COLE v. THE STATE.
A15A1534
Court of Appeals of Georgia
November 19, 2015
780 SE2d 406
ELLINGTON, Presiding Judge.
Following our grant of her application for interlocutory appeal, Tushanna Cole appeals from the trial court‘s order overruling her special demurrer to an indictment charging her with Medicaid fraud and theft by taking. Cole contends that the indictment‘s identification of 44 individuals identified therein by their initials was improper, and that the range of dates the crimes were committed, as set forth in the indictment, is unreasonably broad. For the reasons set forth below, we conclude that, as the State could have more narrowly stated the dates on which the crimes were committed, the range of dates set forth in the indictment was overly broad, and reverse.
Cole was indicted in the Superior Court of Clayton County for the offenses of Medicaid fraud,
beginning on or about November 1, 2010[,] and continuing through on or about December 27, 2013, [she] did unlawfully and intentionally obtain and keep for herself medical assistance payments in an amount greater than that to which she was entitled from the Georgia Medicaid Program by means of a fraudulent scheme[.]
Paragraphs numbered 1 through 7 of Count 1 described the fraudulent scheme. According to the indictment, Cole, who was enrolled as a provider in the Georgia Medicaid program, “submitted numerous false claims to Georgia Medicaid for reimbursement.”
In particular, paragraph 5 provided:
It was part of the fraudulent scheme for the accused to unlawfully obtain and retain medical assistance payments for services not rendered to the patients listed in Exhibit A, incorporated herein by reference, with each line of Exhibit A constituting a separate act. These patients did not receive the extent of services billed.
Paragraph 6 states that “[i]t was also a part of the fraudulent scheme for the accused to obtain reimbursement for services for which there was no documentation to substantiate billing. These services were billed for the recipients identified in Exhibit B with each line of Exhibit B constituting a separate act.” According to the indictment, Georgia
Count 2 charged that Cole committed theft by taking in that, “between on or about November 1, 2010, and continuing through on or about December 27, 2013,” she unlawfully took more than $1,500 from the State of Georgia. According to the indictment, Cole took the money “with the intention of depriving the State of Georgia of said money by and through the acts” described in Count 1.
On the day of her arraignment, Cole filed a “preliminary special demurrer,” which she then amended. Following a hearing, the trial court overruled the special demurrer. The trial court granted a certificate of immediate review of its order, and this Court granted Cole‘s application for an interlocutory appeal. On appeal, consistent with her arguments below, Cole contends that the trial court erred in overruling her special demurrer because (1) it was not sufficient for the indictment to identify by their initials the individuals listed in Exhibits “A” and “B” thereto, and (2) the range of dates set forth in the indictment was unreasonably broad.
The true test of the sufficiency of an indictment to withstand a special demurrer is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what [she] must be prepared to meet, and, in case any other proceedings are taken against [her] for a similar offense, whether the record shows with accuracy to what extent [she] may plead a former acquittal or conviction. It is useful to remember that the purpose of the indictment is to allow defendant to prepare [her] defense intelligently and to protect [her] from double jeopardy.
(Citations and punctuation omitted.) State v. English, 276 Ga. 343, 346 (2) (a) (578 SE2d 413) (2003). See Palatini v. State, 333 Ga. App. 523, 524 (774 SE2d 818) (2015) (“By special demurrer, an accused claims, not that the charge in an indictment ... is fatally defective and incapable of supporting a conviction ..., but rather that the charge is imperfect as to form or that the accused is entitled to more information.“) (citations and punctuation omitted).
“We conduct a de novo review of a trial court‘s ruling on a special demurrer in order to determine whether the allegations in the indictment are legally sufficient.” (Citation and punctuation omitted.) State v. Godfrey, 309 Ga. App. 234, 239 (3) (709 SE2d 572) (2011). When, as here, we review an indictment before a trial, “we must apply the rule that a defendant who has timely filed a special demurrer is
1. Cole contends that the trial court erred in finding that it was sufficient for the indictment to identify the individuals named therein merely by their initials. Exhibit “A” and Exhibit “B” to the indictment, incorporated therein by reference, each contains a list of patients identified by their initials, dates of birth, the last four digits of their Medicaid identification numbers, the first and last dates of service for the patients, and the amount of the alleged overpayment with respect to each patient. According to the indictment, the patients listed in Exhibit “A” are the patients who did not receive the extent of services billed, and the persons listed in Exhibit “B” are the patients for which Cole billed for services for which there was no substantiating documentation. The 44 patients thereby identified are all minors, and the State omitted their full names from the indictment out of a concern that the exhibits referenced “sensitive health information.”
