ORiGINAL

NO. 2011-0987

IN THE SUPREME COURT OF OHIO

APPEAL FROMTHE COURT OF APPEALS FOR CUYAHOGA COUNTY, OHIO

NO. 94775

STATE OF OHIO,

Appellee/Cross-Appellant

-vs-

RICHARD ANNABLE,

Defendant-Appellant

APPELLEE/CROSS-APPELLANT STATE OF OHIO'S COMBINEDMEMORANDUM IN RESPONSE AND MEMORANDUM IN SUPPORT OF

JURISDICTION

Counsel for Plaintiff-Appellee

WILLIAM D. MASONCUYAHOGA COUNTY PROSECUTOR

T. ALLAN REGAS (oo67336)Assistant Prosecuting AttorneysThe Justice Center1200 Ontario StreetCleveland, Ohio 44113(216) 443-78oo

Defendant-Appellant

Richard Annable, pro seInmate No. A582-282,Marion Correctional Institution,P.O. Box 57, Marion, Oh. 43302•

JUL 112061

CLERKQFCOURT

JUL 1'1 Z0i1

CLERK OF COURTSUPREME COURT 01 OHIO I

SUPREME COURT OF OHIO

TABLE OF CONTENTS

1. MEMORANDUM IN RESPONSE TO APPELLANT'S APPEAL .................................. i

A. EXPLANATION OF WHY APPELLANT'S PROPOSITIONS OF LAW DO NOTINVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION OF ISSUE OF GREATPUBLIC INTEREST . ........................................................................................................ i

B. STATEMENT OF THE CASE AND FACTS ................................................................41. Evidence Presented at Trial ..................................................................................... 42. The Mens Rea of R.C. 4731.41 ................................................................................i4

C. ARGUMENT AGAINST APPELLt1NT'S PROPOSITIONS OF LAW .......................i4i. Appellant's First Proposition of Law ...............................................................i4

Proposition of Law I:.... Defendant-Appellant's constitutional and Due ProcessRights were violated and he has been subjected to double jeopardy ................. 14

2. Appellant's Second Proposition of Law ...........................................................15

Proposition of Law II: The trial court committed reversible error when itdenied Defendant's motion for judgment of acquittal under rule 29(A)........... 15

3. Appellant's Third Proposition of Law ..............................................................i6

Proposition of Law III: The trial court's error in the admission of evidenceeffectively denied the Defendant Due Process and a Fair Opportunity topresent his defense .............................................................................................. 16

4. Appellant's Fourth Proposition of Law ........................................................... 17

Proposition of Law IV: Defendant's conviction is manifestly against the weightof the evidence and must be overturned ............................................................. 17

5. Appellant's Fifth Proposition of Law ...............................................................i8

Proposition of Law V: The trial court erred in conviction and sentencing theDefendant . . .......................................................................................................... 18

II. THE STATE OF OHIO'S CROSS-APPEAL .................................................................i9

A. EXPLANATION OF WHY THIS CASE INVOLVES A SUBSTANTIALCONSTITUTIONAL QUESTION OF ISSUE OF GREAT PUBLIC INTEREST............ i9

B. ARGUMENT IN SUPPORT OF CROSS-APPELLANT'S PROPOSITION OFLAW ...............................................................................................................................2i

Proposition of Law: .... The offense of practicing medicine without a certificate,R.C. § 4731.41, is a strict liability offense ............................................................2i

iii.CCrNCi;uSifliv ... ............. 24

IV. CERTIFICATE OF SERVICE .... ................................................................................. 26

i

I. MEMORANDUM IN RESPONSE TO APPELLANT'S APPEAL

A. EXPLANATION OF WHY APPELLANT'S PROPOSITIONS OF LAW DONOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION OFISSUE OF GREAT PUBLIC INTEREST.

Appellant, Richard Annable, has submitted several propositions of law that do

not merit consideration; he merely disagrees with the application of law by the court in

this matter. Moreover, they are simple iterations of his assignments of error appeal.

The State however, does note that under Appellant's second proposition of law,

Appellant in part argues that the State did not present evidence of his culpable mental

state of recklessness as determined by the appellate court. In the State's cross-appeal,

the State contests that appellate determination that practicing medicine without a

license requirement is not a strict liability offense. As Appellant has included other

sufficiency arguments within his second proposition of law, the State asks that this

Court not accept his appeal on the second proposition of law, but rather accept

jurisdiction of its cross-appeal.

His first proposition of law alleges that he was subject to double jeopardy. He

was not, the trial court had jurisdiction over the matter. The trial court properly

amended prior dismissal entries of this matter to reflect that they were not with

prejudice - evidenced by the fact the State filed new charges and where there was no

finding in the prior cases that Appellant was deprived a constitutional or statutory

rights. State v. Annable, Cuyahoga App. No. 94775, 2oii-Ohio-2o29, at ¶ 22. Appellant

....--hHS .:otgt-ated$irj is`s' ueOf l'h'SJtl?ai is-i-iidi$piitEoieirai3' anii th3s Co7ii ish<mid deChiie-..

to hear his first proposition of law.

In his second proposition of law, Appellant claims that there was insufficient

evidence to show that he was practicing medicine. In his argument, he states there was

1

no evidence he performed a medical procedure, that the statute was not a strict liability

statute, that the State did not present evidence that he acted recklessly, and that the

State did not assert evidence as to all elements of theft. As noted, the State has filed a

cross-appeal as to the appellate court's determination R.C. 4731.41 is not a strict liability

offense. Because Appellant's arguments go beyond the issue presented by the State and

include disagreement with the factual determinations by the appellate court as to the

sufficiency of the evidence presented at trial, the State asks this Court to deny

jurisdiction to Appellant on his general proposition of law, but accept the State's cross-

appeal where it is focused on an issue of law - not one of fact.

