. 2011). We review for plain error using a two-step analysis. “First; we' determine whether the record facially establishes substantial grounds to believe plain error occurred, which is error that is evident, obvious, and clear.” State v. Houston, 467 S.W.3d 894, 899 (Mo.App. E.D. 2015). If so, we then consider whether the error resulted in manifest injustice or a miscarriage of justice. Id. Plain error review requires that the alleged error have a decisive effect on the verdict. Id. However, we will decline to exercise our discretion to review a claim of plain error if we conclude that facially substantial grounds do not exist. Mat 899-900.

A trial court’s decision to deny a motion for continuance to allow a party to obtain different counsel is discretionary. State v. Rice, 249 S.W.3d 245, 251 (Mo.App.E.D. 2008). To obtain a change of attorney on the eve of trial, a defendant must show an “irreconcilable conflict” with counsel, which is a total breakdown in communication between the defendant and his attorney. State v. Parker, 886 S.W.2d 908, 929 (Mo. banc 1994). Disagreement about defense strategy does not qualify as a total breakdown in communication. Id. Although a defendant has a right to counsel, he is not entitled to the aid of a particular attorney. Rice, 249 S.W.3d at 251. The right to be represented by counsel of one’s own choosing is qualified by the public’s right to the effective and efficient administration of justice. Id.

In the present case, Defendant filed a pro se motion to withdraw counsel on March 27, 2014. The trial court held a hearing on April 3, 2014, six days before Defendant’s scheduled trial. At the hearing, Defendant requested a 90-day continuance, because he sought to replace his appointed public defender with private counsel. Defendant sought the continuance because he needed time to raise money to retain private counsel. Defendant alleged that he was unhappy with trial counsel because she did not file a motion to sever, the two counts. The State opposed Defendant’s motion because “it was not easy to get” two doctors scheduled to testify at trial. The trial court denied Defendant’s motion, concluding that it was “not in the interest of justice” for the trial court to allow for a continuance.

We conclude that the record does not facially establish substantial grounds to believe plain error occurred because there is no “evident, obvious, and clear” error. Houston, 467 S.W.3d at 899. Here, Defendant did not show that he had an “irreconcilable conflict” with his trial counsel. Defendant’s complaints regarding trial counsel’s failure to file a motion to sever was a matter of trial strategy, as trial counsel explained at the April 3 hearing. As noted, disagreements about defense strategy do not amount to “a total breakdown in communication.” Parker, 886 S.W.2d at 929. Accordingly, because we conclude that facially substantial grounds establishing error do not exist, we decline to exercise our discretion to review Defendant’s claim. Point VI is denied.

Conclusion

Given the foregoing, we affirm Defendant’s conviction of Count I, distribution of a controlled substance. We reverse and *37vacate Defendant’s conviction of Count II, involuntary manslaughter.

Lisa S. Van Amburg, C.J. and Kurt S. Odenwald, J. concur.

WRIGHT, Circuit Judge.

Appellant, together with one Shirley Green, was tried on a three-count indictment charging them jointly with (1) abusing and maltreating Robert Lee Green, (2) abusing and maltreating Anthony Lee Green,1 and (3) involuntary manslaughter through failure to perform their legal duty of care for Anthony Lee Green, which failure resulted in his death.2 At the close of evidence, after trial to a jury, the first two counts were dismissed as to both defendants. On the third count, appellant was convicted of involuntary manslaughter. Shirley Green was found not guilty.

Appellant urges several grounds for reversal. We need consider but two. First, appellant argues that there was insufficient evidence as a matter of law to warrant a jury finding of breach of duty in the care she rendered Anthony Lee. Alternatively, appellant argues that the trial court committed plain error3 in failing to instruct the jury that it must first find that appellant was under a legal obligation to provide food and necessities to Anthony Lee before finding her guilty of manslaughter in failing to provide them. The first argument is without merit. Upon the latter we reverse.

A summary of the evidence, which is in conflict upon almost every significant issue, is necessary for the disposition of both arguments.4 In late 1957, Shirley Green became pregnant, out of wedlock, with a child, Robert Lee, subsequently born August 17, 1958. Apparently to avoid the embarrassment of the presence of the child in the Green home, it was arranged that appellant, a family friend, would take the child to her home after birth. Appellant did so, and the child remained there continuously until removed by the police on August 5, 1960. Initially appellant made some motions toward the adoption of Robert Lee, but these came to nought, and shortly thereafter it was agreed that Shirley Green was to pay appellant $72 a month for his care. According to appellant, these payments were made for only five months. According to Shirley Green, they were made up to July, 1960.

Early in 1959 Shirley Green again became pregnant, this time with the child Anthony Lee, whose death is the basis of appellant’s conviction. This child was born October 21, 1959. Soon after birth, Anthony Lee developed a mild jaundice condition, attributed to a blood incom-patability with his mother. The jaundice resulted in his retention in the hospital for three days beyond the usual time, or until October 26, 1959, when, on authorization signed by Shirley Green, Anthony Lee was released by the hospital to appellant’s custody. Shirley Green, after a two or three day stay in the hospital, also lived with appellant for three weeks, after which she returned to her parents’ home, leaving the children with appellant. She testified she did not see them again, except for one visit in March, until August 5, 1960. Consequently, though there does not seem to have been any specific monetary agree*309ment with Shirley Green covering Anthony Lee’s support,5 appellant had complete custody of both children until they were rescued by the police.

With regard to medical care, the evidence is undisputed. In March, 1960, appellant called a Dr. Turner to her home to treat Anthony Lee for a bronchial condition. Appellant also telephoned the doctor at various times to consult with him concerning Anthony Lee’s diet and health. In early July, 1960, appellant took Anthony Lee to Dr. Turner’s office where he was treated for “simple diarrhea.” At this time the doctor noted the “wizened” appearance of the child and told appellant to tell the mother of the child that he should be taken to a hospital. This was not done.

