IN THE COURT OF APPEALS OF IOWA
No. 14-0184 Filed February 11, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
ROSEMARY HARRIS, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Nancy S. Tabor,
Judge.
Rosemary Harris appeals from her convictions for fraudulent practice in
the third degree and tampering with records. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney
General, Katherine Walling, Student Legal Intern, Michael Walton, County
Attorney, and Patrick A. Mcelyea, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ. Tabor,
J., takes no part. 2
VOGEL, P.J.
Following a jury trial, Rosemary Harris appeals from her convictions for
fraudulent practice in the third degree and tampering with records. Harris argues
substantial evidence does not support the jury’s conclusion she intentionally
falsified a claim; alternatively, she frames this as an ineffective-assistance-of-
counsel argument. She also claims trial counsel was ineffective for failing to
object to various jury instructions, as well as the admission of two witnesses’
testimony and three exhibits, which contained unauthenticated documents and
consisted of hearsay.
We conclude, because substantial evidence supported the jury’s guilty
verdict, trial counsel was not ineffective for failing to assert the specific grounds
now raised in the appeal, namely, that the State failed to prove either charge.
We further conclude that both jury instructions challenged now were proper
statements of the law, and given that the exhibits of which Harris now complains
were duplicative, she was not prejudiced by counsel’s failure to object.
Furthermore, the testimony presented by the investigating officer that the forms
required the claims for payment be truthful was not hearsay, such that counsel
had a duty to object. However, we preserve for possible postconviction-relief
proceedings Harris’s claim that trial counsel was ineffective for failing to object to
the testimony of the previous employee who stated she had concerns the
business was consistently billing for services not performed. Consequently, we
affirm her convictions. 3
I. Factual and Procedural Background
As of April 2013, Harris owned Peace of Mind—a business operated out of
Harris’s home—that hires contractors to take care of disabled people in their own
homes. Peace of Mind bills Iowa Medicaid directly, which compensates the
business for the services provided. Iowa Medicaid requires a form called a
“claim for targeted medical care” to be completed and submitted. After
submission, the business will receive compensation. The types of services
performed, along with the dates, must be provided on the claim form.
Consequently, the business must rely on the supporting documents—that is, the
daily service records—so as to be able to accurately report which services were
provided and when. The service provider fills out and signs the daily service
records, which the business is then required to keep on file so the Iowa
Medicaid’s Fraud Control Unit can periodically review all records.
On April 18, 2013, Peace of Mind filed a claim form with Iowa Medicaid
stating it had provided forty-three hours of services to Dorothy Whitfield, which
was billed for $817. Whitfield is Harris’s mother. The Fraud Control Unit decided
to investigate this claim and requested the daily service records on which the
claim relied. Harris submitted twelve such records signed by Felicia Smith, one
of the providers who worked for Peace of Mind. An investigation followed, and
on October 9, 2013, Harris was charged with fraudulent practices in the third
degree, in violation of Iowa Code section 714.8 and .11 (2013), and tampering
with records, in violation of Iowa Code section 715A.5. The trial information was
later amended to reflect the more specific dates in which Harris engaged in the 4
illegal conduct—April 1 to May 6, 2013. Harris pled not guilty, and a jury trial was
held on January 15, 2014.1
Several witnesses testified during the one-day trial, including Smith.
When the investigation initially began, Smith told the Fraud Control Unit that she
had not been told to fill out the forms. However, after being told she faced
charges for theft, she stated she filled out twelve forms based on notes Harris
had given her and she had only provided one day of care for Whitfield. She did
think the services had been provided, but she had not been the one to perform
the care. She also testified she sometimes confused the daily service records
and the request for service forms.
Melanie Thiering, an employee at Peace of Mind from March 2012 until
June 2013, testified as well. From March until November 2012 she served as an
officer manager. Then after a fallout with Harris, she was demoted to being a
provider of services. As the officer manager, she was responsible for reviewing
and organizing the records. However, she stated she did not see records for
Whitfield’s care until the summer of 2012, when the State’s review of the records
began. She stated she and Harris filled out 100 or so daily service reports, and
she assumed the care had been provided to Whitfield. She further testified she
was concerned Peace of Mind was billing the State for more hours than were
actually provided and, accordingly, she reported her concerns to Kevin
Greethurst, a criminal investigator with the Medicaid Fraud Control Unit.
