(concurring in part and dissenting in part). I agree with the majority that the defendant’s convictions for Medicaid fraud and larceny should stand, and that his motion to suppress was properly denied. I must respectfully dissent, however, from the portion of the majority opinion that affirms the defendant’s convictions under G. L. c. 94C, §§ 32A(a) and 32B(a). In my view, the express text of G. L. c. 94C, § 1, precludes a ruling that the crimes of dispensing and distributing are interchangeable.1 Massachusetts cases addressing that point directly are in agreement. Here, whether correctly or otherwise, the illegal prescribing indictments were presented to the jury strictly as dispensing charges.2 Unambiguous statutory text and pertinent Massachusetts case law are in accord that dispensing, by defini*86tion, does not occur unless the recipient of the controlled substance belongs to a narrow, statutorily defined, class of people. That requirement may indeed be hypertechnical. It remains, however, an element of the offense presented to the jury. Moreover, as the majority acknowledges, defense counsel assiduously brought this point to the attention of the prosecutor and trial judge.
On appeal, the defendant contends that the evidence at trial was insufficient to prove that those who received the defendant’s supposed prescriptions belonged to the class of people to whom controlled substances have the capacity to be dispensed, and that dispensing therefore had not been proved beyond a reasonable doubt. I agree. The Commonwealth presented no evidence directly on the point, and the evidence that it presented on other points, where relevant, tended to show that the recipients of the defendant’s false prescriptions were not people to whom the delivery of controlled substances would constitute dispensing as that term is defined by statute. Neither the prosecutor nor the judge acknowledged the statutory definition of dispensing, and despite the defendant’s objections the jury were not instructed that the word carried a specialized meaning distinct from that which it has in everyday parlance. For these reasons, I would reverse the illegal prescribing convictions for want of legally sufficient evidence. Even if the evidence were sufficient, I would set aside the verdicts on the illegal prescribing charges and remand for a new trial, as the jury instructions provided in this case omitted an element required to establish the crime of dispensing. See Commonwealth v. Azar, 435 Mass. 675, 689 (2002). In turn, I shall discuss the statutory definition of dispensing and then explain why, in my view, the construction adopted by the majority is inconsistent not only with the text of the statute itself, but also with applicable Massachusetts law.
1. Definition of dispensing. The defendant was charged with violating G. L. c. 94C, §§ 32A and 32B. These sections criminalize all knowing or intentional manufacture, distribution, or dispensation of certain controlled substances, along with the possession of these substances with an intent to manufacture, distribute, or dispense them. Section 19(a) of G. L. c. 94C, inserted by St. 1971, c. 1071, § 1, exempts from criminal liability all *87dispensing that occurs by means of a prescription, which by the § 19 definition is “issued for a legitimate medical purpose by a practitioner acting in the usual course of his professional practice.”3
Manufacturing, distributing, and dispensing each are terms of art defined in G. L. c. 94C, § 1. For our purposes, any delivery that is not a dispensation is a distribution.4 To dispense is “to deliver a controlled substance to an ultimate user or research subject or to the agent of an ultimate user or research subject by a practitioner or pursuant to the order of a practitioner, including the prescribing and administering of a controlled substance and the packing, labeling, or compounding necessary for such delivery.”5 G. L. c. 94C, § 1, as amended through St. 1972, c. 806, § 3. Dispensing via delivery to a research subject or to an agent of any kind shall not be discussed further, as there is no evidence that any such delivery occurred in this case. Therefore, if the defendant dispensed, he must have done so to an “ultimate user.”6 An ultimate user, as defined by § 1, is “a person who lawfully *88possesses a controlled substance for his own use or the use of [specified others]” (emphasis supplied).
The defendant argues that the Commonwealth’s own evidence established that the patients to whom the defendant allegedly dispensed were not lawful possessors, and therefore could not have been ultimate users. The result, then, would be that no dispensing had occurred. The defendant contends that the patients could not have been lawful possessors because G. L. c. 94C, § 33(6), as amended through St. 1974, c. 102, renders it criminal to “knowingly or intentionally acquire or obtain possession of a controlled substance by means of forgery, fraud, deception or subterfuge, including . . . nondisclosure of a material fact in order to obtain a controlled substance from a practitioner.” There is evidence suggesting such machinations by some of the patients. But, more to the point, the burden here is on the Commonwealth, which ignored the necessary element and, consequently, offered neither such evidence below nor argument here, so that the record does not permit a finding that any of the patients to whom the defendant allegedly dispensed would have been a lawful recipient (and, hence, an ultimate user) of the controlled substances at issue. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). As such, the convictions for dispensing are not supported by the evidence and ought to be reversed.
2. Construction of G. L. c. 94C. As an initial matter, I agree with the majority that the various sections of G. L. c. 94C, when read together, make it clear that “a registered physician is authorized to prescribe medically necessary controlled substances if required procedures are followed, but not otherwise.” Ante at 80. However, it does not therefore follow that all conceivable transgressions of that rule constitute dispensing, which has an unambiguously particularized meaning. Some transgressions *89may constitute dispensing, but others will constitute distributing. The distinction itself may seem trivial, but the principle that requires it to be observed is fundamental. The courts must ensure that convictions have integrity, and that process entails demanding proof of all elements, trivial or otherwise, beyond a reasonable doubt. The specter of prosecutors being found to have come “close enough” is not an eventuality to be taken lightly.
