ORiGINAL NO. 2011-0987 IN THE SUPREME COURT OF OHIO APPEAL FROM THE COURT OF APPEALS FOR CUYAHOGA COUNTY, OHIO NO. 94775 STATE OF OHIO, Appellee/Cross-Appellant -vs- RICHARD ANNABLE, Defendant-Appellant APPELLEE/CROSS-APPELLANT STATE OF OHIO'S COMBINED MEMORANDUM IN RESPONSE AND MEMORANDUM IN SUPPORT OF JURISDICTION Counsel for Plaintiff-Appellee WILLIAM D. MASON CUYAHOGA COUNTY PROSECUTOR T. ALLAN REGAS (oo67336) Assistant Prosecuting Attorneys The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 (216) 443-78oo Defendant-Appellant Richard Annable, pro se Inmate No. A582-282, Marion Correctional Institution, P.O. Box 57, Marion, Oh. 43302• JUL 112061 CLERKQFCOURT JUL 1'1 Z0i1 CLERK OF COURT SUPREME COURT 01 OHIO I SUPREME COURT OF OHIO
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ORiGINAL - Supreme Court of Ohio...Michael Giar, Ohio State Medical Board enforcement investigator investigated Appellant's administration of the procedure Perry complained about,
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ORiGINAL
NO. 2011-0987
IN THE SUPREME COURT OF OHIO
APPEAL FROMTHE COURT OF APPEALS FOR CUYAHOGA COUNTY, OHIO
NO. 94775
STATE OF OHIO,
Appellee/Cross-Appellant
-vs-
RICHARD ANNABLE,
Defendant-Appellant
APPELLEE/CROSS-APPELLANT STATE OF OHIO'S COMBINEDMEMORANDUM IN RESPONSE AND MEMORANDUM IN SUPPORT OF
JURISDICTION
Counsel for Plaintiff-Appellee
WILLIAM D. MASONCUYAHOGA COUNTY PROSECUTOR
T. ALLAN REGAS (oo67336)Assistant Prosecuting AttorneysThe Justice Center1200 Ontario StreetCleveland, Ohio 44113(216) 443-78oo
Defendant-Appellant
Richard Annable, pro seInmate No. A582-282,Marion Correctional Institution,P.O. Box 57, Marion, Oh. 43302•
JUL 112061
CLERKQFCOURT
JUL 1'1 Z0i1
CLERK OF COURTSUPREME COURT 01 OHIO I
SUPREME COURT OF OHIO
TABLE OF CONTENTS
1. MEMORANDUM IN RESPONSE TO APPELLANT'S APPEAL .................................. i
A. EXPLANATION OF WHY APPELLANT'S PROPOSITIONS OF LAW DO NOTINVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION OF ISSUE OF GREATPUBLIC INTEREST . ........................................................................................................ i
B. STATEMENT OF THE CASE AND FACTS ................................................................41. Evidence Presented at Trial ..................................................................................... 42. The Mens Rea of R.C. 4731.41 ................................................................................i4
C. ARGUMENT AGAINST APPELLt1NT'S PROPOSITIONS OF LAW .......................i4i. Appellant's First Proposition of Law ...............................................................i4
Proposition of Law I:.... Defendant-Appellant's constitutional and Due ProcessRights were violated and he has been subjected to double jeopardy ................. 14
2. Appellant's Second Proposition of Law ...........................................................15
Proposition of Law II: The trial court committed reversible error when itdenied Defendant's motion for judgment of acquittal under rule 29(A)........... 15
3. Appellant's Third Proposition of Law ..............................................................i6
Proposition of Law III: The trial court's error in the admission of evidenceeffectively denied the Defendant Due Process and a Fair Opportunity topresent his defense .............................................................................................. 16
4. Appellant's Fourth Proposition of Law ........................................................... 17
Proposition of Law IV: Defendant's conviction is manifestly against the weightof the evidence and must be overturned ............................................................. 17
5. Appellant's Fifth Proposition of Law ...............................................................i8
Proposition of Law V: The trial court erred in conviction and sentencing theDefendant . . .......................................................................................................... 18
II. THE STATE OF OHIO'S CROSS-APPEAL .................................................................i9
A. EXPLANATION OF WHY THIS CASE INVOLVES A SUBSTANTIALCONSTITUTIONAL QUESTION OF ISSUE OF GREAT PUBLIC INTEREST............ i9
B. ARGUMENT IN SUPPORT OF CROSS-APPELLANT'S PROPOSITION OFLAW ...............................................................................................................................2i
Proposition of Law: .... The offense of practicing medicine without a certificate,R.C. § 4731.41, is a strict liability offense ............................................................2i
iii.CCrNCi;uSifliv ... ............. 24
IV. CERTIFICATE OF SERVICE .... ................................................................................. 26
i
I. MEMORANDUM IN RESPONSE TO APPELLANT'S APPEAL
A. EXPLANATION OF WHY APPELLANT'S PROPOSITIONS OF LAW DONOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION OFISSUE OF GREAT PUBLIC INTEREST.
