State v. EvankovichState v. Evankovich
For Plaintiff-Appellant: Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Atty. Martin P. Desmond, Assistant Prosecuting Attorneys, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellee: Atty. Michael J. McGee, Harrington, Hoppe & Mitchell, Ltd., 108 Main Avenue, S.W., Suite 500, Warren, Ohio 44481; Atty. Harry R. Reinhart, Reinhart Law Office, One Americana, Suite 301, 400 South Front Street, Columbus, Ohio 43215-5430
WAITE, J.
{¶1} The State of Ohio appeals the decision of the Mahoning County Court of Common Pleas to dismiss the indictment in this case charging Appellee, Gary Evankovich, with twenty-four counts of selling dangerous drugs at retail between October 10, 2005 and June 15, 2006, in violation of
{¶2} Appellee, a local pharmacist, contracted with an online pharmacy to dispense prescription medication via the internet. Allegedly, prescriptions provided by the online pharmacy were not issued in accordance with Ohio laws and regulations, and, as a consequence, Appellee was charged with violating the dangerous drug statute. According to the indictment, Appellee unlawfully filled over ten thousand prescriptions for various drugs, including muscle relaxants, antibiotics, antidepressants, and antivirals, as well as drugs to treat anxiety and erectile dysfunction, over the course of an approximately seven month period.
{¶3} In a one-page judgment entry, the trial court held that Appellee, as a licensed terminal distributor of dangerous drugs, is exempt from criminal liability under the statute. For the following reasons, the judgment of the trial court is reversed and this matter is remanded for trial.
ASSIGNMENT OF ERROR
{¶5} The trial court predicated its dismissal of all of the charges in this case on the decision and judgment entry of the Montgomery County Court of Common Pleas acquitting a defendant charged with the same crimes and who was a licensed terminal distributor of dangerous drugs in State v. Shelton (February 6, 2009), 08-CR-1559. The Montgomery County Court relied on a series of arguments, both legal and, in the alternative, factual, to acquit Shelton following a bench trial on the matter. However, the trial court in the case sub judice clearly states in the judgment entry that it relied exclusively upon the legal conclusion in Shelton that “[t]he Defendant cannot be convicted under
{¶6} This appeal involves the interpretation of a statute, which is an issue of law reviewed de novo on appeal without deference to the interpretation of the trial court. State v. Best, 7th Dist. No. 04MA203, 2005-Ohio-4375. The cornerstone of statutory interpretation is legislative intention. State ex rel. Francis v. Sours (1944), 143 Ohio St. 120, 124, 53 N.E.2d 1021, 1023. In order to determine legislative intent it is a cardinal rule of statutory construction that a court must first look to the
{¶7} To determine the intent of the General Assembly ” ‘[i]t is the duty of this court to give effect to the words used [in a statute], not to delete words used or to insert words not used.’ ” (Emphasis omitted.) Bernardini v. Conneaut Area City School Dist. Bd. of Edn. (1979), 58 Ohio St.2d 1, 4, 12 O.O.3d 1, 3, 387 N.E.2d 1222, 1224, quoting Columbus-Suburban Coach Lines v. Pub. Util. Comm. (1969), 20 Ohio St.2d 125, 127, 49 O.O.2d 445, 446, 254 N.E.2d 8, 9.
{¶8} A court may interpret a statute only where the words of the statute are ambiguous. State ex rel. Celebrezze v. Allen Cty. Bd. of Commrs. (1987), 32 Ohio St.3d 24, 27, 512 N.E.2d 332, 335. Ambiguity exists if the language is susceptible of more than one reasonable interpretation. State ex rel. Toledo Edison Co. v. Clyde (1996), 76 Ohio St.3d 508, 513, 668 N.E.2d 498, 504. If a statute is ambiguous, the court, in determining the intent of the General Assembly, may consider several factors, including the object sought to be obtained, the legislative history, and other laws upon the same or similar subjects.
{¶9} Statutes defining criminal offenses and penalties are to be strictly construed against the state and liberally in favor of the accused.
{¶10}
{¶11} “(1) Except as provided in division (C)(4) of this section, no person shall sell, at retail, dangerous drugs.
