State v. FrazierState v. Frazier
Rendered on September 21, 2010
Richard Cordray, Attorney General, Shawn P. Napier and Claude V. Nicholson, for appellee.
Brian J. Rigg, for appellant.
APPEAL from the Franklin County Court of Common Pleas
TYACK, P.J.
{¶1} Kesha R. Frazier is appealing from her convictions of felony theft and identity fraud, journalized January 8, 2010. In the case against her, the State alleged that Frazier conspired with her mother, Debra Moore, a paraplegic receiving Medicaid, to establish independent medical provider numbers for two family friends, which Frаzier and her mother then used to bill the state of Ohio for medical services purportedly rendered by those family friends. The total amount of these fraudulent Medicaid payouts was $109,926.60. Frazier and her mother did not dispute the facts, however, their defense
{¶2} Both Frazier and her mother have appealed their convictions, alleging that there was insufficient evidence, their convictions were against the manifest weight of the evidence, and that the trial court erred by permitting a bail bondsman to testify regarding Frazier‘s use of a Medicaid payment to post her bond in another unrelated casе. For the reasons set forth fully in this opinion, we are not swayed by Frazier‘s defense, or that the trial court abused its discretion in allowing the bondsman‘s testimony. We therefore affirm the judgment of the trial court.
FACTS
{¶3} As indicated above, the material facts are not in dispute, though they are a bit complex because of the number of individuals involved in the scheme, and their relationships to one another. Kesha Frazier is Debra Moore‘s daughter. Debra Moore is a quadriplegic,1 confined to a wheelсhair, and her condition requires in-home care seven days a week. Debra Moore‘s mother is Helen Moore, who is a paraplegic,2 also confined to a wheelchair. Helen Moore, who is Frazier‘s grandmother, also requires in-home care. Both Debra and Helen Moore are Medicaid recipients, and their in-home health services are provided, or at least administered, by the Ohio Department of Job and Family
{¶4} Beverly Squire is a friend/quasi-relative of the family—she married Debra Moore‘s cousin, and has known the Moores’ for more than 20 years. (Tr. 42–43.) Squire had lived near the family, with her two daughters, but after getting evicted from her apartment in 2005, Squire moved to Las Vegas, Nevada, leaving her daughters behind. At the time Squire left Ohio, her daughters, Courtney and Nikki, were 15 and 19 years old, respectively. (Tr. 65.) Frazier and her mother were the younger daughter‘s de facto guardians while Squire was away. (Tr. 84.) Squire is one of the individuals whom Frazier enlisted as an independent service provider. This involves a sort of certification process where the applicant files numerous forms with the State, and provides fingerprints, which facilitate a background check. Squire had previously been a home health provider through an agency, and although she had provided some care and assistance to Moore, she stated that she did so voluntarily (i.e., not for pay). (Tr. 52, 86.)
{¶5} At trial, Squire was the State‘s primary witness against Frazier and her mother. She testified that, prior to her leaving for Las Vegas, Moore approached her about becoming an independent provider for ODJFS. (Tr. 43.) Squire was apparently in financial straits, and was interested in the opportunity. She stated that Moore helped her fill out the paperwork to become an independent provider, and that Frazier took her to get fingerprinted, and even paid the fingerprinting fee. (Tr. 43-44, 93-94, 105.) Squire apparently provided Moore with her social security number, but denied signing the
{¶6} The State introduced evidence of timesheets submitted in Squire‘s name, and 14 checks payable to her totaling $35,184.60, about which Squire denied any knowledge. (Tr. 50-52, 55-58.) Squire further testified that she did not рrovide any of the care identified in the aforementioned timesheets, that she did not receive any of the corresponding funds, and that neither of her daughters provided the specified in-home health services to Moore. (Tr. 89.)