On August 2, 1960, two collectors for the local gas company had occasion to go to the basement of appellant’s home, and there saw the two children. Robert Lee and Anthony Lee at this time were age two years and ten months respectively. Robert Lee was in a “crib” consisting of a framework of wood, covered with a fine wire screening, including the top which was hinged. The “crib” was lined with newspaper, which was stained, apparently with feces, and crawling with roaches. Anthony Lee was lying in a bassinet and was described as having the appearance of a “small baby monkey.” One collector testified to seeing roaches on Anthony Lee.

On August 5, 1960, the collectors returned to appellant’s home in the company of several police officers and personnel of the Women’s Bureau. At this time, Anthony Lee was upstairs in the dining room in the bassinet, but Robert Lee was still downstairs in his “crib.” The officers removed the children to the D. C. General Hospital where Anthony Lee was diagnosed as suffering from severe malnutrition and lesions over large portions of his body, apparently caused by severe diaper rash. Following admission, he was fed repeatedly, apparently with no difficulty, and was described as being very hungry. His death, 34 hours after admission, was attributed without dispute to malnutrition. At birth, Anthony Lee weighed six pounds, fifteen ounces — at death at age ten months, he weighed seven pounds, thirteen ounces. Normal weight at this age would have been approximately 14 pounds.

Appellant argues that nothing in the evidence establishes that she failed to provide food to Anthony Lee. She cites her own testimony and the testimony of a lodger, Mr. Wills, that she did in fact feed the baby regularly. At trial, the defense made repeated attempts to extract- from the medical witnesses opinions that the jaundice, or the condition which caused it, might have prevented the baby from assimilating food. The doctors conceded this was possible but not probable since the autopsy revealed no condition which would support the defense theory. It was also shown by the disinterested medical witnesses that the child had no difficulty in ingesting food immediately after birth, and that Anthony Lee, in the last hours before his death, was able to take several bottles, apparently without difficulty, and seemed very hungry. This evidence, combined with the absence of any physical cause for nonassimilation, taken in the context of the condition in which these children were kept, presents a jury question on the feeding issue.

Moreover, there is substantial evidence from which the jury could have found that appellant failed to obtain proper medical care for the child. Appellant relies upon the evidence showing that on one occasion she summoned a doctor for the child, on another took the child to the doctor’s office, and that she telephoned the doctor on several occasions about the baby’s formula. However, the last time a doctor saw the child was a month before his death, and appellant admitted that on that occasion the doctor recommended hospitalization. Appellant did *310not hospitalize the child, nor did she take any other steps to obtain medical care in the last crucial month. Thus there was sufficient evidence to go to the jury on the issue of medical care, as well as failure to feed.6

Appellant also takes exception to the failure of the trial court to charge that the jury must find beyond a reasonable doubt, as an element of the crime, that appellant was under a legal duty to supply food and necessities to Anthony Lee. Appellant’s attorney did not object to the failure to give this instruction, but urges here the application of Rule 52(b).

The problem of establishing the duty to take action which would preserve the life of another has not often arisen in the case law of this country.7The most commonly cited statement of the rule is found in People v. Beardsley, 150 Mich. 206, 113 N.W. 1128, 1129, 13 L.R.A., N.S., 1020:

“The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter. * * * This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death. * * «!>

There are at least four situations in which the failure to act may constitute breach of a legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; 8 second, where one stands in a certain status relationship to another;9 third, where one has assumed a contractual duty to care for another;10 and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.11

It is the contention of the Government that either the third or the fourth ground is applicable here. However, it is' obvious that in any of the four situations, there are critical issues of fact which must be passed on by the jury — specifically in this case, whether appellant had entered into a contract with the mother for the care of Anthony Lee or, alternatively, whether she assumed the care of the child and secluded him from the care of his mother’, his natural protector. On both of these issues, the evidence is in direct conflict, appellant insisting that, the mother was actually living with appellant and Anthony Lee, and hence-should have been taking care of the child herself, while Shirley Green testified! she was living with her parents and was paying appellant to care for both children.

*311 In spite of this conflict, the instructions given in the case failed even to suggest the necessity for finding a legal duty of care. The only reference to duty in the instructions was the reading of the indictment which charged, inter alia, that the defendants “failed to perform their legal duty.” A finding of legal duty is the critical element of the crime charged12 and failure to instruct the jury concerning it was plain error.13

Since the case will have to be retried, another error should simply be noted. After the jury had retired for consideration of the case, a written communication was sent to the judge and answered by him, without notice to counsel. When counsel learned of this communication, it was disclosed that the note had been lost. Whereupon, on request of counsel, the court instructed the foreman of the jury to reconstruct the note. Counsel, not being satisfied that the note as reconstructed was a faithful representation of the original, asked that the jury be polled. This was denied. The note as reconstructed read: “May the jury find both defendants in this case guilty but also recommend clemency for only one of the two defendants?” The court’s reply stated: “The jury has been instructed it can only bring in a verdict as to either or both defendants of guilty or not guilty.”

It is obvious error to instruct the jury without notice to counsel.14 Proper procedure requires that a jury be instructed in the courtroom in the presence of counsel and the defendant, and that counsel be given opportunity to except to the additional instruction.

Reversed and remanded.

*566OPINION OF THE COURT

Chief Judge Kaye.

Over the course of several days, three-year-old Shanaya Jones was beaten to death by her father. Defendant, the child’s stepmother, witnessed most of the violence, but did not alert the authorities or summon medical assistance until Shanaya was dead. The issue before us is whether the Grand Jury that indicted defendant for endangering the welfare of a child had sufficient evidence that defendant was “legally charged” with the care of Shanaya (Penal Law § 260.10 [2]). We conclude that it did, because the evidence supported an inference that defendant was acting as the functional equivalent of Shanaya’s parent at the relevant time.