Appellant, Richard Annable, has submitted several propositions of law that do
not merit consideration; he merely disagrees with the application of law by the court in
this matter. Moreover, they are simple iterations of his assignments of error appeal.
The State however, does note that under Appellant's second proposition of law,
Appellant in part argues that the State did not present evidence of his culpable mental
state of recklessness as determined by the appellate court. In the State's cross-appeal,
the State contests that appellate determination that practicing medicine without a
license requirement is not a strict liability offense. As Appellant has included other
sufficiency arguments within his second proposition of law, the State asks that this
Court not accept his appeal on the second proposition of law, but rather accept
jurisdiction of its cross-appeal.
His first proposition of law alleges that he was subject to double jeopardy. He
was not, the trial court had jurisdiction over the matter. The trial court properly
amended prior dismissal entries of this matter to reflect that they were not with
prejudice - evidenced by the fact the State filed new charges and where there was no
finding in the prior cases that Appellant was deprived a constitutional or statutory
rights. State v. Annable, Cuyahoga App. No. 94775, 2oii-Ohio-2o29, at ¶ 22. Appellant
and received one treatment. The Trial Court awarded her $3,ooo restitution. Monica
Wloszek paid $3,000 for eight sessions. She requested her money back in summer of
2007 after receiving one treatment. The Trial Court awarded her $1,20o restitution.
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Shirley Andrews paid 2,280 for six treatments. She received three treatments and
requested her money back. She received a note saying she be compensated for the
treatments she did not receive. The Trial Court awarded her $2,28o restitution.
2. The Mens Rea of R.C. 4731.41
During trial, Annable argued that R.C. § 4731.41, practicing medicine without a
certificate, required the State to prove that he acted "recklessly." The trial court properly
found that § 4731.41 is a strict liability offense. On appeal, the reviewing court
ultimately affirmed Annable's convictions, but it also held that practicing medicine
without a certificate is not a strict liability offense. State v. Annable, 2011-Ohio-2o29, at
1135• The Eighth District Court of Appeals noted that R.C. § 2901.21(B) imposes a mens
rea of "reckless" when a statute both fails to give a culpable mental state and the statute
fails to plainly indicate a purpose to impose strict criminal liability. While the language
"No person shall" is not enough to indicate a purpose to impose strict liability, the
reviewing court failed to consider that R.C. § 4731.41 is a malum prohibitum offense and
a valid exercise of the State's police power. As such, R.C. § 4731.41 is a strict liability
offense. Because the reviewing court failed to consider the purpose of R.C. § 4731.41 it
deviated from proper analysis and improperly applied § 2901.21(B).
C. ARGUMENT AGAINST APPELLANT'S PROPOSITIONS OF LAW
1. Appellant's First Proposition of Law
Proposition of Law I. Defendant-Appellant's constitutional andDue Process Rights were violated and he has been subjected to
zc'ozi-b^.'ejeopardVr.--
In his first proposition of law, Appellant alleges that he was subject to double
jeopardy where the State previously indicted and reindicted the charges. On July 21,
2010, the trial court nunc pro tunc the prior dismissals' journal entries to reflect the
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dismissals as without prejudice. Pursuant to Criminal Rule 36, the state requested the
trial court to correct the clerical error that occurred. The previous entries were done in
error since the state had requested originally to have the cases dismissed without
prejudice. The entry of dismissal with prejudice was a clerical error on the part of the
trial court which the trial court is permitted to correct at any time with a nunc pro tunc
entry. A clerical mistake is a mistake or omission, mechanical in nature and apparent
on the record, which does not involve a legal decision or judgment. State v Patrick
(December 20, 2007) 8th District No. 89214, WL 4443398. A court may, at any time,
correct clerical mistakes arising from oversight or omission. State v Walton (Sept. 14,
2oo6) 8th District No. 87347, WL 2627542. A new case could not have been filed if the
trial court intended to dismiss these cases with prejudice, thus the record is clear that
the trial court's intention was to dismiss the two previous cases without prejudice.
Appellant merely disagrees with the appellate court's acceptance that the trial court
could correct the clerical error; as such, this Court should not accept Appellant's first
propositon of law.
2. Appellant's Second Proposition of Law
Proposition of Law H. The trial court committed reversible errorwhen it denied Defendant's motion for judgment of acquittal underrule 29(A).
In his second proposition of law, Appellant claims that there was insufficient
evidence to show that he was practicing medicine. In his argument, he states there was
.no-evr encc ^rer rnrea am^aicai-proceduTe, that th^tatnte^vaynat a strictiiaoihiy
statute, that the State did not present evidence that he acted recldessly, and that the
State did not assert evidence as to all elements of theft. As noted, the State has filed a
cross-appeal as to the appellate court's determination R.C. 4731.41 is not a strict liability
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offense. Because Appellant's arguments go beyond the issue presented by the State and
include disagreement with the factual determinations by the appellate court as to the
sufficiency of the evidence presented at trial, the State asks this Court to deny
jurisdiction to Appellant on his general proposition of law, but accept the State's cross-
appeal where it is focused on an issue of law - not one of fact.
3. Appellant's Third Proposition of Law
Proposition of Law III: The trial court's error in the admission ofevidence effectively denied the Defendant Due Process and a FairOpportunity to present his defense.
In his third proposition of law, Appellant argues that the trial court improperly
allowed evidence of his advertisements for the medical procedures he conducted. This
issue was resolved by the appellate court where it found, "The tape was used by the state
in the defense's case, when Annable took the stand, to demonstrate that he was regarded
in the community as a doctor. It was proper impeachment evidence. Evid.R. 607
provides that the "credibility of a witness may be attacked by any party ***." 2011-
Ohio-2o29, at ¶56. The appellate court explained that, "Annable's position at trial was
that he never held himself out to his clients or the public as a doctor." Id.
The tape was utilized for impeachment purposes on cross-examination and not
in the State's case in chief. The state knew that the tape was never disseminated and
that the Appellant was described as "Doctor Annable." The state also knew that Clear
Channel created the spot, however the state utilized the tape to question the Appellant
doctor. Such impeachment was consistent with the state's theory that appellant created
an impression to the public that his procedure was medical and that he was a doctor.
This was proper use of evidence under Evid.R. 607. Appellant has not shown error by
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the admission of the evidence, nor has demonstrated prejudice by such admission in
light of the other evidence. As such, he has not identified an issue of law that is general
or that presents a substantial constitutional question.
4. Appellant's Fourth Proposition of Law
Proposition of Law IV: Defendant's conviction is manifestly againstthe weight of the evidence and must be overturned.
In his fourth proposition of law, Appellant maintains that his convictions are
against the manifest weight of the evidence. In his argument, he reiterates his
arguments that his theft convictions were not based upon sufficient evidence, finding
support in the dissenting judge's opinion that the facts here do not allege criminal
conduct. See, 2oii-Ohio-2o29, Stewart, J. Concurring in Part/Dissenting in Part.
However, the opinion resolves the issue as not one of proof but time.
The majority correctly noted that the services rendered were not those bargained
for - thus finding that the theft occurred at the time of the services. The dissenting
opinion see the matter as one of contract law - services under contract that were not
provided. However, the majority identified that the evidenced established a theft
occurred from the onset - that Appellant did not intend to deliver the services
advertised. It stated:
{¶ 48}Six of Annable's clients were listed as the victims of theft. Those victimstestified that they prepaid for their services with Annable, but they did not finishtheir treatment plans. All but one victim requested refunds; none of them werereimbursed.
