COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 60403 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION SUKUMAR ROY : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: ARPIL 30, 1992 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas Case No. 249718 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. CARLA M. TRICARICHI, ESQ. CUYAHOGA COUNTY PROSECUTOR 55 Public Square, Suite 2120 BY: MICHAEL A. BEDNAR, ESQ. Cleveland, Ohio 44115 ASSISTANT COUNTY PROSECUTOR The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 1 - DYKE, J.: Appellant, Dr. Sukumar Roy, was convicted of two counts of theft, R.C. 2913.02, and sentenced to concurrent six month terms which were suspended on condition that appellant pay a fine of $2,500 and restitution of $635, serve two years probation and perform sixty hours of community service. His license to practice medicine was revoked. Appellant's co-defendant, Mohsin Ijaz, was convicted of seven counts of the same charge. [Ijaz] is a bio-chemist who owns a medical laboratory, Bio-Med Lab, which, among other things, runs tests on blood. [Ijaz] hired Jogannadram Kottha to set up Health-O-Ramas (or HOR) at shopping malls and solicit participants who would have their blood tested (or screened) for cholesterol level and other information. The participants would not be billed but an insurance number would be taken and a claim form filled out with the required information: the participant's name, number, and the diagnosis code. [Ijaz] provided the code. After the tests the claim would be submitted and the participants would be sent a letter with the results (without explanation) and the name of a doctor (that they didn't know) who could review the results with him or her if the patient wished. Many of the claims were paid because the practice is to pay if the claim form provides a diagnosis code or referring physician's name to indicate that the test was provided or ordered by that physician for a diagnostic purpose. - 2 - State v. Ijaz (March 26, 1992), Cuyahoga App. No. 60302, unreported at 1-2. Appellant agreed to be the Health-O-Ramas' medical director which he said meant he would be available to talk to participants after they received written notification of the results and he would interpret the results Ijaz sent him. He did not know his name would be used on the claim forms. When Ijaz stopped running his Health-O-Ramas Kottha continued them and appellant agreed to handle the billing under the names Community Medical & Industrial Clinic and Eastern Medical Group, Inc. Appellant was charged with submitting claim forms to Community Mutual Insurance Co. and Blue Cross/Blue Shield of Ohio which represented that the tests had been pursuant to a diagnosis, medically necessary or ordered by a physician (a requirement for payment), as all his requests for reimbursement for laboratory tests had been in the past. I THE EVIDENCE IS INSUFFICIENT AS A MATTER OF LAW TO SUSTAIN CONVICTIONS FOR THEFT BY DECEPTION SUCH THAT THE TRIAL COURT PREJUDICIALLY ERRED IN DENYING DR. ROY'S MOTION FOR JUDGMENT OF ACQUITTAL. The indictments alleged a violation of R.C. 2913.02, which states as follows: (A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: - 3 - ... (3) By deception. An acquittal shall not be entered if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St. 2d 261. Gertrude Guzowsky, appellant's former employee, testified that she did the health fair billing under appellant's direction and that appellant provided her with the codes for all the procedures except one, which Kottha gave her. (Tr. 52.) She testified that appellant did not see the participants in the health fairs. (Tr. 53.) Other than the health fairs appellant always saw a patient before a claim was filed with an insurance company. (Tr. 54.) Kathy Shortridge, Community Mutual Blue Cross/Blue Shield research coordinator for financial investigations, testified that all of the company's contracts provide that a claim is paid only if the patient was referred by a physician (Tr. 235), there was a diagnosis made (Tr. 253) and the test was medically necessary (Tr. 241). Timothy Lea, Blue Cross/Blue Shield of Ohio's fraud investigator, testified that all of the company's contracts provide that tests must be ordered by an attending physician based upon a legitimate diagnosis or symptom and must be medically necessary. (Tr. 292.) He also testified that the - 4 - abbreviation "POS" on the claim form (for example, state exhibit Q) meant "place of service" and "0" (appellant's response) meant office. The health fairs were conducted at malls and other public places, not in appellant's office. Appellant never saw them before or after the test. United States Postal Inspector Robert Dash testified that he interviewed appellant during his investigation. He stated that appellant told him that he had seen none of the participants screened in the health fairs, that he had not ordered the tests and that this was the first time that he had