I dissent from the principal opinion's treatment of the first assignment of error and concur in judgment on the second assignment of error as set forth more fully below.
Appellant's first assignment of error asserts that the trial court erred in instructing the jury on the definition of "prescription" and "false." Appellant contends that the court's instructions on these two terms "constructively amended" the indictment to reflect a violation of R.C. 2925.23(B)(1). However, both terms defined by the trial court are contained in the pertinent statutory provision, i.e., R.C. 2925.23(B)(2). Moreover, the definitions given comport with both R.C.3719.01(CC) and relevant case law. Black, supra; State v.Gotsis (1984), 13 Ohio App.3d 282, 13 OBR 346, 469 N.E.2d 548. Accordingly, I am unpersuaded that the court below committed error in its instructions, and appellant's first assignment of error should be overruled.
I agree that the trial court erred in overruling appellant's Crim.R. 29 motions for acquittal, but for somewhat different reasons than those expressed in the principal opinion. While I agree that Black is distinguishable *Page 811 in part because some of the prescriptions there were issued to nonpatients, I believe the decision in Black was correct but premised upon an improper rationale. The prescriptions inBlack which were issued to Mrs. Pringle were false in that they implied that the drugs were needed for medical treatment, when, in fact, they were prescribed to satisfy a physical addiction. In the case before us, there is no dispute that the prescriptions were for treatment of actual medical conditions for actual patients. Nor does the evidence indicate that Dr. Williams was patently overprescribing medication. What is complained of is the manner of the issuance of the prescriptions.
In my opinion, Dr. Williams' improper medical practice does not rise to the level of making a false prescription or uncompleted prescription blank. In support of this position is R.C. 3719.06, which specifically addresses the procedure of how to properly issue a prescription.1 R.C. 3719.06(A) states in part:
"(A) * * * Each written prescription shall be dated and signed by the practitioner prescribing on the day when issued and shall bear the full name and address of the person for whom the controlled substance is prescribed and the full name, address, and registry number under the federal drug abuse control laws of the person prescribing."
Failure to comply with this section is a misdemeanor. See R.C. 3719.99.
I agree with the principal opinion that R.C. 2925.23 is designed, in part, to prevent a doctor from "pushing drugs." It is not designed to regulate the procedure for practicing medicine. While appellant undoubtedly was not following appropriate standards of professional conduct, nor complying with R.C. 3719.06, or Ohio Adm. Code 4529-5-30, I am not convinced his conduct resulted in making false prescriptions/blanks. While Williams may have been subject to administrative action such as suspension or revocation of his license, as well as misdemeanor prosecution under R.C. 3719.06, we must address the sufficiency of the state's evidence to support a conviction under R.C. 2925.23(B)(2). Because I do not agree that actions that are outside the scope of professional conduct are, per se, false or criminal in nature, I concur in sustaining the second assignment of error under the standard set forth in State v. Jenks (1991), 61 Ohio St.3d 259,574 N.E.2d 492.
In conclusion, had Williams been charged with prescribing drugs for an individual who was not a patient, or for a patient who did not have a condition, or for a patient with a condition but in patently improper quantities, he would *Page 812 be subject to the provisions of R.C. 2925.23. These actions would be false because they intentionally misstate a medical need, not simply because they are outside the scope of professional conduct.
1 Appellant does not raise the issue of the application of a special provision (R.C. 3719.06) over a general provision (R.C.2925.23) on appeal. See State v. Chippendale (1990), 52 Ohio St.3d 118, 556 N.E.2d 1134. Accordingly, we need not address this issue.