Ulbrich v. State
| Decision Date | 14 March 2022 |
| Docket Number | A21A1220,A21A1219 |
| Court | Georgia Court of Appeals |
| Parties | ULBRICH v. THE STATE. JOHNSON v. THE STATE. |
A jury convicted Peter Ulbrich and Nathaniel Johnson of multiple counts of violations of the Georgia Racketeer Influenced and Corrupt Organizations Act (RICO), theft by deception, and practicing medicine without a license. See OCGA §§ 16-14-4; 16-8-3; 43-34-22. The defendants now appeal, both contending that OCGA § 43-34-22 is unconstitutionally vague, and the trial court committed plain error in crafting its jury instruction regarding the practice of medicine without a license. In Case No. A21A1219, Ulbrich also challenges the sufficiency of the evidence, and argues that the trial court abused its discretion by refusing to grant him first offender status. In Case No. A21A1220, Johnson contends the trial court erred by (1) violating the rule in Bruton v. United States[1] by admitting statements made by Ulbrich who did not testify; (2) refusing to admit evidence of impeachment; (3) refusing to charge the jury on good faith reliance on the advice of counsel and good faith, in general and (4) denying a mistrial based on the prosecutor's allegedly prejudicial remarks in opening statements. For the following reasons, we affirm.
Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), the record shows that Johnson had been a licensed medical doctor and owned a cosmetic surgery practice, Hello Beautiful ("the practice"). Due to events unrelated to the present case, Johnson surrendered his license to practice medicine in 2014, prohibiting him from practicing medicine in this state.[2] Johnson did not close the practice as a result of the loss of his license, but instead purported to act as an administrator and supervisor at the practice. Johnson hired four licensed physicians, including Ulbrich, to perform cosmetic surgeries at the practice.
After a patient complained to the Georgia Composite Medical Board, law enforcement began an investigation into the practice. Among other things, the lead investigator found that the practice's website and other social media repeatedly referred to Johnson as a doctor, attaching the suffix to his name. Authorities executed two search warrants at the practice. During the first search, the lead investigator observed that Johnson's diplomas, honors and awards, and license certificates were hung in his office. However, these documents were removed at the time of the second search. Thereafter, Ulbrich approached the lead investigator to discuss the case, at which time he admitted to her that he had removed Johnson's certifications because he was concerned they could be misleading to patients. Ulbrich also told the lead investigator that he had not hung his diplomas and certifications there because it was not his main office.
Following the investigation, Johnson and Ulbrich were charged with multiple counts of RICO Act violations; theft by deception, individually and as co-conspirators; and practicing medicine without a license, individually, as co-conspirators, and as parties to the crime.[3] At the ensuing trial, the medical board's legal officer testified that a physician who surrendered his license could no longer display his professional certifications; use the titles, "doctor" or ; consult with patients or advise other physicians as to medical procedures; or otherwise hold themselves out to the public as doctor in any respect. The State also proffered testimony from several former patients that had undergone cosmetic surgery procedures at the practice. Generally, these patients testified that they were led to believe that Johnson was a licensed physician because they observed his diplomas and other certifications hanging in the office; he and other staff, including Ulbrich, called him "doctor"; the patients were not corrected when they called Johnson "doctor"; Johnson consulted with the patients regarding their surgeries and drew markings on their bodies prior to surgery; he was present during their surgeries and was sometimes observed performing or directing the procedure; and he conducted their follow-up visits. The patients generally testified that Ulbrich's name appeared on their medication prescriptions, but they either never met him or did not meet him until the day of their procedures. As a whole, the patients detailed the fees they had paid to the practice for the procedures, and testified that they would not have undergone the procedures had they known that Johnson was not a licensed practitioner.
Johnson testified at trial, and generally denied that he and Ulbrich had conspired to deceive the patients as far as his licensure. He further testified that, when he lost his license, he consulted with the medical board and an attorney to determine the extent to which he could legally remain at his practice. Johnson stated that, based on their reading of the relevant statute, he understood that he could continue owning the practice and could carry out certain customary medical acts if they were delegated to him by a licensed doctor, such as Ulbrich. In addition, Johnson drafted a consent form that purported to notify patients that one of the licensed practitioners was actually their doctor. However, this form does not expressly state that Johnson was not a licensed medical doctor, and some of the patients testified that they did not read it carefully when they were filling out the paperwork prior to their procedures.
As to both defendants, the jury returned guilty verdicts on the RICO violation counts, and on several counts of theft by deception and practicing medicine without a license. These appeals followed.[4] We address the merits of the claims the defendants raise jointly before considering their individual claims on appeal.
1. Both defendants contend that OCGA § 43-34-22 is unconstitutionally vague. Their enumerations of error provide nothing for us to review.
Here, Johnson moved the trial court to declare OCGA § 43-34-22 unconstitutionally vague.[5] Following a hearing, the trial court denied the motion as untimely, but also denied it on the merits in the alternative. The defendants initially filed these appeals in the Supreme Court of Georgia based on the trial court's constitutionality ruling. However, the Supreme Court transferred these appeals to this Court, finding that it lacked jurisdiction over the constitutional question because the defendants failed to challenge the trial court's timeliness ruling, only enumerating as error the ruling on the merits. "The transfer of [these] appeal[s] by the Supreme Court to this Court is a final determination that no constitutional question was in fact properly raised." (Citation and punctuation omitted.) Woods v. State, 361 Ga.App. 259, 264 (2) (863 S.E.2d 738) (2021); see also Vaughn v. State, 352 Ga.App. 32, 37 (2) (833 S.E.2d 723) (2019) () (citation and punctuation omitted). Thus, we are bound by the Supreme Court's determination that the defendants failed to properly raise this constitutional challenge, and there is nothing for us to review.
2. Both defendants also argue that the trial court committed plain error in crafting its jury charge on practicing medicine without a license. See OCGA § 43-34-22.[6] Specifically, the defendants object to the trial court's instruction: "I charge you that engaging in unlicensed practice includes delegation by a physician a professional responsibility to a person who is not authorized to provide such services." They have not met their burden to show plain error.
Because the defendants did not object to the charge as given, we review for plain error only. Williams v. State, 306 Ga. 717, 720 (2) (832 S.E.2d 805) (2019); OCGA § 17-8-58 (b).
When reviewing a jury instruction for plain error that has not been affirmatively waived, [7] the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings. If an appellant demonstrates that the trial court's failure to give an instruction constitutes such error, an appellate court may exercise its discretion to correct the error only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
(Citations and punctuation omitted.) Williams, 306 Ga. at 720 (2). The defendants bear the burden to establish plain error, and the task "is difficult, as it should be." (Citations omitted.) State v. Crist, 341 Ga.App. 411, 415 (801 S.E.2d 545) (2017). "It is, of course, well established that the charge to the jury is to be taken as a whole and not out of context when making determinations as to its correctness." (Citations and punctuation omitted.) Id.
The defendants contend that this charge effectively nullified their defense that Ulbrich was permitted to delegate certain medical tasks to Johnson under their reading of OCGA § 43-34-22. However, immediately prior to the allegedly improper charge, the trial court instructed the jury on the law as set forth in OCGA § 43-34-22 (b) (8):
I charge you that nothing in this chapter shall be construed to prohibit the delegation by a physician to a qualified person other than a physician assistant of any acts, duties or functions which are otherwise permitted by law or established by custom.
Reading the charge in its entirety, as we must, the instructions as given were not erroneous. The charge they find objectionable is an almost exact rendering of language found in the medical board's rules and regulations.[8] Ga. Comp. R. & Regs....
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