*1
Ohio, Appellee,
The STATE of
v.
ANNABLE, Appellant.
Annable,
App.3d
[Cite
Court of District, County. Eighth Cuyahoga No. 94775. April Decided *5 Mason, William D. Cuyahoga County A. Prosecuting Attorney, James Gutierrez, Assistant Prosecuting Attorney, appellee. Banks, H.
James for appellant.
Larry A. Judge. Jones, Defendant-appellant, Annable, Richard his convictions. appeals We
affirm. History
I. Procedural and Facts In October Annable was indicted on one count of theft and counts of practicing medicine without a license. The case proceeded jury trial. At case, the conclusion of the state’s the defense amade Crim.R. 29 motion for acquittal, which evidence, was denied. The presented defense and at the case, conclusion of its motion; renewed its Crim.R. 29 the motion again denied. jury The found Annable guilty theft and counts of practicing
medicine without a license. The trial court sentenced him to four and a half years prison $15,580 and ordered him to pay in restitution. The testimony1 voluminous in this case revealed following facts.
Annable, a cosmetologist, was the Westlake, owner of Bella Spa2 Derm Medi Ohio. The spa’s slogan was “the feel of a spa, the care of a physician.” One of the services offered at the spa was mesotherapy. Clients receiving mesotherapy signed “mesotherapy patient consent form” and a form explaining “mesothera- py post-treatment instructions.” The clients also completed and signed “medi- cal questionnaire” that included a “pre-operative medical history.” witness, The state’s expert Maiwald, Dr. Diane board-certified derma- tologist and founding member of the American Mesotherapy, Board of explained mesotherapy. Dr. Maiwald testified that mesotherapy is used to treat conditions arthritis, such as reduction, back fat pain, and cellulite. She stated that the therapy requires injection medication, either with a hypodermic needle or roller, medical under the upper layer of skin. Dr. Maiwald testified that injection, skin, puncturing is necessary so that the required high concentrations of medication can be released into the body. nearly
1. The three-week trial included 37 witnesses for the state and nine witnesses for the defense. 2. The business was Spa. also referred to as Bella Derm Medical *6 procedure is a medical mesotherapy that further testified Dr. Maiwald
6}{¶ that a doctor precautions various and described supervision medical requires that the that she testified example, take. For should procedure the performing that the medical and person to each to be tailored needed injected medication that most of her testified Dr. also reused. Maiwald never be rollers should pain medication for required prescription procedure the undergoing patients cosmetologist perform- of a that had never heard testified she She management. ing procedure. officials, by law-enforcement investigation subject spa The became
{¶ 7} after an Cosmetology Board of Board, and the Ohio State Medical the Ohio to the According “just wrong.” looked therapy that the employee complained and while she packs, skin with ice numb the clients’ Annable would employee, a roller with apply would (the Annable “tight,” the clients’ skin held employee) usually bleed that the clients would testified employee the area. The needles to than one used on more being roller rollers, that she saw the same from The pain.” were a lot people “these employee, to the According patient. she spa, that she worked at the nearly year that also testified employee premises. on the never saw a doctor (“LPN”), testified practical nurse spa, of the licensed employee Another on her own after Annable spa at the procedure began performing
that she than used on more that some rollers would be LPN testified “trained” her. The that and testified numbing packs with ice LPN also described the client. The one one only that she saw LPN further testified would bleed. The some of the clients anything have to do with that did not but doctor spa premises, doctor on the mesotherapy. for the state.3 Collec- clients testified spa’s mesotherapy of the Several doctor, and on that was a based they that believed Annable testified
tively, they that he told the clients him belief, for examinations. they undressed down the amino acids would “break to be treated with inject the area would of the clients testified Some procedure “painful.” They fat.” described Annable and they to which alerted medical conditions they special had had treatments stopped clients manage. The told them he would which Annable for the services. Several prepaid The clients they painful. were too because refund, one. but never received requested the clients First, Dr. with Annable. relationship their testified about Three doctors that Dr. Simmons agreed had that he and Annable testified Harry Simmons a week. days one or two spa contractor at the independent an would work as the spa of the services training on some that he was to receive testified Simmons were all female. clients who testified The offered, and then he would choose which of the perform services he would oversee. Simmons testified that he observed one or two mesotherapy proce- dures, but performed never one. Dr. Simmons later learned his name was listed on spa’s some
