             OPINIONS OF THE SUPREME COURT OF OHIO
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     The State of Ohio, Appellant, v. McCarthy, Appellee.
     [Cite as State v. McCarthy (1992),     Ohio St.3d     .]
Criminal law -- Prosecution of physician for alleged violations
     of R.C. Chapter 2925 -- Trial court commits reversible
     error when it refuses to give requested jury instruction
     that permits jury to consider physician's subjective state
     of mind, as well as objective criteria, in determining
     whether physician's actions were performed in bona fide
     treatment of patient -- R.C. 2925.03(B), construed.
In the prosecution of a physician for alleged violations of R.C.
     Chapter 2925, a trial court commits reversible error when
     it refuses to give a requested jury instruction that
     permits the jury to consider the physician's subjective
     state of mind, as well as objective criteria, in
     determining whether the physician's actions were performed
     in the course of the bona fide treatment of a patient.
     (R.C. 2925.03[B], construed; State v. Sway [1984], 15 Ohio
     St.3d 112, 15 OBR 265, 472 N.E.2d 1065, followed.)
     (No. 91-2132 -- Submitted October 14, 1992 -- Decided
December 31, 1992.)
     Appeal from the Court of Appeals for Montgomery County,
No. 12123.
     Defendant-appellee, Thomas H. McCarthy, is a doctor of
osteopathy with an office in Dayton. On August 22, 1989,
defendant was indicted by the grand jury on fifty counts of
aggravated trafficking in drugs (R.C. 2925.03), three hundred
seventy-seven counts of trafficking in drugs (R.C. 2925.03),
thirty-five counts of illegal processing of a drug document
(R.C. 2925.23), one count of corrupting another with drugs
(R.C. 2925.02), and one count of engaging in a pattern of
corrupt activity (R.C. 2925.02).
     On November 14, 1989, a second indictment charged
defendant with an additional thirteen counts of trafficking in
drugs, one count of illegal processing of a drug document, and
three more counts of corrupting another with drugs.
     The indictments charged that defendant improperly
prescribed and dispensed Ritalin (Schedule II drug); Didrex and
UMI-STAT (Schedule III drugs); Adipex-P and Ionamin (Schedule
IV drugs).
     A jury trial was held wherein defendant testified that he
had prescribed drugs as diet medication for weight loss in
addition to any diet and exercise programs he had recommended
to his patients. Sometime during the trial, the court held a
conference in chambers with counsel for the parties to discuss
the jury charge. One of the issues discussed was defendant's
proposal that the jury be provided with a definition of "bona
fide" in the context of whether defendant's prescribing of
drugs was for the bona fide treatment of a patient.1 The court
refused to instruct the jury on a definition of "bona fide"
because it believed that such an instruction would tend to
mislead the jury.2
     The jury found defendant guilty of fifty counts of
aggravated trafficking, two hundred sixty-one counts of
trafficking, twenty-five counts of illegal processing of drug
documents, and two counts of corrupting another with drugs.
Defendant was acquitted on all other charges.
     On March 12, 1990, prior to sentencing, the trial court
declined to enter judgment of conviction on the counts relating
to illegal processing of drug documents on the ground that they
were allied offenses of similar import to some of the
trafficking convictions. In addition, the trial court
dismissed thirteen of the trafficking counts upon partial
granting of defendant's motion for a mistrial as to those
counts. Subsequently, defendant was fined and sentenced with
respect to the remaining counts upon which he was convicted.
     Upon appeal, the court of appeals reversed and discharged
defendant on the two counts of corrupting another with drugs,
and reversed and remanded as to the remaining counts. The
appellate court noted the trial court's reliance on State v.