{¶7} The other individual that Frazier and her mother enlisted as an ODJFS independent Medicaid provider was Jacquelyn Baker. Baker is also a friend/quasi relative of the family—she is Moore‘s niece by marriage.3 (Tr. 115.) Like Squire, Baker also had previous experience providing in-home health services. (Tr. 114-15.) Baker‘s testimony was consistent with that of Squire, except that Baker stated that she did receive a confirmation and a Medicaid provider number from ODJFS. (Tr. 120.) Baker testified, however, that after receiving her Medicaid provider number, Moore told her that her services were not needed. (Tr. 121.) About one-year later, Baker approached Frazier
{¶8} The State also presented the testimony of Territa Nappier, William Price, and Peggy Gawalek. Nappier testified that it was Frazier who, in fact, provided in-home health services to her. (Tr. 166–68.) She further stated that Squire never provided any services to her. (Tr. 174.) Price testified that he was responsible for arranging and managing in-home health services for his wife Sandra, a Medicaid recipient since suffering a stroke in 1998. (Tr. 163–64.) Price testified that the only time Baker came to their home was the evening before she was supposed to start, and that after that initial visit she nevеr returned. (Tr. 176, 178–79.) Gawalek is a case manager for Maxine Bahmer, another Medicaid recipient who purportedly received in-home health services from Baker. (Tr. 193.) Gawalek testified that she had email communications regarding
{¶9} Sabrina Long is an investigator in the Ohio Attorney General‘s Office, Health Care Fraud Section. (Tr. 264–65.) Long was the special agent assigned to investigate the Squire-Baker matter after they had referred it to ODJFS (pursuant to their IRS notifications). (Tr. 267.) As part of her investigation, Long traced each payment that the State issued to Squire and Baker, and she determined that all but four of the checks were cаshed or deposited using one of Frazier‘s bank accounts, or the account of her mother, Moore. (Tr. 304.) Of the other four checks, one was deposited into the bank account of Campbell MacGuire Bail Bonds. Id. The remaining three checks were illegible, such that the financial institution that processed them could not be verified, however, Long testified that Frazier or her mother had endorsed all three of them. (Tr. 305.) Long confirmed that 46 separate checks totaling $57,333.60 were processed through Frazier‘s bank account(s), and 46 others, totaling $49,761 were processed through her mother‘s account. (Tr. 306.) Finally, Long testified about Medicaid policies and procedures, specifically that individuals had to have a Medicaid provider number before they can provide in-home health services to Medicaid recipients, and that individuals were prohibited from using another individual‘s Medicaid provider number. (Tr. 309–10.)
{¶11} On September 17, 2008, a special grand jury indicted Frazier for theft by deception, a third-degree felony (Count 1 of the indictment), two counts of identity fraud, third-degree felonies (Counts 3 and 4 of the indictment), and one count of identity fraud, a second-degree felony (Count 4 of the indictment), and indicted her mother on four separate counts (Counts 5 through 8 of the indictment). (R. 2-4.) Mother аnd daughter were tried as co-defendants in a jury trial that began on October 6, 2009, and lasted several days. On October 14, 2009, the jury returned its verdict, finding Frazier guilty of a lesser-included offense for Count 1 of the indictment, and also guilty on Counts 2 and 3 of the indictment. The jury found Frazier not guilty of Count 4 of the indictment (identity fraud, Jacquelyn Baker and Beverly Squire, in an amount over $100,000). The jury also returned guilty verdicts on all but one count against Frazier‘s mother. On January 6,
{¶12} Frazier filed a timely notice of appeal on February 8, 2010, and now assigns three errors for our consideration:
[I.] THE TRIAL COURT ERRED BY PERMITTING A WITNESS FOR THE STATE TO TESTIFY THE APPELLANT WAS INCARCERATED WHICH VIOLATED APPELLANT‘S RIGHTS UNDER THE UNITED STATES AND OHIO CONSTITUTIONS.
{¶13} The second and third assigned errors are interrelated; however, this first assignment of error is not. We will therefore consider it independently of the other two.
