State v. Howard

• Decision Date: 17 December 1985
• Docket Number: No. 8512SC654,8512SC654
• Citation: State v. Howard, 337 S.E.2d 598, 78 N.C.App. 262 (N.C. App. 1985)
• Parties: STATE of North Carolina v. F. Belle HOWARD and J.C. Howard.
• Court: North Carolina Court of Appeals

Page 598

337 S.E.2d 598

78 N.C.App. 262

STATE of North Carolina v.F. Belle HOWARD and J.C. Howard.

No. 8512SC654.

Court of Appeals of North Carolina.

Dec. 17, 1985.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Thomas B. Wood, Raleigh, for State.

Nance, Collier, Herndon & Wheless by James R. Nance, Jr., Fayetteville, for defendant-appellants.

JOHNSON, Judge.

Defendants present ten questions for review.These questions fall into the following borad categories: (1) whether the indictment should have been quashed and the charges dismissed prior to the jury trial on the grounds that the prosecution against defendants was based upon a statute that is unconstitutional; (2) whether the court erroneously allowed the admission of certain expert testimony; (3) whether the court erroneously allowed the admission of a written statement of the deceased "patient"; (4) whether the court committed reversible error when instructing the jury; (5) whether the evidence presented was sufficient to withstand the defendants' motion to dismiss at the close of all of the evidence.

The defendants were initially indicted for obtaining property by false pretenses, assault on a handicapped person and practicing medicine without a license.The State took a voluntary dismissal on the charges of assault on a handicapped person.The jury returned a verdict of guilty on the charge of practicing medicine without a license as to each defendant and verdicts of not guilty on the charges of obtaining property by false pretenses.Each of the alleged violations arose when the defendants rendered services to Wilbur Clough, then terminally ill with pancreatic cancer.We will address each question presented by the defendants following presentation of the factual background.

I

Prior to 30 April 1983Wilbur Clough was diagnosed as having terminal pancreatic cancer.He received treatment at the Veterans' Administration Hospital in Oteen, North Carolina until he was told further treatment would be of no avail.Wilbur Clough contacted defendantBelle Howard, whom he had heard treated cancers.Both defendants used the title "Dr."Both defendants received training in naturopathy and held themselves out as naturopathic practitioners.Dr. Belle Howard was known for using a treatment referred to as the Herbal Tumor Removal (HTR) treatment.On or about 30 April 1983, Wilbur Clough and his wife went to Fayetteville, North Carolina for the purpose of discussing the treatment.The treatment consisted of the applications of two salves to the skin in the vicinity of the cancer.After receiving an explanation of the treatment from Dr. Belle Howard and seeing photographs of the treatment, Mr. Clough paid defendantBelle Howard a $2000.00 fee to cover the treatment and room and board during the course of the treatment.Prior to receiving the treatment Mr. Clough was informed the treatment would be painful.From 30 April 1983 to 13 May 1983defendantBelle Howard administered salves and vitamins to Mr. Clough.On 13 May 1983Belle Howard went to Atlanta to attend a seminar, leaving Mr. Clough under the supervision of defendantJ.C. Howard.That night Wilbur Clough insisted that J.C. Howard call an ambulance.He was taken to a hospital and treated for "chemical burns" at the site of the salve application.Wilbur Clough died of pancreatic cancer prior to the case being heard at trial.

II

Defendants filed a motion to dismiss on 18 April 1984 on the grounds that the statute upon which the indictments were based was unconstitutional both as applied to the defendants and on its face.Immediately preceeding the jury trial on 26 November 1984, a full evidentiary hearing was conducted.The court denied defendants' motion to dismiss in open court.To this holding defendants assign error and reassert on appeal their objections on constitutional grounds.

A

Defendants were indicted under G.S. 90-18(1981).G.S. 90-18 provides in pertinent part:

No person shall practice medicine or surgery, or any of the branches thereof, nor in any case prescribe for the cure of diseases unless he shall have been first licensed and registered so to do in the manner provided in this Article....The person so practicing without license shall be guilty of a misdemeanor....

The statute defines the practice of medicine or surgery in the following manner:

Any person shall be regarded as practicing medicine or surgery ... who shall diagnose or attempt to diagnose, treat or attempt to treat, operate or attempt to operate on, or prescribe for or administer to, or profess to treat any human ailment, physical or mental, or any physical injury to or deformity of another person: [unless such activity falls within one of fourteen exceptions].