1 We note an inconsistency in the electronic record—the verdict was file stamped the day before the trial began. 5
Greethurst became the lead investigator, and at trial, he testified he pulled
billing records for services provided to Whitfield from April 1 to April 19, 2013.
The records reflected Peace of Mind had received payment for the services in
the amount of $817 on May 6, 2013. The State also used Greethurst as a
foundation witness to enter into evidence various Medicaid documents.
Specifically, Greethurst accessed a database known as MMIS, in which
information from the Medicaid system is stored, and took a screen shot of the
billing information for Whitfield. He also printed off two blank documents, a daily
service record and a claim form. These were entered into evidence as Exhibits
13, 14, and 15, respectively.
Harris testified as well. She asserted she and her son, Devon Tate, had
provided services to Whitfield, and the daily service reports were accurate.
Tate’s testimony supported this claim, although the timing of the visits reflected in
the service reports and the visits to which he testified differed substantially.
Harris further testified she kept her mother’s records separate due to the volume
of records in Peace of Mind and she had not asked Smith to fill out the service
records; rather, she asked Smith to complete a service agreement for Whitfield.
Harris speculated Smith was confused regarding the instructions and filled out
the service records instead. She further claimed the prior records for Whitfield’s
care had been destroyed during a flood.
Harris also stated once she realized that Smith had completed the service
records Harris attempted to call Iowa Medicaid to correct the error but claimed
“they just refused to talk to me.” Asserting she used a landline, she offered no
phone records to support her version of events. Additionally, she was contacted 6
in May regarding the investigation into her claim forms. Cell phone records
Harris submitted showed both incoming and outgoing phone calls to Iowa
Medicaid but not until July and August 2013, long after the investigation had
begun.
Following the close of the evidence, Harris moved for judgment of
acquittal, arguing the “testimony of the defense witnesses showed there were
services done and the State still hasn’t shown that there was any intent to
defraud anybody. [The State hasn’t] proved the amount of fraud. [The State
hasn’t] proved that records were intentionally destroyed.” Following argument
from both parties, the district court denied the motion. The jury then returned a
verdict of guilty as to both counts. On February 7, 2014, Harris was sentenced to
240 days on each count, suspended. Harris appeals.
II. Standard of Review
With regard to Harris’s ineffective-assistance claims, she may raise this
issue on direct appeal if the record is adequate to address the claim. See State
v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). We may either decide the record is
adequate and issue a ruling on the merits, or we may choose to preserve the
claim for postconviction proceedings. Id. We review ineffective-assistance-of-
counsel claims de novo. Id. To succeed on this claim, the defendant must show,
first, that counsel breached an essential duty and, second, that she was
prejudiced by counsel’s failure. Id. If the defendant’s ineffective-assistance
claim lacks prejudice, we may decide the claim on that ground alone. See
Ledezma v. State, 626 N.W.2d 134, 144 (Iowa 2001). 7
To the extent we are directly reviewing Harris’s claim the district court
erred in denying her motion for judgment of acquittal, we review the court’s
decision for correction of errors at law. See State v. Quinn, 691 N.W.2d 403, 407
(Iowa 2005).
III. Substantial Evidence
Harris first asserts substantial evidence does not support the jury’s guilty
verdicts, and therefore, the district court erred when it denied her motion for
judgment of acquittal; alternatively, she frames this as an ineffective-assistance-
of-counsel claim. Specifically, she argues the evidence was not sufficient to
show she knowingly made or caused to be made false statements to Iowa
Medicaid or that she falsified a record with the intent to deceive Iowa Medicaid,
given she offered evidence that services had actually been provided to Whitfield.
She further claims her actions did not fall within the purview of Iowa Code section
249A.8 because the service records were not an “application for payment.” The
State responds Harris failed to preserve error on this specific argument.
Alternatively, it asserts she cannot establish prejudice because the ultimate issue
was a question of credibility, which the jury, as factfinder, was free to determine.
