State v. Dorn

496 A.2d 451, 145 Vt. 606, 1985 Vt. LEXIS 330
CourtSupreme Court of Vermont
DecidedMay 3, 1985
Docket83-272
StatusPublished
Cited by23 cases

This text of 496 A.2d 451 (State v. Dorn) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dorn, 496 A.2d 451, 145 Vt. 606, 1985 Vt. LEXIS 330 (Vt. 1985).

Opinion

Gibson, J.

Defendant appeals his conviction on nine counts of welfare fraud under 33 V.S.A. §§ 2581(d) and 2583, for claiming Medicaid reimbursement that exceeded his usual and customary charge to the general public. The convictions arose from defendant’s operation of a now defunct Northfield pharmacy. We affirm.

Defendant raises six arguments on appeal: (1) the informa-tions on which he was tried do not allege a statutory violation; (2) if the charges constitute a statutory violation, then the statute is unconstitutionally vague; (3) the trial court erred in refusing to instruct the jury that fraudulent intent was an essential element of the crime; (4) the evidence failed to show that the same drugs were dispensed in both Medicaid and non-Medicaid prescriptions; (5) evidence of the breadth of the state Medicaid program and of defendant’s total reimbursements thereunder was unfairly prejudicial; and (6) the trial court erred in refusing to suppress the pharmacy’s prescription receipt log and its non-Medicaid prescriptions, obtained during execution of a search warrant.

This prosecution followed several months of investigation, culminating in a search of defendant’s bam, pursuant to a warrant, to recover the pharmacy’s records. The attorney general then issued a series of informations alleging that defendant had violated 33 V.S.A. § 2581(d) by claiming Medicaid reimbursements for dispensations of brand-name drugs, although he had actually dispensed cheaper generic substitutes. Subsequently, the State filed eighteen more informations, alleging that defendant had filed false claims billing Medicaid at a rate greater than his usual and customary charge to the general public for the same drug, also in violation of § 2581 (d). Prior to trial, the State dismissed all but ten counts, leaving-one of the “generic substitution” counts and nine of the “usual and customary charge” counts. During trial, the State dis *611 missed the remaining “generic substitution” count. Defendant was thereafter convicted of all nine surviving “usual and customary charge” counts.

Viewing the evidence in the light most favorable to the State, State v. Kirby, 143 Vt. 369, 370-71, 465 A.2d 1369, 1370 (1983), the relevant facts are as follows. On every prescription filled at defendant’s drug store, defendant wrote the price upon the corner of the prescription; an identical amount was entered on each customer’s receipt. For each Medicaid purchase, the amount was also entered upon Medicaid claim forms, which were certified by defendant as true and submitted to the state for compensation. The amounts entered in defendant’s sequential log of all prescriptions filled (hereinafter referred to as the “prescription receipt log”) corresponded to the prices entered on the corners of the prescriptions. In all cases, the prices charged for four-ounce and six-ounce sizes of Dimetapp were entered at a higher price for Medicaid customers than for non-Medicaid customers. Thus, defendant’s own pharmacy records tended to indicate that defendant charged Medicaid more for Dimetapp than he charged non-Medicaid customers.

I.

Defendant first argues that the informations under which he was convicted do not allege -a violation of 33 V.S.A. § 2581 (d). That subsection provides:

A person who knowingly files, attempts to file, or aids and abets in the filing of a claim for services to a recipient of benefits under a state or federally-funded assistance program for services which were not rendered, or who knowingly files a false claim or a claim for unauthorized items or services under such a program, or who knowingly bills the recipient of benefits under such a program or his family for an amount in excess of that provided for by law or regulation, or who knowingly fails to credit the state or its agent for payments received from social security, insurance, or other sources, or who in any way knowingly receives, attempts to receive, or aids and abets in the receipt of unauthorized payment as provided herein *612 shall be punished as provided in section 2583 of this title. (Emphasis supplied.)

The nine informations charged that defendant “did knowingly file a false claim for reimbursement under . . . the Vermont Medicaid Program.” The gravamen of each allegation was that defendant knowingly filed a Medicaid claim in which he falsely certified that the reimbursement reflected his “usual and customary charge to the general public” for the service, while in fact the price claimed from Medicaid actually exceeded that “usual and customary charge.”

At issue is the phrase in § 2581(d), “[a] person . . . who knowingly files a false claim or a claim for unauthorized items or services.” Defendant challenges the State’s view that the phrase can support conviction either for knowingly filing a claim that is false in any respect or for knowingly filing a claim for unauthorized items or services. Defendant argues that, when read in conjunction with other parallel clauses of § 2581, this clause punishes only one who knowingly files a false claim for unauthorized items or services, or who files a claim while knowing that payment for the items or services is unauthorized. In other words, defendant claims that the words “false claim” modify the phrase “unauthorized items or services” and cannot be construed alone to support a conviction.

We disagree. Giving the statutory phrase its plain and ordinary meaning in an effort to achieve the intent of the legislature, Northern Rent-A-Car, Inc. v. Conway, 143 Vt. 220, 222, 464 A.2d 750, 751 (1983), it is clear, that the word “or” distinguishes two distinct kinds of “claims” and divides two separate and independently operative prohibitions. As used in its ordinary sense, the word “or” marks an alternative, • indicating that the various members of the sentence are to be taken separately. Central Standard Life Insurance Co. v. Davis, 10 Ill. App. 2d 245, 255, 134 N.E.2d 653, 658 (1956), aff’d, 10 Ill. 2d 566, 141 N.E.2d 45 (1957). Section 2581(d) thus expressly criminalizes “knowingly” filing either (1) a false claim, or (2) a claim for unauthorized items or services. Defendant’s interpretation is erroneous.

*613 II.

Defendant also claims that 33 V.S.A. § 2581(d) is unconstitutionally vague, or, in the alternative, insufficiently clear to give notice of what acts are prohibited. He states that, if the statute is read to punish filing of “false claims” without the modifying language, as we have concluded above, then the average citizen cannot know what is prohibited. Defendant hypothesizes a prosecution for knowingly filing a claim seeking reimbursement for less than the usual and customary charge.

To be valid, a statute must possess sufficient certainty to inform a person of reasonable intelligence as to what conduct is proscribed. State

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Bluebook (online)
496 A.2d 451, 145 Vt. 606, 1985 Vt. LEXIS 330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dorn-vt-1985.