In his third proposition of law, Appellant argues that the trial court improperly

allowed evidence of his advertisements for the medical procedures he conducted. This

issue was resolved by the appellate court where it found, "The tape was used by the state

in the defense's case, when Annable took the stand, to demonstrate that he was regarded

in the community as a doctor. It was proper impeachment evidence. Evid.R. 607

provides that the "credibility of a witness may be attacked by any party ***." Annable's

position at trial was that he never held himself out to his clients or the public as a

doctor. The tape was admitted into evidence to attack Annable's credibility by showing

that he was believed to be a doctor. This was proper under Evid.R. 607." Appellant has

not shown impropriety by the admission of the evidence, nor has demonstrated

prejudice by such admission in light of the other evidence. As such, he has not

-iuEi3-tified dn-is$iie-Clf -1xv%--tl'iai igZenerai-or-d'iI'iut-pre$eFi^^SiibS`iaiitiai CFin$tit'3tionai-

question.

In his fourth proposition of law, Appellant maintains that his convictions are

against the manifest weight of the evidence. In his argument, he reiterates his

2

arguments that his theft convictions were not based upon sufficient evidence, finding

support in the dissenting judge's opinion that the facts here do not allege criminal

conduct. See, 2oii-Ohio-2o29, Stewart, J. Concurring in Part/Dissenting in Part.

However, the opinion resolves the issue as not one of proof but time. The majority

correctly noted that the services rendered were not those bargained for - thus finding

that the theft occurred at the time of the services. The dissenting opinion see the matter

as one of contract law - services under contract that were not provided. However, the

majority identified that the evidenced established a theft occurred from the onset - that

Appellant did not intend to deliver the services advertised. Appellant has not identified

an issue of great public interest in this proposition of law and thus, his fourth

proposition of law should not be accepted for consideration by this Court.

In his fifth proposition of law, Appellant complains that the court simply erred in

convicting and sentencing him. In his argument, Appellant seemingly incorporates the

arguments made under his first four propositions of law, referencing double jeopardy

and jury instructions. He does however raise, without explanation, that he was

sentenced to allied offenses. However, he was not. Each conviction represented a

distinct crime against distinct victims. Finally, he argues that jury instructions were

errant where they only included a general unanimity charge. The appellate court noted

that the law as to this issue is settled, citing this Court's decision in State v. Johnson

(1989), 46 Ohio St.3d 96, 545 N.E.2d 636. As he does not contest the law, but rather

the resurts oi'hisconviction tneState- assthai this Court ceciine jurisdiction of

Appellant's propositions of law, but that it accept jurisdiction over the cross-appeal filed

in this matter.

3

B. STATEMENT OF THE CASE AND FACTS

On October 30, 2oog, Annable was indicted in a thirty-one count indictment

consisting of: one count of theft in violation of R.C. § 2913.02(A)(3); and thirty counts of

practicing medicine without a certificate in violation of R.C. § 4731.41. On January 22,

2011, a jury returned a verdict of guilty for twelve counts of practicing medicine without

a license. Annable was sentenced to four-and-one-half years in prison and was ordered

to pay $15,58o in restitution.

1. Evidence Presented at Trial

Ashley Perry testified that she worked as an esthetician assisting the owner,

Richard Annable, with a procedure called abdocolonic tummy tuck or mesotherapy.

Perry described the procedure that she saw Appellant perform five to ten times. First the

patient's skin would be numbed by placing ice packs on the patient. Perry testified that

she held the patient's skin tight while Appellant would apply a roller with needles on it

to whichever area of the body the patient wanted to be treated. She testified that the

needles would puncture the patient's skin and that most of the time, the procedure

would result in the patient bleeding from the needles in the roller. She saw one roller

being used on more than one patient. After witnessing this procedure five to ten times,

Perry decided to bring Appellant's practices to the attention of the Ohio State Medical

Board and the State Board of Cosmetology. She explained that she contacted these

boards because "it just looked wrong. He was only a cosmetologist. And these people

were in aloof pain.''-By-thaftime,-Perry-had confronted Xp- ep llant with her concerns

and she had not received sufficient explanation from him that he was qualified to

perform the procedure. She wrote a letter to the Medical Board which stated, in part:

"The owner, Richard Annable, is performing medical services on clients... He is injecting

4

his clients with needles and causing a lot of bleeding and scarring and using other

machines. He is only licensed as a managing cosmetologist. His services have to be

illegal. Please look into it as soon as possible. Perry worked at Bella Derm for almost a

year and although Bella Derm's slogan was "The feel of a spa, the care of a physician",

she never saw a licensed medical physician on the premises.

Michael Giar, Ohio State Medical Board enforcement investigator investigated

Appellant's administration of the procedure Perry complained about, called alternatively

mesoinfusion, mesotherapy, and abdocolonic tummy tuck. He testified that the

procedure being done was one "in which the skin is penetrated to the point where the

patient is bleeding, and then amino acid is worked into the body so it gets to the level of

connective tissue and fat." The Medical Board made a determination that the procedure

described by Perry was a medical procedure. Giar explained that this determination was

made in part because "...there was penetration of skin, plus there was the issue of then

he was putting this amino acid in there in order to treat a condition. And also he was

diagnosing. Basically he was setting himself up in a position of diagnosing the person,

determining what their condition was, did they then need to have treatment, and then

prescribing the treatment, and then going through with his treatment of penetrating the

skin and putting a foreign substance in to treat a condition.