According to evidence presented to the Grand Jury, Shanaya Jones on August 6, 1996 began an extended visit with her father and defendant, his wife. Defendant described herself, during Shanaya’s visits, as the child’s “mother,” “stepmother” and “primary caretaker.” Between August 14 and 16, Shanaya’s father repeatedly punched the child, threw her into a wall and pushed her onto the floor, apparently because she would not eat. While defendant witnessed her husband inflict most of these beatings and was aware that the child had stopped eating, she did not seek medical attention until late in the evening of August 16, when Shanaya was brought by ambulance to a hospital emergency room. By the time the child arrived at the hospital, she had stopped breathing and had no pulse. After attempts to revive her were unsuccessful, she was pronounced dead.

An autopsy revealed that the cause of death was physical abuse sustained while at defendant’s apartment. Shanaya’s body was covered with bruises, lacerations, abrasions and hemorrhages. Several of her ribs were fractured and a lung was punctured. The Medical Examiner concluded that the injuries were days old, and that many of them would have been very painful, causing the child to scream and cry. The Examiner also determined that Shanaya was starved and dehydrated.

Defendant was charged with endangering , the welfare of a child (Penal Law § 260.10 [2]). Prior to trial, she moved to dismiss the indictment. Supreme Court granted the motion on the ground that there was insufficient evidence that defendant was “legally charged” — the statutory standard — with the care or custody of Shanaya. The Appellate Division reversed for two *567reasons (244 AD2d 104). First, the court concluded that because defendant was “legally responsible” for Shanaya’s care under section 1012 (g) of the Family Court Act, she was also “legally charged” with the child’s care under Penal Law § 260.10 (2). Second, the court held that defendant was criminally liable because she stood in loco parentis at the time of the crime. We now affirm, solely on the first ground.

Pursuant to Penal Law § 260.10 (2), “a parent, guardian or other person legally charged with the care or custody of a child less than eighteen years old” is guilty of endangering the welfare of a child if he or she “fails or refuses to exercise reasonable diligence in the control of such child to prevent [the child] from becoming an ‘abused child,’ a ‘neglected child,’ a ‘juvenile delinquent’ or a ‘person in need of supervision,’ ” as those terms are defined in the Family Court Act. One of the purposes of this statute is to establish “the duty of one parent to protect the child from the other parent” (Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 260.10, at 348).

Defendant argues that the proof before the Grand Jury was insufficient to show that she was legally charged with the care or custody of Shanaya, emphasizing that she was not Shanaya’s biological mother, legal guardian or contractually hired caregiver. As for defendant’s own statements to police that she acted as Shanaya’s primary caretaker and mother during Shanaya’s visits, defendant argues that they were inadequate to create a duty because they did not indicate that she had assumed all of the obligations of motherhood on a permanent basis. Penal Law § 260.10 (2) specifically includes parents and guardians as people who are subject to prosecution. In effect, therefore, defendant argues that “other person legally charged with the care or custody of a child” is limited to people who have contracted to care for or who stand in loco parentis to a child. We conclude that the statutory term is not so narrowly confined.

Because the Penal Law does not describe who constitutes a “person legally charged with the care or custody of a child,” defining this term falls to the courts. In discharging this responsibility, we are mindful of the statutory language, the legislative purpose and the Penal Law’s directive that its provisions should be “construed according to the fair import of their terms to promote justice and effect the objects of the law” (Penal Law § 5.00).

*568In order to be “legally charged” with caring for a child, obviously a person must have a responsibility to that child based in law. While Penal Law § 260.10 (2) does not specify the circumstances giving rise to such a legal duty, the Family Court Act sets forth numerous duties toward children. Indeed, Penal Law § 260.10 (2) complements and supplements various Family Court proceedings in order to accomplish the mutual goal of protecting children from abuse and neglect (see, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 260.10, at 348). To promote uniformity, Penal Law § 260.10 (2) specifically refers to the Family Court Act in order to define the terms “abused child,” “neglected child,” “juvenile delinquent” and “person in need of supervision.”

The Family Court Act does not use the term “person legally charged,” but it defines the similar term “person legally responsible” to include “the child’s custodian, guardian [or] any other person responsible for the child’s care at the relevant time” (Family Ct Act § 1012 [g]). The Family Court Act further specifies that a “custodian” “may include any person continually or at regular intervals found in the same household as the child when the conduct of such person causes or contributes to the abuse or neglect of the child.” This definition was specifically meant to include “paramours” (Besharov, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1012, at 373).

Pursuant to Family Court Act § 1012 (a), a person who is “legally responsible” has a duty to care for a child, and can be named as a respondent in Family Court proceedings for abuse or neglect. In fact, the terms “abused child” and “neglected child,” which are incorporated by reference into Penal Law § 260.10 (2), are defined with reference to the actions of a parent “or other person legally responsible” (Family Ct Act § 1012 [e], [f]). Because a person who is “legally responsible” for a child under article 10 of the Family Court Act is obligated to prevent a child in one’s care from becoming abused or neglected, such a person is necessarily “legally charged” with the child’s care.

In determining whether the evidence before the Grand Jury was legally sufficient to indict defendant, the court “must consider whether the evidence, viewed most favorably to the People, if unexplained and uncontradicted — and deferring all questions as to the weight or quality of the evidence — would warrant conviction” (People v Swamp, 84 NY2d 725, 730; see also, CPL 70.10 [1]). Using this standard, the evidence before *569the Grand Jury established a prima facie case that defendant was legally responsible for Shanaya’s care under Family Court Act § 1012 (g), and therefore legally charged with Shanaya’s care under Penal Law § 260.10 (2). Defendant’s arguments regarding the actual extent of her involvement with the child might be issues for trial, but are not grounds for dismissal of the indictment.

