[Cite as State v. Toudle, 2013-Ohio-1548.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 98609

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

JEANNINE TOUDLE

DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-558515 

BEFORE: Keough, P.J., E.A. Gallagher, J., and E.T. Gallagher, J. 

RELEASED AND JOURNALIZED: April 18, 2013 
ATTORNEY FOR APPELLANT

Rick L. Ferrara 

2077 East 4th Street 

Second Floor 

Cleveland, Ohio 44114 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Marcus A. Henry 

Assistant Prosecuting Attorney 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
KATHLEEN ANN KEOUGH, P.J.: 

{¶1} Defendant-appellant, Jeannine Toudle, appeals from the trial court’s 

judgment, rendered after a jury trial, finding her guilty of two counts of deception to 

obtain a dangerous drug and sentencing her to twelve months incarceration. Finding no 

merit to the appeal, we affirm. 

 I. Background 

{¶2} In August 2011, Toudle was indicted in CR-552119 on five counts of 

deception to obtain a dangerous drug and one count of drug trafficking. The State 

subsequently dismissed the charges without prejudice. 

{¶3} In January 2012, the State re-indicted Toudle in CR-558515 on four counts 

of deception to obtain a dangerous drug in violation of R.C. 2925.22(A). All of the 

counts involved prescriptions for Percocet. Count 1 charged that on July 2, 2010, Toudle 

obtained a prescription by deception from a Dr. Monet; Count 2 charged that on February 

16, 2011, Toudle deceived Dr. Laura Dollison to obtain a prescription; Count 3 charged 

that on May 24, 2011, Toudle obtained a prescription by deception from Dr. Dwight 

Carson; and Count 4 charged that on June 16, 2011, Toudle obtained a prescription by 

deception from Dr. Radah Baishnab. 

{¶4} At trial, Detective Bradley Schultz testified that the charges stemmed from 

an anonymous tip to the Westshore Enforcement Bureau, a narcotics investigation task 
force, that Toudle was “doctor-shopping.” Det. Schultz testified that upon receiving the 

tip, he printed an OARRS report on Toudle. 1

 Det. Schultz explained that when an 

individual fills a prescription for a controlled substance, pharmacies are required to report 

information about the prescription to the state pharmacy board. Doctors, pharmacists, 

and law enforcement personnel can access the database and print OARRS reports 

regarding an individual’s prescription records. 

{¶5} Det. Schultz said that when he obtained the OARRS report, he discovered 

that Toudle had four alleged violations, meaning that on four occasions she had obtained 

and filled a second prescription before the days remaining on the first prescription had 

expired. Referring to State’s Exhibit No. 4, which Det. Schultz said was a synopsis of 

the OARRS report that he prepared for the grand jury, Det. Schultz testified that the 

violations occurred (1) in July of 2010, when Toudle saw a Dr. Monet and obtained a 

prescription for 15 Percocet pills; (2) in February 2011, when Toudle obtained a 

prescription for 20 Percocet pills from Dr. Laura Dollison; (3) on May 24, 2011, when 

Toudle saw Dr. Dwight Carson and received a prescription for 120 Percocet pills; and (4) 

on June 16, 2011, when Toudle saw Dr. Radah Baishnab and obtained a prescription for 

120 Percocet pills. 

{¶6} Dr. Carson testified that he is a physician with the Westshore Family 

Practice and that Toudle came to see him regarding neck and back pain. Dr. Carson said 

that on May 24, 2011, he wrote Toudle a prescription for 120 Percocet pills, a one-month 

 1

OARRS is an acronym for Ohio Automated Rx Reporting System. 
supply. When he asked Toudle about her other medications, Toudle told him that 

another doctor had previously prescribed Percocet for her. Dr. Carson testified that he 

was not sure if he saw an OARRS report for Toudle on May 24, 2011, but said he had 

seen Toudle for several months before he wrote the May 24, 2011 prescription, was aware 

she had seen other doctors in the Westshore Family Practice, and was aware of the 

prescriptions they had written for Toudle. 

{¶7} Dr. Carson testified that he was familiar with OARRS, knew how to read an 

OARRS report, and occasionally used the reports in his practice. He identified State’s 

Exhibit No. 5 as an OARRS report for Toudle. Testifying from the report, Dr. Carson 

reviewed Toudle’s prescriptions for Percocet. He stated that he prescribed a one-month 

supply of Percocet to Toudle on January 17, 2011, and again on February 14, 2011. He 

said that on February 16, 2011, Toudle received a prescription for 20 Percocet pills from 

Dr. Dollison. He testified further that on March 8, 2011, April 5, 2011, and May 5, 

2011, Dr. Talbot, a doctor in the Westshore Family Practice, wrote Toudle one-month 

prescriptions, and that on May 24, 2011, he wrote a one-month prescription for Toudle. 

Dr. Carson testified that the OARRS report also reflected that a doctor who was not part 

of Westshore Family Practice prescribed 20 Percocet pills for Toudle on May 25, 2011. 

{¶8} Dr. Dollison, an emergency room doctor at Lakewood Hospital, testified 

about the prescription for 20 Percocet pills that she wrote for Toudle on February 16, 

2011. Dr. Dollison said that Toudle arrived at Lakewood Hospital by ambulance at 

approximately 1 a.m. that day complaining of incisional pain related to a biopsy the day 
before. Dr. Dollison testified that the medical records from Toudle’s emergency room 

visit reflected that Toudle told her that she was taking Xanax, Keflex, an unnamed muscle 

relaxant, and Percocet. Dr. Dollison testified that she gave Toudle one Percocet pill 

while she was in the Emergency Room, and wrote a prescription for 20 pills. Dr. 

Dollison said that she could not recall if her note “Percocet upon discharge; not enough” 

meant that the Percocet Toudle was taking was not enough for the pain she was 

experiencing or if it meant that Toudle was running out of her Percocet pills. Dr. 

Dollison testified that Toudle did not tell her that another doctor (i.e., Dr. Carson) had 

prescribed 90 Percocet pills for her on February 14, 2011, two days prior to her 

Emergency Room visit, and that she would not have prescribed more Percocet for Toudle 

if she had known of the other prescription. 

{¶9} Dr. Baishnab testified that he is a doctor in the Westshore Family Practice 

and saw Toudle on June 16, 2011, when he wrote her a prescription for Percocet. 

According to Dr. Baishnab, Toudle did not tell him that Dr. Carson had prescribed 

Percocet for her on May 24, 2011, and if he had known about that prescription, he would 

not have written another prescription for Toudle. 

{¶10} State’s Exhibit Nos. 1, 2, and 3 (the prescriptions written by Dr. Dollison on 

February 16, 2011, Dr. Carson on May 24, 2011, and Dr. Baishnab on June 16, 2011), 

Exhibit No. 7 (Toudle’s medical records from her February 16, 2011 visit to Lakewood 

Hospital Emergency Room), and Exhibit No. 8 (Dr. Baishnab’s notes regarding Toudle’s 

June 16, 2011 office visit) were admitted into evidence. The State then dismissed Count 
1 (relating to the prescription written by Dr. Monet). After the trial court denied 

Toudle’s Crim.R. 29 motion for acquittal, the jury found her guilty of Counts 2 and 4 (the 

counts relating to Dr. Dollison and Dr. Baishnab) but not guilty of Count 3 (relating to 

Dr. Carson). The trial court sentenced Toudle to 12 months incarceration on each count, 

to be served concurrently. 

 II. Law and Analysis 

A. Admissibility of Testimony About the OARRS Report 

{¶11} In her third assignment of error, Toudle contends that the trial court erred in 

allowing Det. Schultz and Dr. Carson to testify about information contained in the 

OARRS report. We address this assignment of error first because it is relevant to 

Toudle’s first assignment of error regarding whether there was sufficient evidence to 

support her convictions. 

{¶12} Evidentiary rulings lie within the broad discretion of the trial court and will 

form the basis for reversal on appeal only upon an abuse of discretion that amounts to 

prejudicial error. State v. Graham, 58 Ohio St.2d 350, 352, 390 N.E.2d 805 (1979). 

The record demonstrates that defense counsel did not object to either Det. Schultz’s or Dr. 

Carson’s testimony.2

 Accordingly, we address Toudle’s assignment of error under the 

plain error standard. State v. Williams, 51 Ohio St.3d 112, 364 N.E.2d 1364 (1977) (a 

 2

Despite Toudle’s assertion that defense counsel objected to Dr. Carson’s testimony about the 

OARRS report, the record demonstrates that counsel never objected. She merely confirmed with Dr. 

