Opinion
No. 4-475 / 03-0689.
September 9, 2004.
Appeal from the Iowa District Court for Polk County, Michael D. Huppert (motion to dismiss), Robert J. Blink (bench trial), and D.J. Stovall (sentencing), Judges.
Deborah Clark appeals her convictions following a bench trial for first-degree fraudulent practice and second-degree fraudulent practice. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, John Sarcone, County Attorney, and Jaki Livingston, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel, and Zimmer, JJ.
Defendant Deborah Clark appeals her convictions following a bench trial for first-degree fraudulent practice and second-degree fraudulent practice, in violation of Iowa Code sections 237A.1, 237A.13, 714.8, 714.9, and 714.10 (2001). She claims the district court erred in denying her motion to dismiss and her motion for judgment of acquittal. She also contends that if error was not preserved on these claims, then her trial counsel was ineffective. We affirm the district court.
I. Background Facts Proceedings
Between July of 1998 and June of 2001, Clark was a registered childcare provider with the Department of Human Services (Department). Clark's registration with the Department allowed her to provide subsidized childcare at her home in Des Moines to families eligible for assistance from the State. Before a parent could leave a child or children with Clark, the parent had to fill out a form provided by the Department to establish eligibility for assistance. If a parent was eligible, then he or she was required to submit the name of the parent's employer, the hours the parent worked, and the name of the parent's childcare provider to the Department. If a parent's employment information changed, the parent was required to report the change to the Department. Clark was required to keep a calendar of the hours of care she provided and to submit provider invoices to the Department. The State paid Clark over $51,000 for childcare during the time period in question based on invoices she submitted.
Clark was also required to provide the Department with the names of the people who worked for her. In June 2001, Clark reported that she employed a staff assistant named Vivian A. Richardson. Richardson was also a registered childcare provider with the Department. The information Clark submitted regarding Richardson, which included Richardson's Social Security number, date of birth, and signature, differed from the information that the Department already had on file for Richardson. These discrepancies prompted Donna Kessler, who worked for the Department in day care registration, to speak with Richardson. Richardson informed Kessler that she never signed any forms for Clark.
Clark also reported that Elenore Nevilles was assisting her. However, Department employees became suspicious when they received notes from Clark, supposedly written by Nevilles that contained different spellings of "Elenore" and "Nevilles." A Department investigator, Cindy Pospichal, discovered that Nevilles was working at another job during some of the hours she was allegedly assisting Clark. This discovery led Pospichal to investigate Clark further. She collected information from six case files maintained by the Department. Five of the files pertained to families that allegedly received childcare from Clark, and the remaining file pertained to Clark herself. Pospichal reviewed the files and then attempted to verify the information which had been provided to the Department.
Pospichal's investigation revealed that Clark claimed she provided childcare for Lynnise Smith from July 1998 to September 1999 and from July 2000 to June 2001. Lynnise has two children: Riceeha Evans and Kennetria Rushing. Clark also claimed to have provided childcare for Lachelle Smith from March 1999 to February 2001. Lachelle has three children: Davontra, Jamarlo, and Drayshawn Fields. In addition, Clark alleged that she provided childcare for Josephine Fields from July 1999 to January 2001. Josephine has three children: Felicia and Shanique Alexander and LaShawn Smith. Clark also contended that she provided childcare for Anquinnatta Cunningham. Anquinnatta has three children: Shaemecio Hart and Annadaja and Daimaeja Smith. Clark asserted that she cared for Shamecio from June 2000 to July 2001 and for Annadaja from November 2000 to February 2001. Finally, Clark maintained that she provided childcare for Natasha Coleman during the months of March and April in 2001. Natasha has three children: Tyrik, Trevon, and Tayvion Thompson.
Annadaja died in February 2001.
Department records revealed the State paid Clark for childcare she allegedly provided to the above five families. Clark received $15,998.20 from the Department for caring for Lynnise's children, $2,224.10 for caring for Lachelle's children, $23,328 for caring for Josephine's children, $7,561.80 for caring for Anquinnatta's children, and $2,389.50 for caring for Natasha's children.
Pospichal's investigation also revealed that the employment information given to the Department by the mothers was false. Lynnise Smith had informed the Department that she worked at Regina's Hair Care. However, Pospichal was unable to locate the address which Lynnise gave for Regina's and the phone number that was given for Regina's was actually Clark's phone number. Lynnise's second reported employer denied knowing Lynnise. The employment and address Lynnise reported in August 2000 was also fictitious. Although Lynnise was allegedly working, she did not report any income to her income maintenance worker. This person would have determined Lynnise's eligibility for social services.
Lachelle Smith also lied to the Department. She reported different employment and income to different workers at the Department. She also neglected to report income to her income maintenance worker, which made her appear eligible to receive childcare from Clark.
Josephine Fields told the Department that Clark watched all three of her children and reported that she was working in Iowa. However, Pospichal's investigation revealed that one of Field's children was in Hennepin County, Minnesota, where she was receiving benefits and residing with Marcella Fields. Thus, Clark could not have been caring for that child. Josephine was also untruthful about her employment. Josephine told the Department that she was working for Joe Clark, the defendant's husband However, Joe Clark said he never employed Josephine.
Anquinnatta Cunningham is married to Clark's son, Davon Smith. In her plea colloquy and in her testimony to the court she said that she never received childcare from Clark. She said that when her children were with Clark it was only to spend time with their grandma not because they needed childcare. Anquinnatta also told the court that she and Clark had entered into a plan whereby they would both make misrepresentations to the Department in order to receive childcare payments from the State. In return for Anquinnatta's help, Clark gave her a few hundred dollars a month from the money she received from the Department.
Anquinnatta pled guilty to second-degree fraudulent practice.
Natasha Coleman reported to the Department that she was employed by Joseph and Rose Marie Smith. She also submitted notes to the Department that she claimed the Smiths wrote detailing her employment. However, when Pospichal interviewed the Smiths they denied employing Natasha or writing any notes. Pospichal noted that the signatures on the notes were different from the signatures of the Smiths on their driver's licenses.
In July 2002 the State filed a three count trial information charging Clark and five co-defendants with fraudulent practices. Clark was charged with first-degree fraudulent practice in Count I of the trial informtion and second-degree fraudulent practice in Count II. On August 15, 2002, Clark filed a motion to dismiss which the district court denied. On December 18, 2002, Clark waived her right to a jury trial and the matter was tried to the court. The evidence at trial consisted of live testimony, exhibits, depostion testimony, and the minutes of testimony which accompanied the trial information. At the close of evidence, the State was allowed to amend the trial information to conform to the evidence against Clark.
The State noted that several of the code sections set forth in the trial information did not apply to Clark. As a result of the amendment, the trial information's reference to section 234.13 of the Code (the statute dealing with food program fraudulent practices) was eliminated. A reference to a repealed version of the current fraudulent practices definition was also eliminated. Pursuant to the State's request, the trial information was amended to include section 237A.13 relating to childcare assistance fraudulent practice. When the district court asked Clark's counsel about the State's proposed amendment, he acknowledged that he was aware of the State's theory of the case before the motion to amend was made. The proposed amendment had no effect on the following Iowa Code sections, which were charged in the initial trial information, 714.8, 714.9, and 714.10.
On January 15, 2003, the district court found Clark guilty on both counts. Clark was subsequently sentenced to ten years imprisonment on the charge of first-degree fraudulent practice and five years imprisonment on the charge of second-degree fraudulent practice, to be served consecutively and suspended with the condition of formal probation being imposed. Clark appeals.
II. Scope of Review
We review a motion to dismiss a charge for correction of errors at law. State v. Wells, 629 N.W.2d 346, 351 (Iowa 2001). We also review challenges to the sufficiency of the evidence for correction of errors at law. State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001). "We will uphold a verdict if substantial record evidence supports it." Id. Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id. III. Discussion
Clark first claims the district court erred in denying her motion to dismiss the trial information. A motion to dismiss a trial information is governed by Iowa Rule of Criminal Procedure 2.11(6)( a). That rule provides:
If it appears from the indictment or information and the minutes of evidence that the particulars stated do not constitute the offense charged in the indictment or information, or that the defendant did not commit that offense or that a prosecution for that offense is barred by the statute of limitations, the court may and on motion of the defendant shall dismiss the indictment or information unless the prosecuting attorney shall furnish a bill of particulars which so states the particulars as to cure the defect.
In considering a rule 2.11(6)( a) motion to dismiss, we accept as true the facts set out in the trial information. State v. Marti, 290 N.W.2d 570, 578 (Iowa 1980). We also accept as true the facts set forth in the minutes of testimony. Id. If those facts charge a crime as a matter of law, we will uphold the information. Id.
As we have mentioned, the State charged Clark with two counts of fraudulent practices. The trial information stated that the named defendants "made false statements and/or admissions to the Iowa Department of Human Services allowing themselves personally or by aiding and abetting another to illegally receive public assistance benefits" in excess of $10,000 or $1,000. In Clark's motion to dismiss, she claimed that the State failed to set forth any information in the minutes of testimony which linked her to the alleged criminal conduct. After reviewing the minutes of testimony attached to the trial information the district court disagreed. It concluded that there was a "sufficient basis for the charges against the defendant to go forward," and thus denied Clark's motion. The minutes of testimony included the information that Pospichal gathered during her investigation. We conclude that the trial information and minutes of testimony sufficiently allege that fraudulent practices occurred. Therefore, we affirm the district court's decision to deny Clark's motion to dismiss.
Clark next argues that the district court erred in denying her motion for judgment of acquittal. She claims the evidence the State presented was insufficient to convict her of fraudulent practices. When reviewing a challenge to the sufficiency of the evidence, we give consideration to all of the evidence, not just that supporting the verdict. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998). However, we do view the evidence in the light most favorable to the State, including legitimate inferences and presumptions that fairly may be deduced from the evidence in the record. State v. Bass, 349 N.W.2d 498, 500 (Iowa 1984).
After careful review of the record, we find sufficient evidence exists to support Clark's convictions for first-degree fraudulent practice and second-degree fraudulent practice. In this case, the district court had to decide whether Clark "knowingly execute[d] or tender[ed] a false certification under penalty of perjury, false affidavit, or false certificate, if the certification, affidavit, or certificate is required by law or given in support of a claim for compensation, indemnification, restitution or other payment" or aided and abetted that effort. Iowa Code § 714.8(3). The record shows that both Clark and the women for whom she allegedly provided childcare provided the Department with false information in order to obtain money fraudulently from the State.
All of the women involved in this case filled out childcare assistance applications, which represented that they were working when they were not. Each of the women also listed Clark as their childcare provider. Clark sent the Department invoices which stated she was providing childcare for the women when she was not. In return, the Department paid Clark over $51,000. Clark also told the Department that she enlisted the help of Vivian Richardson and Elenore Nevilles to help her run her childcare business. However, both Vivian and Elenore denied ever helping Clark.
Clark's daughter-in-law, Anquinnatta Cunningham, was the defendant's primary accuser at trial. She testified about the scam that she, Clark, and the remaining co-defendants perpetrated on the Department. In her brief on appeal, Clark contends Cunningham's testimony was unreliable and should have been discounted by the trial court. We agree with Clark that defense counsel established several reasons for questioning Cunningham's credibility. The district court acknowledged that counsel had established Cunningham's personal animus toward the defendant. Nevertheless, we agree with the district court that the documentary evidence in this case corroborates Cunningham's testimony and supports the court's conclusion that Clark and Cunningham joined forces to defraud the Department. Determinations of credibility are in most instances left for the trier of fact, who is in a better position to evaluate it. State v. Myers, 382 N.W.2d 91, 97 (Iowa 1986).
We conclude that there is substantial evidence in the record to support Clark's convictions. Therefore, we reject her sufficiency of the evidence claim. Having ruled on the merits on both of the issues raised by Clark on appeal, we need not address her ineffective assistance of counsel claim. We affirm the judgment of the district court.
AFFIRMED.