In December of 20o6, Giar; accompanied by Arcuri, Zarella-Lydic, and other

members of law enforcement, visited Bella Derm to confront Annable. Appellant was

-inf£r-'a2ied-th8l he-YY^a3'-iiCen$'e,,i'ie d^a.iOlEi tfrf.'ea§Eihe-

procedure, and he was informed that it was a felony to practice medicine without a

license and he would be charged criminally if he continued. Appellant admitted to Giar

that he had been performing the procedure in question. He admitted that he alone had

5

been making the decisions about which patients would have the procedure done, and

according to Giar, "He (Appellant) said that he was doing this. He also said he was doing

all the consultations, that anybody that came into the office as a new patient would see

him, he would examine them, make a determination about whether they were a

candidate for this procedure, and determination of whether they would go forward with

this treatment." Giar testified that Appellant never held a medical license and is not a

doctor. (He also learned that there was an acupuncturist working at Bella Derm who did

not hold a medical license but referred to himself as "Dr. Y". Giar informed "Dr. Y" that

he could not call himself a doctor.

Ann Marie Zarella-Lydic, an investigator with the Ohio State Board of

Cosmetology, testified that cosmetologists are only permitted to perform noninvasive

services and are not qualified to penetrate the stratum corneum or first layer of skin.

She witnessed Giar's interview of Appellant in which he admitted performing the

procedure in question. The Board of Cosmetology viewed the procedure as a medical

procedure because it is invasive and it penetrates the stratum corneum and a

determination was made that Appellant was providing services outside the scope of

practice. Appellant was issued a violation report and his cosmetology license was

revoked.

Kimberly Hlafka testified that she has been a licensed practical nurse (LPN) since

1981 and was employed at Bella Derm from June 20o6 to February 2007. She stated

that ahn-bna-&-t,eople--cati frppel3ant-aaoctor, arrcl-thatheaeted-like a occto-r-Sne

testified that after December 20o6, Appellant made a change in the way the procedure

was done and told Hlafka that the Medical Board had approved his use of a smaller

roller.

6

Dr. Diane Maiwald, a board-certified dermatologist, testified that mesotherapy

has been used to treat various medical and cosmetic conditions like arthritis, back pain,

fat reduction, and cellulite. She explained that the procedure requires medication to be

injected under the upper layer of skin. This can be accomplished either with a

hypodermic needle or with the use of a medical roller. Either method would break the

skin and inject the medication into the meso layer of skin which contains blood vessels

and collagen and elastic fibers. She has performed over 300 mesotherapy procedures

and had never seen or heard of a cosmetologist performing mesotherapy. She testified

that mesotherapy is a medical procedure that requires medical supervision.

Several women who received the mesotherapy procedure from Appellant testified

at trial. Nancy Basch testified that she was a patient at Bella Derm beginning in

September of 2006 and that she believed Appellant was a medical doctor. She testified

that she believed this because others referred to him as "Dr.," that he said this procedure

was dermatology, and his appearance. She then described the procedure done by

Appellant. Holly Dibin testified that she sought mesotherapy at Bella Derm in the

spring of 20o6 and that she believed Appellant was a medical doctor because he did not

correct her when she called him "Dr." Julie Musial testified that she also believed

Appellant was a medical doctor because it was a similar experience to her surgeon's

office. She associated the title "Medi-spa" as medical, the advertisement that stated

there was the "care of physician," and Appellant's actions all influenced her to believe

- that t-ie=vvas-a-rrredi-cai dnctcrr.-Ci-rrdy-Prurrchaic iestiiied-7haLshe-aiscrbeiieved-hewasa

medical doctor. Shirley Andrews testified that she received mesotherapy to "eliminate

fat cells" and she also believed Appellant was a doctor, because according to Andrews,

he told her he was a doctor. Lisa Romaniuk testified that she believed Appellant was a

7

medical doctor because of the advertising and the appearances of Appellant and his

office. Melissa Svigel-Smith testified that she also believed Appellant to be a medical

doctor. Debra Tamberlano testified that she had not gone to Bella Derm with the

intention to receive mesotherapy, but Appellant suggested it to "break down fat

particles." She got the impression that Appellant was a medical doctor because of the

name of the spa, the appearance of Appellant and the office, and the equipment he used.

Sarah Laveglia testified that she also received the mesotherapy under the impression

that Appellant was a medical doctor. Nancy Rogers also received mesotherapy under

the impression that Appellant was a doctor. She told Appellant that she had blood

toxicity, including lead poisoning, mercury poisoning, and arsenic poisoning. Rogers

testified that Appellant assured her that he would talk to her general physician

regarding the blood toxicity to make sure mesotherapy would be safe for her. Rogers

also testified that when she asked her general physician if Appellant ever did, that her

physician told her he had not been contacted. Lynette Von Alt testified that she did not

go into Bella Derm with the intention of receiving mesotherapy, but that Appellant

suggested it. She described the procedure as invasive and painful. She received

mesotherapy under the impression that Appellant was a doctor and she believed this

because of the advertisement and the appearances of Appellant and his office. Pamela

Holley also bought mesotherapy sessions under the impression that Appellant was a

doctor. She believed he was a doctor for several reasons. First, she testified that the

-enmgloyee&ireatezi liike -"oc or; an-n-ot a o^ss.-Aiso, she tesf'f'iediat ep lla-t-

acted like a doctor. He wrote on a chart, took measurements, and made a treatment plan

in the same manner a doctor would. Loraine English testified that she went to Bella

8

Derm to receive an "invasive tummy tuck." She testified that she went in thinking that

Appellant was not a doctor, until Appellant introduced himself as "Dr. Annable."