therapy information sheets being as the doctor who performed procedures, including that mesotherapy, this, he never performed. After discovering Sim- mons confronted Annable and terminated his with him. relationship doctor, Catalano, The second Dr. Dominick operated a medical spa
{¶ 12} Streetsboro, Ohio, and he and Annable had discussed the possibility merging discussions, their businesses. During their Annable told Catalano about mesoth- erapy; Catalano had never heard of it and had performed never it. Catalano and Annable eventually to agreed
{¶ work together. 13} Catalano (Dr. Catalano) testified that under agreement, their only he would perform medical procedures either spa, and Annable to perform was cosmetic services hair, relating nails, to and superficial skin resurfacing. Catalano testified that Annable him never told that he had been performing that if mesotherapy and he that, had known he never would have agreed to work with him. Dr. Catalano came to learn that mesotherapy “highly specialized
form of practice. [It] involves advance knowledge of certain compounds that will skin, be infused into the as well as the potential for side effects and what to do from the side effects from the medications.” Dr. Catalano severed his relation- with ship Annable after he saw him perform mesotherapy. The third doctor who testified about his relationship with Annable was
Dr. Nicholas Diamantis. Dr. Diamantis testified that he partner and his at the Western Reserve Center for Oral and Facial Cosmetic Dr. Surgery, Matthew Goldschmidt, occasionally worked at Annable’s spa independent contractors.4 Diamantis, According to Dr. he and Dr. Goldschmidt provide would their own equipment and staff whenever they worked at spa. Dr. Diamantis testified displayed Annable picture his and referred to Diamantis as “medical director” on literature advertising the spa permission. without his Dr. Diamantis testified that he never discussed with being Annable the medical director of the and, spa furthermore, never served that capacity. Drs. Diamantis and Goldschmidt severed their relationship with Annable out of concern that they “may inadvertently violate certain ethical restrictions on placed regarding [them] the unauthorized practice of medicine.” center, Frazee, partner Diamantis testified that Troy another at his Dr. never worked at the spa, but Annable advertised that he did. It mesotherapy. performing He admitted at trial. testified Annable to services cosmetologist provide for a it is proper Annable’s belief
was never that he had He admitted benefit. healing a medical or to have claim or the Board from the Medical procedure perform permission received Board. Cosmetology Board and the Medical the Ohio State both investigations, After their medicine practicing that Annable Board found Cosmetology
Ohio State was revoked. license cosmetology a license. Annable’s without review: for our following errors assigned has violat- rights were process and due constitutional Defendant-appellant’s “I. jeopardy. subjected double and he has been ed it defendant’s when denied reversible error committed “II. The trial court 29(A). under Rule acquittal judgment motion for effectively denied of evidence in the admission trial court’s error “HI. The *8 defense. his present a fair opportunity and process due defendant of the evidence manifestly weight against conviction “TV. Defendant’s and must be overturned. the defendant.” sentencing and convicting court erred in The trial
“V. Analysis II. Law and Jeopardy Double error, subjected that he was contends Annable assigned For his first {¶ 19} disagree. We jeopardy. double indictment for case, had twice under Annable been Prior to this second, CR-517594, in case No. CR- and first, in No. here: case charged
crimes February in 2009. information case, by was indicted In first Annable 521710. In in March 2009. jury case, grand was indicted In the second recom stating, in cases 2009, judgments “[0]n both the court issued November Defendant re- prejudice. is dismissed with case prosecutor mendation case, case No. CR- The new new case CR-530634 indicted on 10/30/2009.” 530634, us. is the now before appeal in the motion, judgments court issued 2010, the state’s July upon cases, stating: prior
two case under Case error to the to correct a clerical shown and For cause good prejudice without 521710, now dismissed CR 517594[and] CR Number[s] dis- [are] correction. Case[s] now reflect that should entry the court’s prejudice. missed without trial original judgments This record evidences that court’s
{¶22}
error,
is,
a clerical
dismissal with
dismissing
prior
the two
cases contained
filed,
prejudice. A new case could not have
as the
stated one
judgments
been
was,
Moreover,
if the
were with
to dismiss a case
prejudice.
dismissals
order
prejudice,
with
court must
of a
constitutional
deprivation
trial
find
defendant’s
Worwell,
v.
86032,
and apparent on the
that does not involve a
or
legal
judgment.
decision
Patrick,
State v.
