State v. Annable
| Decision Date | 28 April 2011 |
| Docket Number | No. 94775.,94775. |
| Citation | 194 Ohio App.3d 336,956 N.E.2d 341,2011 -Ohio- 2029 |
| Parties | The STATE of Ohio, Appellee,v.ANNABLE, Appellant. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
William D. Mason, Cuyahoga County Prosecuting Attorney, and James A. Gutierrez, Assistant Prosecuting Attorney, for appellee.James H. Banks, Dublin, for appellant.LARRY A. JONES, Judge.
[Ohio App.3d 341] {¶ 1} Defendant-appellant, Richard Annable, appeals his convictions. We affirm.
{¶ 2} In October 2009, Annable was indicted on one count of theft and 30 counts of practicing medicine without a license. The case proceeded to a jury trial. At the conclusion of the state's case, the defense made a Crim.R. 29 motion for acquittal, which was denied. The defense presented evidence, and at the conclusion of its case, renewed its Crim.R. 29 motion; the motion was again denied.
{¶ 3} The jury found Annable guilty of theft and 12 counts of practicing medicine without a license. The trial court sentenced him to four and a half years in prison and ordered him to pay $15,580 in restitution.
{¶ 4} The voluminous testimony 1 in this case revealed the following facts. Annable, a cosmetologist, was the owner of Bella Derm Medi Spa 2 in Westlake, Ohio. The spa's slogan was “the feel of a spa, the care of a physician.” One of the services offered at the spa was mesotherapy. Clients receiving mesotherapy signed a “mesotherapy patient consent form” and a form explaining “mesotherapy post-treatment instructions.” The clients also completed and signed a “medical questionnaire” that included a “pre-operative medical history.”
{¶ 5} The state's expert witness, Dr. Diane Maiwald, a board-certified dermatologist and founding member of the American Board of Mesotherapy, explained mesotherapy. Dr. Maiwald testified that mesotherapy is used to treat conditions such as arthritis, back pain, fat reduction, and cellulite. She stated that the therapy requires the injection of medication, either with a hypodermic needle or medical roller, under the upper layer of skin. Dr. Maiwald testified that injection, or puncturing of the skin, is necessary so that the required high concentrations of medication can be released into the body.
[Ohio App.3d 342] {¶ 6} Dr. Maiwald further testified that mesotherapy is a medical procedure that requires medical supervision and described various precautions that a doctor performing the procedure should take. For example, she testified that the injected medication needed to be tailored to each person and that the medical rollers should never be reused. Dr. Maiwald also testified that most of her patients undergoing the procedure required prescription medication for pain management. She testified that she had never heard of a cosmetologist performing the procedure.
{¶ 7} The spa became the subject of investigation by law-enforcement officials, the Ohio State Medical Board, and the Ohio State Board of Cosmetology after an employee complained that the therapy “just looked wrong.” According to the employee, Annable would numb the clients' skin with ice packs, and while she (the employee) held the clients' skin “tight,” Annable would apply a roller with needles to the area. The employee testified that the clients would usually bleed from the rollers, and that she saw the same roller being used on more than one patient. According to the employee, “these people were in a lot of pain.” The employee also testified that in the nearly a year that she worked at the spa, she never saw a doctor on the premises.
{¶ 8} Another employee of the spa, a licensed practical nurse (“LPN”), testified that she began performing the procedure at the spa on her own after Annable “trained” her. The LPN testified that some rollers would be used on more than one client. The LPN also described the numbing with ice packs and testified that some of the clients would bleed. The LPN further testified that she saw only one doctor on the spa premises, but that doctor did not have anything to do with the mesotherapy.
{¶ 9} Several of the spa's mesotherapy clients testified for the state. 3 Collectively, they testified that they believed Annable was a doctor, and based on that belief, they undressed for him for examinations. Annable told the clients that he would inject the area to be treated with amino acids that would “break down the fat.” They described the procedure as “painful.” Some of the clients testified that they had had special medical conditions to which they alerted Annable and which Annable told them he would manage. The clients stopped the treatments because they were too painful. The clients prepaid for the services. Several of the clients requested a refund, but never received one.
