THE STATE OF OHIO, APPELLANT, v. MASSIEN, APPELLEE.
No. 2009-0825
Supreme Court of Ohio
Submitted January 12, 2010—Decided May 5, 2010
[Cite as State v. Massien, 125 Ohio St.3d 204, 2010-Ohio-1864.]
Sherry Bevan Walsh, Summit County Prosecuting Attorney, and Heaven DiMartino, Assistant Prosecuting Attorney, for appellee.
David L. Doughten and George C. Pappas, for appellant.
{¶ 1} We are called upon solely to determine whether a nurse emрloyed by a hospital who in the course of his or her employment steals drugs from his or her employer holds a “position of trust” within the meaning of
{¶ 2} A person holding a “position of trust” for the purpose of
Relevant Background
{¶ 3} On May 16, 2008, appellee, Sally Massien, was indicted on two counts of theft of drugs, in violation of
{¶ 4} In July 2008, the trial court held a hearing and determined that Massien was eligible for ILC. As required by the ILC statute, Massien retracted her initial plea and pleaded guilty to the charges. The court ordered Massien to one year of rehabilitation.1
{¶ 5} The state appealed the trial сourt’s decision granting Massien ILC to the Ninth District Court of Appeals, which affirmed the trial court and held that Massien did not occupy a position of trust by virtue of her position as a nurse at the hospital from which she stole the drugs. State v. Massien, Summit App. No. 24369, 2009-Ohio-1521, 2009 WL 826410, ¶ 17-19. The state moved the Ninth District to certify a conflict between its decision in this case and the Tenth District’s decision in State v. France, Franklin App. No. 04AP-1124, 2006-Ohio-1204, 2006 WL 648858. In France, the Tenth District held that a nurse entrusted with the care of and duty to dispense highly regulated substances indicted for theft of narcotics in the course of her employment at a hospital occupied a position of trust that related to the offense and was not eligible for ILC. Id. at ¶ 11-12.
{¶ 6} The Ninth District granted the state’s motion and certified the following issue: “Whether a nurse employed by a hospital who in the course of her employment steals drugs from the hospital holds a ‘position of trust’ under
Analysis
Felony-Sentencing Considerations
{¶ 7} In enacting the felony-sentencing guidelines, the General Assembly declared: “The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender. To
{¶ 8} Consistent with the sentencing principles set forth in
Intervention in Lieu of Conviction
{¶ 9} ILC is a statutory creation that allows a trial court to stay a criminal proceeding and order an offender to a period of rehabilitation if the court has reason to believe that drug or alcohol usage was a factor leading to the offense.
{¶ 10} “In enacting
{¶ 11}
R.C. 2929.13(B)(1)(d)
{¶ 12} One sentencing factor that a trial court must consider pursuant to
{¶ 13} The state argues that Massien, as a nurse employed at a hospital who had access to highly regulated drugs, held a “position of trust” under
The Phrase “Position of Trust” Is Ambiguous
{¶ 14}
{¶ 15} On the other hand, in State v. Jones, the Second District held that
{¶ 16} The First District adopted a third approach, noting that “unrestrained application of the phrase to every breach of ethical, moral, or filial duty by a private individual may distort the purpose of the new sentencing guidelines.” State v. Brewer (Nov. 24, 2000), Hamilton App. No. C-000148, 2000 WL 1732335,
{¶ 17} In this case, the Ninth District essentially adopted the First District’s limited interpretation of
{¶ 18} “When a statute is subject to varying interpretations, it is ambiguous and we must construe it in a manner that carries out the intent of the Genеral Assembly.” Sheet Metal Workers’ Internatl. Assn., Local Union No. 33 v. Gene’s Refrigeration, Heating & Air Conditioning, Inc., 122 Ohio St.3d 248, 2009-Ohio-2747, 910 N.E.2d 444, ¶ 29. In construing an ambiguous statute, among other considerations, we look to the language of the statute, the circumstances under which the statute was enacted, and the consequences of a particular construction. Id. Having considered the language of
A “Position of Trust” Under R.C. 2929.13(B)(1)(d) Is Not Limited to Public Officials
{¶ 19}
{¶ 20} By including the phrase “position of trust in the community,” the legislature reveals its intent that
The Phrаse “Position of Trust” Applies to Private Individuals Who Occupy Fiduciary Relationships
{¶ 21} By including the phrase “position of trust” in
{¶ 22} The language of
{¶ 23} “(a) In committing the offense, the offender caused physical harm to a person.