Sway (1984), 15 Ohio St.3d 112, 15 OBR 265, 472 N.E.2d 1065,
and concluded that the jury instructions given were
unsatisfactory:
     "The trial court closely followed Sway in formulating its
charge on the definition of bona fide. The trial court
instructed the jury to consider the applicable statutes and
rules for purposes of assessing whether McCarthy's prescribing
practices were bona fide. The trial court cautioned the jury
that a violation of the statutes and rules alone did not
warrant the loss of the exemption because the State had to
prove every element of the offense. Notwithstanding this
caveat, the instruction was nevertheless, in our judgment, too
restrictive. The instruction limited the determination of bona
fide treatment solely to the consideration of whether McCarthy
complied with the statutes and rules, and whether the State had
otherwise proved the essential elements of the offenses. Thus,
the instruction allowed the jury to conclude that any deviation
from the cited statutes and rules, no matter how slight, would
have amounted to a lack of bona fide medical treatment
sufficient to negate the exemption, and to impose criminal
liability.
     "Clearly, evidence that a physician has prescribed or
dispenses controlled substances in a manner contrary to
regulations enacted pursuant to R.C. Chapter 3719 and 4731 is
evidence tending to establish a lack of bona fide treatment.
In our view, however, a slight deviation from those regulations
would not necessarily warrant the severe consequence of
criminal liability, and that under Sway, the jury must consider
the subjective state of mind of a physician charged with
violating Chapter 2925. McCarthy's proposed definition of
'bona fide' would have allowed the jury to do so. Refusing to
define 'bona fide' had the opposite effect.
     "We thus conclude that McCarthy's proposed instruction
defining 'bona fide' contained an accurate, and necessary,
statement of the law, and, therefore, should have been included
in the court's charge to the jury."
     The cause is now before this court pursuant to the
allowance of a motion for leave to appeal.

     Lee C. Falke, Prosecuting Attorney, and Lorine M. Reid,
Assistant Prosecuting Attorney, for appellant.
     Flanagan, Lieberman, Hoffman & Swaim, Dennis A. Lieberman
and Richard Hempfling, for appellee.
     Ronald L. Collins, Tuscarawas County Prosecuting Attorney,
urging reversal for amicus curiae, Ohio Prosecuting Attorneys'
Association.
     Gold, Rotatori, Schwartz & Gibbons Co., L.P.A., and John
S. Pyle, urging affirmance for amicus curiae, Ohio Association
of Criminal Defense Lawyers.

      A. William Sweeney, J.   The crucial issue posed in this
appeal is whether the trial court erred to the prejudice of
defendant in refusing to provide the jury with a definition of
"bona fide" in determining whether any of defendant's actions
were performed in the course of the bona fide treatment of a
patient. Since we believe the trial court erred in refusing to
provide the jury with a definition of "bona fide," we affirm
the judgment of the court of appeals below.
      The version of R.C. 2925.03 applicable to this action
provided in relevant part:
      "(B) This section does not apply to manufacturers,
practitioners, pharmacists, owners of pharmacies, and other
persons whose conduct is in accordance with Chapters 3719.,
4715., 4729., 4731., and 4741. of the Revised Code." (Now
renumbered R.C. 2925.03[B][1].)
      In State v. Sway (1984), 15 Ohio St.3d 112, 15 OBR 265,
472 N.E.2d 1065, this court held in the syllabus:
      "A physician who unlawfully issues a prescription for a
controlled substance not in the course of the bona fide
treatment of a patient is guilty of selling a controlled
substance in violation of R.C. 2925.03."
      The plaintiff-appellant, state of Ohio, argues that the
term "bona fide" is in general usage and that its overall
definition is known to the average layperson. The state
contends that in determining whether the conduct of a physician
constitutes bona fide medical treatment, the jury must not
consider the physician's subjective state of mind, but rather
it must consider whether the physician's conduct was in
accordance with the standards of medical practice established
by regulations set forth in, inter alia, R.C. Chapters 3719 and
4731.
      Defendant and amicus, Ohio Association of Criminal Defense
Lawyers, essentially argue that under this court's decision in
Sway, supra, a jury instruction in a prosecution of a
physician-practitioner for alleged violations of R.C. Chapter
2925 should focus the jury's attention on the physician's
subjective state of mind as well as objective criteria in order
to determine whether a physician's actions were performed in
the course of the bona fide treatment of a patient.
     In Cincinnati v. Epperson (1969), 20 Ohio St.2d 59, 49
O.O.2d 342, 253 N.E.2d 785, this court held in the first
paragraph of the syllabus:
     "In a criminal case, if requested special instructions to
the jury are correct, pertinent and timely presented, they must
be included, at least in substance, in the general charge.
(State v. Barron, 170 Ohio St. 267 [10 O.O.2d 299, 164 N.E.2d
409], followed.)" Accord State v. Nelson (1973), 36 Ohio St.2d
79, 65 O.O.2d 222, 303 N.E.2d 865, paragraph one of the
syllabus. See, also, State v. Comen (1990), 50 Ohio St.3d 206,
553 N.E.2d 640.
     In our view, the court of appeals below was correct in
holding that the trial court erred in not instructing the jury
on the meaning of "bona fide," because defendant's proposed
instruction, as set forth in footnote 1, satisfied the
requirements of Epperson, supra, and other like precedents.
Moreover, the trial court's charge to the jury, as set forth in
footnote 2, was unsatisfactory because it required the jury to
limit its inquiry to simply whether defendant had complied with
the statutes and rules regulating the conduct of physicians in
prescribing or dispensing controlled substances.
     Defendant's proposed instruction on the definition of
"bona fide," on the other hand, would have led the jury to
consider defendant's subjective state of mind, i.e., his
intent, in determining whether his actions constituted criminal
conduct under the law. The statutory scheme of R.C. Chapter
2925 does not and cannot make mere negligence in the
prescribing of drugs a crime. Criminal intent must be shown in
order to support a conviction thereunder. Thus, we reject the
state's argument that a physician's subjective state of mind is
largely irrelevant in determining whether a physician's actions
occurred in the course of the bona fide treatment of a patient.
     Likewise, we reject the state's assertion that the term
"bona fide" needs no elucidation or definition in a criminal
prosecution under R.C. Chapter 2925. Given our holding in
Sway, supra, and in light of the statutes and rules governing a
physician-practioner's conduct in the prescribing and
dispensing of controlled substances, we find the term "bona
fide" in this context to be akin to such legally important
terms as "knowingly," "intentionally" or "purposely," which are
otherwise familiar to lay persons, but which are also
universally defined in jury instructions in criminal
prosecutions throughout the country.
     Our holding herein parallels those decisions from other
jurisdictions which have held that a physician-practitioner's
subjective state of mind must be shown, where the prosecution
attempts to prove that the prescription of controlled
substances goes beyond the realm of legitimate medical
treatment into the area of criminal conduct. See, e.g., People
v. Downes (1975), 394 Mich. 17, 228 N.W.2d 212 (physician);
Commonwealth v. Comins (1976), 371 Mass. 222, 356 N.E.2d 241
(osteopath); and State v. Young (1991), 185 W.Va. 327, 406
S.E.2d 758 (dentist).
     In addition, standardized federal jury instructions
contain a good-faith test applicable in federal prosecutions of
physicians brought under Section 841(a)(1), Title 21,
U.S.Code. See Sand, Siffert, Loughlin & Reiss, 2 Modern
Federal Jury Instructions (1992) 56-43 and 56-48, Instructions
56-19 and 56-20, Paragraph 56.02.
     Consequently, inasmuch as the trial court did not charge
the jury with the proposed instruction proffered by defendant,
which would have permitted the jury to consider defendant's
subjective state of mind in considering the criminality, or
lack thereof, of defendant's conduct, the court of appeals
correctly reversed the multiple convictions rendered against
defendant.
     Based on all the foregoing, we adhere to our prior
decision in Sway, supra, and construe the exemption for
physician-practitioners set forth in R.C. 2925.03(B), by
holding that in the prosecution of a physician for alleged
violations of R.C. Chapter 2925, a trial court commits
reversible error when it refuses to give a requested jury
instruction that permits the jury to consider a physician's
subjective state of mind, as well as objective criteria, in
determining whether the physician's actions were performed in
the course of the bona fide treatment of a patient.
     Accordingly, the judgment of the court of appeals is
hereby affirmed.