Harry Simmons, a licensed medical doctor, testified that he is medical director at

the Center for Integrated Therapies Clinic in Cleveland. Dr. Simmons first came into

contact with Appellant in December 2oo6. Dr. Simmons and Appellant agreed that Dr.

Simmons would work as an independent contractor at Bella Derm one to two days per

week. At that time, he was unaware that the Medical Board and Westlake police had

investigated Bella Derm. His first day was January 13th, 2007. The arrangement was that

Dr. Simmons would receive training on some of the procedures performed at Bella

Derm and that he would then choose which of the procedures he would perform or

oversee. One of these procedures was mesotherapy, which he observed once or twice but

never performed. Dr. Simmons testified that he was not the medical director of Bella

Derm. He never consulted, diagnosed, evaluated, treated, reviewed, or directed a

mesotherapy procedure. Until March 2007 when he met an individual he knew as "Dr.

Chris", Dr. Simmons never came into contact with any other doctors at Bella Derm.

Dr. Simmons identified therapy information sheets that were printed from the

scheduling database on the Bella Derm computer system. Upon reviewing several of the

information sheets, Dr. Simmons discovered that his name was listed as having

performed procedures that he did not in fact perform. Dr. Dominick Catalano, a

physician and dermatologist for thirty years, testified that he met Appellant in October

-Xooti ana they iatked a o^ut the possibffity o merging their businesses. Ia^tola

Dr. Catalano about a procedure he performed at Bella Derm called mesoinfusion. Dr.

Catalano had never heard of the procedure and had never performed it or been trained

to perform it. He took a tour of Bella Derm and witnessed medical equipment at the

9

facility. The two agreed to work together beginning in January of 2007; Dr. Catalano

made it clear to Appellant that no one other than Catalano was to perform a medical

procedure either at Bella Derm or in Catalano's spa. Dr. Catalano told Appellant that

only Dr. Catalano would perform mesotherapy in either spa. He explained that

"[m]esotherapy is a highly specialized form of practice. This involves advance

knowledge of certain compounds that will be infused into the skin, as well as the

potential for side effects and what to do from the side effects from the medications."

While discussing mesotherapy, Appellant had assured Dr. Catalano that he employed

doctors to perform procedures. He never told Dr. Catalano that he had been performing

mesotherapy, and if he had, Catalano testified that he never would have agreed to work

with him.

Dr. Nicholas Diamantis M.D., a surgeon, stated that for about five months

starting around January 20o6, he and his partner at the Western Reserve Center for

Oral and Facial Cosmetic Surgery, Dr. Goldschmidt, worked occasionally as independent

contractors at Bella Derm. Dr. Diamantis went there eight to ten times and Dr.

Goldschmidt was there two or three times. The doctors would provide their own

equipment and staff when they visited the facility. They did not rely on the spa or

anyone there for support in any of their services. Another partner, Dr. Troy Frazee,

never worked at Bella Derm although Appellant advertised that he did. Appellant put

Diamantis' photo on advertising literature without any prior permission from Dr.

--Diamantis:

Ray Arcuri, a Westlake Police Department Lieutenant, testified that he became

involved in the investigation into Bella Derm when Mike Giar from the Medical Board

brought it to his attention. On December ig'b, 20o6, Lt. Arcuri visited the facility along

10

with Michael Giar and Ann Marie Zarella-Lydic. During the visit, Appellant admitted to

Lt. Arcuri that he had been administering the mesoinfusion procedure. Appellant was

evasive about the specifics of the procedure and would not allow his staff to speak with

the police. Lt. Arcuri testified that a prescription for lidocaine was located at the facility.

As part of his investigation, Lt. Arcuri interviewed 66 Bella Derm patients, Dr.

Diamantis, Dr. Simmons, Dr. Catalano, and Bella Derm employees. Lt. Arcuri identified

State's Exhibit 17, an advertisement for Bella Derm that appeared in Cleveland

Magazine and advertised mesoinfusion as a medical treatment. Lt. Arcuri also identified

State's Exhibit 2oA, the roller device used by Appellant to inject the patients during the

mesotherapy procedure.

Appellant elected to present evidence and he testified that he was the owner and

operator of Bella Derm Medi Spa. Every decision for the facility was made by Annable.

(Tr. 2116). Annable testified that he called the procedure in question mesoinfusion,

mesolift, abdocolonic tummy tuck, ABC tummy tuck, mesowrap, lipowrap, and lipolift.

Annable testified that he began administering the procedure in February 2oo6 and

never consulted a doctor or the Medical Board about it. He admitted that the only

training he ever received on the procedure was at a trade show and the internet and he

admitted that he promised each patient her own roller. In Bella Derm literature, the

clients were referred to as "patients", they filled out "mesotherapy patient consent

forms", and at the bottom of these forms, they stated that the patient understands that

-t'ne-physician-re'des-Grr statenrents nrad^-Gn-'r'ne form:-Amnahio-adiniiteci-zhntState's

Exhibit 32, a radio advertisement spot, identified him twice as a doctor.

Regarding the scope of a cosmetologist's practice, Annable testified that it would

be proper for a cosmetologist to provide services that claim to have a medical or healing

11

benefit and that they are not limited only to beautification and relaxation services. He

admitted that he advertised the procedure as having a medical or healing benefit. He

admitted that it was advertised as an injection of medication into the mesoderm. (He

admitted that he advertised that "Richard Annabella himself has earned many

certifications which many doctors have obtained to advance their career." Annable

admitted that that Dr. Simmons was not the medical director at the facility and had

nothing to do with the mesoinfusion procedure. He admitted that in August 20o6 to

October 20o6, he was administering mesoinfusion at the facility even though there was

no licensed medical doctor on the premisesHe admitted that mesoinfusion was

advertised as a medical treatment. Annable testified that he had patients fill out a

"preoperative medical history" prior to receiving the procedure. Annable admitted that

he advertised that Bella Derm has employed board certified physicians when this was

not the case. He admitted that he represented to the public that Dr. Yaser Abdelhamid

was a physician although he was not. Annable testified that Michael Giar informed him

that the Medical Board felt that the procedure in question was a medical procedure and

that Annable should not be administering it. He admitted that he never got permission

from either the Medical Board or the Cosmetology Board to do the procedure.