Carson that he had offered testimony about the contents of the report even though it was not prepared 

by him. 
failure to object at trial constitutes a waiver of all but plain error on the issues on appeal). 

 Under Crim.R. 52(B), plain errors affecting substantial rights may be noticed by an 

appellate court even though they were not brought to the attention of the trial court. To 

constitute plain error, there must be an error that is plain or obvious that affected the 

outcome of the case. In Re: J.G., 8th Dist. No. 98625, 2013-Ohio-583, ¶ 10, citing State 

v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240. Courts are to notice 

plain error under Crim.R. 52(B) “with the utmost caution, under exceptional 

circumstances and only to prevent a manifest miscarriage of justice.” Id. 

{¶13} Hearsay is “a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted.” Evid.R. 801(C). Hearsay is inadmisible into evidence except under 

specifically delineated circumstances. Evid.R. 802. 

{¶14} One such exception, commonly referred to as the “business records 

exception,” is contained in Evid.R. 803(6), which states: 

The following are not excluded by the hearsay rule, even though the 

declarant is available as a witness: 

* * * 

(6) Records of regularly conducted activity. A memorandum, report, 

record, or data compilation, in any form, of acts, events, or conditions, 

made at or near the time by, or from information transmitted by, a person 

with knowledge, if kept in the course of a regularly conducted business 

activity, and if it was the regular practice of that business activity to make 

the memorandum, report, record, or data compilation, all as shown by the 

testimony of the custodian or other qualified witness or as provided by Rule 

901(B)(10), unless the source of information or the method or 

circumstances or preparation indicate lack of trustworthiness. 
{¶15} Thus, to qualify under the Evid.R. 803(6) business record exception, (1) the 

record at issue must be one regularly recorded in a regularly conducted activity; (2) a 

person with knowledge of the act, event, or condition recorded must have made the record 

at issue; (3) the person who made the record must have done so at or near the time of the 

event recorded; and (4) the party who seeks to introduce the record must lay a foundation 

through testimony of the record custodian or some other qualified witness. State v. 

Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 808 N.E.2d 31, ¶ 170, citing Weissenberger,

Ohio Evidence Treatise 600, Section 803.73 (2007). 

{¶16} Toudle contends that Det. Schultz and Dr. Carson’s testimony about the 

OARRS report violated Evid.R. 803(6) because the report was not authenticated and 

neither individual authored the report.3

 

{¶17} We agree with Toudle that the report and testimony about the contents of the 

report were not admissible under Evid.R. 803(6) because neither Det. Schultz nor Dr. 

Carson authored the report nor compiled the data for the report. In fact, Det. Schultz 

testified that the data in the state pharmacy database from which the report is generated 

comes from numerous pharmacies across the state that send information to the pharmacy 

board, which then compiles the data for the reports. 

{¶18} However, the report was admissible under Evid.R. 803(8), which states: 

 3

The OARRS report was not admitted into evidence; Toudle’s objections relate to witness 

testimony about the contents of the report. 
The following are not excluded by the hearsay rule, even though the 

declarant is available as a witness: 

Records, reports, statements, or data compilations, in any form, of public 

offices or agencies, setting forth (a) the activities of the office or agency, or 

(b) matters observed pursuant to duty imposed by law as to which matters 

there was a duty to report, excluding, however, in criminal cases matters 

observed by police officers and other law enfocement personnel, unless 

offered by defendant, unless the sources of information or other 

circumstances indicate lack of trustworthiness. (Emphasis added.) 

{¶19} Evid.R. 803(8) is commonly known as the “public records exception” to the 

hearsay rule. Thus, at first blush, it would appear that Evid.R. 803(8) is not applicable to 

the OARRS report because R.C. 4729.80(C) specifically provides that “[i]nformation 

contained in the database and any information obtained from it is not a public record.” 

However, as the Twelfth District has noted, a more accurate name for Evid.R. 803(8) is 

the “official records exception”: 

[T]he term, “public records” in the title of Evid.R. 803(8) is a misnomer. 

Weissenberger’s Ohio Evidence Treatise (2006 Ed.) 531, Section 803.102. 

A more accurate term for what the rule means is “official records,” which 

Weissenberger defines as records “made or done by an officer of the 

government,” not necessarily “capable of being known or observed by all.” 

State v. McClain, 12th Dist. No. CA2005-09-102, 2006-Ohio-6708, fn. 2. 

