State v. Kellogg

• Decision Date: 03 November 1981
• Docket Number: No. 13096,13096
• Citation: 102 Idaho 628,636 P.2d 750
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Roscoe A. KELLOGG, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 750

636 P.2d 750

102 Idaho 628

The STATE of Idaho, Plaintiff-Respondent, v. Roscoe A. KELLOGG, Defendant-Appellant.

No. 13096.

Supreme Court of Idaho.

Nov. 3, 1981.

Stanley D. Crow and Conrad J. Aiken, Crow & Aiken, Boise, Roscoe A. Kellogg, pro se, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, for plaintiff-respondent.

BISTLINE, Justice.

In Kellogg I ¹ we stated the issues there presented as follows:

"Defendant-respondent Roscoe A. Kellogg was charged with the offense of selling a prescription drug, prednisolone, without legal authority to do so, in violation of I.C. § 37-2210. On defendant's motion, the district court dismissed the information, holding that the statutory procedure by which a drug is classified as a prescription drug constitutes an unconstitutional delegation of legislative authority in violation of Idaho Constitution Art. 2, § 1, and Art. 3, § 1. The state appeals, arguing that there is no improper delegation. Defendant raises two additional issues on cross-appeal. Defendant contends that the state has failed to show that prednisolone is a prescription drug, and that because he is a naturopathic physician, he is entitled to dispense prescription drugs under the terms of the statute." 98 Idaho at 542, 568 P.2d at 515.

We reversed and remanded, holding that I.C. § 37-2210, wherein the State Board of Pharmacy for the State of Idaho was empowered to determine the status of various drugs, was not a constitutionally impermissible delegation of legislative authority. Id. at 545, 568 P.2d 514. We noted that "Idaho Board of Pharmacy regulation No. 18-669-181 requires prescription for some drugs, but defers to federal law to define which drugs require prescription." Id. at 542, 568 P.2d at 515.

In Kellogg I we also answered Kellogg's contention there advanced that the prosecution had not established that dispensing prednisolone requires a prescription by noting that several of the stipulated reference works (which would be introduced at trial) denominated prednisolone as a prescription drug. Id. at 545, 568 P.2d at 518.

Following remand and upon trial it was established that tablets sold by Kellogg were subsequently identified as prednisolone. It was also established to the jury's satisfaction that Kellogg was not licensed as required by I.C. § 37-2210, and he was found guilty.

After remand and prior to trial, Kellogg moved the trial court for a dismissal predicated upon the premise that the state had not produced an NDA (new drug application) order governing prednisolone as a prescription drug. Kellogg relied in part upon the contents of footnote 4 to Kellogg I which is for convenience set forth in the margin below. ²

The state submitted eleven exhibits by which it contended that the prescription status of prednisolone was satisfactorily shown. The trial court agreed with the state and ruled that such would not be an issue at trial. Kellogg challenges that determination, and others, on appeal. ³

I.

Our decision in State v. Hobbs, 101 Idaho 262, 611 P.2d 1047 (1980), which was handed down after Kellogg's conviction, is dispositive of the first issue. Therein four members of the Court, responding to a contention that the judgment there "must be reversed because the state did not put in any evidence of phencyclidine's classification in the Act as a controlled substance," id. at 263, 611 P.2d at 1048, held: "The question whether a substance is designated in the Act as a controlled substance is a question of law for the court, and not the jury to decide." ⁴ Id.

The only significant difference between that case and this is that phencyclidine was classified by the legislature, and its delivery criminalized, whereas here the legislature committed classification of prescription drugs to the pharmacy board, criminalizing the sale thereof by unlicensed persons. That delegation of authority was upheld in Kellogg I.

As we stated in Hobbs, the trial court will judicially notice a drug's classification, and in this instance the trial court was doing no more. The proposition before the Court was not that it be proven that prednisolone was a prescription drug, but rather to judicially notice that it was. Therein it was aided by the various exhibits which sufficiently demonstrated that prednisolone was indeed recognized as a prescription drug by operation of federal law. Hence we here hold that the trial court committed no error in denying the motion to dismiss and allowing the case to go to trial.

II.