{¶12} “* * *
{¶13} “(4) Divisions (C)(1)* * *of this section [does] not apply to a registered wholesale distributor of dangerous drugs, a licensed terminal distributor of dangerous drugs, or a person who possesses, or possesses for sale or sells, at retail, a dangerous drug in accordance with Chapters 3719., 4715., 4723., 4725., 4729., 4730., 4731., and 4741. of the Revised Code.”
{¶14} Chapter 3719. of the code is captioned “Controlled Substances,” Chapter 4715 is captioned “Dentists,” Chapter 4723. is captioned “Nurses,” Chapter 4725. is captioned “Optometrists/Dispensing Opticians,” Chapter 4729. is captioned “Pharmacists/Dangerous Drugs,” Chapter 4730. is captioned “Physician Assistants,” Chapter 4731. is captioned “Physicians/Limited Practitioners,” and Chapter 4741. is captioned “Veterinarians.”
{¶16} As a matter of initial concern, the state argues that the trial court “stepped beyond the bounds of the criminal procedure rules” when it concluded that Appellee was a licensed terminal distributor of dangerous drugs. (Appellant‘s Brf., p. 14.) According to the state‘s argument, in order to be a licensed terminal distributor of dangerous drugs, a person must act in compliance with revised code chapters listed in
{¶17} The current version of the statute,
{¶18} ” ‘Terminal distributor of dangerous drugs’ means a person who is engaged in the sale of dangerous drugs at retail, or any person, other than a wholesale distributor or a pharmacist, who has possession, custody, or control of dangerous drugs for any purpose other than for that person‘s own use and
consumption, and includes pharmacies, hospitals, nursing homes, and laboratories and all other persons who procure dangerous drugs for sale or other distribution by or under the supervision of a pharmacist or licensed health professional authorized to prescribe drugs.”
{¶19} The state‘s licensing of terminal distributors of dangerous drugs is governed by
{¶20} The trial court dismissed the indictment based on the conclusion that the statute exempts licensed terminal distributors of dangerous drugs from any criminal liability under the dangerous drug statute regardless of their compliance or lack thereof with Ohio laws and regulations governing the distribution of dangerous drugs. The state argues that
{¶21} Appellee is charged in each count of the indictment with acting in contravention of
{¶22} The trial court‘s interpretation of the statute is grounded in the presumption that the phrase “in accordance with” modifies only the third group of exempt individuals. In other words, according to the trial court, an individual is exempted from criminal liability under the statute if he or she is (1) “a registered wholesale distributor of dangerous drugs“; (2) “a licensed terminal distributor of dangerous drugs“; or (3) “a person who possesses, or possesses for sale or sells, at retail, a dangerous drug in accordance with Chapters 3719., 4715., 4723., 4725., 4729., 4730., 4731., and 4741. of the Revised Code.”
{¶23} The Shelton Court adopted the same interpretation of the statute:
{¶24} ”
R.C. 4729.51(C) specifically lists three categories; the statute could have easily stated, since the entire provision relates to retail sales, that it does not apply to all persons who sell ‘in accordance’ with the Revised Code (the third category). Rather, it exempted three distinct groups and the Defendant is included in them.” Id. at 3.
{¶25} The state argues that the trial court‘s interpretation of the statute is incorrect because it would be patently unreasonable to exempt from criminal liability a registered wholesale distributor or a licensed terminal distributor of dangerous drugs who is not acting in accordance with the very laws and regulations that authorize the distribution of dangerous drugs.