billed for blood work done without his order. (Tr. 449-450.) Blue Cross and Community Mutual each had a standard claim form (state exhibits DD1-DD5 and Q; and EE 1-EE 3 and O, respectively). Community Mutual's form asks for information from the "physician or supplier" and specifically asked for the "date first consulted you for this condition." (Emphasis added.) Appellant answered on all of the Community Mutual forms by putting the date the health fair test was performed. He also signed as physician or supplier. It is apparent from that and 1 the other questions that appellant is being asked for the circumstances under which the test was ordered by him, as the insured's physician. By saying that the insured consulted him 1 Illness or injury or pregnancy ...; Has patient ever had same or similar symptoms ...; diagnosis or nature of illness or injury .... - 5 - for a condition (when they did not) and stating the procedure code and test given appellant deliberately created the impression that he had ordered the tests in the course of the treatment of the insured. Blue Cross' claim form also asks the physician to fill in several blanks including date last treated, symptoms and diagnosis (in which appellant put "possible obstruction" and "R/O 429.2" or "491.2" to create the impression that the tests had been ordered during the course of treatment of the insured). He also signed under a statement reading, "I certify I was the doctor in charge of the patient ...." Timothy Lea of Blue Cross testified that appellant's response ("O") to the abbreviation "POS" meant that the test was performed in appellant's office. Appellant never saw the insureds and the tests were not done in the office. Even without the hearsay testimony of the insurance companies' representatives the evidence established that appellant submitted claim forms with information calculated to lead the insurance companies to believe that the tests had been ordered in the course of treatment. This falsification was done to obtain payment that review of the form shows was clearly unavailable for tests not rendered during treatment. The motion for acquittal was properly denied. The state produced evidence to show that appellant, with a purpose to obtain payment for claims he knew were not payable, deceived the insurance companies - 6 - into thinking that the tests were ordered by him during the course of treatment of the insureds. Assignment of error No. I is overruled. II THE DEFENDANT WAS PREJUDICED AND DENIED RIGHT TO DUE PROCESS BY THE JOINDER OF THE CASES. A. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN GRANTING THE STATE'S MOTION TO JOIN THE CASE AT TRIAL. Appellant was tried with Mohsin Ijaz, who was convicted of seven counts of the same charge appellant faced (although for submission of different claim forms). Appellant and Ijaz were indicted separately, the state moved to join and appellant opposed (and, in effect, moved to sever). Crim. R. 1(B) provides that: These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed and applied to secure the fair, impartial, speedy, and sure administration of justice, simplicity in procedure, and the elimination of unjustifiable expense and delay. In an effort to effectuate these purposes, this court promulgated Crim. R. 8(B), which governs joinder of defendants, and provides as follows: Two or more defendants may be charged in the same indictment, information or complaint - 7 - if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses, or in the same course of criminal conduct. Such defendants may be charged in one or more counts together or separately, and all of the defendants need not be charged in each count. Joinder of defendants and the avoidance of multiple trials is favored in the law for many reasons. Joinder conserves judicial and prosecutorial time, lessens the not inconsiderable expenses of multiple trials, diminishes inconvenience to witnesses, and minimizes the possibility of incongruous results in successive trials before different juries. ... Thereafter, in order to obtain a severance, it was incumbent upon appellees to demonstrate that the joinder was prejudicial within the meaning of Crim. R. 14. State v. Thomas (1980), 61 Ohio St. 2d 233, 235. Crim. R. 14 states as follows: If it appears that a defendant ... is prejudiced by ... such joinder for trial ... the court shall ... grant a severance of defendants, or provide such other relief as justice requires. The Ohio Supreme Court concluded as follows: The standard of review is abuse of discretion, since trial - 8 - courts are given considerable latitude in determining whether a severance is warranted. ... The test is "whether a joint trial is so manifestly prejudicial that the trial judge is required to exercise his or her discretion in only one way - by severing the trial. ... A defendant must show clear, manifest and undue prejudice and violation of a substantive right resulting from failure to sever...." United States v. Castro, supra, at 