Ti 4g'^The- staie presented-sufficient-MderFe-eziiat An-n-affle use^deivepractices to entice his victims to prepay for the therapy. After taking the victims'money, the services were not completed as agreed, and Annable did not refundthe money. On this record, the trial court properly denied his Crim.R. 29 motionas it related to the theft count.
Id., at ¶48-49.
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After a thorough review of the evidence presented, the appellate court
determined that, "The state presented ample evidence that Annable practiced medicine
without a license and committed theft by deception. That evidence included his
performing a medical procedure, holding himself out, either explicitly or impliedly, as
being a doctor, and taking money for the treatments, which were not completed and for
which the clients were not refunded." Id., at ¶61. Appellant has not identified an issue of
great public interest in this proposition of law and thus, his fourth proposition of law
should not be accepted for consideration by this Court.
5. Appellant's Fifth Proposition of Law
Proposition of Law V. The trial court erred in conviction andsentencing the Defendant.
In his fifth proposition of law, Appellant complains that the court simply erred in
convicting and sentencing him. In this argument, Appellant seemingly incorporates
the arguments made under his first four propositions of law, referencing double
jeopardy and jury instructions. He does however raise, without explanation, that he was
sentenced to allied offenses. However, he was not. Each conviction represented a
distinct crime against distinct victims. Id., at ¶65.
Finally, he argues that jury instructions were errant where they only included a
general unanimity charge. The appellate court noted that the law as to this issue is
settled, citing this Court's decision in State v. Johnson (1989), 46 Ohio St.3d 96, 545
N.E.2d 636. The Court followed Johnson, noting that this Court, "held that even if a
single count of an indictment is capable of being committed by alternative means, it can
be construed as a single conceptual grouping. [Johnson] at 104. The Ohio Supreme
Court further ruled that despite the existence of alternative means of commission of
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murder, the count in the indictment was able to be construed as a single conceptual
grouping." 20i1-Ohio-2029, AT ¶67. The appellate court then analyzed this case under
Johnson, holding that:
The crime at issue here, practicing medicine without a license, allows forvarying means of committing the single conceptual act.
{¶ 68} If a count of an indictment is conceptually single, the court is notrequired to instruct the jury that it must be unanimous as to the means itwas committed. State v. Gardner, 118 Ohio St.3d 420, 20o8-Ohio-2787,889 N.E.2d 995.
Id., at ¶67-68.
As Appellant does not contest the law, but rather the application of well-settled
law to the facts in his case and the results of his conviction, the State asks that this Court
decline jurisdiction of Appellant's propositions of law, but that it accept jurisdiction over
the cross-appeal filed in this matter.
II. THE STATE OF OHIO'S CROSS-APPEAL
A. EXPLANATION OF WHY THIS CASE INVOLVES A SUBSTANTIALCONSTITUTIONAL QUESTION OF ISSUE OF GREAT PUBLICINTEREST.
In Ohio, R.C. § 2901.21(B) supplies a default rule for supplying the mens rea of a
criminal offense; if an offense completely lacks a requisite degree of culpability and the
section does not plainly indicate a purpose to impose strict criminal liability:
"recklessness" is the appropriate mental state. In this case, the appellate court inserted
"recklessness" into R.C. § 4731.41, practicing medicine without a certificate, finding that
A jury found Appellee Richard Annable guilty of 12 counts of practicing medicine
without a license. The trial court sentenced Annable to four and one-half years in prison
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and ordered him to pay $15,580 in restitution. On appeal, Annable challenged the
sufficiency of the evidence used to convict him; in part, Annable claimed that the mens
rea of the indicted offense required the State to present evidence that he acted
"recklessly," and that the trial court erred in holding the statute imposed strict liability.
In the opinion ultimately affirming Annable's conviction, the appellate court
acknowledged that courts must consider various factors to determine whether the
General Assembly intended to impose strict liability. State v. Annable, 8th Dist. No.
