State v. McWilliams

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,688

STATE OF KANSAS,
Appellee,

v.

OLIVER MCWILLIAMS,
Appellant.

SYLLABUS BY THE COURT

1.
When the sufficiency of evidence is challenged in a criminal case, the standard of
review is whether, after review of all the evidence, viewed in the light most favorable to
the prosecution, the appellate court is convinced that a rational factfinder could have
found the defendant guilty beyond a reasonable doubt.

2.
Intent may be inferred from acts, circumstances, and the inferences reasonably
deducible from them.

3.
The facts alleged in an indictment or an information must constitute an offense
within the terms and meaning of the statute upon which the offense is based.
2

4.
On the record of this Medicaid fraud prosecution under K.S.A. 21-3846(a)(1), the
State's evidence that defendant made an untrue statement he knew to be untrue was
sufficient to support the conviction.

Review of the judgment of the Court of Appeals in an unpublished opinion filed September 3,
2010. Appeal from Labette District Court; ROBERT J. FLEMING, judge. Opinion filed August 17, 2012.
Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is
affirmed.

Reid T. Nelson, of Capital and Conflicts Appeal Office, argued the cause and was on the brief for
appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Jabari B. Wamble,
assistant attorney general, and Steve Six, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

NUSS, C.J.: This case requires us to determine whether sufficient evidence exists
to support the bench trial conviction of Oliver McWilliams (McWilliams) under K.S.A.
21-3846(a)(1) for defrauding the Medicaid program. Because we conclude that it does,
we affirm the district court and reverse the Court of Appeals.

FACTS

Mary McWilliams is a Medicaid beneficiary who received Medicaid's "Home and
Community Based Services." Under the program she received help with her day-to-day
life activities, including assistance from "personal care attendants" (PCAs). Mary had two
PCAs—her husband, Oliver McWilliams, and her daughter, Sharnette McWilliams.
While a beneficiary's spouse generally may not provide services per K.A.R. 30-5-307,
McWilliams apparently received a spousal exemption under the regulation.
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McWilliams submitted his work timesheets to SKIL, a payroll agency, which then
submitted the paperwork to Medicaid. After deductions by SKIL, he received $7.75 net
per hour for his daytime services and a $20 payment for overnight "sleep cycle support."

As stated in a form McWilliams signed as part of his enrollment with SKIL,
Medicaid prohibits PCAs from providing services to the Medicaid beneficiary while the
beneficiary is in a hospital. The form also advises of the prohibition against PCAs
submitting a claim to be paid for that time. Yet McWilliams claimed payment for 182.98
service hours and 76 sleep cycles while Mary was hospitalized. And Medicaid paid for
these hospital hours.

After an investigation into McWilliams' timesheets, the State charged both
Sharnette and McWilliams with Medicaid fraud and tried them separately. Count I of the
first amended complaint/information charged McWilliams with engaging in a conspiracy
with Sharnette to defraud Medicaid. Count II essentially charged him with defrauding
Medicaid in the amount of $3,704.78 by submitting a false claim for the hospital hours:

"Oliver McWilliams, for himself, did then and there, unlawfully, feloniously, knowingly,
and with the intent to defraud, engage[] in a pattern of . . . submitting . . . false or
fraudulent statements . . . for services for which payment may be made, in whole or in
part, under the Kansas Medicaid program, whether or not the claims for payment for
services is allowed or allowable . . . to wit; In violation of K.S.A. 21-3846(a)(1), Oliver
McWilliams did knowingly and intentionally and with the intent to defraud, . . . submit[ ]
. . . to the Kansas Medicaid program, false and fraudulent statements, representations,
books, records, documents and claims for personal care services which were not provided
by Oliver McWilliams, and were therefore not allowable under the Kansas Medicaid
program. As a result of said conduct the Kansas Medicaid program paid $3,704.78, which
should not have been paid."

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At the bench trial, McWilliams did not dispute that he had claimed payment for
hospital hours. But he argued that Mary needed PCA support to receive adequate care
while hospitalized because she was "about dead." He further testified that her case
manager, Lawrence Reece—who did not testify and was described by McWilliams as
"the boss"—permitted him to claim payment for hospital hours. McWilliams also
testified that he was not aware of Medicaid's ban on PCA hospital hours until the State
began the fraud investigation. SKIL employee Rebecca Lemon testified for the State that
Medicaid makes "no allowance for someone who is hospitalized" to receive personal care
services.

The district court acquitted McWilliams of the conspiracy charge. But it found
him guilty of fraudulently billing Medicaid for the hospital time. The court primarily
based its ruling on the "Personal Care Attendant Acknowledgement" form which it found
that McWilliams had signed. It quoted the form's language: "Under no circumstances
will Personal Care Attendants be authorized to provide services nor submit hours for the
time that an employer is hospitalized or receiving any other institutional care." The court
found this language "to be pretty compelling in support of a conviction for Count II"
because the form "clearly, unequivocally, very specifically says that under no
circumstances may a personal care attendant provide services to the employer/patient
while the employer/patient is hospitalized."

In addition to this language, the court also emphasized that this form signed by
McWilliam states:

"I have read and understand the information provided in the Personal Care Attendant
Acknowledgement and I agree to perform my duties as a Personal Care Attendant
accordingly. I further understand my responsibility to record accurate and timely
information in correlation to the information provided."

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The court then sentenced McWilliams to 12 months' probation with an underlying
sentence of 6 months in jail and ordered restitution of $3,704.78 and court costs.

The Court of Appeals reversed McWilliams' conviction, holding that the evidence
at trial did "not support a guilty finding for the specific act charged in the complaint."
State v. McWilliams, No. 102,688, 2010 WL 3564738, at *2 (Kan. App. 2010)
(unpublished opinion) rev. granted November 5, 2010. More particularly, it adopted
McWilliams' contention: he "specifically argues the complaint charges that he submitted
statements for services he did not provide, while the evidence establishes that he actually
did provide the services for which he submitted statements." (Emphasis added.) 2010 WL
3564738, at *2.

We granted the State's petition for review. Our jurisdiction is under K.S.A. 20-
3018(b).

ANALYSIS

Issue: Sufficient evidence supports McWilliams' conviction for Medicaid fraud.

Standard of Review

In analyzing this issue we consider "whether, after review of all the evidence,
viewed in the light most favorable to the prosecution, [we are] convinced that a rational
factfinder could have found the defendant guilty beyond a reasonable doubt." State v.
Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 (2007).

Discussion

The State's complaint/information charged McWilliams with making a false or
fraudulent Medicaid claim in violation of K.S.A. 21-3846(a)(1), which states:

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"(a) 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:

(1) Any false or fraudulent claim for payment for any goods, service, item,
facility, accommodation for which payment may be made, in whole or in part, under the
medicaid program, whether or not the claim is allowed or allowable."

The State asserts that it proved beyond a reasonable doubt that McWilliams (1)
knowingly and with intent to defraud, (2) submitted a false or fraudulent claim for
payment of services under the Medicaid program, and (3) received between $1,000 and
$25,000 in illegal payments. See PIK Crim. 3d. 60.40.

McWilliams responds that the State has not established an intent to defraud
because he received permission to provide the service in the hospital. He also asserts that
he did not defraud Medicaid because he actually provided the services claimed on his
timesheets for payment. Both of his points will be addressed in turn.

A. Sufficient evidence supports McWilliams' intent to defraud Medicaid with a
false claim.

In 1965, Congress established Medicaid in Title XIX of the Social Security Act,
now codified as amended at 42 U.S.C. § 1396 et seq. (2006). Medicaid is jointly funded
by the federal government and participating States to provide medical assistance to
certain categories of low income individuals.

The Code of Federal Regulations defines "personal care services" under Medicaid
as

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"services furnished to an individual who is not an inpatient or resident of a hospital,
nursing facility, intermediate care facility for the mentally retarded, or institution for
mental disease that are—

(1) Authorized for the individual by a physician in accordance with a
plan of treatment or (at the option of the State) otherwise authorized for
the individual in accordance with a service plan approved by the State;

(2) Provided by an individual who is qualified to provide such services
and who is not a member of the individual's family; and

(3) Furnished in a home, and at the State's option, in another location."
(Emphasis added.) 42 C.F.R. § 440.167(a); accord 42 U.S.C. §
1396d(a)(xvii)(24) (2006).

Against this backdrop, McWilliams argues that he did not intend to violate
Medicaid and accompanying Kansas law because he received permission from Lawrence
Reece to provide the hospital services and to file those claims for payment. The State
responds that intent may be inferred from "'"acts, circumstances, and inferences
reasonably deducible therefrom."'" State v. Martinez, 290 Kan. 992, 1004, 236 P.3d 481
(2010). And evidence of intent can be found in the "Personal Care Attendant
Acknowledgement" form that McWilliams signed.

The district court accurately found the form clearly provides that "[u]nder no
circumstances will [PCAs] be authorized to provide services nor submit hours for the
time that an employer is hospitalized or receiving any other institutional care." The form
is echoing Medicaid law which prohibits payment for services provided in a hospital. The
form also contains McWilliams' signed acknowledgment that he had read and understood
the form, his agreement to perform his duties in accordance with the form's provisions,
and his acknowledgment of his responsibility to record accurate and timely information.

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Consequently, we hold that the district court, as the finder of fact, could
reasonably infer from this evidence that McWilliams' later-submitted claims for payment
for hospital hours sufficiently demonstrated his intent to defraud the Medicaid program.
See Martinez, 290 Kan. at 1004. Reweighing this evidence with the conflicting evidence
emphasized by McWilliams is not our function. See State v. McCaslin, 291 Kan. 697,
710, 245 P.3d 1030 (2011) (stating "we do not reweigh evidence, resolve conflicts in the
evidence, or pass on the credibility of witnesses" when reviewing a conviction for
sufficient evidence).

B. Sufficient evidence supports the conviction.

As mentioned, the State's complaint/information against McWilliams alleged in
relevant part that

"[i]n violation of K.S.A. 21-3846(a)(1), Oliver McWilliams did knowingly and
intentionally and with the intent to defraud, . . . submit[ ] . . . to the Kansas Medicaid
program, false and fraudulent statements, representations, books, records, documents and
claims for personal care services which were not provided by Oliver McWilliams, and
were therefore not allowable under the Kansas Medicaid program."

McWilliams primarily argues that the State has insufficient evidence to convict
him of Medicaid fraud because it could not prove that he made a false statement. See
Slaymaker v. Westgate State Bank, 241 Kan. 525, Syl. ¶ 2, 739 P.2d 444 (1987) (fraud
requires an untrue statement known to be untrue by the party making it). More
specifically, he argues that because he actually provided the services during his wife's
hospitalization, he could not be prosecuted for an offense alleging he falsely submitted
claims for services not provided. So his conviction must be overturned. As mentioned,
the Court of Appeals adopted this argument.

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McWilliams argues we should follow the panel's specific lead and analogize his
case to State v. McMannis, 12 Kan. App. 2d 464, 747 P.2d 1343 (1987) rev. denied 242
Kan. 905 (1988). There, the Court of Appeals reversed McMannis' conviction because
while he indisputably had possessed methamphetamine, he instead was charged with, and
convicted of, possession of amphetamine with intent to sell. The panel correctly observed
that methamphetamine and amphetamine are "listed separately under Schedule II of the
Controlled Substances Act. K.S.A. 1986 Supp. 65-4107(d)(1) and K.S.A. 1986 Supp. 65-
4107(d)(3)." 12 Kan. App. 2d at 465. The panel therefore concluded the jury's verdict
was not supported by substantial evidence.

The McMannis court substantially relied on our reasoning in State v. Houck, 240
Kan. 130, 727 P.2d 460 (1986). In Houck, the defendant burned two homes, one that was
insured and one that was subject to a mortgage. He was charged with, and convicted of,
aggravated arson which, as elected by the State in the complaint, required proof under
K.S.A. 21-3718(1)(a) (Weeks 1974) of damage to a building or property in "which
another person has any interest without the consent of such other person."

On appeal, we determined that as a matter of law, neither the insurance company
nor the mortgagee had a property interest in the homes. So the evidence at trial did not
support a conviction for the offense charged. We noted that by contrast K.S.A. 21-
3718(1)(b) (Weeks 1974) covered "damage[ing] any building or property with intent to
injure or defraud an insurer or lienholder" yet was not the basis for the State's charge.
(Emphasis added.) 240 Kan. at 135. We concluded:

"Whether the State's evidence would or would not be sufficient to prove a charge under
K.S.A. 21-3718(1)(b) is an academic question not properly before us. The State has the
responsibility to appropriately charge the accused with the crime it believes the accused
has committed. If the evidence introduced at trial does not support a conviction of the
offense charged, the accused cannot be found guilty of some other offense which the State
did not see fit to charge. Here, the State did not prove the charges it brought against
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Houck and, therefore, the convictions of aggravated arson must be reversed." Houck, 240
Kan. at 135-36.

The panel essentially agreed with McWilliams' contention that just as the evidence
was insufficient to convict the defendants in McMannis and Houck of their charged
offenses, there was insufficient evidence that he submitted a claim for "services which
were not provided" because he did provide all of the services claimed on his timesheets.
The panel held that he

"was charged with making claims for services 'which were not provided by Oliver
McWilliams.' All the evidence establishes he did, in fact, provide the services he billed
for. Because the record lacked evidence to prove that he did not provide the services, his
conviction cannot stand." (Emphasis added.) McWilliams, 2010 WL 3564738, at *5.

But as the State contends, these conclusions are the result of incomplete analyses.
And in our review, we discern no meaningful parallels between McWilliams' situation
and those defendants in McMannis and Houck, as explained below.

Stated plainly, the State's complaint/information did not charge McWilliams with
simply submitting statements for general "services" he did not provide. Rather, the
complaint/information specifically charged him with submitting statements "for personal
care services which were not provided by Oliver McWilliams, and were therefore not
allowable under the Kansas Medicaid program." (Emphasis added.) As discussed above
in Section A, "personal care services" do not, and cannot, include services provided to a
hospitalized beneficiary. See, e.g., 42 C.F.R. § 440.167(a) ("Personal care services means
services furnished to an individual who is not an inpatient or resident of a hospital . . . .")

Accordingly, the services McWilliams indisputably performed in the hospital
simply were not "personal care services." And he previously signed the form expressly
acknowledging that he was not authorized to provide the hospital services. So his
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representation that he had performed personal care services during those times would be
knowingly false. This alone is ample evidence of the specific fraud element that
McWilliams contends is insufficient for conviction: the untrue statement known to be
untrue by the party making it. See Slaymaker, 241 Kan. 525, Syl. ¶ 2 (element of fraud is
an untrue statement known to be untrue by the party making it and made with the intent
to deceive).

Because McWilliams did not perform personal care services, he is not entitled to
be paid by Medicaid for performing them. And he previously signed the form expressly
acknowledging that he was not authorized to submit hours for his hospital services. So
his claims submission seeking payment for performance of personal care services in the
hospital would also be knowingly false. This too is ample evidence of fraud, e.g., the
intent to deceive. See Gutierrez, 285 Kan. at 336 (when reviewing sufficiency of
evidence claim on appeal, evidence is viewed in light most favorable to the prosecution).
We end this analysis by noting that the precise statute the complaint/information charged
McWilliams with violating, K.S.A. 21-3846(a)(1), unambiguously prohibits the
submission of "false or fraudulent claim[s]" to Medicaid. See McMannis, 12 Kan. App.
2d 464, Syl. ¶ 3 ("The facts alleged in an indictment or an information must constitute an
offense within the terms and meaning of the statute upon which the offense is based.").

In short, we reject McWilliams' sole claim on appeal: that the evidence is
insufficient to prove the fraud element that requires him to make an untrue statement with
the intent to deceive, i.e., that the evidence did not support the specific crime charged.
His conviction is therefore affirmed.

The judgment of the Court of Appeals reversing the district court is reversed. The
judgment of the district court is affirmed.

* * *
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JOHNSON, J., dissenting: I respectfully dissent. The Court of Appeals got it right.
The State charged McWilliams with submitting claims to Medicaid for services that he
did not render, but the evidence failed to refute that McWilliams did, in fact, provide
those claimed services to his wife, albeit the services may not have been authorized for
Medicaid payment.

There is a huge difference between claiming reimbursement for services which
were never provided and claiming reimbursement for services that were provided in good
faith, but which were not defined as authorized "personal care services" under applicable
federal regulations. The former might justify a criminal prosecution for fraud; the latter
only justifies a civil action for reimbursement of unauthorized payments. If that
distinction does not exist, there are millions of income tax payers, awash in a sea of
confusion over Internal Revenue Code provisions and regulations, that are in danger of
acquiring a criminal record through ignorance.

The majority pays lip service to the definition of the fraud element: an untrue
statement known to be untrue by the party making it and made with the intent to deceive.
But then the majority finds the evidence sufficient to establish that McWilliams knew he
was not authorized to submit the claim, notwithstanding permission from his "boss,"
because an acknowledgment form he signed at some point said not to submit a claim for
services while the employer was hospitalized. Apparently, the majority believes that
constructive knowledge is sufficient to put someone in prison for fraud; I don't. Further,
the majority apparently believes that all personal care attendants (PCAs) should know
intuitively that the information contained in the acknowledgment form that they sign
when commencing their duties is not waivable by anyone under any circumstances, no
matter how critically ill the employer might be. Otherwise, where is the evidence of an
intent to deceive here when the uncontroverted testimony of McWilliams was that his
"boss" knew about and authorized the claims?
13


Granted, we should not reweigh the evidence. But the evidence must be sufficient
to support the crime with which the defendant was actually charged; it is not enough that
the evidence could have supported another after-the-fact theory of prosecution that the
State may have developed for appeal purposes. See State v. Jones, 242 Kan. 385, 397,
748 P.2d 839 (1988) ("When the information alleges one or more theories for
commission of the crime, the general rule is that the instructions should be confined to
the charges contained in the information and should not be broader or narrower than the
information."). Moreover, K.S.A. 22-3201(b) requires that the complaint "shall be a plain
and concise written statement of the essential facts constituting the crime charged."

"'The purpose of the information in a criminal case is to advise the accused and
the court of the charges alleged to have been committed and the essential facts
constituting the crime charged. State v. Carpenter, 228 Kan. 115, 612 P.2d 163 (1980). In
a felony action, the information is the jurisdictional instrument upon which the accused
stands trial. An information must be stated with enough clarity and detail to inform a
defendant of the criminal act with which he is charged. City of Altamont v. Finkle, 224
Kan. 221, 579 P.2d 712 (1978). The failure to so inform the defendant denies the
defendant procedural due process and violates his right to be informed of the charges
against him. K.S.A. 22-3205; Kansas Const. Bill of Rights, § 10; U.S. Const., 6th
Amend.; State v. Daniels, 223 Kan. 266, 573 P.2d 607 (1977).'" State v. Garrison, 252
Kan. 929, 934, 850 P.2d 244 (1993) (quoting State v. Snyder, 10 Kan. App. 2d 450, 457-
58, 701 P.2d 969 [1985]).

As the majority recites twice, the complaint here alleged that McWilliams
submitted claims for personal care services "which were not provided." A plain reading
of the charging document would inform a rational, ordinary defendant that he or she had
not done the work for which he or she was claiming payment from Medicaid. In that
regard, the State simply did not prove that McWilliams did not provide the services he
claims to have provided to his hospitalized wife.

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On the other hand, the State's charging document did not allege that McWilliams
knowingly attempted to claim payment for unauthorized services rendered, i.e., that
McWilliams knew the care he was giving his hospitalized wife was not reimbursable
under Medicaid but submitted a claim anyway. To compensate for that shortcoming, the
State asserts a newfound theory on appeal that "personal care services" is a term of art
that does not apply to any services provided to a hospitalized employer, even if the acts
performed were previously referred to as personal care services when performed at home.
In other words, the State and the majority would require McWilliams to know that the
term "personal care services," when used in the complaint, had the narrow and precise
definition recited by the majority from 42 C.F.R. § 440.167(a). But that position is
contradicted by the acknowledgment form to which the majority ascribes so much
importance. That form simply refers to a PCA not being "authorized to provide services
. . . for the time that an employer is hospitalized." (Emphasis added.) If the use of the
term "personal care services," by definition and without more, means the exclusion of any
services provided to a hospitalized employer, as the State and the majority assert, why
would the acknowledgment form tell PCAs they cannot provide "services" to a
hospitalized employer?

In my view, the majority has found sufficient evidence to support a conviction
based upon a theory of prosecution that the State neither alleged nor proved at trial. To
me, that is not due process. I would affirm the Court of Appeals.