996; see, also, United States v. Lane (1986), 474 U.S. 438, for the proposition that misjoinder is not per se reversible error. ... [A]ny decision to sever sua sponte must ultimately be based upon the individual factual circumstances presented in each case and must involve an examination of the factual and legal similarities and dissimilarities evident in the charges brought against each defendant in relation to the overall criminal scheme alleged. State v. Schiebel (1990), 55 Ohio St. 3d 71, 89 quoting United States v. Ciancialli (E.D. Pa. 1979), 476 F. Supp. 845, 848. Although appellant and Ijaz were indicted for different attempts to obtain payment their acts were identical and arose out of a similar scheme. Ijaz had used appellant as a medical director for his Health-O-Rama and, when Ijaz ceased his operations, appellant and Kottha participated in their own scheme which differed only in name. The evidence was clear and direct and appellant was not prejudiced. Assignment of error No. II(A) is overruled. - 9 - B. THE FAILURE OF TRIAL COUNSEL TO REQUEST CAUTIONARY JURY INSTRUCTIONS TO COMPARTMENTALIZE THE CHARGES AGAINST DR. ROY FROM THOSE AGAINST HIS CO-DEFENDANT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. Appellant must prove that his trial counsel's performance fell below an objective standard of reasonable representation and that prejudice resulted from that performance. State v. Bradley (1989), 42 Ohio St. 3d 136 (paragraph two of the syllabus). We note that the trial judge instructed the jury as follows: In this case the defendants are charged with multiple counts. The charges set forth in each count in the indictments constitute a separate and distinct matter. You must consider each count and the evidence applicable to each count separately, and you must return your verdict as to each count uninfluenced by your verdict as to the other counts. A defendant may be found guilty or not guilty of any one or all of the offenses which he is charged. You must decide separately the question of guilt against each of the defendants. If you cannot agree upon a verdict as to all the defendants, but do agree as to one, you must enter a verdict upon the one whose innocence you do agree. You must separately consider the evidence applicable as if he were being separately tried and state your finding as to each uninfluenced as to your verdict as to any other defendant. (Tr. 813-814.) (Emphasis added.) Appellant was not prejudiced. - 10 - Assignment of error No. II(B) is overruled. III DR. ROY WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS IN FAILING TO APPRISE HIM OF THE NATURE OF THE CHARGES AGAINST HIM. Section 10 of Article I of the Constitution provides that "no person shall be held to answer for a ... crime, unless on ... indictment of a grand jury ...." This provision guarantees the accused that the essential facts constituting the offense for which he is tried will be found in the indictment of the grand jury. State v. Headley (1983), 6 Ohio St. 3d 475, 478. The indictment is defective "[w[hen one of the vital elements identifying the crime is omitted." Id. at 478-479. The indictment consisted of two counts, each of which, but for the name of a different insurance company, stated, "knowingly and by deception obtained or exerted control over money with the purpose to deprive the owner, ______, of said property or services." The indictments alleged a violation of R.C. 2913.02, which states as follows: (A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways: ... (3) By deception. - 11 - Appellant argues that he did not receive adequate notice of the charge. The state is under no obligation to provide the evidence (e.g. by revealing the deficiency in the claim form) so long as appellant knew that he was accused of creating a false impression of a subjective fact: that he was entitled to payment of the claim. Appellant knew that presentation of the claim forms was the conduct in question. The state's motion to join told appellant that the charges arose out of a transaction involving Kottha and himself and one in which Ijaz and Kottha had been similarly involved: thus he would have known the health fair billing was at issue. The indictment did not omit an element of the offense, as in Headley, and the motion to dismiss was properly denied. Crim. R. 7(E) states that upon written request the state "shall furnish a bill of particulars setting up specifically the nature of the offense charged and of the conduct of defendant alleged to constitute the offense." The purpose of a bill of particulars is "to elucidate or particularize the conduct of the accused" but not "to provide the accused with specifications of evidence or to serve as a substitute for discovery." State v. Lawrinson (1990), 49 Ohio St. 3d 238 citing State v. Sellards (1985), 17 Ohio St. 3d 169. Each count of the indictment charged that appellant "knowingly and by deception obtained or exerted control over money with the purpose to deprive the