State v. Mays, s. 67262

CourtUnited States Court of Appeals (Ohio)
Citation671 N.E.2d 553,108 Ohio App.3d 598
Docket Number67291,Nos. 67262,s. 67262
PartiesThe STATE of Ohio, Appellee, v. MAYS et al., Appellants. *
Decision Date11 January 1996

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney and Stephen J. Burns, Jr., Assistant Prosecuting Attorney, Cleveland, for appellee.

Terry H. Gilbert and Gordon S. Friedman, Cleveland, for appellant Mays.

Jerome Emoff, Cleveland for appellant Hailey.

PORTER, Judge.

Defendant-appellant Dr. David W. Mays III, in appeal No. 67262, appeals from his convictions following a jury trial for aggravated theft (R.C. 2913.02), securing writings by deception (R.C. 2913.43) and thirty-one counts of tampering with records (R.C. 2913.42) arising out of his alleged fraudulent conduct in recovering reimbursement from county welfare agencies for oral surgeries he did not perform. Defendant Mays contends that the court erred in not dismissing the charges for failure to bring him to trial within two hundred seventy days under the speedy trial statute (R.C. 2945.71[C] ), in not suppressing evidence obtained from his automobile in an unlawful seizure, in not excluding, in limine, a state audit of defendant's dental practice, and in excluding certain of defendant's evidence in his case-in-chief. Defendant Mays also contends that the evidence was insufficient to sustain the verdict, which was against the manifest weight of the evidence.

Defendant-appellant Phyllis Hailey, in appeal No. 67291, appeals from her convictions following the same jury trial in which Mays was convicted. Defendant Hailey was convicted on one count of tampering with records (R.C. 2913.42) and one count of tampering with evidence (R.C. 2921.12) arising out of her relationship with Mays. Since these were allied offenses, the state elected for the record to reflect only the tampering with evidence conviction. Defendant Hailey contends that she was also not brought to trial within two hundred seventy days in violation of the speedy trial statute, that the court erred in not suppressing evidence taken from her home without probable cause for the search warrant, and that her conviction was not sustained by sufficient evidence and was against the manifest weight of the evidence.

The appeals were consolidated for hearing and disposition by this court. For the reasons hereinafter stated, we find no merit to the appeals and affirm.

Dr. David Mays III was a dentist practicing in Shaker Heights, Ohio. On October 23, 1981, Mays executed a "Provider Agreement" with the state of Ohio which enabled him to treat welfare patients and receive payment for the services rendered from the General Assistance Medical ("GAM") program and/or the Medicaid program. Mays was contractually "obligated to maintain such records necessary to fully disclose the extent of services provided and any information regarding payments claimed by the provider for furnishing services under the plan for a period of three years."

Early in 1990, Mays started negotiating with Dr. Kenneth Baiko concerning the possible sale of his practice to Baiko. Said sale was consummated on May 6 or 7, 1990, and Baiko began working at the dental offices thereafter. On May 10, 1990, Baiko arrived at the dental offices for a meeting with Mays. Baiko was viciously assaulted, beaten and knifed in the throat. Baiko named Mays as his assailant. Baiko also indicated that police should investigate Mays's dental practice for possible fraud. Although Mays was charged with attempted murder of Baiko in a separate case, he was ultimately acquitted by a jury verdict on October 1, 1992.

Based on Dr. Baiko's information, Shaker Heights detectives approached the Cuyahoga County Department of Human Services ("Human Services") and a joint investigation into Mays's billing practices began. Human Services was responsible for the administration of and reimbursement for GAM and Medicaid services to welfare recipients. It was discovered that Mays's invoices did not correspond with names found in an appointment book recovered from his practice. Human Services surveyed welfare recipients who were allegedly treated by Mays. Almost all of these recipients stated that they had never heard of Mays, and had not been treated by him.

The Cuyahoga County Commissioners, being advised of these developments, requested the State Auditor to audit Mays's invoices. The audit revealed that between January 1, 1987 and July 31, 1990 Mays submitted twelve thousand invoices totalling $2,718,057 for payment. The audit showed that during this time 7,159 patients were allegedly treated, but there were no patient files for 6,606 of the patients. It was determined that these patients were never treated by Mays. Four hundred sixty patient files were located, but the files did not document what services were provided. Files for ninety-three patients were found, but these files did not document all the services allegedly performed. Mays repeatedly billed for four types of high-dollar oral surgeries: gingivectomy, osseous surgery, complete bony impaction and partial bony impaction.