In Matter of Yolanda D. (88 NY2d 790, 796), this Court held that a person who “acts as the functional equivalent of a parent in a familial or household setting” is a “person legally responsible” for a child’s care. By expanding the bounds of who is legally responsible for children beyond the realm of the traditional family and legal guardian, this standard takes into account the modern-day reality that parenting functions are not always performed by a parent. As the case before us illustrates, a person who is not a child’s biological parent can play a significant role in rearing the child. Defendant acknowledged that whenever Shanaya visited the apartment she shared with Shanaya’s father, she functioned as the child’s mother. At the time of Shanaya’s death, the three year old had spent 10 consecutive days and nights at defendant’s apartment.

It would be incongruous for biological parents and guardians, but not a stepmother who assumes the primary caretaking role during the child’s visits, to be liable for endangering the welfare of a child. Indeed, in People v Wong (81 NY2d 600, 607-608), this Court indicated that a paid full-time caretaker can be criminally liable for failing to seek emergency medical aid for a seriously injured child. Thus, as defendant concedes, had the two people present during the beating of Shanaya been custodial caretakers hired by the child’s father, their failure to secure medical care for Shanaya could have been the basis of criminal charges. The Legislature could not possibly have intended a hired caretaker to be liable for endangering the welfare of a child, but not a stepmother who functions in that role during the child’s extended visits.

Defendant insists that she was not legally charged with Shanaya’s care because she could not have been in loco parentis to the child absent a showing that she intended to support and care for her on a permanent basis (Johnson v Jamaica Hosp., 62 NY2d 523, 529). It is unnecessary for the People to prove that defendant assumed parental duties on a full-time basis, however, because “whether a person stands in loco parentis to a child is a separate inquiry from whether such a *570person acts as the functional equivalent of a parent” (Matter of Yolanda D., supra, 88 NY2d, at 796). A person may act as the functional equivalent of a parent even though that person assumes only temporary care or custody of the child, so long as the circumstances of the case otherwise warrant such a determination, as they appear to here. This conclusion comports with the requirement that a “person legally responsible” need only be responsible for the child’s care “at the relevant time” (Family Ct Act § 1012 [g]).

Defendant’s reliance on People v Myers (201 AD2d 855) and People v Goddard (206 AD2d 653) is misplaced. In Myers, “no evidence was presented that defendant, who did not characterize himself as the children’s father * * * considered the children to be his responsibility or acted in such a way as to demonstrate that he entertained such an attitude” (People v Myers, supra, 201 AD2d, at 857). Similarly, the evidence in Goddard established that the defendant “was no more than a casual babysitter” who never “intended or agreed to assume any obligations associated with parenthood of [the decedent] during any of the time periods involved” (People v Goddard, supra, 206 AD2d, at 654-655).

The evidence in those cases stands in sharp contrast to the evidence before the Grand Jury in this case. Viewed most favorably to the People, that evidence, if unexplained and uncontradicted, would warrant conviction of defendant for endangering the welfare of Shanaya Jones, and therefore was legally sufficient to support the indictment.

Accordingly, the order of the Appellate Division should be affirmed.

Judges Bellacosa, Smith, Ciparick, Wesley and Rosenblatt concur; Judge Levine taking no part.

Order affirmed.

Cowin, J.

A grand jury in Worcester County returned six indictments against each defendant for involuntary manslaughter, G. L. c. 265, § 13. The indictments were based on grand jury testimony concerning the defendants’ conduct in starting by accident and then failing to report a fire in the Worcester Cold Storage factory building (warehouse), which took the lives of six Worcester fire fighters. The defendants moved to dismiss the manslaughter indictments on grounds that (1) the evidence presented to the grand jury was insufficient to justify the return of indictments for involuntary manslaughter, see Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982); and (2) the integrity of the grand jury proceeding was impaired, see Commonwealth v. O’Dell, 392 Mass. 445, 446-447 (1984). A judge of the Superior Court allowed the motions to dismiss based on the first ground, that the evidence before the grand jury was insufficient to support the indictments, because the defendants had no legal duty to report the fire and their failure to act did not satisfy the standard of wanton and reckless conduct required for manslaughter charges. The Commonwealth appealed, and we granted the defendants’ joint application for direct appellate review. Because we conclude that the evidence before the grand jury is sufficient to support the defendants’ prosecution for manslaughter, we reverse the order of the Superior Court.

The evidence presented to the grand jury, viewed in the light most favorable to the Commonwealth, indicated the following.2 See Commonwealth v. Catalina, 407 Mass. 779, 781 (1990). *445For several months prior to December 3, 1999, the defendants lived in a room on the second floor of the vacant five-story warehouse. The warehouse was a cold storage building and, as such, had brick walls, wood framing, and a compartmentalized floor plan with many small windowless rooms insulated with cork and styrofoam. The second floor where the defendants stayed had some windows, but those windows were boarded up. The room occupied by the defendants contained a bed, closet, and personal effects, including clothing, blankets, a radio, a wooden end table, and a kerosene heater. The defendants had an operable cellular telephone, food, and pets. Because there was no electricity, a flashlight, candles, and a heater were used for light. On more than one occasion, the defendants had an overnight guest in these quarters.

Approximately one month before the fire, a K-9 police officer with his dog responded to a complaint about the conditions in the warehouse and found signs of occupancy. The officer encountered an overwhelming odor of “rotting garbage, feces and urine.” One room contained “piles of garbage bags and numerous take-out food-type containers with half[-]eaten meals thrown all over the place. Next to a far wall were piles and piles of human waste.” A “makeshift bedroom” was discovered, containing a bed, clothes, and a closet with a box “overflowing with cat feces.” Unable to move without stepping on rotting garbage or feces, the police officer terminated the search out of concern for the health and safety of his dog.

On the afternoon of December 3, 1999, between 4:15 p.m. and 4:30 p.m„ the defendants had a physical altercation in their bedroom at the warehouse that resulted in the knocking over of a lit candle. A fire started and the defendants tried unsuccessfully to put the fire out with their feet and a pillow. The fire spread rapidly until everything in the room began to bum. The defendants searched for the cat and dog that lived in the *446warehouse with them but the search was futile. The defendants left the warehouse and did not report the fire to the authorities.

After leaving the warehouse, the defendants passed several open businesses and shopping mall stores where public telephones were available. Between 4 and 5 p.m., the general manager of Media Play store saw the defendants in his store and heard Julie Barnes say, “I can’t believe I lost all my stuff .... I lost everything. I don’t have anything. I lost all my stuff. I can’t believe I lost everything.” Thomas Levesque replied, “Don’t worry about it. Let’s go.” After leaving Media Play, the defendants walked around the mall until they left to get dinner. They returned to the mall where they first went back to Media Play to listen to more music, and then went to a Sports Authority store to get a job application. The defendants subsequently went to Regina Guthro’s house where Levesque remained until the next morning.3 Barnes spent the night with Bruce Canty at a hotel where both Barnes and Canty viewed the ongoing warehouse fire from their hotel room window.

Levesque made three telephone calls from his cellular telephone the day of the fire. One call was made at approximately 6 a.m. The record is unclear whether the other calls, at 11:20 and 11:28 (made to the hotel where Barnes was staying), were made in the morning or the evening. The next telephone call was placed from Levesque’s cellular telephone four days after the fire.

The fire was not reported until 6:13 p.m. that evening, when an emergency caller reported the fire. Sergeant O’Keefe, an expert in arson and fire investigations, stated that “the significance of the delay in reporting [the fire] ha[d] a great deal to do with what kind of fire the Worcester Fire Department got to that day.” After arriving on the scene, fire fighters were informed that there might be homeless persons inside the warehouse. The fire fighters entered the warehouse in an effort to locate any persons that might have been inside, and to evaluate their tactics to combat the fire. It was during these efforts *447that six fire fighters went into the building and never returned. Rescuers recovered their remains during the eight days that followed.

A joint investigation by the Worcester fire department, the Massachusetts State police fire and explosion investigation section, and the United States Bureau of Alcohol, Tobacco and Firearms revealed that the warehouse fire, which originated in the defendant’s second-floor “makeshift” bedroom, was most likely accidental and the result of an open candle flame in contact with combustible material. Remnants of the defendants’ belongings, including plastic milk crates, an outline of a bed-type structure, the remains of a dog and cat, a candle, and a telephone calling card, were found among the debris.

Standard of review. Our inquiry here is limited to whether the evidence presented to the grand jury was sufficient to support the defendants’ indictments for involuntary manslaughter. Commonwealth v. Catalina, 407 Mass. 779, 790 (1990). We consider only whether “the grand jury [heard] sufficient evidence to establish the identity of the accused . . . and probable cause to arrest [them]” for the crimes charged (citations omitted). Commonwealth v. McCarthy, 385 Mass. 160, 163 (1982). Probable cause requires sufficient facts to warrant a person of reasonable caution in believing that an offense has been committed, see Commonwealth v. Catalina, supra at 790, citing Carroll v. United States, 267 U.S. 132, 161 (1923); this standard requires considerably less than that which is required to warrant a finding of guilt. Commonwealth v. O’Dell, 392 Mass. 445, 451 (1984). Where, however, the Commonwealth has not produced any evidence of the defendant’s criminal activity, see Commonwealth v. McCarthy, supra at 162-164, or has impaired the integrity of the grand jury by knowingly using false testimony to procure an indictment, see Commonwealth v. Salman, 387 Mass. 160, 166-168 (1982), or has provided evidence that gives a distorted picture of its probative force, see Commonwealth v. O’Dell, supra at 446-452, the indictment must be dismissed. Commonwealth v. Brien, 19 Mass. App. Ct. 914 (1984).

Sufficiency of the evidence. Because Massachusetts has not defined manslaughter by statute, its elements are derived from the common law. Commonwealth v. Godin, 374 Mass. 120, 126 *448(1977). Involuntary manslaughter is “an unlawful homicide, unintentionally caused ... by an act which constitutes such a disregard of probable harmful consequences to another as to constitute wanton or reckless conduct.” Commonwealth v. Catalina, supra at 783, quoting Commonwealth v. Campbell, 352 Mass. 387, 397 (1967). The defendants argue that the evidence presented to the grand jury is insufficient to constitute probable cause that they have committed the crime of manslaughter. Specifically, the defendants contend that they did not have a duty to report the fire, thus rendering the evidence insufficient to demonstrate wanton and reckless conduct, and that the evidence does not support a finding that the fire fighters’ deaths were caused by their failure to report the fire.

Duty to report the fire. Wanton or reckless conduct usually consists of an affirmative act “like driving an automobile or discharging a firearm,” Commonwealth v. Welansky, 316 Mass. 383, 397 (1944). An omission, however, may form the basis of a manslaughter conviction where the defendant has a duty to act. Id. at 397. See also Commonwealth v. Twitchell, 416 Mass. 114, 117 (1993) (parents may be convicted of manslaughter where child dies as result of reckless failure to seek medical attention). For example, in Commonwealth v. Welansky, supra, we upheld the manslaughter convictions of a nightclub owner where patrons of the establishment died in a disastrous fire. Id. at 393. The defendant was charged with involuntary manslaughter based on his failure to provide a safe means of escape from the nightclub in the event of a fire. Id. The court stated that the defendant owed a duty of care to the business visitors he invited onto his premises, and that “wanton or reckless conduct may consist of intentional failure to take such care in disregard of the probable consequences to [his customers] or of their right to care.” Id. at 397.

The motion judge reasoned that because the Commonwealth has conceded that the fire was started accidentally, and because “Massachusetts courts have not found a duty to report or extinguish a fire where defendants’ failure to do so was merely negligent,” the defendants, as a matter of law, violated no duty. He concluded that one who negligently creates a risk of death or injury to others is free to walk away from that risk without taking steps to minimize the danger. We disagree.

*449It is true that, in general, one does not have a duty to take affirmative action; however, a duty to prevent harm to others arises when one creates a dangerous situation, whether that situation was created intentionally or negligently. When formulating duties in the criminal context, we have, in the past, drawn on the duties imposed by civil law. For example, in Commonwealth v. Twitchell, 416 Mass. 114 (1993), we held that parents can be convicted of the involuntary manslaughter of their child if the failure to provide medical care for the child results in death. Id. See Commonwealth v. Clark, 393 Mass. 361 (1984). The court found a duty by drawing on a parent’s established civil duty to support sufficiently his or her child. Commonwealth v. Twitchell, supra at 118.

Our law, both civil and criminal, imposes on people a duty to act reasonably. See Onofrio v. Department of Mental Health, 408 Mass. 605, 610 (1990), S.C., 411 Mass. 657 (1992) (“one who takes action ordinarily owes to everyone else who may be affected thereby a duty to act reasonably”). The civil law creates a specific duty that we may apply to the situation in this case. The Restatement (Second) of Torts § 321 (1) (1965) reads: “If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.” Other jurisdictions have used this principle as a basis for criminal liability. See United States v. Hatatley, 130 F.3d 1399, 1406 (10th Cir. 1997) (defendant could be criminally liable for leaving robbery victim badly beaten in cold and remote location because “[wjhen a person puts another in a position of danger, he creates for himself a duty to safeguard or rescue the person from that danger”); Jones v. State, 220 Ind. 384, 387 (1942) (holding that one whose criminal act puts another in danger incurs duty to rescue that person); State ex rel. Kuntz v. Montana Thirteenth Judicial Dist. Court, 298 Mont. 146, 154 (2000) (“[Wjhen a person places another in a position of danger, and then fails to safeguard or rescue that person, and the person subsequently dies as a result of this omission, such an omission may be sufficient to support criminal liability”).

Although we have yet to recognize explicitly § 321 as a *450basis for civil negligence, see Panagakos v. Walsh, 434 Mass. 353, 356 (2001), we have expressed agreement with its underlying principle. It is consistent with society’s general understanding that certain acts need to be accompanied by some kind of warning by the actor. See, e.g., Oliveri v. Massachusetts Bay Transp. Auth., 363 Mass. 165, 166-167 (1973) (landlord has duty to make premises under his control safe or warn of dangers); H.P. Hood & Sons v. Ford Motor Co., 370 Mass. 69, 75 (1976) (manufacturer has duty to eliminate known dangers of product or provide adequate warning of latent dangers). In Onofrio v. Department of Mental Health, supra, we held that employees of the Department of Mental Health breached a duty owed to the owner of a rooming house by soliciting a client’s placement in the house without providing the owner with sufficient information about the client’s mental health history. Id. at 610. The owner suffered property damage when the client set fire to the house. Id. at 606. The court concluded that the employees, “by taking action that exposed [the owner] to risk . . . were bound, as any other person would be, to act reasonably.” Id. at 610. In Onofrio, the act of placing the client in the house was not in itself negligent, but by placing the client, the employees of the Department of Mental Health created a risk that resulted in a corresponding duty to warn. We agree with this principle and apply it to this case; where one’s actions create a life-threatening risk to another, there is a duty to take reasonable steps to alleviate the risk. The reckless failure to fulfil this duty can result in a charge of manslaughter.

Where a defendant’s failure to exercise reasonable care to prevent the risk he created is reckless and results in death, the defendant can be convicted of involuntary manslaughter. Public policy requires that “one who creates, by his own conduct . . . a grave risk of death or injury to others has a duty and obligation to alleviate the danger.” People v. Kazmarick, 99 Misc. 2d 1012, 1016 (N.Y. County Ct. 1979). We are not faced with the situation of a mere passerby who observes a fire and fails to alert authorities; the defendants started the fire and then increased the risk of harm from that fire by allowing it to bum *451without taking adequate steps either to control it or to report it to the proper authorities.4

Whether a defendant has satisfied this duty will depend on the circumstances of the particular case and the steps that the defendant can reasonably be expected to take to minimize the risk. Although, in this case, the defendants apparently could not have successfully put out the fire, they could have given reasonable notice of the danger they created. It was for the grand jury (and later, the petit jury) to decide whether the defendants’ failure to take additional steps was reasonable, and if not, whether the defendants’ omission constituted wanton or reckless conduct.5

Wanton or reckless conduct. A defendant’s omission when there is a duty to act can constitute manslaughter if the omission is wanton or reckless. Commonwealth v. Welansky, supra at 397. The words “wanton” and “reckless” constitute conduct that is “different in kind” than negligence or gross negligence. Id. at 400. It has been defined as “intentional conduct . . . involving] a high degree of likelihood that substantial harm *452will result to another.” Id. at 399. To constitute wanton or reckless conduct, “the risk of death or grave bodily injury must be known or reasonably apparent, and the harm must be a probable consequence of the defendant’s election to run that risk or of his failure reasonably to recognize it.” Sandler v. Commonwealth, 419 Mass. 334, 336 (1995). Under Massachusetts law, recklessness has an objective component as well as a subjective component. A defendant can be convicted of manslaughter even if he was “so stupid [or] so heedless . . . that in fact he did not realize the grave danger ... if an ordinary normal man under the same circumstances would have realized the gravity of the danger.” Commonwealth v. Welansky, supra at 398-399.