{¶ 24} “(b) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person with a deadly weapon.
{¶ 25} “(c) In committing the offense, the offender attempted to cause or made an actual threat of physical harm to a person, and the offender previously was convictеd of an offense that caused physical harm to a person.
{¶ 26} “(d) The offender held a public office or position of trust and the offense related to that office or position; the offender’s position obliged the offender to prevent the offense or to bring those committing it to justice; or the offender’s professional reputation or position facilitated the offense or was likely to influence the future conduct of others.
{¶ 27} “(e) The offender committed the offense for hire or as part of an organized criminal activity.
{¶ 28} “(f) The offense is a sex offense that is a fourth or fifth degree felony violatiоn of [certain enumerated statutes].
{¶ 29} “(g) The offender at the time of the offense was serving, or the offender previously had served, a prison term.
{¶ 30} “(h) The offender committed the offense while under a community control sanction, while on probation, or while released from custody on a bond or personal recognizance.
{¶ 31} “(i) The offender committed the offense while in possession of a firearm.”
{¶ 32} Each sentencing factor crafted by the legislature applies to a narrow aggravating circumstance that may justify the imposition of a prison sentence rather than the preferred community control for fоurth- and fifth-degree felonies. Each sentencing factor involves a specific, well-defined circumstance. In the same vein,
{¶ 33} Interpreting “position of trust” so brоadly as to eliminate the preference for community control and render an offender categorically ineligible for ILC based upon a finding that the offender, as a private individual, breached any moral, ethical, or filial duty is not consistent with the remaining sentencing factors in
{¶ 34} Given the narrow application of the sentencing factors identified in
A Nurse Employed in a Hospital Is Not a Fiduciary of His or Her Employer
{¶ 35} “ ‘A “fiduciary relationship” is one in which special confidence and trust is reposed in the integrity and fidelity of another and there is a resulting position of superiority or influence, acquired by virtue of this special trust.’ ” Stone v. Davis (1981), 66 Ohio St.2d 74, 78, 20 O.O.3d 64, 419 N.E.2d 1094, quoting In re Termination of Pratt, 40 Ohio St.2d at 115, 69 O.O.2d 512, 321 N.E.2d 603. “ ‘A “fiduciary” has been defined as “a person having a duty, created by his undertaking, to act primarily for the benefit of another in matters connected with his undertaking.” ’ ” (Emphasis sic.) Strock v. Pressnell (1988), 38 Ohio St.3d 207, 216, 527 N.E.2d 1235, quoting Haluka v. Baker (1941), 66 Ohio App. 308, 312, 20 O.O. 136, 34 N.E.2d 68, quoting 1 Restatement of the Law, Agency (1933), Section 13, Comment a. “A fiduciary relationship need not be created by contract; it may arise out of an informal relationship where both parties understand that a special trust or confidence has been reposed.” Stone, 66 Ohio St.2d at 78, 20 O.O.3d 64, 419 N.E.2d 1094.