Defendants contend that the State's prosecution against them constituted selective prosecution in violation of their rights to equal protection under the fourteenth amendment.We disagree.

It is well settled that the General Assembly has the right to require an examination and certificate as to competence of persons desiring to practice medicine.State v. Call, 121 N.C. 643, 28 S.E. 517(1897).It is in no sense the creation of a monopoly or special privilege.Id.We recognize that "[t]hough the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution."Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 1073, 30 L.Ed. 220, 227(1886).Even if the enforcement of a particular law is selective, it does not necessarily follow that it is unconstitutionally discriminatory; it is only when the selective enforcement is designed to discriminate against the persons prosecuted.People v. Utica Daw's Drug Co., 16 A.D.2d 12, 225 N.Y.S.2d 128, 4 A.L.R.3d 393(1962).The burden is on the defendant to establish discrimination by a clear preponderance of the proof.Id.If he sustains his heavy burden he is entitled to dismissal.Id.

The generally recognized two-part test to show discriminatory selective prosecution is (1)the defendant must make a prima facie showing that he has been singled out for prosecution while others similarly situated and committing the same acts have not; (2) upon satisfying (1) above, he must demonstrate that the discriminatory selection for prosecution was invidious and done in bad faith in that it rests upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.State v. Rogers, 68 N.C.App. 358, 315 S.E.2d 492(1984).See alsoState v. Cherry, 298 N.C. 86, 257 S.E.2d 551(1979).

At the voir dire hearing in the case sub judice, the trial court heard testimony, received evidence and heard counsels' arguments.Three witnesses were called by defendants.The first witness, a paralegal employed by defendants' attorney's law firm, presented items admitted into evidence.The witness had purchased these items at a local health food store, book store, and convenience store.The items purchased were, generally speaking, nonprescription medicines and books addressing self-cures for diseases, many specifically for cancer.Ostensibly, the purpose of this evidence was to show that these stores provided treatment for a fee and without a license to practice medicine.

The second witness was a practitioner of naturopathy, duly licensed to practice in Oregon.He testified that Oregon has a Board of Naturopathic Examiners which regulates the field and issues licenses.He stated his educational background, explained the theory of the HTR treatment for cancer and distinguished naturopaths from allopathic doctors, MD's.

The third witness was John DeCarter, a detective for the Cumberland County Sheriff's Department.He had participated in the investigation prior to arrest.He testified as to other arrests in Cumberland County under G.S. 90-18.He testified that he had received a complaint in the form of a letter from the hospital regarding Wilbur Clough's chemical burn.

Part one of the two-part test fails on the facts presented at the evidentiary hearing.The merchants selling nonprescription medicines, herbal remedies, and books addressing treatment and diets to cure cancer and other diseases are not within the same class as defendants.Foremost, these merchants do not offer diagnoses and do not administer a remedy directly to a particular person.The customer is merely buying a good; he is not paying a fee for a service.

The naturopathic physician licensed to practice in Oregon is also not similarly situated to defendants in that he is not governed by the law of North Carolina.By residing and practicing in a state whose legislature has chosen to regulate the area of naturopathy, he is clearly outside the class.The herbologist who, according to the detective's testimony was arrested in Cumberland County with charges subsequently dismissed, is also not in the same class as defendants.By defendants' own testimony later in the guilt phase of the trial, herbologists use only herbs and are distinct from naturopaths.In conclusion, defendants failed to satisfy the heavy burden of showing that they were "singled out for prosecution while others similarly situated and committing the same acts [were] not."Rogers, supra, 68 N.C.App., at 367, 315 S.E.2d at 500, quotingUnited States v. Greene, 697 F.2d 1229, 1234(5th Cir.), cert. denied, 463 U.S. 1210, 103 S.Ct. 3542, 77 L.Ed.2d 1391(1983)(emphasis added).

Assuming arguendo defendants had met part one of the test, they would have failed to satisfy part two.Defendants failed to show they were prosecuted in bad faith.To show prosecution based upon an unjustifiable standard would "inevitably lead to having the district attorney take the...