OPINIONS OF THE SUPREME COURT OF OHIO 

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 The State of Ohio, Appellant, v. McCarthy, Appellee. 

 [Cite as State v. McCarthy (1992), Ohio St.3d .] 

Criminal law -- Prosecution of physician for alleged violations 

 of R.C. Chapter 2925 -- Trial court commits reversible 

 error when it refuses to give requested jury instruction 

 that permits jury to consider physician's subjective state 

 of mind, as well as objective criteria, in determining 

 whether physician's actions were performed in bona fide 

 treatment of patient -- R.C. 2925.03(B), construed. 

In the prosecution of a physician for alleged violations of R.C. 

 Chapter 2925, a trial court commits reversible error when 

 it refuses to give a requested jury instruction that 

 permits the jury to consider the physician's subjective 

 state of mind, as well as objective criteria, in 

 determining whether the physician's actions were performed 

 in the course of the bona fide treatment of a patient. 

 (R.C. 2925.03[B], construed; State v. Sway [1984], 15 Ohio 

 St.3d 112, 15 OBR 265, 472 N.E.2d 1065, followed.) 

 (No. 91-2132 -- Submitted October 14, 1992 -- Decided 

December 31, 1992.) 

 Appeal from the Court of Appeals for Montgomery County, 

No. 12123. 

 Defendant-appellee, Thomas H. McCarthy, is a doctor of 

osteopathy with an office in Dayton. On August 22, 1989, 

defendant was indicted by the grand jury on fifty counts of 

aggravated trafficking in drugs (R.C. 2925.03), three hundred 

seventy-seven counts of trafficking in drugs (R.C. 2925.03), 

thirty-five counts of illegal processing of a drug document 

(R.C. 2925.23), one count of corrupting another with drugs 

(R.C. 2925.02), and one count of engaging in a pattern of 

corrupt activity (R.C. 2925.02). 

 On November 14, 1989, a second indictment charged 

defendant with an additional thirteen counts of trafficking in 

drugs, one count of illegal processing of a drug document, and 

three more counts of corrupting another with drugs. 

 The indictments charged that defendant improperly 

prescribed and dispensed Ritalin (Schedule II drug); Didrex and 

UMI-STAT (Schedule III drugs); Adipex-P and Ionamin (Schedule 
IV drugs). 

 A jury trial was held wherein defendant testified that he 

had prescribed drugs as diet medication for weight loss in 

addition to any diet and exercise programs he had recommended 

to his patients. Sometime during the trial, the court held a 

conference in chambers with counsel for the parties to discuss 

the jury charge. One of the issues discussed was defendant's 

proposal that the jury be provided with a definition of "bona 

fide" in the context of whether defendant's prescribing of 

drugs was for the bona fide treatment of a patient.1 The court 

refused to instruct the jury on a definition of "bona fide" 

because it believed that such an instruction would tend to 

mislead the jury.2 

 The jury found defendant guilty of fifty counts of 

aggravated trafficking, two hundred sixty-one counts of 

trafficking, twenty-five counts of illegal processing of drug 

documents, and two counts of corrupting another with drugs. 

Defendant was acquitted on all other charges. 

 On March 12, 1990, prior to sentencing, the trial court 

declined to enter judgment of conviction on the counts relating 

to illegal processing of drug documents on the ground that they 

were allied offenses of similar import to some of the 

trafficking convictions. In addition, the trial court 

dismissed thirteen of the trafficking counts upon partial 

granting of defendant's motion for a mistrial as to those 

counts. Subsequently, defendant was fined and sentenced with 

respect to the remaining counts upon which he was convicted. 

 Upon appeal, the court of appeals reversed and discharged 

defendant on the two counts of corrupting another with drugs, 

and reversed and remanded as to the remaining counts. The 

appellate court noted the trial court's reliance on State v. 