{¶ 10} Three doctors testified about their relationship with Annable. First, Dr. Harry Simmons testified that he and Annable had agreed that Dr. Simmons would work as an independent contractor at the spa one or two days a week. Simmons testified that he was to receive training on some of the services the spa [Ohio App.3d 343] offered, and then he would choose which of the services he would perform or oversee. Simmons testified that he observed one or two mesotherapy procedures, but never performed one.
{¶ 11} Dr. Simmons later learned that his name was listed on some of the spa's therapy information sheets as being the doctor who performed procedures, including mesotherapy, that he never performed. After discovering this, Simmons confronted Annable and terminated his relationship with him.
{¶ 12} The second doctor, Dr. Dominick Catalano, operated a medical spa in Streetsboro, Ohio, and he and Annable had discussed the possibility of merging their businesses. During their discussions, Annable told Catalano about mesotherapy; Catalano had never heard of it and had never performed it.
{¶ 13} Catalano and Annable eventually agreed to work together. Catalano testified that under their agreement, only he (Dr. Catalano) would perform medical procedures in either spa, and Annable was to perform cosmetic services relating to hair, nails, and superficial skin resurfacing. Catalano testified that Annable never told him that he had been performing mesotherapy and that if he had known that, he never would have agreed to work with him.
{¶ 14} Dr. Catalano came to learn that mesotherapy is a Dr. Catalano severed his relationship with Annable after he saw him perform mesotherapy.
{¶ 15} The third doctor who testified about his relationship with Annable was Dr. Nicholas Diamantis. Dr. Diamantis testified that he and his partner at the Western Reserve Center for Oral and Facial Cosmetic Surgery, Dr. Matthew Goldschmidt, occasionally worked at Annable's spa as independent contractors.4 According to Dr. Diamantis, he and Dr. Goldschmidt would provide their own equipment and staff whenever they worked at the spa. Dr. Diamantis testified that Annable displayed his picture and referred to Diamantis as “medical director” on literature advertising the spa without his permission. Dr. Diamantis testified that he never discussed with Annable being the medical director of the spa and, furthermore, never served in that capacity. Drs. Diamantis and Goldschmidt severed their relationship with Annable out of concern that they “may inadvertently violate certain ethical restrictions placed on [them] regarding the unauthorized practice of medicine.”
[Ohio App.3d 344] {¶ 16} Annable testified at trial. He admitted performing mesotherapy. It was Annable's belief that it is proper for a cosmetologist to provide services that claim to have a medical or healing benefit. He admitted that he had never received permission to perform the procedure from the Medical Board or the Cosmetology Board.
{¶ 17} After their investigations, both the Ohio State Medical Board and the Ohio State Cosmetology Board found that Annable was practicing medicine without a license. Annable's cosmetology license was revoked.
{¶ 18} Annable has assigned the following errors for our review:
Double Jeopardy
{¶ 19} For his first assigned error, Annable contends that he was subjected to double jeopardy. We disagree.
{¶ 20} Prior to this case, Annable had twice been under indictment for the crimes charged here: first, in case No. CR–517594, and second, in case No. CR–521710. In the first case, Annable was indicted by information in February 2009. In the second case, Annable was indicted by a grand jury in March 2009. In November 2009, the court issued judgments in both cases stating, The new case, case No. CR–530634, is the appeal now before us.
{¶ 21} In July 2010, upon the state's motion, the court issued judgments in the two prior cases, stating:
For good cause shown and to correct a clerical error to the case under Case Number[s] CR 517594[and] CR 521710, be now dismissed without prejudice and the court's entry should now reflect that correction. Case[s] [are] dismissed without prejudice.
[Ohio App.3d 345] {¶ 22} This record evidences that ...
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