The second issue presented is whether the court erred in allowing the state's expert witness, Pamela Southcombe, to testify as to her opinion that the substance dispensed by Kellogg was, in fact, prednisolone. Kellogg argues that although Southcombe was admittedly an expert in the identification of drugs, she was not an expert in the identification of minerals, vitamins, enzymes or fatty acids. At trial Kellogg asserted, although he did not attempt to prove, that the substance was in fact a mineral or vitamin, and not a "drug" at all. Kellogg argues that the witness assumed the substance was a drug prior to testing, and that this assumption was impermissible.

The witness testified that if her assumption that the substance was a drug was incorrect, she could not say that the substance was prednisolone. We agree. (If the substance was not a drug, by definition it would not be prednisolone, which is a drug.) However, Kellogg submitted no evidence suggesting that the substance was not a drug. While it is the state's burden initially to prove the nature of the substance which Kellogg dispensed, testimony of Pamela Southcombe was more than adequate to do so. The fact that she began her analysis with the assumption that the substance was a drug does not detract from the relevance of the tests she performed or the conclusions which she drew from the test results. ⁵ Assuming a non-drug substance may theoretically give the same test results as prednisolone (something which Kellogg asserts but does not attempt to prove), the possibility of such an occurrence does not bar the jury from deciding that the evidence presented was convincing enough to persuade them, beyond a reasonable doubt, that the substance was prednisolone. As we stated in State v. Kellogg, 100 Idaho 483, 488-89, 600 P.2d 787, 792-93 (1979) (Kellogg II ):

"Substance identification is an issue of fact to be decided by the jury.... Such a challenge (to the reliability of testing procedures) goes only to the weight to be afforded Southcombe's testimony.... The credibility of witnesses and the weight to be accorded their testimony is for the jury. Where there is competent though conflicting evidence to sustain the verdict, this court cannot reweigh that evidence or disturb the verdict."

III.

The final issue presented is whether the trial court erred in refusing to allow Kellogg to prove that I.C. § 37-2210 is unconstitutional as applied to him. Kellogg's argument on this point begins with the fact that I.C. § 37-2210 limits the privilege of dispensing prescription drugs to several classes of qualified professionals. For Kellogg's purposes, "physicians" are the relevant privileged class. At the time that Kellogg committed the acts giving rise to the charge in this case, I.C. § 54-1802, the definitions section of the Physicians and Surgeons Act, did not contain a separate definition of physician, ⁶ but I.C. § 54-1803 did prohibit "practicing medicine," as that term was defined in I.C. § 54-1802, without a license. Part of the definition of "practicing medicine" was "prescribe or direct for the use of any person, sick, injured or deformed, any drug, medicine, means or appliance for the intended relief ... of the same ...." I.C. § 54-1802(a). Kellogg apparently concedes that he is not a physician within the meaning of the Act because he does not hold a license from the State Board of Medicine.

Kellogg advances two contentions relative to the provisions of I.C. §§ 37-2210, 54-1802 & 54-1803. First, he argues that State v. Smith, 81 Idaho 103, 337 P.2d 938 (1959), declared I.C. § 54-1802 to be unconstitutional as applied to naturopathy and that since Smith was the law at the time of the incident here, he cannot be convicted under a statute that rests criminal liability on the failure to obtain a license under I.C. § 54-1802. Secondly, he argues that the Idaho State Board of Medicine unconstitutionally discriminated against him in refusing to grant him a license to practice medicine.

As to Smith, that case addressed the question of whether naturopaths could be enjoined from practicing naturopathy at all on the basis of I.C. §§ 54-1802 & 1803. The case held that "So far as Section 54-1802, I.C., affects the practice of naturopathy, the act is unconstitutional and void. So far as it affects the branches of the healing art licensed by the statutes ... it is valid." 81 Idaho at 110, 337 P.2d at 942. The Court characterized naturopathy as "a system of physical culture and drugless treatment by methods supposed to stimulate or assist nature, or to the use of physical forces such as air, light, water, heat, massage, and other similar simple materia medica ...." Id. (Emphasis added.) As we stated in State v. Maxfield, 98 Idaho 356, 358, 564 P.2d 968, 970 (1977):

"The important difference between Smith and the instant case is that in Smith the court was confronted with an attempt to enjoin Smith from holding himself out and advertising that he was a naturopathic physician.... In that case, there were no specific practices involved which might encroach upon the practices proscribed in I.C. § 54-1802....

"While naturopathy in the abstract, as defined in Smith, may pose no significant threat to the public safety, specific procedures employed by a naturopathic physician may be very dangerous.... What one does, and not what one calls himself, determines whether he is practicing medicine."

Kellogg's argument...