                                    Judgment affirmed.
     Moyer, C.J., Douglas and H. Brown, JJ., concur.
     Holmes, Wright and Resnick, JJ., dissent.

FOOTNOTES:
     1 Defendant's "Proposed Jury Instruction No. 20"
contained a request that the trial court give the following
definition: "'Bona fide' means in or with good faith;
honestly, openly, and sincerely; without deceit or fraud."
     As pointed out by the court of appeals below, defendant's
definition of "bona fide" comports with the commonly accepted
definition of the term as found in Black's Law Dictionary.
     2 In this context, the trial court instructed the jury in
pertinent part as follows:
     "Let's begin with the area of trafficking and aggravated
trafficking. The defendant is charged with several counts of
trafficking in drugs and aggravated trafficking in drugs.
     "A physician who lawfully prescribes or dispenses a
controlled substance in the course of the bona fide treatment
of a patient is exempt from the provisions of law concerning
trafficking and aggravated trafficking in drugs. But a
physician who unlawfully prescribes or dispenses a controlled
substance not in the course of bona fide treatment of a patient
is guilty of selling a controlled substance in violation of the
provisions of law concerning trafficking and aggravated
trafficking in drugs.
     "Now, before you can find the defendant guilty of any such
charge, you must find beyond a reasonable doubt that on or
about the date specified in such charge--and at a later time I
will go over with you the aspect of the multiple counts of
these charges; for now, I am reading this to you in a general
form--that on or about the date specified in such charge and in
Montgomery County, Ohio, the defendant knowingly sold the
controlled substance specified in such charge in the bulk
amount specified in such charge and that such sale was not in
the course of the bona fide treatment of a patient.
     "***
     "In the course of a bona fide treatment of a patient.
[Sic.] For purposes of determining whether the defendant was
or was not acting in the course of the bona fide treatment of a
patient, the following statutes and rules regulating the
conduct of physicians may be used, but this phrase is only one
element of the crimes of trafficking in drugs and aggravated
trafficking in drugs.
     "If a physician does not act in accordance with such
statutes or rules, that fact alone does not necessarily mean
that the physician has lost his exemption for the provision of
the law concerning trafficking in drugs or aggravated
trafficking in drugs. The defendant must be acquitted unless
the State produces evidence which convinces you beyond a
reasonable doubt of every essential element of the crimes of
trafficking in drugs and aggravated trafficking in drugs. ***"

     Wright, J., dissenting.   This case involves a narrow
issue of statutory interpretation: whether a physician can be
exempt from criminal liability for drug trafficking if he or
she prescribes a controlled substance in subjective "good
faith." Because the plain language of R.C. 2925.03(B)(1)
exempts physicians from criminal liability only if they act "in
accordance with" objective requirements set forth in specific
sections of the Revised Code and the Ohio Administrative Code,
I would hold that a physician's subjective "good faith" is not
sufficient to entitle him or her to the statutory exemption.
Therefore, I dissent from the majority's conclusion that the
jury should have been permitted to consider McCarthy's
subjective state of mind.
     R.C. 2925.03(A) prohibits the sale of controlled
substances. R.C. 2925.03(B)(1) creates a specific exemption to
that general prohibition for physicians acting in the course of
their practice. It provides in part:
     "(B) This section does not apply to the following:
(1) Manufacturers, practitioners, pharmacists, owners of
pharmacies, and other persons whose conduct is in accordance
with Chapters 3719. *** and 4731. *** of the Revised Code
***[.]"3 (Emphasis added.)
     R.C. Chapters 3719 and 4731, along with Ohio Adm. Code
Chapter 4731-11, in part govern the dispensation of drugs by
physicians. Ohio Administrative Code Chapter 4731-11 is
particularly important because it deals specifically with
controlled substances. These statutes and regulations create a
series of procedural requirements physicians must satisfy
before they are permitted to prescribe controlled substances.