89214,
prior cases prejudice, pro were dismissed without and the nunc tunc entries stating so proper. were error, assignment Within this Annable also with takes issue the fact
that he was under CR-521710, indicted R.C. 4731.34 in case Nos. CR-517594 and but the indictment in this case was R.C. under 4731.41. We find no error with these inconsistencies. The crime of practicing medicine without a license is set 4731.41; forth under R.C. R.C. is the 4731.34 definitional section. Apparently realizing that it previously section, had indicted Annable under the definitional rather than the section makes it a crime to practice medicine without a license, the state corrected itself and indicted Annable properly under R.C. *9 4731.41 in this That case. occurrence did not create any error. above, of the light assignment the first of error is overruled.
Sufficiency Evidence of challenges of sufficiency the the in his evidence second assign- ment of error. 29(A), Under Crim.R. a court “shall order the of a entry judgment {¶ of 28} * * *
acquittal of one or more offenses if the evidence is insufficient to sustain a conviction of such offense or A challenge sufficiency offenses.” to the of the evidence a supporting a conviction court to requires determine whether the state has met at trial. State v. Thompkins production (1997), its burden of 78 Ohio 380, 390, St.3d N.E.2d 678 541. On for sufficiency, review courts are to assess believed, whether, not believed, whether the state’s evidence if is to be but a conviction. Id. The relevant support a would against defendant evidence to the whether, light in a most favorable viewing the evidence is after inquiry elements of fact have found the essential trier of could any rational prosecution, (1991), 61 Ohio v. Jenks beyond a reasonable doubt. St.3d crime proven of syllabus. two paragraph N.E.2d by denying erred his Crim.R. that the trial court Annable contends (1) on any to submit evidence the state failed acquittal motion for because license, is which he contends reckless- medicine without a practicing mens rea for (3) a (2) drug, used in fact ness, “alleged drug” he any establish acts a permitted by fall under authorized cosmetol- that his acts did not establish (4) deception. ogist, and establish theft Culpable Mental State rea medicine practicing the issue of the mens for Annable raised motion and state argued a license of his Crim.R. 29 support
without court, however, recklessly.5 that he The trial to evidence acted present failed imposes liability. held that the statute strict 4731.41, or practicing surgery the crime of medicine governing R.C. 31}
{¶ certificate, a provides: without branches, or of its surgery, any shall medicine and person practice
No engage state medical to certificate from the board appropriate without claim to a public No shall or to the practice. person advertise branches, of without a surgery, any and or its practitioner medicine or an office or person open from No shall conduct other certificate the board. from the No practice person for such without certificate board. shall place has to practice name of who a certificate person conduct an office some No any practice or shall surgery, person medicine and its branches. branches, and of its after certificate has surgery, person’s medicine or, revoked, of such suspended, during suspension. if the time been 2901.21(B): R.C. Under any degree an not defining specify the section offense does When liability strict criminal for plainly impose indicates to culpability, purpose section, culpability required in the then is the conduct described culpabili- specifies the offense. the section neither guilty to be When person strict impose liability, recklessness ty plainly purpose nor indicates commit the culpability offense. sufficient *10 ground. pretrial on this
5. the court for dismissal Annable also motioned
347
in the absence of
language,
“no
shall”
person
that the
argues
The state
33}
{¶
state,
to impose
a
intent
legislative
a
indicates
required
to
mental
any reference
of the
usage
has held
Supreme
But the
Court Ohio
liability.