It is unlikely, therefore, that the court’s admonition in Commonwealth v. Comins, 371 Mass. 222, 227 n.6 (1976), cert. denied, 430 U.S. 946 (1977), that “the choice of words [i.e., dispense or distribute] should not be permitted to become crucial,” was intended to mean that courts should overlook the express text of G. L. c. 94C, § 1, and treat the words “dispense” and “distribute” as synonyms. First, the purpose of the court’s comment was to encourage amendment of the statute. Second, the principal question presented in Comins was whether any doctor, in any circumstance, could be charged with the offense of dispensing. The comment, it seems, was addressed strictly to that aspect of the controversy. When the time came to evaluate the sufficiency of the evidence as to each element of dispensing, the court treated the “ultimate user” requirement quite seriously. Indeed, part of the court’s holding was that undercover police officers, when acting within the scope of their investigatory duties, qualified as ultimate users within the meaning of § 1. Id. at 231.
I acknowledge the majority’s citation to Commonwealth v. Chatfield-Taylor, 399 Mass. 1, 4 (1987), wherein the court stated that “[t]he essential elements of the crime of unlawful dispensing are set out in G. L. c. 94C, § 19, which states that ‘[a] prescription for a controlled substance [is valid if it is] issued for a legitimate medical purpose by a practitioner acting in the usual course of his professional practice’ ” (footnote omitted). The issue in Chatfield-Taylor, however, was whether the evidence at trial sufficed to prove that the defendant was a practitioner. Id. at 5-6. The elements of the offense were, quite simply, not in dispute. Similar is the case of Commonwealth v. Pike, 430 Mass. 317 (1999), relied upon by the majority for the same proposition. The elements of dispensing were not contested in Pike, where the sufficiency of the evidence dispute concerned *90whether the prosecution had carried its burden to show bad faith or lack of medical purpose. Id. at 321.
By contrast, where the court has addressed the issue squarely, it has stated with absolute clarity that lawful possession by the recipient of controlled substances is an element of the crime of dispensing. I have already discussed the Comins case, supra. Even more compelling is Commonwealth v. Perry, 391 Mass. 808, 812 (1984), wherein the court held that a physician, who prescribed controlled substances to himself without medical justification, could not be convicted of dispensing because he did not possess the controlled substances lawfully and thus did not satisfy the definition of an ultimate user. The court there stated that “a physician ‘dispenses,’ within the meaning of our controlled substances statute, only if he or she prescribes a controlled substance for someone whose possession will be lawful.” Ibid.
Notwithstanding the various interpretations given to the analogous provisions of the Federal Controlled Substances Act in the United States Code, it is my conclusion that the Massachusetts statute, and pertinent decisional law, compel a result other than that reached by the majority. As such, I respectfully dissent.
3. Charges for Medicaid fraud and larceny. In connection with the various prescriptions and office visits found by the jury to have been without an intended medical purpose, the defendant was convicted of Medicaid fraud (G. L. c. 118E, § 40) and larceny over $250 (G. L. c. 266, § 30). These crimes, unlike that of unlawful dispensing, do not have an “ultimate user” element. The Commonwealth presented evidence sufficient to prove each element of these crimes, and therefore I agree with the majority that these convictions must be affirmed.
The offenses are, very much to the contrary, mutually exclusive. The statute defines “distribute” as “to deliver other than by administering or dispensing . . . .” G. L. c. 94C, § 1.
Addressing the jury, the judge said: “[Yjou’ll see language in [the indictments] about an allegation that the Defendant did dispense or distribute; and you may have noted in my elements as I listed them, I talked only about dispensing. That word distribute is surplus. There is a technical definition of distribute that may apply in other types of drug law crimes. It’s not of concern here in our case.”
The Commonwealth clearly met its burden of proving that the § 19 exemption did not apply, as there was abundant evidence that the purported prescriptions were not issued with an intent to advance a valid medical purpose.
See note 1, supra. I take no position whether the defendant should have been charged with dispensing, distributing, or some combination of both, as that determination would require information beyond the scope of the record. Such confusion and uncertainty can be eliminated altogether by bringing prosecutions like the present under G. L. c. 94C, § 19, which incorporates by reference the penalties set forth in G. L. c. 94C, §§ 32, 32A, 32B, 32C, 32D, 32E, 32F, 32G, and 32H, as applicable, and does not implicate the dispensing-distributing dichotomy.
Unlike the majority, I do not read the final two clauses of the definition — i.e., those addressing prescribing, administering, packing, labeling, and compounding — to expand, in any way, the more general definition set out by the preceding clauses. As the prefatory word “including” indicates, these clauses merely list some common instances of dispensing that are entirely consistent with the general definition. The clauses do not expand the concept of dispensing to include actions not covered by the general definition.
The majority emphasizes that the definition of dispensing expressly includes prescribing. While true, that observation is inapposite because, as the majority acknowledges, the defendant issued no prescriptions within the meaning of the statute. That conclusion is compelled by G. L. c. 94C, § 19, which states, in relevant part: “An order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate and authorized research is not a prescription within the meaning and intent of [§ 1] . . . .”
The rationale for the decidedly counterintuitive ultimate user (or research *88subject or agent) element is elucidated in Commonwealth v. Perry, 391 Mass. 808, 812 n.3 (1984). “The primary purpose of the prohibition against dispensing [i.e., against delivery to one who would be in lawful possession notwithstanding the illegality of the delivery itself] is to require practitioners to register with the Commissioner of Public Health . . . and to keep records and maintain inventories.” Ibid. The offense of dispensing is a device by which to hold doctors criminally liable where their conduct, but not necessarily that of their patients, is wrongful. In other words, the delivery is criminal but the corresponding receipt and resulting possession are not.