owner, [insurance companies], of said property or services." Appellant - 12 - requested a bill of particulars but the bill merely restated the indictment. Appellant argued that the bill filed did not apprise him of the nature of the offense charged or the conduct appellant committed. Appellant knew that he was being accused of improperly being paid after submitting claims for the lab work done for the participants in the health fairs organized by Kottha. Inspector Robert Dash testified that he had asked him about whether he had seen the patients whose lab work he did, whether he'd ordered the tests and the fact that he had never previously billed for blood work he had not ordered. Thus, appellant knew that the deception involved billing despite the lack of a physician that ordered the test. Appellant was not prejudiced by the bill of particulars supplied. Assignment of error No. III is overruled. IV THE TRIAL COURT COMMITTED PREJUDICIAL ERROR IN ADMITTING INTO EVIDENCE UNAUTHENTICATED, INCOMPLETE INSURANCE DOCUMENTS WHICH THE PROSECUTION HAD FAILED TO SUPPLY IN DISCOVERY [AND WHICH] CONSTITUTED HEARSAY. The witnesses testified that the policies did not cover a test unless it was pursuant to a diagnosis and/or performed by, approved by or directed by a physician. (See discussion of assignment of error No. I.) The basic policies and their usual exclusions were admitted but the complete contracts and the individual contracts of the participants were not introduced. - 13 - The testimony stated the content of the policies and thus were statements, "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), and were inadmissible hearsay. However, appellant failed to object. Given the other evidence (see discussion of assignments of error No. I and V) we find no plain error. Appellant contends that despite requests during discovery the state failed to provide appellant with all of the State exhibits. These documents were finally provided at trial but in incomplete form. Appellant fails to identify which documents are at issue but did object to exhibits Q, DD1-DD5 and EE1-EE3. The objection was that exhibit Q was an indistinct copy and confusing. No reason was given for the objection to the other exhibits. There was no objection by appellant's counsel at the time the exhibits were identified and testified to by the witnesses. In any event, failure to provide discovery in compliance with Crim. R. 16(E)(3) is not reversible error when it can be shown that the failure was not willful, foreknowledge of the statement would not have benefited the defendant in the preparation of the defense, and the defendant was not prejudiced by the admission of the evidence. State v. Heinish (1990), 50 Ohio St. 3d 231, 236. There was no evidence that the failure was willful. An opportunity for review was provided and no continuance was requested. Effective cross-examination was - 14 - conducted. We find no prejudice. Assignment of error No. IV is overruled. V THE VERDICTS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. A reviewing court will not reverse a jury verdict when there is substantial evidence upon which a jury could reasonably conclude that all the elements of an offense have been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St. 2d 169, (syllabus). Appellant testified that he did not see the health fair participants. (Tr. 733.) Even if the testimony of the insurance companies' representatives was improper appellant testified as follows: Q. And now, you have been in the practice for many years, are you aware of -- you are obviously aware of billing through insurance companies? A. Yes, I am. Q. Are you generally aware of what insurance companies will and will not pay for? A. Well, to be honest with you, it is a frustrating experience. Q. All right. A. Okay? Q. Well, is that a yes or no; are you aware? A. I'm aware, yes. Q. Fine. All right. And insofar as when you do a test which is requested by someone, is that something the - 15 - insurance companies pay for, according to your experience? A. Most of the time they do. Q. Most of the time they do. And in the cases where they do pay, you're the doctor who requests or orders the test, isn't that correct? A. Yes. (Tr. 736-737.) The state produced evidence to show beyond a reasonable doubt that appellant, with a purpose to obtain payment for claims he knew were not payable, deceived the insurance companies into thinking that the tests were ordered by him during the course of treatment of the insureds. The verdict was not against the manifest weight of the evidence. Assignment of error No. V is overruled. Judgment affirmed. - 16 - It is ordered that appellee recover of appellant its 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 Court of Common Pleas to carry this judgment into execution. The defendant's conviction 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. ANN MCMANAMON, J., AND PATTON, J., CONCUR. PRESIDING JUDGE ANN DYKE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .