Hosan M. Azomani v. State of Mississippi

222 So. 3d 343, 2016 Miss. App. LEXIS 510, 2016 WL 4187614
CourtCourt of Appeals of Mississippi
DecidedAugust 9, 2016
Docket2015-KA-00050-COA
StatusPublished
Cited by6 cases

This text of 222 So. 3d 343 (Hosan M. Azomani v. State of Mississippi) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hosan M. Azomani v. State of Mississippi, 222 So. 3d 343, 2016 Miss. App. LEXIS 510, 2016 WL 4187614 (Mich. Ct. App. 2016).

Opinions

FAIR, J.,

for the Court:

¶ 1. A jury sitting before the Washington County Circuit Court found Dr. Hosan M. Azomani guilty of two counts of Medicaid fraud. Dr. Azomani appeals and claims: (1) he was not tried in the proper venue; (2) the statute of limitations had expired; (3) the jury was improperly instructed; (4) there was insufficient evidence to convict him; (5) he received ineffective assistance of counsel; and (6) the cumulative effect of the alleged errors mandates reversal of the circuit court’s judgment. Finding no error, we affirm.

FACTS

¶ 2. Dr. Azomani, a pediatrician and the medical director of the Children’s Medical Group of Greenville PLLC, was investigated by the Mississippi Medicaid Fraud Control Unit (MFCU). On October 19, 2010, he billed Mississippi Medicaid under “Current Procedural Terminology” (OPT) code 99215 for all fifty-six children he treated that day. And on January 3, 2011, he used the same code to bill Medicaid for the sixty-nine children he treated on that day. Using code 99215 for all children treated on those two days, he was reimbursed the highest possible amount for all office visits on those two days, for which he was paid a total of $14,715.66 by Medicaid. Experts who reviewed Dr. Azomani’s records for the MFCU unanimously concluded that none of the children Dr. Azomani treated during those two days should have been billed under code 99215.

¶ 3. Indicted on January 13, 2014, on 13 counts of Medicaid fraud, he was tried over six days beginning October 27, 2014. On November 1, 2014, the jury found him guilty of two counts of fraudulently misusing billing code 99215, an inappropriate code for the 125 children he treated on two days. It acquitted him on the other 11 counts. At trial, the State called numerous witnesses involved with the investigation and audit of Dr. Azomani’s files. Experts for the State and Dr. Azomani agreed that he improperly billed Medicaid under code 99215 for all of the patients he treated during the two days at issue. Dr. Azomani testified that he did not intend to bill Medicaid improperly. Instead, he relied on a previous partial review of his files, which had incorrectly suggested that he had been properly billing under code 99215. From the verdict finding Dr. Azo-mani guilty of two counts of Medicaid fraud, he appeals.

DISCUSSION

1. Venue

¶4. In June 2014, Dr. Azomani filed a “motion to dismiss due to incorrect [347]*347venue.” Citing Mississippi Code Annotated section 43-13-223(1) (Rev.2015), he argued that the State could only prosecute him in the First Judicial District of Hinds County or the county where he lived. Since he was a resident of Madison County, Dr. Azomani claimed that venue was improper in Washington County and that the circuit court should dismiss the indictment.

¶ 5. At an August 6, 2014 pretrial hearing, Dr. Azomani’s lawyer said that he and his co-counsel had “been engaged in some ongoing discussions with Dr. Azomani” regarding the venue motion. Dr; Azomani’s lawyer requested permission “not to pursue that motion at the hearing.” The circuit judge asked whether Dr. Azomani would argue the venue motion at a later date. Dr. Azomani’s lawyer responded, “In all candidness ..., we don’t know we won’t. The only thing I can represent ... is that at this point this morning[,] we’re asking not to call it up.” Noting that there was a scheduling order, Dr. Azoma-ni’s lawyer went on to say that “we will have a final decision from [Dr. Azomani] before th[e] deadline expires as to whether ... we are going to call it up for a hearing or just withdraw the motion.” Although there were two subsequent pretrial hearings, the venue motion was never mentioned again.1

¶ 6. While arguing his motion for a directed verdict, Dr. Azomani unsuccessfully claimed that the State had failed to present sufficient evidence that he submitted the claims from Washington County, so there was insufficient evidence of venue. But he never argued that venue was statutorily improper in Washington County because he was a resident of Madison County.

¶ 7. Dr. Azomani now seeks a ruling on his venue motion under section 43-13-223(1) for the first time in this appeal. Generally, “[t]he assertion on appeal of grounds for an objection which was not the assertion at trial is not an issue properly preserved on appeal,” and “[a] trial judge will not be found in error on a matter not presented to him for decision.” Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1995). But “there are exceptions to a procedural bar for errors affecting certain constitutional rights.” Foster v. State, 148 So.3d 1012, 1016 (¶ 12) (Miss.2014). The Mississippi Supreme Court has held that “venue is a constitutional requirement” that may be raised for the first time on appeal. Nuckolls v. State, 179 So.3d 1046, 1050 (¶ 12) (Miss.2015). The supreme court has also held that “because venue is jurisdictional in criminal cases, the issue may be raised for the first time on appeal.” Rogers v. State, 95 So.3d 623, 630 (¶ 23) (Miss. 2012). However, the supreme court has restricted the principle to direct criminal appeals. Moreno v. State, 79 So.3d 508, 511 (¶ 11) (Miss.2012) (finding that this Court erred in considering a venue claim that was raised for the first time “on appeal from a trial court’s denial of post-conviction relief’).

¶ 8. Dr. Azomani’s current venue claim is not based on Article 3, Section 26, of the Mississippi Constitution, which provides' that a criminal defendant has a right to be tried “by an impartial jury of the county where the offense was committed.” In other words, Dr. Azomani does not claim venue was improper in Washington County because the offenses had not been committed there. Instead, he notes that he was a Madison County resident, and claims that [348]*348venue was improper in Washington County based on section 43-13-223(1), which provides that “[a]n action brought in connection with any matter under this article may be filed' in the circuit court of the First Judicial District of Hinds County or in the circuit court of the county in which the defendant resides, and may be prosecuted to final judgment in satisfaction there.” Thus, Dr. Azomani seeks to assert a perceived statutory right for the first time on appeal, as opposed to a constitutional right.

¶ 9. The United States Court of Appeals for the Fifth Circuit has held that “[a] defendant indicted by an instrument [that] lacks sufficient allegations to establish venue waives any future challenge by failing to object before trial.” United States v. Carreon-Palacio, 267 F.3d 381, 392 (5th Cir.2001). As the Fifth Circuit noted, that position is an “appropriate balance between judicial economy and safeguarding a defendant’s right to be tried in a district with the requisite venue.” Id. In a subsequent appeal, the Fifth Circuit elaborated that allowing a defendant to raise an “obvious” venue defect for the first time on appeal

would create severe perverse incentives for criminal defendants in any case in which there are doubts over the legitimacy of venue. A defendant would be able to game the system and obtain a free second shot at an acquittal by waiting for his trial to conclude and then challenging venue in the event of a conviction. Even if ...

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Related

Hosan M. Azomani v. State of Mississippi
222 So. 3d 282 (Mississippi Supreme Court, 2017)

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Bluebook (online)
222 So. 3d 343, 2016 Miss. App. LEXIS 510, 2016 WL 4187614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hosan-m-azomani-v-state-of-mississippi-missctapp-2016.