Dr. Ernest Chiodo testified that he was hired by Appellant to testify for a fee,

something which he has done countless times. Dr. Chiodo admitted that he had not

reviewed any police reports or witness statements relating to the case. gave an opinion

-that ila nts-Exhibi} Y; a roller, would punctune-fffe skin raw 6 oodif-rbried over a

person and he admitted that puncturing the skin carries a risk of infection. Kelly Meyer

testified for the defense that she was employed at Bella Derm as a receptionist from

2005 to 2oo8 and that Appellant was the boss there and he made all the decisions. Mary

12

Malek testified that she is a cosmetologist and that Appellant is her boyfriend. She met

Appellant when she visited Bella Derm as a patient in November 2oo6. She sought

mesotherapy and described her experience as "uncomfortable." Michele Stewart (1797-

1823) testified that she is a former Bella Derm patient who sought mesotherapy.

Charles Kyper described himself as "an expert on the FDA regulation on medical

devices." Most of his business in the last ten years has been as an expert witness. Kyper

testified that he only looked at photographs of the rollers and never physically handled

one. He had never seen the device before he was engaged by the defense. Kyper testified

that it would be considered by the FDA to be an "unclassified device", then that the FDA

has not classified the device. Kyper testified that he "can't find the classification

regulation to fit that product." He also conceded that just because it hasn't been

classified does not mean that it could not be used medically, and that "[i]t's one of

hundreds of medical devices that have never been classified."

Nancy Basch, whose experience is stated above, paid a little over $3,8oo for eight

treatments She received three treatments, and was promised a refund for the treatments

not performed on March 13, 2007, when Bella-Derm was still operating. The Trial Court

awarded Basch $2,05o restitution for the treatments she paid for and did not receive.

Myria Kaspar paid $5,050, but received no treatments. She requested her money back

January 2007. The Trial Court awarded her $5,05o restitution. Corinne McGowan paid

$1,9oo for ten treatments. She requested a refund in March 2007, when Bella Derm was

---siill-operai',orral.-She was-awa-rded-$2,ooo-restituiio-rr. Lebra^'-xmberlarro-pai-c'i $3-,40o

and received one treatment. The Trial Court awarded her $3,ooo restitution. Monica

Wloszek paid $3,000 for eight sessions. She requested her money back in summer of

2007 after receiving one treatment. The Trial Court awarded her $1,20o restitution.

13

Shirley Andrews paid 2,280 for six treatments. She received three treatments and

requested her money back. She received a note saying she be compensated for the

treatments she did not receive. The Trial Court awarded her $2,28o restitution.

2. The Mens Rea of R.C. 4731.41

During trial, Annable argued that R.C. § 4731.41, practicing medicine without a

certificate, required the State to prove that he acted "recklessly." The trial court properly

found that § 4731.41 is a strict liability offense. On appeal, the reviewing court

ultimately affirmed Annable's convictions, but it also held that practicing medicine

without a certificate is not a strict liability offense. State v. Annable, 2011-Ohio-2o29, at

1135• The Eighth District Court of Appeals noted that R.C. § 2901.21(B) imposes a mens

rea of "reckless" when a statute both fails to give a culpable mental state and the statute

fails to plainly indicate a purpose to impose strict criminal liability. While the language

"No person shall" is not enough to indicate a purpose to impose strict liability, the

reviewing court failed to consider that R.C. § 4731.41 is a malum prohibitum offense and

a valid exercise of the State's police power. As such, R.C. § 4731.41 is a strict liability

offense. Because the reviewing court failed to consider the purpose of R.C. § 4731.41 it

deviated from proper analysis and improperly applied § 2901.21(B).

C. ARGUMENT AGAINST APPELLANT'S PROPOSITIONS OF LAW

1. Appellant's First Proposition of Law

Proposition of Law I. Defendant-Appellant's constitutional andDue Process Rights were violated and he has been subjected to

zc'ozi-b^.'ejeopardVr.--

In his first proposition of law, Appellant alleges that he was subject to double

jeopardy where the State previously indicted and reindicted the charges. On July 21,

2010, the trial court nunc pro tunc the prior dismissals' journal entries to reflect the

14

dismissals as without prejudice. Pursuant to Criminal Rule 36, the state requested the

trial court to correct the clerical error that occurred. The previous entries were done in

error since the state had requested originally to have the cases dismissed without

prejudice. The entry of dismissal with prejudice was a clerical error on the part of the

trial court which the trial court is permitted to correct at any time with a nunc pro tunc

entry. A clerical mistake is a mistake or omission, mechanical in nature and apparent

on the record, which does not involve a legal decision or judgment. State v Patrick

(December 20, 2007) 8th District No. 89214, WL 4443398. A court may, at any time,

correct clerical mistakes arising from oversight or omission. State v Walton (Sept. 14,

2oo6) 8th District No. 87347, WL 2627542. A new case could not have been filed if the

trial court intended to dismiss these cases with prejudice, thus the record is clear that

the trial court's intention was to dismiss the two previous cases without prejudice.

Appellant merely disagrees with the appellate court's acceptance that the trial court

could correct the clerical error; as such, this Court should not accept Appellant's first

propositon of law.