Sway (1984), 15 Ohio St.3d 112, 15 OBR 265, 472 N.E.2d 1065, 

and concluded that the jury instructions given were 

unsatisfactory: 

 "The trial court closely followed Sway in formulating its 

charge on the definition of bona fide. The trial court 

instructed the jury to consider the applicable statutes and 

rules for purposes of assessing whether McCarthy's prescribing 

practices were bona fide. The trial court cautioned the jury 

that a violation of the statutes and rules alone did not 

warrant the loss of the exemption because the State had to 

prove every element of the offense. Notwithstanding this 

caveat, the instruction was nevertheless, in our judgment, too 

restrictive. The instruction limited the determination of bona 

fide treatment solely to the consideration of whether McCarthy 

complied with the statutes and rules, and whether the State had 

otherwise proved the essential elements of the offenses. Thus, 

the instruction allowed the jury to conclude that any deviation 

from the cited statutes and rules, no matter how slight, would 

have amounted to a lack of bona fide medical treatment 

sufficient to negate the exemption, and to impose criminal 

liability. 

 "Clearly, evidence that a physician has prescribed or 

dispenses controlled substances in a manner contrary to 

regulations enacted pursuant to R.C. Chapter 3719 and 4731 is 

evidence tending to establish a lack of bona fide treatment. 

In our view, however, a slight deviation from those regulations 
would not necessarily warrant the severe consequence of 

criminal liability, and that under Sway, the jury must consider 

the subjective state of mind of a physician charged with 

violating Chapter 2925. McCarthy's proposed definition of 

'bona fide' would have allowed the jury to do so. Refusing to 

define 'bona fide' had the opposite effect. 

 "We thus conclude that McCarthy's proposed instruction 

defining 'bona fide' contained an accurate, and necessary, 

statement of the law, and, therefore, should have been included 

in the court's charge to the jury." 

 The cause is now before this court pursuant to the 

allowance of a motion for leave to appeal. 

 

 Lee C. Falke, Prosecuting Attorney, and Lorine M. Reid, 

Assistant Prosecuting Attorney, for appellant. 

 Flanagan, Lieberman, Hoffman & Swaim, Dennis A. Lieberman 

and Richard Hempfling, for appellee. 

 Ronald L. Collins, Tuscarawas County Prosecuting Attorney, 

urging reversal for amicus curiae, Ohio Prosecuting Attorneys' 

Association. 

 Gold, Rotatori, Schwartz & Gibbons Co., L.P.A., and John 

S. Pyle, urging affirmance for amicus curiae, Ohio Association 

of Criminal Defense Lawyers. 

 

 A. William Sweeney, J. The crucial issue posed in this 

appeal is whether the trial court erred to the prejudice of 

defendant in refusing to provide the jury with a definition of 

"bona fide" in determining whether any of defendant's actions 

were performed in the course of the bona fide treatment of a 

patient. Since we believe the trial court erred in refusing to 

provide the jury with a definition of "bona fide," we affirm 

the judgment of the court of appeals below. 

 The version of R.C. 2925.03 applicable to this action 

provided in relevant part: 

 "(B) This section does not apply to manufacturers, 

practitioners, pharmacists, owners of pharmacies, and other 

persons whose conduct is in accordance with Chapters 3719., 

4715., 4729., 4731., and 4741. of the Revised Code." (Now 

renumbered R.C. 2925.03[B][1].) 

 In State v. Sway (1984), 15 Ohio St.3d 112, 15 OBR 265, 

472 N.E.2d 1065, this court held in the syllabus: 

 "A physician who unlawfully issues a prescription for a 

controlled substance not in the course of the bona fide 

treatment of a patient is guilty of selling a controlled 

substance in violation of R.C. 2925.03." 

 The plaintiff-appellant, state of Ohio, argues that the 

term "bona fide" is in general usage and that its overall 

definition is known to the average layperson. The state 

contends that in determining whether the conduct of a physician 

constitutes bona fide medical treatment, the jury must not 

consider the physician's subjective state of mind, but rather 

it must consider whether the physician's conduct was in 

accordance with the standards of medical practice established 

by regulations set forth in, inter alia, R.C. Chapters 3719 and 

4731. 

 Defendant and amicus, Ohio Association of Criminal Defense 

Lawyers, essentially argue that under this court's decision in 
Sway, supra, a jury instruction in a prosecution of a 

physician-practitioner for alleged violations of R.C. Chapter 

2925 should focus the jury's attention on the physician's 

subjective state of mind as well as objective criteria in order 

to determine whether a physician's actions were performed in 

the course of the bona fide treatment of a patient. 