The judge, after reviewing the evidence presented to the grand jury, concluded that “the pertinent evidence would not warrant a finding of probable cause that the defendants’ failure to report the fire rose to the elevated standard of a high degree of likelihood that substantial harm would result.” We disagree. When testing the sufficiency of the evidence to sustain a grand jury indictment, we need not determine that the evidence would allow a reasonable person to find the conduct wanton or reckless beyond a reasonable doubt. As discussed above, we need only find the evidence sufficient for a grand jury to find probable cause that the crime charged has been committed by these defendants. Commonwealth v. Catalina, supra at 790. Whether certain behavior is properly categorized as reckless or negligent is ordinarily left for the jury. Dixon v. New York, N.H. & H.R.R., 207 Mass. 126, 130 (1910). See Commonwealth v. Chapman, 433 Mass. 481, 488 (2001) (“The defendant’s contention that her acts and omissions were themselves accidents was a question for the jury”).

Although it is true that recklessness must involve an intentional act or omission, a finding of recklessness is grounded in intent to engage in the reckless conduct, and not intent to bring about the harmful result. Commonwealth v. Bouvier, 316 Mass. 489, 494 (1944) (“It is settled in cases of homicide that one who wantonly or recklessly does an act that results in the death of a human being is guilty of manslaughter although he did not contemplate such a result”). Thus, the grand jury needed *453to determine only that the defendants’ choice not to report the fire was intentional, not that the fire was intentionally set. See Commonwealth v. Cali, 247 Mass. 20, 24 (1923) (finding that for purposes of arson, defendant could form the requisite intent by intentionally choosing not to report fire in order to collect insurance money, even though fire had started negligently).

The Commonwealth has presented sufficient evidence to allow a grand jury to conclude that the defendants’ choice not to report the fire was intentional and reckless. The following testimony was sufficient in this regard: the defendants attempted to put out the fire and were unsuccessful, thus demonstrating they were cognizant of the fire’s rapid spread; they observed the fire consume their possessions over a short period of time; they were forced to abandon their attempts to fescue their pets, again evidencing their awareness of the peril posed by the fire’s rapid spread; they possessed a cellular telephone and passed several open stores after their exit from the warehouse, thus allowing the grand jury to infer that the defendants had multiple opportunities and the means to call for help if they chose to do so. Further, the testimony that the defendants went shopping and calmly ate a meal after leaving the building refutes any suggestion that panic might explain a failure to report the fire. Finally, the fact that the defendants may have faced criminal liability for trespass had they informed authorities that they had been living in the warehouse provided a motive for their failure to report the fire.

The defendants also assert that their conduct could not have been reckless because it was unforeseeable that such grievous harm would result to the fire fighters who responded. The Superior Court judge agreed, noting that fire fighters ordinarily do not lose their lives in the course of fighting a fire, and that even the fire fighters themselves failed to appreciate the gravity of the danger.6 However, an uncontrolled fire is inherently deadly to all who may come into contact with it, whether fire fighters or ordinary citizens. The defendants are charged with this knowledge.

*454 Causation. The defendants assert that the failure to report the fire was not the legal cause of the fire fighters’ deaths. They argue that the fire fighters would have entered the building regardless of whether they thought the defendants were on the premises, and the Commonwealth did not demonstrate that the failure to report the fire resulted in a more deadly fire.

We have previously held that an arsonist can be charged with the murder of a fire fighter who responded to the resulting fire if the defendant’s conduct is “the efficient cause, the cause that necessarily sets in operation the factors which caused the death.” Commonwealth v. Rhoades, 379 Mass. 810, 825 (1980). The Commonwealth presented sufficient evidence for indictment on this basis. Sergeant O’Keefe, an expert in fire investigations, testified that “the significance of the delay in reporting ha[d] a great deal to do with what kind of fire the Worcester Fire Department got to that day.” O’Keefe stated that the delay permitted the fire to smolder and spread within the building, increasing the severity of the risk.7 Even without this expert testimony, the grand jurors’ common knowledge of the nature of fire would have allowed them to conclude that a fire spreads and becomes more dangerous the longer it is left unattended.

The defendants argue that certain actions by the fire department contributed to the fire fighters’ deaths, such as the fire fighters’ inability to navigate the maze-like building, and the fire fighters’ ignorance of the true extent of the danger posed by the fire. However, “the intervening conduct of a third party will relieve a defendant of culpability only if such an intervening response was not reasonably foreseeable.” Commonwealth v. Askew, 404 Mass. 532, 534 (1989). The inability of the fire fighters to navigate the building or estimate the true caliber of the danger was foreseeable to those in the defendants’ position as a part of the normal risks of combating a fire.

The integrity of the grand jury proceedings. The defendants claim that the grand jury proceeding was impaired by the Com*455monwealth’s misleading presentation of the evidence. This argument was rejected by the judge, but the defendants reassert the argument as an alternative basis for dismissing the indictments. The Commonwealth contends that we may not reach this alternative argument because the motion judge rejected it, and the defendants do not have a right of interlocutory appeal from the denial of their motion on that ground. The Commonwealth relies on G. L. c. 278, § 28E, which gives the Commonwealth the right to appeal from the dismissal of an indictment, but does not grant a defendant the right to pursue an interlocutory appeal from denials of a motion to dismiss. The Commonwealth argues that the defendants’ assertion of the alternative ground is an improper attempt to appeal from the motion judge’s denial of their motions to dismiss on that ground.

The Commonwealth’s argument fails because we have held that “on appeal [an appellate court] may consider any ground apparent on the record that supports the result reached in the lower court.” Gabbidon v. King, 414 Mass. 685, 686 (1993). J.R. Nolan, Civil Practice § 1019 (Supp. 2001). Therefore, “[a] prevailing party is . . . entitled to argue on appeal that the judge was right for the wrong reason, even relying on a principle of law not argued below.” Aetna Cas. & Sur. Co. v. Continental Cas. Co., 413 Mass. 730, 734-735 (1992). This rule is applicable to criminal cases. See Commonwealth v. Mottola, 10 Mass. App. Ct. 775, 781 (1980). Thus, we address the defendants’ argument even though they could not have appealed from the ruling of the motion judge on the question of the integrity of the grand jury proceedings.