In State v. Sway (1984), 15 Ohio St.3d 112, 15 OBR 265, 472
N.E.2d 1065, the court considered R.C. 2925.03 as applied to a
physician. The court looked specifically at the physician's
exemption in R.C. 2925.03(B)(1). Justice Holmes, for a
unanimous court, wrote: "*** [W]e believe that if a physician
does not act in accordance with such regulations [R.C. Chapters
3719 and 4731] he is subject to criminal liability under R.C.
2925.03(A) when his actions fall therein. It is patently clear
from the facts presented that Dr. Sway did not conform to the
directives specifically set forth in R.C. 4731.22 ***. Thus,
we are unable to find any statutory provision which would
preclude us from finding appellee liable under R.C.
2925.03(A)." Sway, 15 Ohio St.3d at 114, 15 OBR at 267, 472
N.E.2d at 1067. Later in the opinion this statement was
capsulized by the court in holding that physicians are
criminally liable for selling controlled substances if the sale
is "not in the course of the bona fide treatment of a
patient." Id. at 115, 15 OBR at 268-269, 472 N.E.2d at 1068.
     At the core of today's case is a dispute over the proper
definition of the term "bona fide," as used in Sway. There
appear to be two alternatives: "good faith," as argued by
McCarthy, and "in accordance with" R.C. Chapters 3719 and 4731
as stated in R.C. 2925.03(B)(1).
     McCarthy argued and the court of appeals below agreed that
"bona fide" means "good faith" and the jury must be instructed
that a doctor cannot be convicted of violating R.C. 2925.03 if
his or her treatment was in good faith. In its opinion, the
court of appeals admittedly read Sway's holding expansively.
It believed that Sway meant "that a physician loses the
exemption when he prescribes controlled substances for purposes
other than bona fide treatment," and that "bona fide"
necessarily means "good faith." I disagree.
     Although "bona fide" is often understood to mean "good
faith," neither Sway nor R.C. 2925.03(B)(1) mandates a "good
faith" standard for the physician's exemption. The plain
language of R.C. 2925.03(B)(1) states that a physician is only
exempt from criminal liability if he or she acts "in accordance
with" R.C. Chapters 3719 and 4731 when prescribing or
dispensing controlled substances. These statutes and the
attendant regulations in Ohio Adm. Code Chapter 4731-11 are
simple and clear: they require physicians to maintain proper
records; take certain precautions; and act, in short, as
reasonable physicians would in the same circumstances. These
black and white requirements protect legitimate doctors from
reproach and protect society from illegitimate doctors who
would use their positions to distribute controlled substances
with impunity. The existence of objective criteria makes the
line between legitimate treatment and drug trafficking very
easy for both physicians and officials in the criminal justice
system to discern. Because objective criteria are so
desirable, nowhere in R.C. Chapters 3719 and 4731, or in Ohio
Adm. Code Chapter 4731-11, is there stated a good faith
standard for prescribing controlled substances. The General
Assembly wisely decided that the subjective intent of a
physician prescribing controlled substances is not relevant in
determining whether a physician's actions are in accord with
the law.
     Sway is not inconsistent with the plain language of R.C.
2925.03(B)(1). I read the holding of Sway to equate the term
"bona fide" to this statutory provision that physicians must
act "in accordance with" R.C. Chapters 3719 and 4731. I do not
accept the majority's conclusion that "bona fide" in all
circumstances means "good faith" because this conclusion
ignores the statute's plain language.
     The instructions given to the jury in this case were
correct. Holding a physician to an objective professional
standard rather than a subjective "good faith" standard does
not, as McCarthy argued, undermine the mens rea requirement of
drug trafficking. The state still must prove that the
defendant knowingly and intentionally sold illegal drugs.
Moreover, the state must prove beyond a reasonable doubt that
the defendant-physician knowingly sold those drugs without
complying with the statutes and regulations which define
professional conduct.
     Accordingly, I would reverse the court of appeals and
reinstate McCarthy's convictions.
     Holmes and Resnick, JJ., concur in the foregoing
dissenting opinion.

FOOTNOTE:
     3 Of the four Revised Code chapters specified in R.C.
2925.03(B)(1), only Chapters 3719 and 4731 apply to
physicians.