 In Cincinnati v. Epperson (1969), 20 Ohio St.2d 59, 49 

O.O.2d 342, 253 N.E.2d 785, this court held in the first 

paragraph of the syllabus: 

 "In a criminal case, if requested special instructions to 

the jury are correct, pertinent and timely presented, they must 

be included, at least in substance, in the general charge. 

(State v. Barron, 170 Ohio St. 267 [10 O.O.2d 299, 164 N.E.2d 

409], followed.)" Accord State v. Nelson (1973), 36 Ohio St.2d 

79, 65 O.O.2d 222, 303 N.E.2d 865, paragraph one of the 

syllabus. See, also, State v. Comen (1990), 50 Ohio St.3d 206, 

553 N.E.2d 640. 

 In our view, the court of appeals below was correct in 

holding that the trial court erred in not instructing the jury 

on the meaning of "bona fide," because defendant's proposed 

instruction, as set forth in footnote 1, satisfied the 

requirements of Epperson, supra, and other like precedents. 

Moreover, the trial court's charge to the jury, as set forth in 

footnote 2, was unsatisfactory because it required the jury to 

limit its inquiry to simply whether defendant had complied with 

the statutes and rules regulating the conduct of physicians in 

prescribing or dispensing controlled substances. 

 Defendant's proposed instruction on the definition of 

"bona fide," on the other hand, would have led the jury to 

consider defendant's subjective state of mind, i.e., his 

intent, in determining whether his actions constituted criminal 

conduct under the law. The statutory scheme of R.C. Chapter 

2925 does not and cannot make mere negligence in the 

prescribing of drugs a crime. Criminal intent must be shown in 

order to support a conviction thereunder. Thus, we reject the 

state's argument that a physician's subjective state of mind is 

largely irrelevant in determining whether a physician's actions 

occurred in the course of the bona fide treatment of a patient. 

 Likewise, we reject the state's assertion that the term 

"bona fide" needs no elucidation or definition in a criminal 

prosecution under R.C. Chapter 2925. Given our holding in 

Sway, supra, and in light of the statutes and rules governing a 

physician-practioner's conduct in the prescribing and 

dispensing of controlled substances, we find the term "bona 

fide" in this context to be akin to such legally important 

terms as "knowingly," "intentionally" or "purposely," which are 

otherwise familiar to lay persons, but which are also 

universally defined in jury instructions in criminal 

prosecutions throughout the country. 

 Our holding herein parallels those decisions from other 

jurisdictions which have held that a physician-practitioner's 

subjective state of mind must be shown, where the prosecution 

attempts to prove that the prescription of controlled 

substances goes beyond the realm of legitimate medical 

treatment into the area of criminal conduct. See, e.g., People 

v. Downes (1975), 394 Mich. 17, 228 N.W.2d 212 (physician); 

Commonwealth v. Comins (1976), 371 Mass. 222, 356 N.E.2d 241 
(osteopath); and State v. Young (1991), 185 W.Va. 327, 406 

S.E.2d 758 (dentist). 

 In addition, standardized federal jury instructions 

contain a good-faith test applicable in federal prosecutions of 

physicians brought under Section 841(a)(1), Title 21, 

U.S.Code. See Sand, Siffert, Loughlin & Reiss, 2 Modern 

Federal Jury Instructions (1992) 56-43 and 56-48, Instructions 

56-19 and 56-20, Paragraph 56.02. 

 Consequently, inasmuch as the trial court did not charge 

the jury with the proposed instruction proffered by defendant, 

which would have permitted the jury to consider defendant's 

subjective state of mind in considering the criminality, or 

lack thereof, of defendant's conduct, the court of appeals 

correctly reversed the multiple convictions rendered against 

defendant. 

 Based on all the foregoing, we adhere to our prior 

decision in Sway, supra, and construe the exemption for 

physician-practitioners set forth in R.C. 2925.03(B), by 

holding that in the prosecution of a physician for alleged 

violations of R.C. Chapter 2925, a trial court commits 

reversible error when it refuses to give a requested jury 

instruction that permits the jury to consider a physician's 

subjective state of mind, as well as objective criteria, in 

determining whether the physician's actions were performed in 

the course of the bona fide treatment of a patient. 

 Accordingly, the judgment of the court of appeals is 

hereby affirmed. 

 Judgment affirmed. 

 Moyer, C.J., Douglas and H. Brown, JJ., concur. 

 Holmes, Wright and Resnick, JJ., dissent. 

 

FOOTNOTES: 

 1 Defendant's "Proposed Jury Instruction No. 20" 

contained a request that the trial court give the following 

definition: "'Bona fide' means in or with good faith; 

honestly, openly, and sincerely; without deceit or fraud." 

 As pointed out by the court of appeals below, defendant's 

definition of "bona fide" comports with the commonly accepted 

definition of the term as found in Black's Law Dictionary. 

 2 In this context, the trial court instructed the jury in 

pertinent part as follows: 

 "Let's begin with the area of trafficking and aggravated 

trafficking. The defendant is charged with several counts of 

trafficking in drugs and aggravated trafficking in drugs. 

 "A physician who lawfully prescribes or dispenses a 

controlled substance in the course of the bona fide treatment 

of a patient is exempt from the provisions of law concerning 

trafficking and aggravated trafficking in drugs. But a 

physician who unlawfully prescribes or dispenses a controlled 

substance not in the course of bona fide treatment of a patient 

is guilty of selling a controlled substance in violation of the 

provisions of law concerning trafficking and aggravated 

trafficking in drugs. 

 "Now, before you can find the defendant guilty of any such 

charge, you must find beyond a reasonable doubt that on or 

about the date specified in such charge--and at a later time I 

will go over with you the aspect of the multiple counts of 
these charges; for now, I am reading this to you in a general 

form--that on or about the date specified in such charge and in 

Montgomery County, Ohio, the defendant knowingly sold the 

controlled substance specified in such charge in the bulk 

amount specified in such charge and that such sale was not in 

the course of the bona fide treatment of a patient. 

 "*** 

 "In the course of a bona fide treatment of a patient. 

[Sic.] For purposes of determining whether the defendant was 

or was not acting in the course of the bona fide treatment of a 

patient, the following statutes and rules regulating the 

conduct of physicians may be used, but this phrase is only one 

element of the crimes of trafficking in drugs and aggravated 

trafficking in drugs. 

 "If a physician does not act in accordance with such 

statutes or rules, that fact alone does not necessarily mean 

that the physician has lost his exemption for the provision of 

the law concerning trafficking in drugs or aggravated 

trafficking in drugs. The defendant must be acquitted unless 

the State produces evidence which convinces you beyond a 

reasonable doubt of every essential element of the crimes of 

trafficking in drugs and aggravated trafficking in drugs. ***" 

 

 Wright, J., dissenting. This case involves a narrow 

issue of statutory interpretation: whether a physician can be 

exempt from criminal liability for drug trafficking if he or 

she prescribes a controlled substance in subjective "good 

faith." Because the plain language of R.C. 2925.03(B)(1) 

exempts physicians from criminal liability only if they act "in 

accordance with" objective requirements set forth in specific 

sections of the Revised Code and the Ohio Administrative Code, 

I would hold that a physician's subjective "good faith" is not 

sufficient to entitle him or her to the statutory exemption. 

Therefore, I dissent from the majority's conclusion that the 

jury should have been permitted to consider McCarthy's 

subjective state of mind. 

 R.C. 2925.03(A) prohibits the sale of controlled 

substances. R.C. 2925.03(B)(1) creates a specific exemption to 

that general prohibition for physicians acting in the course of 

their practice. It provides in part: 

 "(B) This section does not apply to the following: 

(1) Manufacturers, practitioners, pharmacists, owners of 

pharmacies, and other persons whose conduct is in accordance 

with Chapters 3719. *** and 4731. *** of the Revised Code 

***[.]"3 (Emphasis added.) 

 R.C. Chapters 3719 and 4731, along with Ohio Adm. Code 

Chapter 4731-11, in part govern the dispensation of drugs by 

physicians. Ohio Administrative Code Chapter 4731-11 is 

particularly important because it deals specifically with 

controlled substances. These statutes and regulations create a 

series of procedural requirements physicians must satisfy 

before they are permitted to prescribe controlled substances. 