Generally, “if [a charging instrument] charges the defendant with committing a crime against a person, the injured person should be identified in the [charging instrument].” State v. Kenney, 233 Ga. App. 298, 299 (1) (a) (503 SE2d 585) (1998). In this case, however, the indictment does not charge Cole with committing a crime against a person but against the State of Georgia. Indeed, Cole concedes that the patients listed in the exhibits are not the victims of the alleged crimes of Medicaid fraud and theft by taking.1 Thus, Sellers v. State, 263 Ga. App. 144, 145-146 (587 SE2d 276) (2003), and Driggers v. State, 295 Ga. App. 711, 717 (4) (a) (673 SE2d 95) (2009), which found that an indictment‘s identification of a victim by initials was not sufficient to withstand a special demurrer, are distinguishable. The omission of individuals’ names from an indictment is not a ground for sustaining a special demurrer where, as in the case of these patients, the individuals “are only collaterally involved in the alleged offense.” State v. Kenney, 233 Ga. App. at 299 (1) (a).
Further, contrary to Cole‘s contention, the indictment did not identify the patients solely by their initials; rather, the inclusion of additional information, that is, each patient‘s date of birth and the
2. Cole also contends that the trial court erred in overruling her special demurrer with regard to portions of the indictment that contended that the crimes were committed over a range of 38 months because the specific dates were known to the State. We agree.
Under
Here, the State presented the testimony of its investigator, Kevin White, in support of its contention that it could not allege a specific date for the commission of the alleged Medicaid fraud and theft by taking. White testified that he reviewed claims constituting “what Ms. Cole would have submitted to Medicaid and what she was paid by Medicaid,” and he compared patient files and patient records with the claims data. As part of the investigation, he reviewed approximately 3,000 claims. According to White, the range of dates covered by the claims was from November 2010 through the end of December 2013. Claims were submitted by Cole “continuously throughout . . . that time frame.”
White‘s testimony suggests that the State could have identified, by date, each of the electronically filed claims that White had found to be acts of Medicaid fraud and theft by taking. The State did not present evidence showing that it could not more specifically identify the date of each criminal act. See State v. Meeks, 309 Ga. App. at 858 (1) (finding that the State failed to demonstrate an inability to narrow the range of dates on which the charged crimes of electronically furnishing obscene material to a minor and contributing to a delinquency of a minor were committed, noting that “[o]rdinarily, the date on which a document is created or saved on a computer can be established, as well as the date on which an e-mail was sent or received.“) (citation omitted). Where a defendant is charged with committing a crime over a range of dates, and the State does not present evidence that it cannot identify the specific dates on which the crime was committed, we have generally found the indictment to be subject to a special demurrer. For example, in State v. Thomas, 331 Ga. App. 220 (770 SE2d 301) (2015), we rejected an argument by the State that, where the alleged theft was made by the use of a credit card, it was sufficient for the indictment to allege the range of dates in which the financial card transactions occurred. See id. at 222 (“[T]he State could easily ascertain the dates the alleged crimes occurred and could have stated the manner in which the theft occurred, and it was, therefore, appropriate for the trial court to grant the motion to quash.“) (footnote omitted). In South v. State, 268 Ga. App. 110 (601 SE2d 378) (2004), the appellant, South, was charged with committing the offense of aggravated stalking “from the 12th day of October, 2002 through the 29th day of October, 2002.” Id. at 111. We concluded that the trial court erred in failing to grant South‘s special demurrer to the indictment, finding that
a review of the record indicates that the State could have had access to the actual dates on which the acts of alleged stalking occurred. The State simply chose not to list these dates due to the number of alleged acts. This is not a valid excuse for failing to provide South with the dates of the alleged offenses.
Here, the evidence showed that the State had access to the dates of the “numerous false claims” that Cole allegedly submitted, but chose not to identify any of them. The State argues that the range of dates set forth in the indictment was nevertheless sufficient because the indictment alleged, as to both counts, a single scheme which was conducted over the time period identified in the indictment.3 To support its argument, the State relies on Johnson v. State, 233 Ga. App. 450 (504 SE2d 290) (1998) as “the case most similar to the present one.”4 There, the indictment alleged, in substance, that the defendants fraudulently obtained money from a laboratory “over a specific time period within a single calendar year, between the 1st day of March, 1996, and the 30th day of June, 1996, by the artifice of submitting four specified billings which intentionally overstated work performed.” (Punctuation omitted.) Id. at 451-452 (2). We concluded that the indictment stated the offense and the time with sufficient certainty, noting that the alleged theft by deception would have required two steps in both submitting the fraudulent bills and then accepting any tendered payments therefore. Id. at 452 (2). Our analysis suggests that it is significant that the alleged crime was necessarily committed in multiple steps over a range of time. Similarly, in this case the indictment alleges a fraudulent scheme over a period of time, and that Cole did both “obtain and keep” the funds to which she was not entitled.
We conclude that Johnson is nevertheless distinguishable. The indictment at issue in Johnson specifically identified the four billings in which the appellants had allegedly overcharged the laboratory during the designated four-month time period. Id. at 450 (The indictment alleged that appellants had overstated the number of certain
Judgment reversed. Dillard and McFadden, JJ., concur.
DECIDED NOVEMBER 19, 2015.
Thomas M. Florio, for appellant.
Samuel S. Olens, Attorney General, James P. Mooney, Assistant Attorney General, for appellee.