{¶ 36} The record does not establish that Massien breached a duty of trust to any patient or that any patient was harmed as a result of her actions. Rather, because the alleged “position of trust” is born of Massien’s employment with the
{¶ 37} Although some employees may have fiduciary relationships with their employers, “[n]ot all employees are fiduciaries.” Laurel Valley Oil Co. v. 76 Lubricants Co., 154 Ohio App.3d 512, 2003-Ohio-5163, 797 N.E.2d 1033, ¶ 40. A fiduciary relationship requires “ ‘more than the ordinary relationship of employer and employee.’ ” State ex rel. Charlton v. Corrigan (1988), 36 Ohio St.3d 68, 71, 521 N.E.2d 804, quoting In re Termination, 40 Ohio St.2d at 114, 69 O.O.2d 512, 321 N.E.2d 603.4 In determining whether a fiduciary relationship exists between an employee and employer, “emphasis should be placed upon whether the assigned job duties require, as essential qualifications over and above technical competency requirements, a high degree of trust, confidence, reliance, integrity and fidelity.” Charlton at syllabus. Job duties that require a great degree of discretion support the existence of a fiduciary relationship, whereas assigned duties of a routine character do not involve the degree of discretion or trust necessary to be considered a fiduciary. Id. at 71-73, 521 N.E.2d 804. A further consideration involves whether the employee’s responsibility includes “daily discretionary decisions” affecting persons served by the employer that require the employee to be “of higher than normal reliability.” Id. at 73, 521 N.E.2d 804.
{¶ 38} Nurses are persons of “superior knowledge and skill,” who have a duty to their patients to employ the degree of care, skill, and diligence that a nurse of ordinary care should employ in like circumstances. Berdyck v. Shinde (1993), 66 Ohio St.3d 573, 613 N.E.2d 1014, at paragraph three of the syllabus. However, the duty of care imposed by law on a nurse toward his or her patients does not create a fiduciary relationship between the nurse and his or her employer-hospital.
{¶ 39} Further, a nurse’s job duties are not sufficiently discretionary to transform the relationship with his or her employer-hospital into a fiduciary relationship. “The practice of medicine, which includes the diagnosis of an adverse health condition and the prescription of a course of treatment for its management and care, is limited by law to licensed physicians.” Id. at 579, 613 N.E.2d 1014. “Because they are prohibited from practicing medicine, hospitals4
{¶ 40} A nurse occupies a necessary and important supportive role in caring for patients and administering medication. However, as is illustrated by the respective duties of nurses and physicians, discretion relating to the diagnosis and treatment of a patient is statutorily in the hands of the physician, not the nurse. A nurse employed by a hospital does not occupy a position of discretion and, therefore, does not occupy a fiduciary relationship. Because a nurse is not a fiduciary by virtue of his or her employment with a hospital, he or she does not occupy a “position of trust” for the purpose of
Conclusion
{¶ 41} Although a “position of trust” for the purpose of
Judgment affirmed.
PFEIFER, LUNDBERG STRATTON, O’DONNELL, and LANZINGER, JJ., concur.
CUPP, J., concurs in judgment only.
BROWN, C.J., not participating.
{¶ 42} I concur in the judgment; however, my reading of the statute at issue yields a different meaning from that of the majority.
{¶ 43} In my view, the phrase “position of trust” for purposes of
{¶ 44} “(B)(1) Except as provided in division (B)(2), (E), (F), or (G) of this section, in sentencing an offender for a felony of the fourth or fifth degree, the sentencing court shall determine whether any of the following apply:
{¶ 45} “* * *
{¶ 46} “(d) The offender held a public office or position of trust and the offense related to that office or position; the offender’s position obliged the offender to prevent the offense or to bring those committing it to justice; or the offender’s professional reputation or position facilitated the offense or was likely to influence the future conduct of others.” (Emphasis added.)
{¶ 47}
{¶ 48} I do not share the majority’s view that reference to offenders who “held a public office or position of trust in the community” in
{¶ 49} The majority acknowledges that
{¶ 50} When
{¶ 51} Because Massien did not hold a public office or position of trust, she is not within the first category of
Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Richard S. Kasay, Assistant Prosecuting Attorney, for appellant.
Brouse Law Office and Karen H. Brouse, for appellee.