Opinion
No. 108,120.
2013-10-7
STATE of Kansas, Appellant, v. Lavita NELSON, Appellee.
Appeal from Geary District Court; Steven L. Hornbaker, Judge. Stefani K. Hepford, assistant attorney general, and Derek Schmidt, attorney general, for appellant. Angela M. Davidson, assistant public defender, of Junction City, for appellee.
Appeal from Geary District Court; Steven L. Hornbaker, Judge.
Stefani K. Hepford, assistant attorney general, and Derek Schmidt, attorney general, for appellant. Angela M. Davidson, assistant public defender, of Junction City, for appellee.
Before PIERRON, P.J., BRUNS and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
The State of Kansas appeals the district court's decision to grant Lavita Nelson's motion to arrest judgment for convictions of several crimes involving Medicaid billing. The State only takes issue with the court's decision involving Nelson's conviction for making a false claim to the Medicaid program. The State argues the failure of the complaint to include the word “knowingly” did not deprive the trial court of jurisdiction. We reverse and reinstate the conviction for making a false claim to the Medicaid program. The decision below is reversed.
Nelson was tried and convicted by a jury for one count of making a false claim to the Medicaid program and four counts of forgery. Before sentencing, Nelson filed a motion for arrest of judgment arguing that the complaint was defective on the false claim charge because the complaint did not include the element that she “knowingly” made the false Medicaid claim. She also challenged the forgery charges, arguing the complaint did not state that she acted with the intent to defraud. The district court granted Nelson's motion based on her arguments and arrested judgment on all counts. The State only appealed the court's decision to arrest judgment on the false Medicaid claim.
In a criminal case, the charging document provides the district court with subject matter jurisdiction over the crimes charged and any lesser included offenses of the crimes charged. State v. Minor, 197 Kan. 296, 299–301, 416 P.2d 724 (1966); State v. Horn, 20 Kan.App.2d 689, 692, 892 P.2d 513, rev. denied 251 Kan. 1094 (1995). In general, a charging document that omits an essential element of a crime is fatally defective, and the conviction must be reversed for lack of jurisdiction. State v. Gonzales, 289 Kan. 351, 366, 212 P.3d 215 (2009). Whether a charging document confers subject matter jurisdiction is a question of law subject to unlimited review. State v. Garza, 290 Kan. 1021, 1030, 236 P.3d 501 (2010).
Nelson timely filed her motion to arrest judgment. See K.S.A. 22–3502. In light of the timing of her motion, the pre- Hall test applies to determine the sufficiency of the complaint. See State v. Hall, 246 Kan. 728, 764–65, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003); State v. Shirley, 277 Kan. 659, 661, 89 P.3d 649 (2004). The Hall court adopted two different tests for determining if a defective complaint warrants reversal of a conviction—one to be used if a defendant challenges the charging document through a motion for arrest of judgment before a district court, which the Hall court indicated was the “proper procedure,” and the other if a defendant raises the challenge for the first time on appeal. 246 Kan. at 760–61, 764–65;Shirley, 277 Kan. at 661–62.
As to the first test, when a motion to arrest judgment is filed in the district court, the Hall court directed the district courts to “test its merit by utilizing the rationale of our pre- Hall cases.” Hall, 246 Kan. at 764. The Shirley court explained: “Under the pre- Hall standard, the court must focus on technical considerations. [Citations omitted.] If the charging document does not set out the essential elements of the crime, it is fatally defective and the conviction must be reversed for lack of jurisdiction. [Citation omitted.].” Shirley, 277 Kan. at 661–62.
As to the second test, a defendant who waits until the appeal to challenge the charging document must satisfy a “new standard of review” established by the Hall court. Shirley, 277 Kan. at 662; see Hall, 246 Kan. at 765. The Shirley court explained that this new standard—referred to as the post- Hall standard or test—requires the defendant to show that the claimed defect either
“(1) prejudiced the defendant's preparation of a defense, (2) impaired the defendant's ability to plead the conviction in any subsequent prosecution, or (3) limited the defendant's substantial rights to a fair trial under the Sixth Amendment to the United States Constitution or Section 10 of the Kansas Constitution Bill of Rights.” Shirley, 277 Kan. at 662.