[F]or a document to be admissible under Evid.R. 803(8)(b), the 

observations of the reporter must occur pursuant to a legally imposed duty 

and the matters observed must be the subject of a duty to report. 

Moreover, the observations must be either the firsthand observations of the 

official making the report or of one with a duty to report to a public official. 

Cincinnati Ins. Co. v. Volkswagen of Am., Inc., 41 Ohio App.3d 239, 242, 535 N.E.2d 702 

(10th Dist.1987) 
{¶20} Here, as authorized by law, the state pharmacy board maintains a drug 

database to monitor misuse and diversion of controlled substances. R.C. 4729.75. It 

compiles the database from information submitted by Ohio pharmacies, which are 

required by law to submit to the board information regarding the prescriptions they have 

filled for inclusion in the database. R.C. 4729.77. Accordingly, we find that an 

OARRS report is an official record of the state pharmacy board and is admissible under 

Evid.R. 803(8). 

{¶21} We also find that the report was properly authenticated. “The requirement 

of authentication or identification as a condition precedent to admissibility is satisfied by 

evidence sufficient to support a finding that the matter in question is what its proponent 

claims.” Evid.R. 901(A). The authentication requirement of Evid.R. 901(A) is a low 

threshold that does not require conclusive proof of authenticity, but only sufficient 

foundation evidence for the trier of fact to conclude that the document is what its 

proponent claims it to be. Yasinow v. Yasinow, 8th Dist. No. 86467, 2006-Ohio-1355, ¶ 

81, citing State v. Easter, 75 Ohio App.3d 22, 598 N.E.2d 845 (4th Dist.1991); Evid.R. 

901(B)(1). 

{¶22} Det. Schultz testified regarding what data from their filled prescriptions the 

pharmacies must send to the pharmacy board and how the data in the OARRS database is 

compiled. He further testified that he routinely runs OARRS reports in the course of his 

investigations and that he ran an OARRS report on Toudle after he received the 

anonymous tip. Dr. Carson testified that he is familiar with OARRS reports and 
sometimes uses them in his practice, and he identified State’s Exhibit No. 5 as the 

OARRS report for Toudle. In light of this testimony, we find that the report was 

properly authenticated. 

{¶23} Accordingly, the report was admissible under the official records exception 

set forth in Evid.R. 803(8) and therefore, the trial court did not commit plain error in 

allowing Det. Schultz and Dr. Carson to testify about the contents of the report. The 

third assignment of error is therefore overruled. 

B. Sufficiency and Manifest Weight of the Evidence 

{¶24} In her first assignment of error, Toudle argues that there was insufficient 

evidence to support her convictions. In her second assignment of error, she contends that 

her convictions were against the manifest weight of the evidence. 

{¶25} The test for sufficiency requires a determination of whether the prosecution 

met its burden of production at trial. State v. Bowden, 8th Dist. No. 92266, 

2009-Ohio-3598, ¶ 12. An appellate court’s function when reviewing the sufficiency of 

the evidence to support a criminal conviction is to examine the evidence admitted at trial 

to determine whether such evidence, if believed, would convince the average mind of the 

defendant’s guilt beyond a resonable doubt. The relevant inquiry is whether, after 

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime proven beyond a reasonable doubt. 

State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. 
{¶26} “A manifest weight challenge, on the other hand, questions whether the 

prosecution met its burden of persuasion.” State v. Ponce, 8th Dist. No. 91329, 

2010-Ohio-1741, ¶ 17, quoting State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356 

(1982). The manifest-weight-of-the-evidence standard of review requires us to review 

the entire record, weigh the evidence and all reasonable inferences, consider the 

credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the 

trier of fact clearly lost its way and created such a manifest miscarriage of justice that the 

conviction must be reversed and a new trial ordered. State v. Otten, 33 Ohio App.3d 

339, 515 N.E.2d 1009 (9th Dist.1986), paragraph one of the syllabus. The discretionary 

power to grant a new trial should be exercised only in exceptional cases where the 

evidence weighs heavily against the conviction. Thompkins, supra. 