2. Appellant's Second Proposition of Law

Proposition of Law H. The trial court committed reversible errorwhen it denied Defendant's motion for judgment of acquittal underrule 29(A).

In his second proposition of law, Appellant claims that there was insufficient

evidence to show that he was practicing medicine. In his argument, he states there was

.no-evr encc ^rer rnrea am^aicai-proceduTe, that th^tatnte^vaynat a strictiiaoihiy

statute, that the State did not present evidence that he acted recldessly, and that the

State did not assert evidence as to all elements of theft. As noted, the State has filed a

cross-appeal as to the appellate court's determination R.C. 4731.41 is not a strict liability

15

offense. Because Appellant's arguments go beyond the issue presented by the State and

include disagreement with the factual determinations by the appellate court as to the

sufficiency of the evidence presented at trial, the State asks this Court to deny

jurisdiction to Appellant on his general proposition of law, but accept the State's cross-

appeal where it is focused on an issue of law - not one of fact.

3. Appellant's Third Proposition of Law

Proposition of Law III: The trial court's error in the admission ofevidence effectively denied the Defendant Due Process and a FairOpportunity to present his defense.

In his third proposition of law, Appellant argues that the trial court improperly

allowed evidence of his advertisements for the medical procedures he conducted. This

issue was resolved by the appellate court where it found, "The tape was used by the state

in the defense's case, when Annable took the stand, to demonstrate that he was regarded

in the community as a doctor. It was proper impeachment evidence. Evid.R. 607

provides that the "credibility of a witness may be attacked by any party ***." 2011-

Ohio-2o29, at ¶56. The appellate court explained that, "Annable's position at trial was

that he never held himself out to his clients or the public as a doctor." Id.

The tape was utilized for impeachment purposes on cross-examination and not

in the State's case in chief. The state knew that the tape was never disseminated and

that the Appellant was described as "Doctor Annable." The state also knew that Clear

Channel created the spot, however the state utilized the tape to question the Appellant

-as io-huw -Ciea-f--C'rrarrrrei-personnei wouizi-gei-the-impressrow-tha appeilant was-a

doctor. Such impeachment was consistent with the state's theory that appellant created

an impression to the public that his procedure was medical and that he was a doctor.

This was proper use of evidence under Evid.R. 607. Appellant has not shown error by

16

the admission of the evidence, nor has demonstrated prejudice by such admission in

light of the other evidence. As such, he has not identified an issue of law that is general

or that presents a substantial constitutional question.

4. Appellant's Fourth Proposition of Law

Proposition of Law IV: Defendant's conviction is manifestly againstthe weight of the evidence and must be overturned.

In his fourth proposition of law, Appellant maintains that his convictions are

against the manifest weight of the evidence. In his argument, he reiterates his

arguments that his theft convictions were not based upon sufficient evidence, finding

support in the dissenting judge's opinion that the facts here do not allege criminal

conduct. See, 2oii-Ohio-2o29, Stewart, J. Concurring in Part/Dissenting in Part.

However, the opinion resolves the issue as not one of proof but time.

The majority correctly noted that the services rendered were not those bargained

for - thus finding that the theft occurred at the time of the services. The dissenting

opinion see the matter as one of contract law - services under contract that were not

provided. However, the majority identified that the evidenced established a theft

occurred from the onset - that Appellant did not intend to deliver the services

advertised. It stated:

{¶ 48}Six of Annable's clients were listed as the victims of theft. Those victimstestified that they prepaid for their services with Annable, but they did not finishtheir treatment plans. All but one victim requested refunds; none of them werereimbursed.

Ti 4g'^The- staie presented-sufficient-MderFe-eziiat An-n-affle use^deivepractices to entice his victims to prepay for the therapy. After taking the victims'money, the services were not completed as agreed, and Annable did not refundthe money. On this record, the trial court properly denied his Crim.R. 29 motionas it related to the theft count.

Id., at ¶48-49.

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After a thorough review of the evidence presented, the appellate court

determined that, "The state presented ample evidence that Annable practiced medicine

without a license and committed theft by deception. That evidence included his

performing a medical procedure, holding himself out, either explicitly or impliedly, as

being a doctor, and taking money for the treatments, which were not completed and for

which the clients were not refunded." Id., at ¶61. Appellant has not identified an issue of

great public interest in this proposition of law and thus, his fourth proposition of law

should not be accepted for consideration by this Court.

5. Appellant's Fifth Proposition of Law

Proposition of Law V. The trial court erred in conviction andsentencing the Defendant.

In his fifth proposition of law, Appellant complains that the court simply erred in

convicting and sentencing him. In this argument, Appellant seemingly incorporates

the arguments made under his first four propositions of law, referencing double

jeopardy and jury instructions. He does however raise, without explanation, that he was

sentenced to allied offenses. However, he was not. Each conviction represented a

distinct crime against distinct victims. Id., at ¶65.

Finally, he argues that jury instructions were errant where they only included a

general unanimity charge. The appellate court noted that the law as to this issue is

settled, citing this Court's decision in State v. Johnson (1989), 46 Ohio St.3d 96, 545

N.E.2d 636. The Court followed Johnson, noting that this Court, "held that even if a

single count of an indictment is capable of being committed by alternative means, it can

be construed as a single conceptual grouping. [Johnson] at 104. The Ohio Supreme

Court further ruled that despite the existence of alternative means of commission of

18

murder, the count in the indictment was able to be construed as a single conceptual

grouping." 20i1-Ohio-2029, AT ¶67. The appellate court then analyzed this case under

Johnson, holding that:

The crime at issue here, practicing medicine without a license, allows forvarying means of committing the single conceptual act.

{¶ 68} If a count of an indictment is conceptually single, the court is notrequired to instruct the jury that it must be unanimous as to the means itwas committed. State v. Gardner, 118 Ohio St.3d 420, 20o8-Ohio-2787,889 N.E.2d 995.

Id., at ¶67-68.

As Appellant does not contest the law, but rather the application of well-settled

law to the facts in his case and the results of his conviction, the State asks that this Court

decline jurisdiction of Appellant's propositions of law, but that it accept jurisdiction over

the cross-appeal filed in this matter.

II. THE STATE OF OHIO'S CROSS-APPEAL

A. EXPLANATION OF WHY THIS CASE INVOLVES A SUBSTANTIALCONSTITUTIONAL QUESTION OF ISSUE OF GREAT PUBLICINTEREST.

In Ohio, R.C. § 2901.21(B) supplies a default rule for supplying the mens rea of a

criminal offense; if an offense completely lacks a requisite degree of culpability and the

section does not plainly indicate a purpose to impose strict criminal liability:

"recklessness" is the appropriate mental state. In this case, the appellate court inserted

"recklessness" into R.C. § 4731.41, practicing medicine without a certificate, finding that

. 'ii 1eF staiute dizi-rrot-Vialniyinaicate-a-purpose-ttcy-imposL--strietzrimimaHWaiiiiy But-it

does.

A jury found Appellee Richard Annable guilty of 12 counts of practicing medicine

without a license. The trial court sentenced Annable to four and one-half years in prison

19

and ordered him to pay $15,580 in restitution. On appeal, Annable challenged the

sufficiency of the evidence used to convict him; in part, Annable claimed that the mens

rea of the indicted offense required the State to present evidence that he acted

"recklessly," and that the trial court erred in holding the statute imposed strict liability.

In the opinion ultimately affirming Annable's conviction, the appellate court

acknowledged that courts must consider various factors to determine whether the

General Assembly intended to impose strict liability. State v. Annable, 8th Dist. No.

94775, 2011-Ohio-2o29, at ¶33. However, the appellate court failed to analyze the

relevant factors to determine the legislature's intent to make R.C. § 4731.41 a strict

liability offense or not. Instead, the reviewing court determined that the language, "No

person shall," in the statute was not enough to find strict liability; it further found that

there was no intent in the statute to impose strict liability. The appellate court noted

that the "numerous" exceptions to R.C. §4731.41 indicated that the legislature could not

have meant to impose strict liability. However, this Court has found that mala prohibita

offenses and exercises of police power, of which R.C. § 4731.41 is included, are strict

liability offenses.

Because the appellate court failed to determine that the legislature intended to

impose strict criminal liability for the offense of practicing medicine without a license,

that court failed to follow this Court's prior statements that acts made unlawful for the

good of the public welfare are strict liability offenses. For this reason, the State asks this

hoirorable-Caurt-to-take jttrfsdiction of this case, reverse the ap eip iate decisionits

holding that R.C. 4731.41 is a strict liability offense, affirm Appellee's convictions, and

adopt as law the following proposition of law:

20

The offense of practicing medicine without a certificate, R.C. § 4731-41, is astrict liability offense.

B. ARGUMENT IN SUPPORT OF CROSS-APPELLANT'S PROPOSITIONOF I.AW

Proposition ofLaw: The offense of practicing medicine without acertificate, R.C. § 4731.¢1, is a strict liability offense.

Analysis of whether a statute imposes a culpable mental state includes a

consideration of whether the statute plainly indicates a purpose to impose strict

criminal liability. R.C. § 2901.21(B). To determine the legislative intent or purpose of a

statute, courts look to several factors: whether there is a culpable mental state for one

element of the crime, but not another; whether the offense is mala prohibita; and

whether the legislature has taken a "strong stance" against certain types of crimes. See

State v. Bowersmith, 3d Dist. No. 14-02-02, 2002-Ohio-3386, at ¶ 14. Malum

prohibitum offenses are "acts that are made unlawful for the good of the public welfare

regardless of the offender's state of mind." State v. Schlosser (1997), 79 Ohio St.3d 329,

333.

Statutes enacted for the purpose of promoting the safety, health, or well-being of

the public are generally enforced under a strict liability standard and are not required to

contain intent as a necessary element. Morisette v. United States (1952), 342 U.S. 246;

State v. Rife (June 13, 2000), loth Dist. No. 99AP-981, 2000 WL 757259, at *2. Laws

classified as mala prohibita offenses include food and drug laws, child labor laws,

building regulations, liquor control regulations, and sex offender registration laws. State

v. Stewart, 8th Dist. No. 94863, 20ii-Ohio-612; State v. Morello (May 13, 1959), 169

Ohio St. 213; Kendall v. State (June i6, i925), i13 Ohio St. iii; State v. Rippeth (Oct. 25,

1904), 71 Ohio St. 85; State v. Kelly (Feb. 25, i896), 54 Ohio St. 166.

21

Because a malum prohibitum offense is not required to contain a culpable mental

state, the trial court properly found that R.C. § 4731.41 is a strict liability offense.

However, the appellate court found that the trial court erred in this holding. Instead of

looking to the ultimate purpose of the statute, the reviewing court concluded that the

"No person shall" language of the statute, by itself, did not show a plain purpose to

impose strict criminal liability. The appellate court used R.C. § 2901.21(B) to insert a

mens rea of recklessness into a strict liability statute. As such, the appellate court

ignored the purpose of § 4731.41 and deviated from precedent established by this Court.