The court in State v. Scott, 286 Kan. 54, 183 P.3d 801 (2008), seemingly softened the strict, test “based on technical considerations” for the pre- Hall cases in the following manner:
“However, even under the pre- Hall standard, an information is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or others of the same import so long as the defendant is fully informed of the particular offense charged and the court is able to determine under what statute the charge is founded. State v. Micheaux, 242 Kan. 192, 197, 747 P.2d 784 (1987).” 286 Kan. at 63.
The Scott court quoted from the Micheaux decision where it relied on early Kansas jurisprudence:
“In Micheaux, we quoted from State v. Morris, 124 Kan. 505, 508, 260 Pac. 629 (1927), that ‘the day [has] passed in this jurisdiction “when criminals can hope to go unwhipped of justice because of the want of a technical recital in a criminal information which neither misled nor prejudiced them in the preparation or management of their defense.” ‘ 242 Kan. at 197.” Scott, 286 Kan. at 64.
In the amended complaint here, the State charged Nelson in Count One as follows:
“Between on or about July 1, 2009 and continuing to on or about July 31, 2009, in the State of Kansas, County of Geary, LAVITA NELSON did then and there, contrary to the statutes of the State of Kansas, with the intent to defraud, engage in a pattern of making false or fraudulent statements or representations, to wit: Personal Care Attendant timesheets, for use by Three Rivers, Inc. in determining payments which may be made, in whole or in part, under the Medicaid program, whether or not the claim is allowed or allowable, with the aggregate amount being at least $1,000.00 but less than $25,000.”
At the time Nelson committed her crimes, K.S.A. 21–3846(a)(2) provided:
“Making a false claim, statement, or representation to the medicaid program is, knowingly and with intent to defraud, engaging in a pattern of making, presenting, submitting, offering or causing to be made, presented, submitted or offered: ... (2) any false or fraudulent statement or representation for use in determining payments which may be made, in whole or in part, under the medicaid program, whether or not the claim is allowed or allowable.” (Emphasis added.)
Based on Nelson's timely challenge of the complaint through a motion to arrest judgment, our review is dictated by the technical concerns of pre- Hall analysis supplemented by the Scott considerations. The complaint clearly omitted the word “knowingly” from its description of the charge. The complaint is defective in that regard, but we do not find we should throw the baby out with the bathwater. Under Scott, we must consider whether the complaint substantially follows the language of the statute or charges the offense in equivalent words or others of the same import. Additionally, our concern is whether Nelson was fully informed of the particular offense charged and the trial court was able to determine under what statute the charge is founded. See Scott, 286 Kan. at 63. We find all the Scott concerns were met in this case.
In Scott, the defendant challenged his complaint in a motion to arrest judgment arguing the capital murder charge was defective because it did not explicitly allege that he killed the victim, an essential element of the crime. The Scott court found that in the capital murder allegation, looking to the language used in the entire complaint and a commonsense reading of the charge it was necessarily implied that Scott killed the victim. 286 Kan. at 64. The Scott court distinguished many of the pre- Hall analysis cases by stating: “[R]eversal was predicated on the omission of an essential element that could not be clearly inferred from the language of the charging document. Such is not the case here....” 286 Kan. at 65.
At the time that Nelson committed her crimes, the Kansas statutes provided several controlling principles. Criminal intent is an essential element of every crime defined in the Kansas Criminal Code. See K.S.A. 21–3201(a). Intentional conduct is defined as “conduct that is purposeful and willful and not accidental.” K.S.A. 21–3201(b). Additionally, the terms “ ‘knowing,’ ‘willful,’ ‘purposeful,’ and ‘on purpose’ are included within the term ‘intentional.’ “ K.S.A. 21–3201(b).
Under K.S.A. 21–3846(a)(2), the making a false claim offense required proof that Nelson “knowingly and with intent to defraud” engaged in a pattern of making false claims. Under Scott, an information that charged Nelson with the intent to defraud by engaging in a pattern of making false or fraudulent statements or representations encompassed the knowledge element. A reasonable construction of the complaint infers that Nelson knowingly committed the acts when she intended to defraud the Medicaid program. After reviewing the complaint, we are confident that Nelson knew the particular charges against her, the omitted language did not create a different crime, and the trial court was able to determine under what statute the charge was founded. See Scott, 286 Kan. at 63.
The district court erred in granting Nelson's motion to arrest judgment on the conviction of making a false claim to the Medicaid program.
Reversed and remanded with directions to reinstate the conviction.