strict
legislative intent to
by
evince a plain
shall” does not
itself
phrase
person
“no
244,
have R.C. 4731.34 and do reviewed fact, an In that section outlines impose liability. intent to strict Assembly’s 4731.34(B). church. See R.C. for of the Christian Science exception practitioners prohibition against exceptions general also various other to There are example, a set 4731.36. For medicine without license forth R.C. practicing 4731.36(A) 4731.01 to 4731.47 of the Revised Code shall provides, R.C. “Sections family emergency, in case domestic administration prohibit not service who is remedies, of assistance to another individual self-administer- provision (See recognize 4731.36 various other We ing drugs.” exceptions.) R.C. for But we note the numerous exceptions strict-liability there can to offense. license the state’s considering to medicine without a exceptions practicing could legislature that “from a public policy logical perspective contention [i.e., liability].” impose otherwise strict above, In we 4731.41 not a strict- of the find R.C. is light Thus, of the trial court’s liability implications we now consider the statute. crime as it relates to the indictment and treating strict-liability offense jury. its instructions to the Court, its decision State v. Recently, overruling the Ohio Supreme 169,
Colon,
204,
348 court, jury instructions, believing it to the the trial that As relates
{¶ 37} offense, is a strict liability the offense of medicine without a license did practicing jury not instruct the on recklessness. rule,
As a have the on all general jury defendant entitled to instructed to with which charged, elements must be establish the crime he is proved and, offense, or specific culpability where intent is an essential element of the instruct on trial court’s failure to that mental element error. constitutes 153, 16 O.O.3d omitted.) (Footnote (1980), 151, 169, State v. Adams 62 St.2d Ohio N.E.2d 144. 404 to court jury, its instructions the the more or less the read
{¶ 38} charge statute; of without a forth in it practicing medicine license as set the did give any liability. not instruction on strict raised of The defense the issue the motion; objected mental state as of 29 to part jury its Crim.R. it the instructions unanimity instruction, of a lack of a ground because but not on the that the trial faded to court instruct on the mens rea for medicine practicing without a license. Crim.R. provides: 30 On appeal, party may assign giving as error the or give the failure to party objects jury instructions unless the the before retires to its consider verdict, stating the matter to specifically objected grounds and the of the objection. 52(B), Under “[p]lain Crim.R. errors defects affecting substan rights may although they
tial be brought noticed were not to the of the attention 52(B) plain court.” “Notice of error under Crim.R. is to be taken with the utmost caution, under exceptional prevent circumstances and only manifest miscar justice.” (1978), 91, riage Long 178, State v. 53 Ohio 7 St.2d O.O.3d 372 N.E.2d 804, paragraph syllabus. three of the three satisfy There are conditions that must be met to the First,
plain-error
Second,
rule.
must be a
from a legal
there
deviation
rule.
must
plain, meaning
error
that the error is an obvious defect in
trial
Third,
must
proceedings.
the error
have affected the defendant’s substantial
interpreted
This has
trial
rights.
been
mean that
court’s
error must have
(2002),
21,
trial.
27,
affected
outcome of the
State v.
94
Barnes
Ohio St.3d
N.E.2d
759
1240. The
bears
appellant
the burden
that the
demonstrating
outcome
the trial
would have been
but for
clearly
different
the error.
¶
502,
Payne, Ohio St.3d 873 N.E.2d The Ohio Court has held that the failure to each Supreme instruct on Adams, of an necessarily plain element offense is not error. reversible 169, St.2d Ohio 16 O.O.3d 404 N.E.2d at two of paragraph syllabus. appellate An court must review instructions as a whole to determine whether the error in the as a result of miscarriage justice has occurred a manifest syllabus. of the paragraph Id. at three instructions. case, prejudicial the error was not so the facts of this Under had not occurred. We different the error of the case would have been result incorrectly practicing treated medicine
note the court although in particular Rather, court offense, more jury. it so instruct strict-liability as a did not *12 Moreover, substantial evidence jury. to there was or less read the statute record, we find no recklessly. plain had On this that Annable acted presented error. Drug
2. of a Proof of use present that the state to evidence that Annable contends failed 44} {¶ mesotherapy actually drug. Practicing he used was a alleged drug during a to however. “The administering drugs, medicine without license not limited by drug.” of a well as a may dispensing remedy statute be violated 445, 450, The Henning (1948), 38 O.O. N.E.2d 588. state App. 83 Ohio remedy. had The trial presented sufficient evidence that Annable dispensed court, therefore, ground. on this overruled the Crim.R. 29 motion properly by Cosmetologist
3. Authorized Acts that his acts prove that the state failed to were contends The permissible cosmetologist disagree. investigator not under his license. We cosmetologists Cosmetology from the State Board of testified that are Ohio skin, foreign substance into permitted puncture layer to first introduce testimony There body, or treat medical conditions. was sufficient ground on this prohibited Annable did all these acts. His Crim.R. 29 motion properly therefore denied. by Deception
4. Theft 2913.02(A)(3), Annable was with theft under R.C. which charged services, or provides, person, purpose deprive property “No with to owner * * * or services shall obtain or exert control over either the knowingly property [b]y deception[.]” deceiving causing another to Deception “knowingly means another or information, representation, by withholding false or by misleading
deceived information, act, conduct, by any another from or other preventing acquiring another, creates, confirms, impression or or false perpetuates omission law, value, mind, objective state of or other impression a false as to including 2913.01(A). subjective fact.” R.C. Six of clients were listed as the victims of theft. Those Annable’s 48}
{¶ Annable, they with they testified that their services but did prepaid victims requested refunds; their All one victim none of plans. not finish treatment but them were reimbursed. deceptive The state sufficient evidence that Annable used presented 49}
{¶ practices prepay therapy. taking entice his victims for the After money, provide agreed, victims’ he did not the services as and Annable did not record, the trial money. properly refund On this court denied his Crim.R. 29 as it count. motion related to the theft above, In light of the the trial court denied properly Annable’s Crim.R. motion, assignment and the second of error is overruled.