In State v. Sway (1984), 15 Ohio St.3d 112, 15 OBR 265, 472 

N.E.2d 1065, the court considered R.C. 2925.03 as applied to a 

physician. The court looked specifically at the physician's 

exemption in R.C. 2925.03(B)(1). Justice Holmes, for a 

unanimous court, wrote: "*** [W]e believe that if a physician 
does not act in accordance with such regulations [R.C. Chapters 

3719 and 4731] he is subject to criminal liability under R.C. 

2925.03(A) when his actions fall therein. It is patently clear 

from the facts presented that Dr. Sway did not conform to the 

directives specifically set forth in R.C. 4731.22 ***. Thus, 

we are unable to find any statutory provision which would 

preclude us from finding appellee liable under R.C. 

2925.03(A)." Sway, 15 Ohio St.3d at 114, 15 OBR at 267, 472 

N.E.2d at 1067. Later in the opinion this statement was 

capsulized by the court in holding that physicians are 

criminally liable for selling controlled substances if the sale 

is "not in the course of the bona fide treatment of a 

patient." Id. at 115, 15 OBR at 268-269, 472 N.E.2d at 1068. 

 At the core of today's case is a dispute over the proper 

definition of the term "bona fide," as used in Sway. There 

appear to be two alternatives: "good faith," as argued by 

McCarthy, and "in accordance with" R.C. Chapters 3719 and 4731 

as stated in R.C. 2925.03(B)(1). 

 McCarthy argued and the court of appeals below agreed that 

"bona fide" means "good faith" and the jury must be instructed 

that a doctor cannot be convicted of violating R.C. 2925.03 if 

his or her treatment was in good faith. In its opinion, the 

court of appeals admittedly read Sway's holding expansively. 

It believed that Sway meant "that a physician loses the 

exemption when he prescribes controlled substances for purposes 

other than bona fide treatment," and that "bona fide" 

necessarily means "good faith." I disagree. 

 Although "bona fide" is often understood to mean "good 

faith," neither Sway nor R.C. 2925.03(B)(1) mandates a "good 

faith" standard for the physician's exemption. The plain 

language of R.C. 2925.03(B)(1) states that a physician is only 

exempt from criminal liability if he or she acts "in accordance 

with" R.C. Chapters 3719 and 4731 when prescribing or 

dispensing controlled substances. These statutes and the 

attendant regulations in Ohio Adm. Code Chapter 4731-11 are 

simple and clear: they require physicians to maintain proper 

records; take certain precautions; and act, in short, as 

reasonable physicians would in the same circumstances. These 

black and white requirements protect legitimate doctors from 

reproach and protect society from illegitimate doctors who 

would use their positions to distribute controlled substances 

with impunity. The existence of objective criteria makes the 

line between legitimate treatment and drug trafficking very 

easy for both physicians and officials in the criminal justice 

system to discern. Because objective criteria are so 

desirable, nowhere in R.C. Chapters 3719 and 4731, or in Ohio 

Adm. Code Chapter 4731-11, is there stated a good faith 

standard for prescribing controlled substances. The General 

Assembly wisely decided that the subjective intent of a 

physician prescribing controlled substances is not relevant in 

determining whether a physician's actions are in accord with 

the law. 

 Sway is not inconsistent with the plain language of R.C. 

2925.03(B)(1). I read the holding of Sway to equate the term 

"bona fide" to this statutory provision that physicians must 

act "in accordance with" R.C. Chapters 3719 and 4731. I do not 

accept the majority's conclusion that "bona fide" in all 
circumstances means "good faith" because this conclusion 

ignores the statute's plain language. 

 The instructions given to the jury in this case were 

correct. Holding a physician to an objective professional 

standard rather than a subjective "good faith" standard does 

not, as McCarthy argued, undermine the mens rea requirement of 

drug trafficking. The state still must prove that the 

defendant knowingly and intentionally sold illegal drugs. 

Moreover, the state must prove beyond a reasonable doubt that 

the defendant-physician knowingly sold those drugs without 

complying with the statutes and regulations which define 

professional conduct. 

 Accordingly, I would reverse the court of appeals and 

reinstate McCarthy's convictions. 

 Holmes and Resnick, JJ., concur in the foregoing 

dissenting opinion. 

 

FOOTNOTE: 

 3 Of the four Revised Code chapters specified in R.C. 

2925.03(B)(1), only Chapters 3719 and 4731 apply to 

physicians.