94775, 2011-Ohio-2o29, at ¶33. However, the appellate court failed to analyze the
relevant factors to determine the legislature's intent to make R.C. § 4731.41 a strict
liability offense or not. Instead, the reviewing court determined that the language, "No
person shall," in the statute was not enough to find strict liability; it further found that
there was no intent in the statute to impose strict liability. The appellate court noted
that the "numerous" exceptions to R.C. §4731.41 indicated that the legislature could not
have meant to impose strict liability. However, this Court has found that mala prohibita
offenses and exercises of police power, of which R.C. § 4731.41 is included, are strict
liability offenses.
Because the appellate court failed to determine that the legislature intended to
impose strict criminal liability for the offense of practicing medicine without a license,
that court failed to follow this Court's prior statements that acts made unlawful for the
good of the public welfare are strict liability offenses. For this reason, the State asks this
hoirorable-Caurt-to-take jttrfsdiction of this case, reverse the ap eip iate decisionits
holding that R.C. 4731.41 is a strict liability offense, affirm Appellee's convictions, and
adopt as law the following proposition of law:
20
The offense of practicing medicine without a certificate, R.C. § 4731-41, is astrict liability offense.
B. ARGUMENT IN SUPPORT OF CROSS-APPELLANT'S PROPOSITIONOF I.AW
Proposition ofLaw: The offense of practicing medicine without acertificate, R.C. § 4731.¢1, is a strict liability offense.
Analysis of whether a statute imposes a culpable mental state includes a
consideration of whether the statute plainly indicates a purpose to impose strict
criminal liability. R.C. § 2901.21(B). To determine the legislative intent or purpose of a
statute, courts look to several factors: whether there is a culpable mental state for one
element of the crime, but not another; whether the offense is mala prohibita; and
whether the legislature has taken a "strong stance" against certain types of crimes. See
State v. Bowersmith, 3d Dist. No. 14-02-02, 2002-Ohio-3386, at ¶ 14. Malum
prohibitum offenses are "acts that are made unlawful for the good of the public welfare
regardless of the offender's state of mind." State v. Schlosser (1997), 79 Ohio St.3d 329,
333.
Statutes enacted for the purpose of promoting the safety, health, or well-being of
the public are generally enforced under a strict liability standard and are not required to
contain intent as a necessary element. Morisette v. United States (1952), 342 U.S. 246;
State v. Rife (June 13, 2000), loth Dist. No. 99AP-981, 2000 WL 757259, at *2. Laws
classified as mala prohibita offenses include food and drug laws, child labor laws,
building regulations, liquor control regulations, and sex offender registration laws. State
v. Stewart, 8th Dist. No. 94863, 20ii-Ohio-612; State v. Morello (May 13, 1959), 169
Ohio St. 213; Kendall v. State (June i6, i925), i13 Ohio St. iii; State v. Rippeth (Oct. 25,
1904), 71 Ohio St. 85; State v. Kelly (Feb. 25, i896), 54 Ohio St. 166.
21
Because a malum prohibitum offense is not required to contain a culpable mental
state, the trial court properly found that R.C. § 4731.41 is a strict liability offense.
However, the appellate court found that the trial court erred in this holding. Instead of
looking to the ultimate purpose of the statute, the reviewing court concluded that the
"No person shall" language of the statute, by itself, did not show a plain purpose to
impose strict criminal liability. The appellate court used R.C. § 2901.21(B) to insert a
mens rea of recklessness into a strict liability statute. As such, the appellate court
ignored the purpose of § 4731.41 and deviated from precedent established by this Court.
Immediately following the definitions Section of the Ohio Revised Code Chapter
regulating physicians, the Ohio General Assembly declared:
The practice of medicine in all of its branches or the treatment of humanailments without the use of drugs or medicines and without operativesurgery by any person not at that time holding a valid and currentcertificate as provided by Chapter ... 4731 of the Revised Code is herebydeclared to be inimical to the public welfare and to constitute a publicnuisance.
R.C. § 4731•341(A) (emphasis added).
The Ohio General Assembly plainly indicates that R.C. § 4731.41 was enacted for the
purpose of protecting the public welfare. Malum prohibitum offenses are made unlawful
for that same purpose: to protect the public welfare regardless of the offender's state of
mind. State v. Schlosser, 79 Ohio St.3d at 333.