Admission of Evidence Expert Testimony error, assignment his third court Annable contends the trial witness, testimony state’s, limited the of his improperly expert but not the thereby resulting qualified a “well-known and respected, expert unable being *13 an opinion, while had express dermatologist only degree who the minimal permitted express expert opinion was an on facts.” disagree. the We of expert testimony The admission is within the trial court’s
{¶ 52}
and will
discretion
not be disturbed on
an
appeal absent
abuse of discretion.
State v. Williams
(1996),
569, 576,
74 Ohio St.3d
724. An
660 N.E.2d
abuse of
an
requires
discretion
more than
error of law or
it
judgment;
implies that the
unreasonable,
arbitrary, or unconscionable. State v. Reiner
court’s attitude is
(2000),
342, 356,
89 Ohio St.3d
{¶ may A witness if testify expert following as an all of the apply: (A) The witness’ testimony beyond either relates to matters knowledge or
experience possessed by lay persons or dispels misconception common among lay persons;
(B) skill, The witness an qualified expert specialized is by knowledge,
experience, training, subject or education regarding matter testimony;
(C) scientific, technical, The witness’ testimony based on reliable other * * *. specialized information. hearing parties’ After a on the issue of trial experts, both
{¶ 54} expert, Maiwald, court ruled that Dr. in qualified state’s as an expert dermatology who an in performs mesotherapy, expert mesotherapy. but not as Chidio, as an qualified Dr. Ernest expert, ruled that the defense’s The court also in expert as an but not practiced, he of medicine which in the areas expert the fact based on to Dr. Chidio was regard ruling The court’s mesotherapy. treatment. mesotherapy performed had never even that he Advertisement 2. Radio as “Dr. to appellant that referred a radio advertisement tapeA Channel, admitted was aired, by created Clear
Annable,” never and was which evidence demonstrated objection. The over the defense’s into evidence inducing the intent of Channel, own, advertisement with on its created the Clear air time for it. purchase Annable to case, took Annable in the defense’s when by used the state tape The was It as a doctor. community in the stand, regarded that he was to demonstrate “credibility of that the provides evidence. Evid.R. 607 impeachment proper
was at trial was that he Annable’s position attacked may party.” a witness The tape as a doctor. public out to his clients or never held himself had that he was showing credibility by attack Annable’s into evidence to admitted under Evid.R. 607. proper a doctor. This was believed to be above, of error is overruled. assignment of the the third light Weight of the Evidence that his convictions of error assignment contends in his fourth disagree. of the evidence. We weight are against attacks the of the evidence weight A to the manifest challenge a reasonable doubt. proof beyond light
verdict
of the State’s burden
into the
386-387,
inquiring
Thompkins, 78 Ohio St.3d
at
678 N.E.2d
When
juror”
evidence,
court sits as the “thirteenth
reviewing
of the
weight
manifest
541;
at
678 N.E.2d
of the record.
Id.
independent
makes an
review
*14
2211,
L.Ed.2d 652.
(1982),
31, 42, 102
72
Tibbs v. Florida
457 U.S.
S.Ct.
record,
the
weighs
the entire
The
court reviews
appellate
{¶ 60}
witnesses,
inferences,
credibility of all
considers the
and all reasonable
evidence
evidence,
in
trier of fact
in
conflicts
the
the
resolving
whether
and determines
justice
of
that the
miscarriage
a manifest
way
lost its
and created such
clearly
Martin
ordered. State v.
proceeding
reversed and a new
judgment must be
215,
judgment
717.
a
(1983),
172, 175,20
485 N.E.2d
Where
App.3d
20
OBR
Ohio
elements to be
to all essential
going
credible evidence
supported by competent,
of
weight
the manifest
being against
as
will not be reversed
proven,
judgment
43,
10, 14,
(1985),
23
490
v. Mattison
App.3d
OBR
the evidence. 23 Ohio
for
is reserved
manifest-weight grounds
on
Accordingly, reversal
N.E.2d 926.