{¶27} Toudle was convicted of two counts of deception to obtain a dangerous drug 

in violation of R.C. 2925.22(A), which provides, in relevant part, that “[n]o person shall 

knowingly, by deception, procure the administration of a prescription for * * * a 

dangerous drug * * *.” A “dangerous drug” is one that may be dispensed only upon 

prescription. R.C. 4729.01 and 3719.01. “Deception” means “knowingly deceiving 

another or causing another to be deceived by any false or misleading representation, by 

withholding information, by preventing another from acquiring information, or by any 

other conduct, act, or omission that creates, confirms, or perpetuates a false impression in 

another * * *.” R.C. 2913.01(A). “A person acts knowingly * * * when he is aware that 

his conduct will probably cause a certain result * * *.” R.C. 2901.22(B). 
{¶28} Toudle argues that the evidence was insufficient to demonstrate that she 

deceived Dr. Dollison to obtain the Percocet prescription on February 16, 2011, because 

the medical records reflect that she told Dr. Dollison that she had received Percocet after 

the biopsy the day before but Dr. Dollison did not ask her how many pills she had been 

given. She argues that Dr. Dollison’s failure to question her in more detail, check her 

medical records, or call her other doctors to ensure that her request for more medication 

complied with medical standards does not mean that she deceived Dr. Dollison to obtain 

the prescription. According to Toudle, any error was with Dr. Dollison, not her. We 

disagree. 

{¶29} The medical records from Toudle’s visit to the Lakewood Hospital 

Emergency Room on February 16, 2011, indicate that Toudle did, in fact, tell the medical 

personnel that she was taking Percocet. But according to Dr. Dollison, Toudle only told 

her that she had received Percocet after her biopsy the day before her visit to the 

emergency room and that it was “not enough”; she never told her that she had received a 

prescription for 90 Percocet pills only two days before her visit to the emergency room. 

Construing this evidence in a light most favorable to the prosecution, we find that Dr. 

Dollison’s testimony was sufficient to establish that Toudle withheld information from 

her about the prescription for Percocet that she obtained from Dr. Carson on February 14, 

2011, in order to obtain another prescription. 

{¶30} Likewise, Toudle’s conviction for obtaining a prescription from Dr. 

Dollison by deception is not against the manifest weight of the evidence. Although 
Toudle contends that Dr. Dollison was not a credible or reliable witness, the weight to be 

given the evidence and the credibility of the witnesses are matters primarily for the trier 

of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of 

the syllabus. The trier of fact may “believe or disbelieve any witness or accept part of 

what a witness says and reject the rest.” State v. Antill, 176 Ohio St.61, 67, 197 N.E.2d 

548 (1964). “The choice between credible witnesses and their conflicting testimony rests 

solely with the finder of fact and an appellate court may not substitute its own judgment 

for that of the finder of fact.” State v. Awan, 22 Ohio St.3d 120, 123, 489 N.E.2d 277 

(1986). 

{¶31} We find nothing in Dr. Dollison’s testimony to indicate that she was not 

reliable or credible. Accordingly, the trier of fact did not lose its way nor create a 

manifest miscarriage of justice in convicting Toudle of deceiving Dr. Dollison on 

February 16, 2011, to obtain a prescription for 20 Percocet pills. 

{¶32} Toudle also contends that the evidence was insufficient to establish that she 

deceived Dr. Baishnab on June 16, 2011 to obtain a prescription for Percocet. According 

to Toudle, she returned to the same medical practice that had prescribed Percocet for her 

on May 24, 2011, and told Dr. Baishnab that she wanted her “past” medicine. Therefore, 

she contends that Dr. Baishnab should have checked her medical chart or an OARRS 

report, or conferred with Dr. Carson before giving her another prescription. Toudle 

contends that Dr. Baishnab’s failure to do so does not indicate that she deceived him to 

obtain another prescription. 
{¶33} Dr. Baishnab testified that he wrote the prescription because Toudle told 

him that she had “run out” of her Percocet and needed more. But according to Dr. 

Baishnab, if Toudle was taking the Percocet as Dr. Carson had prescribed on May 24, 

2011 (4 times a day), she would have still had 48 pills left when she saw him on June 16, 

2011. He testified further that the medical records from her visit with him indicate that 

Toudle was in the hospital from June 10, 2011 through June 13, 2011. Dr. Baishnab 

testified that the hospital would have provided Toudle with Percocet pills on those four 

days, so she should have had an extra 16 pills. Thus, according to Dr. Baishnab, as of 

June 16, 2011, when she asked for another prescription, Toudle should have still had 64 

pills remaining from her May 24, 2011 prescription. 