As an initial matter, we do not agree with the State’s argument Harris
failed to preserve error with regard to her overall claim substantial evidence did
not support the jury’s verdicts. In her motion for judgment of acquittal, she
stated:
[F]or it to be a fraudulent practice, the person has to knowingly fail to disclose material facts in application for payment or services. In this case there’s absolutely no evidence before the jury that this was intentionally done or that there was any intent to either hide facts or fail to disclose material facts. Application for payment, 8
there’s not one iota of evidence that payment was even made in this matter. Also, as far as Tampering with Records, the element is with the intent to deceive, injure or conceal any wrongdoing. The State has not shown that this was done by the defendant with the intent to deceive anyone, injure anyone or do any wrongdoing.
This demonstrates Harris adequately presented the argument she now asserts
on appeal to the district court. Consequently, the court considered the argument
and, when it denied Harris’s motion, ruled on the issue. Error was therefore
preserved. See Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012).
When reviewing a ruling on a motion for judgment of acquittal, we view the
record in the light most favorable to the non-moving party, here, the State, and
make all legitimate inferences and presumptions that may be reasonably
deduced from the evidence. See Quinn, 691 N.W.2d at 407. If substantial
evidence supports the verdict, we will affirm. Id. Evidence is substantial if it
would convince a reasonable trier of fact the defendant is guilty beyond a
reasonable doubt. Id.
To convict Harris of fraudulent practices, the State was required to prove
she knowingly made or caused to be made false statements or
misrepresentations of material facts in an application for payment of services to a
medical assistance program. See Iowa Code § 249A.8. Additionally, to prove
the second charge of falsifying documents, the State was required to show Harris
falsified or concealed a writing or record with the intent to deceive or conceal any
wrongdoing on her part. See id. § 715A.5.
The jury was presented with conflicting evidence at trial. Harris and Tate
testified the services billed to Iowa Medicaid, as reflected in the daily service
reports submitted to the Fraud Control Unit, were in fact provided to Whitfield. 9
However, Tate stated he never worked from 8:00 p.m. until midnight, which were
the times contained in the service reports. Moreover, Smith testified that Harris
instructed her to fill out and sign those documents even though she had not been
the one to provide the services. Thiering also testified she had concerns Peace
of Mind was billing Iowa Medicaid for services not actually provided to Whitfield.
Additionally, phone records contradict Harris’s claim that she was the one to call
Iowa Medicaid, ostensibly to alert them to the fact that, though Smith had signed
the records, she had not been the one to provide services.
While Harris is correct that there is evidence Smith confused the service
report and the service agreement documents, this is not enough to conclude the
district court erred in denying her motion for judgment of acquittal on both counts.
Viewing the evidence in the light most favorable to the State, the jury was free to
reject the testimony of Harris and conclude the service reports had been falsified,
and that the subsequent claim form submitted to Iowa Medicaid billed for
services that were not in fact performed. See Quinn, 691 N.W.2d at 407; see
also State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006) (stating credibility
determinations are within the province of the jury, and it is within the factfinder’s
purview to accept or reject testimony when deciding factual issues of the case).
Consequently, the evidence submitted at trial supports both convictions, and the
district court properly denied Harris’s motion for judgment of acquittal.
Harris takes issue with the fact the service records were not the actual
forms submitted for billing, and therefore they are not an “application for 10
payment” as contemplated by Iowa Code section 249A.8.2 However, we find no
case law supporting Harris’s interpretation of the statute. Furthermore, though
the service reports documented the days and services that were purportedly
delivered, the claim form ultimately submitted showed the same services
performed and relied on the daily service reports. Given this factual basis,
Harris’s actions fall within the purview of section 249A.8. Therefore, trial counsel
was not ineffective for failing to assert this ground in the motion for judgment of
acquittal, given it would have been unsuccessful. See State v. Greene, 592
N.W.2d 24, 29 (Iowa 1999) (holding trial counsel has no duty to assert a
meritless argument).
IV. Jury Instructions
Harris next claims trial counsel was ineffective for failing to object to jury
instructions Nos. 12—entitled fraudulent practices—and 15—labeled tampering
with records. With respect to instruction No. 12, Harris argues it should have
specified Harris or “the defendant” as the person whom the jury must find guilty.