{¶27} The foregoing interpretation of
{¶29} On appeal, Sway argued that he could not be charged with drug trafficking, because statutes and regulations governing the conduct of licensed health professionals, specifically
{¶30} Appellee contends, in an argument similar to the defendant in Sway, that the state‘s interpretation of the dangerous drug statute, “ignores the entire body of Ohio administrative law enacted and promulgated by the Ohio Pharmaceutical Board to account for such agency intent, and further ignores that a readily available
{¶31} However, the Ohio Supreme Court clearly rejected the notion that the state is limited to civil penalties for drug crimes in Sway. In response to the argument that the physician in that case was not criminally liable for drug trafficking because he sold prescriptions rather than narcotic drugs, the Supreme Court stated, “[i]t is contrary to the dictates of public policy to claim that the General Assembly did not intend to exercise some degree of restraint in
{¶32} In response to the argument that the drug trafficking statute at issue in Sway was sufficiently ambiguous such that it must be strictly construed against the state, the Ohio Supreme Court, recognizing the practical limitations of the canon, held:
{¶33} ”
R.C. 2925.03 demonstrates a clear legislative intent to prohibit the unlawful commerce of controlled substances. The statute criminalizes participation at all levels of the commerce of illicit drugs. Patterson, supra. In cases such as the one before us, the unlawful commerce of drugs begins at the physician‘s doorstep. The unlawful prescription plays a principal part in the distribution of narcotic drugs.{¶34} “We do not believe the statute was intended to place immunity on a registered physician who sells a prescription to satisfy the craving of one addicted to the drug. A physician who flagrantly disregards his sworn professional obligation by allowing large quantities of dangerous drugs to enter illicit channels is no less a criminal than the layperson on the street who sells the same.” Id. at 116.
{¶35} Based on the foregoing analysis of the legislative intent behind
{¶36} In fact, Appellee has not articulated any reason that dangerous drugs should be treated differently than controlled substances, but for his counsel‘s assertion at oral argument that no individual would become a pharmacist if he or she knew that they could face criminal liability for dispensing drugs. It is clear from the body of caselaw that has developed under
{¶37} Finally, Appellee asserts that he is immune from prosecution pursuant to
{¶38} The Ohio Supreme Court agreed, holding that, “the state bears the burden of proving beyond a reasonable doubt the inapplicability of the licensed health-professional exception in
{¶39} The Nuckols Court cited Sway as controlling authority, and wrote in dicta, “[w]e do not believe that the General Assembly intended to criminalize legitimate medical treatment. Rather, we believe that the General Assembly consciously avoided such an absurd result by stating that trafficking in drugs ‘does not apply’ to licensed health professionals who comply with applicable statutory or regulatory requirements.” (Emphasis added.) Id. at ¶19
{¶40} The same is true here. Admittedly, the statute, like the controlled substances statute, may be seen as susceptible to an unreasonable interpretation that would result in absolute immunity from criminal prosecution for licensed terminal distributors of dangerous drugs, regardless of whether the individual has knowingly
{¶41} Based upon the Ohio Supreme Court‘s holding in Sway, two appellate courts have held that pharmacists can be charged with drug trafficking. State v. Friedman (1991), 70 Ohio App.3d 262, 590 N.E.2d 909; State v. Poleyeff (May 13, 1993), 8th Dist. Nos. 62319, 62320. In Freidman, a pharmacist, who had filled prescriptions for Demerol for a paraplegic with longstanding medical problems for approximately ten years, was charged with drug trafficking when he filled three Demerol prescriptions for which the amount had been forged by the customer. Freidman at 263. In Poleyeff, a retired pharmacist, who worked two days a week to supplement his retirement income, was charged with drug trafficking after he filled thirty-six prescriptions for Desoxyn, an amphetamine prescribed for weight loss, for fifteen different patients over the course of two years. Poleyeff at *1. In Poleyeff, the state relied upon expert testimony that very few doctors prescribed Desoxyn due to its potential for abuse, and that prescribing the drug for more than six to eight weeks fell below medical standards. Id. at *2. Based upon federal caselaw, experts further testified that a pharmacist has a “corresponding responsibility” to fill prescriptions only in the course of legitimate medical treatment. Id.
{¶42} The Friedman Court reasoned that the legislature did not intend for every technical violation of a provision in Chapter 4729 or of a regulation passed pursuant to
{¶43} “[A] pharmacist may be convicted for trafficking in drugs only where the pharmacist‘s conduct is so egregious that the dispensing of controlled substances is ‘not in the course of bona fide treatment of a patient.’ ... At a minimum, a pharmacist would have to be shown to have willfully and knowingly filled prescriptions which were false or forged, as barred by
R.C. 4729.16(C)(3) .” Poleyeff at *2, quoting with favor Friedman at 267.
{¶44} In summary, the only reasonable reading of the dangerous drug statute supports the conclusion that all of the exempt classes of individuals listed in
Vukovich, P.J., concurs.
DeGenaro, J., concurs.