Immediately following the definitions Section of the Ohio Revised Code Chapter

regulating physicians, the Ohio General Assembly declared:

The practice of medicine in all of its branches or the treatment of humanailments without the use of drugs or medicines and without operativesurgery by any person not at that time holding a valid and currentcertificate as provided by Chapter ... 4731 of the Revised Code is herebydeclared to be inimical to the public welfare and to constitute a publicnuisance.

R.C. § 4731•341(A) (emphasis added).

The Ohio General Assembly plainly indicates that R.C. § 4731.41 was enacted for the

purpose of protecting the public welfare. Malum prohibitum offenses are made unlawful

for that same purpose: to protect the public welfare regardless of the offender's state of

mind. State v. Schlosser, 79 Ohio St.3d at 333.

In this matter, the reviewing court's assertion that it, "[did] not find any

indication of the General Assembly's intent to impose strict liability" is an incomplete

analysis of the statutes. 2011-Ohio-2o29, at ¶ 34. The General Assembly spelled out its

purpose in enacting the law in the Section immediately preceding R.C. § 4731.41. An

interpretation of the statute that ignores the statement that the prohibition against

22

practicing medicine without the requisite certificate is one that is "inimical to the public

welfare" is contrary to the Revised Code

Further, this Court, in a per curiam opinion, reinforced the General Assembly's

stated purpose for § 4731.41 and held that it was a regulation of the public health:

It has long been well settled in the jurisprudence of Ohio as well as ofother states that the General Assembly has the right to reasonably regulatebusiness and occupations and those desiring to follow the same, especiallyphysicians and surgeons. It would be superfluous to quite authority uponthis proposition. In addition, however, legislation of the character inquestion in this case [practicing medicine without a license] isclearly within the police power upon the further and higherground, the regulation of public health.

Nesmith v. State (1920), ioi Ohio St. 158, i59-6o (Emphasis added.)

In finding various sections of the State Medical Act (including R.C. § 4731.41)

valid and constitutional provisions of Ohio law, this Court reasoned:

All persons engaged in the practice of the healing art need have specialqualifications touching the knowledge of the human body in all its parts,their normal and abnormal relations - not only knowledge that wouldenable all such persons to carefully and correctly diagnose physical andmental ailments, but also an ability to prescribe the proper treatmenttherefore.

The public needs relating to the conservation of the public health are somanifest that it would seem unnecessary to further consider the generalscope of this character of legislation ...

Id.

Practicing medicine without a license is a menace to the public health, safety, and

welfare. R.C. § 4731.41 has been held by Ohio courts to be a proper exercise of the

-StatF'c police _ o;cygr in 'pg '-slt3-T-F^ ^^3^Yn^3hlic^l€althKatsafaros ^-.Aga-tl#IlE6^(A^yr.i-8,.... ...'

1935), 52 Ohio App. 290, at paragraph one of the syllabus.

This statute fits squarely within this Court's definition of a malum prohibitum

offense, and it is a strict liability offense. The reviewing court noted that the fact that the

23

General Assembly made so many exceptions to R.C. § 4731.41 indicates that the General

Assembly did not mean to impose strict liability. However, that analysis is flawed. It

stands to reason that if the General Assembly required a certain mens rea for the

offense, or if it intended § 2901.21(B) to insert "reckless" into the statute, then the

numerous exceptions to § 4731.41 would be unnecessary; unwitting violators of the

statute would be exempted because they would not have the requisite mental state for

the crime. Unlike the appellate court's reasoning, it is more reasonable to find that by

codifying numerous exceptions to R.C. § 4731.41, the General Assembly implicitly

recognized that it had created a strict liability offense in which anyone could be

convicted unless exempted by the statute. The General Assembly's creation of

exceptions does not indicate the intent to create a specific mens rea for R.C. § 4731.41;

rather it reinforces the idea that, as the Supreme Court of the United States held,

offenses that are designed to protect the public health, safety, or welfare need not

contain intent as a necessary element of the crime. Morissette v. United States, 342 U.S.

at 247-48.

Practicing medicine without a certificate has always been a strict liability offense.

By pronouncing that R.C. § 4731.41 requires proof in this case that Annable acted

"recklessly," the appellate court has changed the purpose of the statute as declared by

the General Assembly. This holding is errant and the State asks that this Court accept

jurisdiction in this case and adopt as law its proposition.

Because the appellate court improperly inserted the mens rea of "reckless" to R.C.

§ 4731.41, practicing medicine without a certificate, which the legislature intended to be

a strict liability offense, this Court should accept jurisdiction of the State's proposition

24

of law. The appellate court failed to properly interpret the statute as set forth by the

Ohio General Assembly. For these reasons, the State asks this Court to accept

jurisdiction of this case upon it's cross-appeal, reverse the appellate decision holding

that R.C. § 4731.41 is not a strict liability offense, affirm Appellee's convictions, and

adopt the State's proposition of law: The offense of practicing medicine without a

certificate, R.C. § 4731.41, is a strict liability offense.

Respectfully submitted,

WILLIAM D. MASONCUYAHOGA COUNTY PROSECUTOR

BY:T. ALLAN REGAS (oo67336)Assistant Prosecuting Attorney1200 Ontario Street, 9th FloorCleveland, Ohio 44113216•443•7800

25

IV. CERTIFICATE OF SERVICE

A copy of the foregoing Appellee/Cross-Appellant State Of Ohio's Combined

Memorandum In Response And Memorandum In Support Of Jurisdiction has been

mailed via U.S. mail this the 8th day of July, 2011 to Richard Annable, Inmate No. A582-

282, Marion Correctional Institution, P.O. Box 57, Marion, Oh. 43302 and the Ohio Public

Defender, 25o East Broad St., 14th Fl. Columbus, Ohio 43215.

T. ALLAN REGAS (oo67336)Assistant Prosecuting Attorney

26