In this matter, the reviewing court's assertion that it, "[did] not find any
indication of the General Assembly's intent to impose strict liability" is an incomplete
analysis of the statutes. 2011-Ohio-2o29, at ¶ 34. The General Assembly spelled out its
purpose in enacting the law in the Section immediately preceding R.C. § 4731.41. An
interpretation of the statute that ignores the statement that the prohibition against
22
practicing medicine without the requisite certificate is one that is "inimical to the public
welfare" is contrary to the Revised Code
Further, this Court, in a per curiam opinion, reinforced the General Assembly's
stated purpose for § 4731.41 and held that it was a regulation of the public health:
It has long been well settled in the jurisprudence of Ohio as well as ofother states that the General Assembly has the right to reasonably regulatebusiness and occupations and those desiring to follow the same, especiallyphysicians and surgeons. It would be superfluous to quite authority uponthis proposition. In addition, however, legislation of the character inquestion in this case [practicing medicine without a license] isclearly within the police power upon the further and higherground, the regulation of public health.
Nesmith v. State (1920), ioi Ohio St. 158, i59-6o (Emphasis added.)
In finding various sections of the State Medical Act (including R.C. § 4731.41)
valid and constitutional provisions of Ohio law, this Court reasoned:
All persons engaged in the practice of the healing art need have specialqualifications touching the knowledge of the human body in all its parts,their normal and abnormal relations - not only knowledge that wouldenable all such persons to carefully and correctly diagnose physical andmental ailments, but also an ability to prescribe the proper treatmenttherefore.
The public needs relating to the conservation of the public health are somanifest that it would seem unnecessary to further consider the generalscope of this character of legislation ...
Id.
Practicing medicine without a license is a menace to the public health, safety, and
welfare. R.C. § 4731.41 has been held by Ohio courts to be a proper exercise of the
-StatF'c police _ o;cygr in 'pg '-slt3-T-F^ ^^3^Yn^3hlic^l€althKatsafaros ^-.Aga-tl#IlE6^(A^yr.i-8,.... ...'
1935), 52 Ohio App. 290, at paragraph one of the syllabus.
This statute fits squarely within this Court's definition of a malum prohibitum
offense, and it is a strict liability offense. The reviewing court noted that the fact that the
23
General Assembly made so many exceptions to R.C. § 4731.41 indicates that the General
Assembly did not mean to impose strict liability. However, that analysis is flawed. It
stands to reason that if the General Assembly required a certain mens rea for the
offense, or if it intended § 2901.21(B) to insert "reckless" into the statute, then the
numerous exceptions to § 4731.41 would be unnecessary; unwitting violators of the
statute would be exempted because they would not have the requisite mental state for
the crime. Unlike the appellate court's reasoning, it is more reasonable to find that by
codifying numerous exceptions to R.C. § 4731.41, the General Assembly implicitly
recognized that it had created a strict liability offense in which anyone could be
convicted unless exempted by the statute. The General Assembly's creation of
exceptions does not indicate the intent to create a specific mens rea for R.C. § 4731.41;
rather it reinforces the idea that, as the Supreme Court of the United States held,
offenses that are designed to protect the public health, safety, or welfare need not
contain intent as a necessary element of the crime. Morissette v. United States, 342 U.S.
at 247-48.
Practicing medicine without a certificate has always been a strict liability offense.
By pronouncing that R.C. § 4731.41 requires proof in this case that Annable acted
"recklessly," the appellate court has changed the purpose of the statute as declared by
the General Assembly. This holding is errant and the State asks that this Court accept
jurisdiction in this case and adopt as law its proposition.
Because the appellate court improperly inserted the mens rea of "reckless" to R.C.
§ 4731.41, practicing medicine without a certificate, which the legislature intended to be
a strict liability offense, this Court should accept jurisdiction of the State's proposition
24
of law. The appellate court failed to properly interpret the statute as set forth by the
Ohio General Assembly. For these reasons, the State asks this Court to accept
jurisdiction of this case upon it's cross-appeal, reverse the appellate decision holding
that R.C. § 4731.41 is not a strict liability offense, affirm Appellee's convictions, and
adopt the State's proposition of law: The offense of practicing medicine without a
certificate, R.C. § 4731.41, is a strict liability offense.