The defendants allege three flaws in the presentation of the evidence before the grand jury: (1) the Commonwealth failed to present the exculpatory report of Deputy District Chief Michael McNamee of the Worcester fire department; (2) the testimony of Sergeant O’Keefe misled the jury to believe that a cellular telephone call was placed after the fire when it was in fact placed before the fire; and (3) the testimony erroneously suggested that the fire fighters rushed into the building to look for the defendants. We reject the defendants’ claims.

The Commonwealth does not have an obligation to present all potentially exculpatory evidence to the grand jury. Com *456 monwealth v. O’Dell, 392 Mass. 445, 447 (1984). However, the Commonwealth’s presentation cannot be “unfair and misleading.” Id. To justify dismissal of an indictment, a defendant must show that “inaccurate or deceptive evidence was given to the grand jury knowingly and in order to obtain an indictment and that the evidence probably influenced the grand jury’s determination.” Commonwealth v. Drumgold, 423 Mass. 230, 238 (1996).

In a report to the Worcester fire department board of inquiry, Chief McNamee stated that conditions at the warehouse deteriorated rapidly in a manner unanticipated by the fire fighters. The prosecutor did not present this report to the grand jury. The Commonwealth’s omission was not sufficiently material that it would have probably affected the outcome. Id. The fact that the fire fighters were surprised by how rapidly the fire spread and how quickly conditions became uncontrollable is not related to the defendants’ culpability. The defendants were obliged to notify the authorities of the fire regardless of their ability to predict the extent of the fire.

Sergeant O’Keefe testified that cellular telephone biffing records showed three calls from Levesque’s cellular telephone on the day of the fire: one at 6 in the morning, one at 11:20 and one at 11:28. The defendants fled the burning building between 4 p.m. and 5 p.m. that afternoon. The Sergeant did not specify whether the latter two calls were made in the morning or evening. Although the presentation of the evidence was not entirely clear, we do not believe that any confusion would have affected the indictments. Whether the calls were placed in the morning or evening was not relevant. The evidence was introduced to show that the defendants had the capacity and the means to make a telephone call. Regardless of whether the telephone calls in question were placed at 11 a.m. or 11 p.m., the record showed an outgoing call from the same cellular telephone four days after the fire. It is thus apparent that the grand jury could infer that the cellular telephone was working on the day of the fire, and that the defendants had the telephone with them when they fled the warehouse. From this information, the grand jny could have concluded that the defendants had access to a ellular telephone during the time in question.

*457Last, the prosecutor did not elicit testimony that falsely created the impression that the fire fighters rushed into the building solely to look for the defendants. In fact, the testimony indicates that the fire fighters entered the building both to look for individuals who may have been inside and to evaluate possible tactics for fighting the fire.

In addition, the defendants attack the form of the indictment as insufficient to inform the grand jurors of the elements of the crime. Although the. defendants did not raise this issue below, we address their argument. General Laws c. 277, § 79, provides the proposed forms for manslaughter indictments: “That A.B. did assault and beat C.D., and by such assault and beating did kill C.D.” However, the statute suggests a different form where neglect of a legal duty is the basis for a charge: “That A.B. being under the legal duty, and being of sufficient ability to provide C.D., who was his spouse, with sufficient food and drink for sustenance and maintenance, did neglect and refuse to do so; by reason whereof said C.D. being unable to provide sufficient food and drink, became and was mortally sick and died.” Id. Although the charges against the defendants were based on the neglect of a legal duty, the indictments alleged that the defendants “did assault and beat [the fire fighters], and by such assault and beating did kill the said [fire fighters].”

The form of an indictment is sufficient where it gives the defendant reasonable knowledge of the crime with which he is being charged. Commonwealth v. Welansky, 316 Mass. 383, 396 (1944). In Commonwealth v. Clark, 393 Mass. 361 (1984), the defendant was charged with manslaughter for failing to provide medical care for a child after a fatal beating by the child’s mother. Id. at 361, 362. As in this case, Clark’s indictment followed the proposed indictment form for general manslaughter and not the more specific form suggested for neglect of a duty. Id. at 363. The court held that the general manslaughter indictment was sufficient to inform the defendant of the crime charged. Id. See Commonwealth v. Welansky, supra at 395-396 (count no. 15 of the indictment, in same form as manslaughter indictment in this case, was proper, even though liability was premised on the defendant’s failure to exercise a duty).

Further, we have examined the grand jury minutes and *458conclude that there is no possibility that the grand jurors were confused as to the Commonwealth’s theory of manslaughter. The defendants were charged with involuntary manslaughter based on their neglect of a duty to report the fire. That theory is apparent from the grand jury transcript. In fact, based on that transcript, the defendants understood the theory on which the indictments were based and effectively presented arguments before the Superior Court addressing that theory. Although it would have been preferable for the Commonwealth to use the more specific form of the manslaughter indictment, it would be a triumph of form over substance to force the Commonwealth to reindict in this situation. Because the Commonwealth does not have a duty to instruct the grand jury on the elements of the offense for which it seeks an indictment, Commonwealth v. Noble, 429 Mass. 44, 48 (1999), and because, as in Commonwealth v. Clark, supra, the indictments were sufficient to inform the defendants of the crime charged, and because the grand jury could not have been confused, the form of the indictment did not impair the integrity of the grand jury proceedings.

Conclusion. The order allowing the defendants’ motions to dismiss is reversed. We remand the case to the Superior Court for further proceedings consistent with this opinion.

So ordered.