heavily
in
convic-
exceptional
weighs
against
case which the evidence
“the
Martin,
175,
215,
at
{¶ 61} that medi presented ample practiced convictions. The state evidence Annable That included by deception. cine license and committed theft evidence without out, his a medical himself either performing procedure, holding explicitly doctor, treatments, taking money and for the which impliedly, being were and for which clients completed were not refunded. record, is not an case in exceptional On this this which the evidence
weighs heavily against Accordingly, the conviction. the fourth of assignment is overruled. error Sentencing and
Conviction error, In his final assignment challenges his based conviction 63} {¶ on the lack-of-unanimity challenges instruction. He also his sentence. In the trial regard to court’s denial Annable’s for an request on jury unanimity, general
instruction
rule
Ohio is that
prevailing
“a
unanimity instruction will
jury
ensure
is unanimous on the factual basis
conviction,
for a
even where the indictment
numerous
for
alleges
factual bases
(Citations omitted.)
State v. Johnson
liability.”
(1989),
criminal
St.3d
Ohio
104,
96,
unanimity jury case, instruction to the as follows: this is a “Because criminal requires law that all 12 of be in you agreement you you before can consider general unanimity have reached verdict.” find that the trial court’s jury We instruction was case. proper this Moreover, the practicing-medicine-without-a-license counts were offenses, subject merger sentencing,
not allied at as Annable The contends. victims, acts, involved separate separate separate counts times. No one count was other necessary charged. count to be Each count of practicing without a a single medicine license was conceptual grouping. Johnson, 46 Ohio St.3d 545 N.E.2d the Ohio Court Supreme if
held that even a of an single capable count indictment is committed being means, alternative it can construed as a single conceptual Id. at grouping. The Court Supreme Ohio further despite ruled the existence murder, alternative means of commission of the count indictment was able here, to be construed as a The single conceptual grouping. crime at issue
353 license, of the varying committing allows for means medicine without practicing act. single conceptual the court not single, is is conceptually If a count an indictment to the means it was jury the it must be unanimous as
required to instruct
without a license
several means
fore,
required.
was not
factual-unanimity
instruction
and,
next
his
in
that the
challenges
particular,
sentence
making findings.
trial
him to
terms without
Pursu
court sentenced
consecutive
Foster,
1,
ant
in
Supreme
holding
Court’s
State v.
109 Ohio St.3d
to
Ohio
In Foster the. applying appellate First, two-step approach. [appellate sentencing courts] must examine with rules compliance applicable imposing court’s all and statutes convincingly clearly to determine the sentence is and con- sentence whether satisfied, If court’s prong to law. this first the trial decision trary imprisonment term of is reviewed the abuse discretion imposing the under standard.
Id. law convincingly contrary A is not and where the clearly sentence
{¶ 2929.11, trial as well as the principles court and of R.C. purposes “consider[s] * * * control, 2929.12, applie[s] properly postrelease factors listed R.C. * * * * * * ¶ addition, range.” within the Id. at 18. permissible sentence^] trial court “careful and deliberation to the gives so as the substantial long *16 considerations,” relevant statutory the court’s sentencing decision is not an abuse ¶ of discretion. Id. at 20. Here, the sentences were in statutory ranges and therefore were not Further,
contrary to law. the court considered “all required factors of the law” and found that “prison is consistent with the purpose of R.C. 2929.11.” Our review of the record also indicates that court carefully upon deliberated and, statutory thus, relevant considerations did not abuse its discretion. above, In light of the the fifth assignment of error is overruled.
Judgment affirmed. Blackmon, P.J., concurs. J., concurs in part and dissents in part.
Stewart, Judge, in concurring part and
Stewart, in dissenting part. I concur in the decision to affirm Annable’s conviction for practicing However, medicine without a license. I would vacate the theft conviction. The issue of refunds from matter, Annable is a contract not a criminal matter. (Oct. In Orange 5, Village 2000), olk 8th Dist. No. Woolf WL this court an analogous considered city case which a brought charges against a,private snow-plow operator who took money advance of the winter season but failed to render those city services. The charged Woolfolk with theft by deception conviction, and obtained a but this court vacated the conviction stating: “Simply put, contract, this is a anot criminal case. The civil * * provides law adequate remedies for breached contracts Id. at 4. It is uncontested that performed procedures on the named
theft victims. They thus in part for, received what they paid if even those services were not rendered aby licensed medical doctor. This is not a case where Annable took money and ran without performing any services whatso- ever. The victims may not have entirely received what they bargained for, but shortcomings what agreed to versus what was purely delivered is believe, matter of therefore, contract. I that the theft count should be vacated.