She further asserts it does not specify a time period in which the offense
occurred, which allowed the jury to convict her of uncharged conduct and thus
constituted a fatal variance. Regarding instruction No. 15, Harris contends the
phrasing, “If you find that the State has not proven both 1 and 2 then Rosemary
Harris is Not Guilty under Count 2,” improperly lessened the State’s burden to
prove both elements of the tampering-with-records charge. The State counters
2 Harris did not assert this argument at the district court level, and therefore, error was not preserved. See Lamasters, 821 N.W.2d at 864. However, we will address this argument in the ineffective-assistance context to determine if Harris suffered prejudice through counsel’s failure to present this argument to the district court. 11
that jury instruction No. 15 was a proper recitation of the law,3 and, with the
instructions viewed as a whole, instruction No. 12 did not amount to a fatal
variance.
Jury instruction No. 12 stated:
A person who knowingly 1. Makes or causes to be made [a] 2. False statement or misrepresentation of material facts or knowingly fails to disclose material facts in application for payment or services rendered 3. By a provider in the medical assistance program. If the State has proved all three of the elements, the defendant is guilty under Count 1. You must then determine the degree of Fraudulent Practice, as explained to you in Instruction No. 14. If the State has failed to prove any of the elements, the defendant is not guilty.
Harris concedes the date of the offense is not a material element of the
crime. See Iowa Code § 249A.8. Consequently, the State did not have the
burden of proving the offenses occurred within the time period alleged in the
indictment. See State v. Griffin, 386 N.W.2d 529, 532 (Iowa Ct. App. 1986)
(holding when the date is not a material element of the crime, the State does not
have the burden of proving when the offense occurred).
Additionally, the lack of a date in the instruction, combined with Thiering’s
testimony that she had concerns Peace of Mind was billing for services not
3 In its brief, the State cites State v. Carey, 695 N.W.2d 505 (Iowa Ct. App. 2005) (holding the defendant “has not proved both elements of a meritorious due process claim”), to support its argument the proper phrasing was used in the jury instruction; it then asserts counsel was not incompetent because: “Using language the same way Iowa’s Court of Appeals does is not incompetent.” We would like to note we appreciate the State’s faith that our court constructs phrases in a grammatically competent manner. 12
completed in early 2012,4 did not amount to a fatal variance. The charging
instrument properly set forth the dates in which Harris allegedly committed the
offenses; consequently, she was given notice of the charges against her, and no
fatal variance with respect to the trial information occurred. See State v. Grice,
515 N.W.2d 20, 22–23 (Iowa 1994) (noting a fatal variance occurs when the
evidence presented at trial does not support the charged conduct). The fact that
some evidence admitted at trial indicated Harris might have improperly billed
Iowa Medicaid at some other point in time does not affect her right to know the
charges against her, even when the jury instruction did not list the exact dates of
the offense. See generally State v. Bell, 223 N.W.2d 181, 184–85 (Iowa 1974)
(holding a variance is only fatal when the defendant is deprived of the right to
know the charges against him and defend against them at trial; consequently, the
fact the indictment alleged a day on which the defendant did not beat his
daughter did not constitute a fatal variance). Therefore, trial counsel was not
ineffective for failing to object to instruction No. 12 on the grounds there was a
fatal variance.
Jury instruction No. 15 stated:
4 Harris complains of the following exchange: Q: Did you see the billing records that Rosemary Harris prepared? A: I had seen . . . . [A] billing record laying on the table that she had printed out. Q: Did that reflect the change in the hours? A: It reflects how many hours they got each month. Q: Okay. And was that always the same? A: Whatever hours they got each month, yes, but that didn’t reflect what we did. Q: So you’re saying somebody might submit a service record for eight hours a month on a client, but the information that you saw while in the office indicated the State was being billed for ten? A: Yes. Q: Was that consistent? A: I do believe so. 13
1. On or about the period of April 1, 2013 to and including May 6, 2013, Rosemary Harris falsified a writing or record; AND 2. Rosemary Harris did so with the intent to deceive the Iowa Medicaid Unit OR to conceal a wrongdoing. If you find that the State has proven both 1 and 2 above, then Rosemary Harris is Guilty under Count 2. If you find that the State has not proven both 1 and 2 then Rosemary Harris is Not Guilty under Count 2.
(Emphasis added.)
Harris asserts the last sentence should have read: “If you find that the
State has not proven either 1 or 2 then Rosemary Harris is Not Guilty under
Count 2.” However, this amounts to the same meaning as instruction No. 15.
The last sentence of the instruction requires the State to prove both elements of
the crime. If the State failed to prove both element one and element two, then
Harris is not guilty. This is a proper recitation of the law and the State’s burden
of proof. See State v. Templeton, 258 N.W.2d 380, 383 (Iowa 1977) (noting it is
the State’s burden to prove all elements of the offense beyond a reasonable
doubt); see also Iowa Code § 715A.5. Consequently, trial counsel was not
ineffective for failing to assert this meritless objection. See Greene, 592 N.W.2d
at 29.
V. Evidentiary Issues
Harris’s final argument asserts trial counsel was ineffective for failing to
object to the introduction of Medicaid documents and the testimony of
Greethurst, who acted as a foundation witness and testified to the contents of the
documents. She contends the State’s Exhibits 13, 14, and 15 were inadmissible
for lack of foundation and authentication; additionally, she asserts they were
hearsay. Harris also takes issue with the testimony of Thiering—who stated she 14
had concerns Peace of Mind was billing for services not provided—as
inadmissible prior-bad-acts under Iowa Rule of Evidence 5.404(b). The State
responds the evidence was duplicative, and therefore Harris did not suffer
prejudice.
We agree with the State’s argument the exhibits of which Harris now
complains were duplicative of other properly admitted evidence. State’s Exhibit
13 was a screenshot showing $817 was paid to Peace of Mind for Whitfield’s
care. However, defense Exhibit D was the claim form requesting payment for
Whitfield’s care in the amount of $817. These two exhibits, with exhibit D being
properly admitted, show the same evidence—that is—the amount Peace of Mind
claimed for the ostensible services provided to Whitfield. Additionally, State’s
Exhibits 14 and 15 were blank forms, which were duplicative of State’s Exhibits
1–12 and defense Exhibit D. Consequently, regardless of the propriety of using
Greethurst as a foundation witness, the evidence entered through his testimony
is duplicative of the evidence properly admitted by either Harris or the State.
Therefore, Harris was not prejudiced by the admission of the evidence she now
challenges on appeal. See State v. Neiderbach, 837 N.W.2d 180, 205 (Iowa
2013) (holding evidence is not prejudicial if it is duplicative of other, properly
admitted evidence).
Harris further objects to the testimony of Greethurst, who stated the
person providing the information was obliged to fill out the forms truthfully, as
required by the language on the forms. Greethurst’s testimony of which Harris
now complains consists of the following exchange: 15
Q: When [someone] become[s] a CDAC provider, are they agreeing that they’re going to abide by the terms on the back page? A: Yes. Q: And what kind of terms are those? A: Basically that they have to be forthcoming and truthful on all the documentation that they submit.
Exhibit 14, which is the form that Harris signed and the exhibit to which
Greethurst was testifying, stated: “I certify that . . . . The information provided on
the front of this claim is true, accurate, and complete.” Thus, Greethurst’s
testimony was not admitted for showing the truth of the matter asserted—that is,
Harris herself, when signing the form, had an obligation to provide truthful and
accurate information. Rather, Greethurst testified to the fact that anyone signing
the form as a CDAC provider was obligated to provide truthful information, as per
the form’s language. This testimony is therefore not hearsay within the meaning
of Iowa Rule of Evidence 5.801, and trial counsel was not ineffective for failing to
object.
Harris’s last argument asserts trial counsel was ineffective for failing to
object to the testimony of Thiering when she stated she believed Peace of Mind
was billing Iowa Medicaid for services not completed prior to April 2012, given
that this is both uncharged conduct and evidence of prior bad acts. Upon review
of the record, we conclude it is not adequate to resolve this claim. See State v.
Truesdell, 679 N.W.2d 611, 616 (Iowa 2004) (“Ordinarily, ineffective assistance
of counsel claims are best resolved by postconviction proceedings to enable a
complete record to be developed and afford trial counsel an opportunity to
respond to the claim.”). Consequently, we preserve this claim for possible 16
postconviction-relief proceedings, where a more complete record may be
established. See Straw, 709 N.W.2d at 133.
Having considered Harris’s arguments, we affirm her convictions.
However, we preserve for possible postconviction-relief proceedings her
argument counsel was ineffective for failing to object to the testimony of Thiering.
AFFIRMED.