{¶34} In light of this testimony, we find that there was sufficient evidence to 

establish that Toudle knowingly deceived Dr. Baishnab to procure a prescription for 

Percocet. Although we agree with Toudle that Dr. Baishnab should have been more 

diligent in checking her prior records before refilling her prescription, the evidence is 

sufficient to establish that she gave him false information in order to procure another 

Percocet prescription before the prior prescription had expired. 

{¶35} Further, we find nothing in the record to support Toudle’s assertion that her 

conviction was against the manifest weight of the evidence because Dr. Baishnab was not 

a reliable or credible witness. Accordingly, we find that the jury did not lose its way in 

convicting Toudle of obtaining a prescription from Dr. Baishnab by deception. 
{¶36} The first and second assignments of error are therefore overruled. C.

 Ineffective Assistance of Counsel 

{¶37} In her fourth assignment of error, Toudle contends that she was denied her 

constitutional right to effective counsel because counsel did not object to Det. Schultz and 

Dr. Carson’s testimony about the OARRS report, thus allowing inadmissible hearsay to 

be admitted at trial. 

{¶38} In light of our resolution of the third assignment of error, this assignment of 

error has no merit and is overruled. 

{¶39} Affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s convictions having 

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court 

for execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

KATHLEEN ANN KEOUGH, PRESIDING JUDGE 

EILEEN T. GALLAGHER, J., CONCURS; 

EILEEN A. GALLAGHER, J., DISSENTS (SEE ATTACHED DISSENTING 

OPINION.) 
EILEEN A. GALLAGHER, J., DISSENTING: 

{¶40} For the following reasons, I respectfully dissent from the majority opinion. 

 Because I find that the state failed to present sufficient evidence concerning the key 

element of deception, I would vacate the convictions and sentence. 

{¶41} As stated by the majority opinion, “deception” means “knowingly 

deceiving another or causing another to be deceived by any false or misleading 

representation, by withholding information, by preventing another from acquiring 

information, or by any other conduct, act or omission that creates, confirms, or 

perpetuates a false impression in another * * *.” R.C. 2913.01(A). “A person acts 

knowingly * * * when he is aware that his conduct will probably cause a certain result * * 

*.” R.C. 2901.22(B). 

{¶42} The jury convicted Toudle of two counts of deception to obtain a 

dangerous drug in violation of R.C. 2925.22(A) for her conduct on February 16, 2011, 

with Dr. Dollison and on June 16, 2011, with Dr. Baishnab. I address each instance 

separately. 

{¶43} On February 16, 2011, Dr. Dollison treated Toudle in the Lakewood 

Hospital Emergency Department. Dr. Dollison testified that she did not remember 

treating Toudle and testified solely from her notes and medical records of the February 16 

visit. Dr. Dollison admitted that during her visit, Toudle did report to medical personnel 
that she was taking Percocet. Specifically, Dr. Dollison testified that Toudle told her that 

she had received Percocet after her biopsy the day before her visit to the emergency room 

and that it was “not enough.” Dr. Dollison could not remember whether her note “not 

enough” meant it was not enough for the pain, or whether the pills she received were 

running out. In lieu of additional questions to Toudle about her pain and the prescription 

for Percocet she received days prior, Dr. Dollison prescribed Toudle 20 additional pills of 

Percocet and discharged her from the emergency room. Dr. Dollison testified that had 

she known that Toudle received a prescription for 90 Percocet pills two days before her 

February 16, 2011 visit, she would not have prescribed the additional 20 Percocet pills. 

{¶44} However, unlike the majority, I find that Toudle did not deceive Dr. 

Dollison to obtain the February 16, 2011 prescription. If anything, I find error with Dr. 

Dollison’s failure to further question Toudle regarding her level of pain and her 

prescription history. Toudle stated to medical personnel that she was taking Percocet to 

manage her pain from a recent biopsy. It was at that point that the duty to ask further 

questions fell to Dr. Dollison. Toudle, as a patient, is not required to know what to 

disclose to doctors during an emergency room visit. Dr. Dollison, as the emergency 

room physician, should have questioned Toudle further about her statement that the 

Percocet was “not enough.” When a patient indicates that they are taking a medication, it 

is logical to conclude that it is then up to the medical professionals to further question the 

patient about the quantity of the medication and when it was received. 
{¶45} Toudle disclosed to her treating physician that she was currently taking 

Percocet for her pain and that it was “not enough.” She did not make any false or 

misleading statements to Dr. Dollison, she did not withhold information, she did not 

prevent Dr. Dollison from acquiring information, and she did not omit information upon 

questioning by Dr. Dollison. Dr. Dollison failed to question Toudle about her pain and 

her prescription history; this failure cannot be attributed to Toudle and then used to form 

the basis of a criminal charge. 