The defendants were indicted on May 6, 1992 and arraigned on May 20, 1992 before the Honorable Carl Character, to whom the cases were assigned. Judge Character also presided at the attempted murder trial at which Mays was found not guilty by a jury on October 1, 1992.

Following numerous pretrial conferences, the defendants filed motions to dismiss, to suppress evidence and for severance on December 17, 1992. Judge Character set the case for trial of both defendants on January 25, 1993. On January 20, pursuant to R.C. 2701.03, the state filed an affidavit of disqualification against Judge Character with the Ohio Supreme Court. The effort to disqualify Judge Character was not ruled on by the Supreme Court until October 29, 1993, when it was denied. During the ten-month period that the disqualification matter was before the Supreme Court, there was no formal entry of a stay or a continuance of the trial. Following the Supreme Court's denial, Judge Character recused himself and the case was reassigned to the Honorable Pat Kelly.

The defendants subsequently filed motions to dismiss because they had not been brought to trial within two hundred seventy days of their arrest as required by R.C. 2945.71(C)(2). The court overruled the motions, stating that the "statute was tolled and trial court had no jurisdiction until [the] Chief Justice ruled on [the] Affidavit of Prejudice." Other motions were overruled and the case went to trial on March 23, 1994. The jury returned guilty verdicts against both defendants on April 27, 1994.

At trial, the state's dental experts testified that Mays did not have the necessary training or expertise to perform the oral surgeries for which he billed. Sometimes Mays billed for more than one procedure on the same patient on the same day. The state's experts stated that to perform all of these surgeries on a person at one time would show no concern for the patient's comfort or well-being.

The experts testified that anesthesia would be helpful in performing these surgeries, but Mays had no license to administer general anesthesia. These surgical procedures required a dental assistant. Mays's assistants testified that they had never been asked to assist in oral surgeries and that they primarily set up instrument trays and rarely entered the operatories when patients were present. Defendant's employees, with the exception of Dr. Davis, could not recall ever having seen Mays perform the high-paying procedures for which he billed.

Expert testimony also disclosed that the procedures billed were extremely time-consuming, but one dentist who worked in the office indicated that Mays rarely worked more than half a day. On cross-examination he admitted that it could have been because Dr. Mays split his time with his other dental practice. The audit revealed many days on which Mays claimed to perform in excess of one hundred services. Other discrepancies appeared: he billed for days when the office was closed, for services allegedly performed on Sundays, for services on May 10, 1990, when the Shaker Heights Police were investigating the stabbing of Dr. Baiko, and he never submitted a single invoice to Human Services after May 17, 1990, although he was still active in the practice in the summer of 1990 because he had agreed to work in the practice for a period of one year after the date it was sold to Dr. Baiko.

Eighty-nine welfare recipients, for whom invoices were submitted by Mays, appeared at trial and testified or formed the basis for a stipulation that they had never been to see Mays, or if they had, they did not receive the procedures claimed on the invoice. The invoices for these patients showed that Mays repetitively billed for the same four types of high-dollar oral surgical procedures for which he had no training and for which there were not enough hours in the day.

Defendant did not testify and never produced a single patient who could substantiate an invoice submitted.

The state was unable to establish exactly how and when Mays received information about the thousands of recipients for which he billed. However, the evidence showed that Mays enjoyed a close relationship with his codefendant, Phyllis Hailey, who managed the Payment Processing Division of Human Services, which processed the payment of dental and medical invoices. Mays's invoices were received at Human Services by hand delivery several times a month. Sometimes Mays or his office manager would personally deliver the bills.

Defendant Hailey was known to arrive at work early and place Mays's invoices on the desk of the clerk charged with processing dental claims. Mays's invoices were processed and paid every thirty-three days on the average. The average for other dentists was nine months. These expedited payments were attributed to Hailey's activities. She tracked Mays's...

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