{¶46} The same is true for Toudle’s June 16, 2011 visit with Dr. Baishnab. On 

June 16, 2011, Toudle returned to the same medical practice that had prescribed Percocet 

for her on May 24, 2011. On June 16, 2011, Dr. Baishnab examined Toudle for the first 

time. During that visit, Toudle told Dr. Baishnab that she had continued back pain and 

that she needed a refill of her “past medicine.” Dr. Baishnab admitted that even though 

it was his first visit with this patient, he did not review Toudle’s complete chart prior to or 

during her visit, nor did he refer to the OARRS report. He stated that he based his 

decision to prescribe 120 units of Percocet solely on the patient history that Toudle 

provided. Additionally, Dr. Baishnab reported that he did not actually know whether 

Toudle had run out of her “past medicine” at the time of her visit or whether she was 

running out of her medicine. Dr. Baishnab reported it was common for patients to come 

in when their prescriptions were running out. 

{¶47} Dr. Baishnab testified that if Toudle was taking Percocet as Dr. Carson had 

prescribed on May 24, 2011, she would have had Percocet pills left when she saw him on 
June 16, 2011. It is this point that forms the basis of the state and the majority’s 

conclusion that Toudle deceived Dr. Baishnab into writing the prescription for 120 

Percocet on June 16, 2011. 

{¶48} I find that Toudle did not deceive Dr. Baishnab during her June 16, 2011 

doctor’s visit. I find error with Dr. Baishnab’s lack of diligence in questioning his 

patient. Unlike Toudle’s visit with Dr. Dollison, Dr. Baishnab had Toudle’s prescription 

and treatment history available through his medical practice. Additionally, Dr. Baishnab 

had the ability to check the OARRS report, something he testified that he does when he 

suspects that something is not right. Dr. Baishnab did not review the OARRS report 

prior to prescribing Toudle with 120 units of Percocet. 

{¶49} Toudle simply disclosed to her treating physician that she was in pain and 

that she needed her “past medicine.” As stated above, she did not make any false or 

misleading statements to Dr. Baishnab, she did not withhold information, she did not 

prevent Dr. Baishnab from acquiring information, and she did not omit information when 

questioned by Dr. Baishnab. Dr. Baishnab failed to review Toudle’s medical history or 

question Toudle about her pain and her prescription history. This failure lies with Dr. 

Baishnab and cannot be used to form the basis of a criminal charge. 

{¶50} I find the two incidents outlined above similar to the facts in State v. 

Schaufele, 9th Dist. No. 10CA0137-M, 2012-Ohio-642. In Schaufele, the court held that 

the state failed to present sufficient evidence of deception to obtain a dangerous drug by 

failing to show any act or omission amounting to deception. The court noted that while 
deception included withholding information, the court found no evidence that Schaufele 

was faced with an opportunity to disclose information and decided not to do so. Id. 

Further, the court noted that although the state did present evidence that Schaufele knew 

that she was not to get Percocet from other doctors, that evidence, in and of itself, did not 

substantiate the state’s assertion that she used deception to obtain a prescription. Id. 

The court concluded that the state failed to inform the trier of fact who, if anyone, 

Schaufele spoke to, and then deceived, to obtain the prescription. Id. 

{¶51} Like Schaufele, the state has failed to present evidence that Toudle used 

deception to obtain prescriptions for Percocet. Toudle voluntarily disclosed to both Drs. 

Dollison and Baishnab that she was taking Percocet and, in both instances, the doctors 

failed to ask further questions. Toudle was never presented with the opportunity to 

disclose or withhold information. Both Drs. Dollison and Baishnab failed to ask any 

follow-up questions once Toudle disclosed that she was taking Percocet. I find this fault 

attributable to the medical professionals, not Toudle. I certainly do not find it to 

substantiate charges of deception to obtain dangerous drugs. 

{¶52} For the reasons stated above, I find that the state failed to present sufficient 

evidence of deception and thus, I would vacate Toudle’s convictions and sentence and 

remand for proceedings consistent with this dissent.