{¶14} Appellate courts review a trial court‘s decision to permit or exclude evidence using an abuse of discretion standard. See generally, State v. Swann, 171 Ohio App.3d 304, 2007-Ohio-2010 (citing State v. Sumlin, 69 Ohio St.3d 105 (1994)). This is because the trial court is in a much better positiоn than we are to evaluate the authenticity of evidence, and assess the credibility and veracity of witnesses. See, e.g., State v. Hairston, 10th Dist. No. 08AP-735, 2009-Ohio-2346. The trial court is, thus, vested with broad discretion in evidentiary matters, and the court of appeals will not disturb the trial court‘s ruling absent an abuse of discretion. State v. Brust (Mar. 28, 2000), 10th Dist. No. 99AP-509, 2000 WL 311921, at *6 (citing State v. Hymore (1967), 9 Ohio St.2d 122). An abuse of discretion is more than an error of law or in judgment; rather, it implies that the trial court‘s attitude was arbitrary, unreasonable, or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶15} Counsel for Frazier is arguing that the trial court violated hеr constitutional rights by allowing the testimony of Jeff Thomas, the bail bondsman who testified
{¶16} Under
{¶17} But
{¶18} Evidence that a defendant committed other crimes, or prior bad acts, may be admissible pursuant to
{¶19} In this case, the State presented the bail bondsman‘s testimony because it was the best evidence that Frazier received a direct benefit of one of the Medicaid payments the ODJFS purportedly issued to Squire. And, in fact, prior to allowing the bail bondsman to testify, the trial court gave the following limiting instruction to the jury:
* * * [T]he State‘s going to call its next witness. The witness I believe will be a representative from a bail bond company.
* * * I‘m giving you this cautionary instruction * * * in addition to any instructions that I will give to you at the conclusion of this trial.
One of the issues in this trial is whether the defendant Kesha Frazier received proceeds from the State through the Department of Jobs and Family Services, paid as a result of Medicaid services.
This testimony is being offered for the limited purpose of proving that Defendаnt Kesha Frazier did receive such benefits and the payment was either used by her or for her. It is absolutely no evidence that [she] was guilty of any criminal
offense and may not be considered by you for such purpose. * * *
(Tr. 249–50.)
{¶20} Arguably, the State had plenty of other evidence proving that the fraudulent Medicaid payments were processed through Frazier‘s bank account(s), which would weigh in favor of excluding the bondman‘s testimony as unfairly prejudicial or repetitive. But the bondsman‘s testimony, together with State‘s exhibit No. O, provided the only evidence connecting Frazier with one of the four checks not processed through hers or her mother‘s bank accounts. Furthermore, there is no evidence that the jury disregarded the trial court‘s limiting instruction. And finally, given the number of fraudulent Medicaid payments that were traced directly to Frazier‘s bank account(s), admission of the evidence concerning the bail bond was, at best, harmless error.
{¶21} Appellant‘s counsel cites Curry for the proposition that, in order for the prior-crimes evidence to be admissible, the prior crime must be the same or similar to that as the crime(s) charged in the indictment. (Appellant‘s brief, at 7.) Counsel‘s argument is misplaced, however, because the requirement that the crimes be the same only applies when the prior-crimes evidence is being offered to show that the defendant used a common “scheme, plan, or system” in carrying out both crimes. Curry at 73.
{¶22} Because the State did not offer the bondsman‘s testimony as proof that the Frazier committed prior crimes or bad acts, we hold that the trial court did not abuse its discretion in allowing thе testimony. We, accordingly, overrule the first assignment of error.
[II.] THE VERDICT IS AGAINST THE SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE.
[III.] THERE WAS INSUFFICIENT EVIDENCE TO CONVICT THE DEFENDANT.
{¶24} In criminal cases, the weight and sufficiency of the evidence supporting the trial court‘s verdict are two separate inquiries. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52. “Sufficiency of the evidence” is a term of art that refers to the legal standard that is applied to determine whether a case may go to the jury, or whether the evidence is legally sufficient to support the jury‘s verdict as a matter of law. Id. (citing Black‘s Law Dictionary (6th ed.1990) 1433). Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Cassell, 10th Dist. No. 08AP-1093, 2010-Ohio-1881, {¶}37 (citing Thompkins, supra).
{¶25} To determine whether the evidence is sufficient to sustain the jury‘s verdict, an appellate court examines the evidence in the light most favorable to the prosecution, and then determines whether any rational trier of fact could have found that the proseсution proved the essential elements of the crime(s) beyond a reasonable doubt. Cassell, supra (citing State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus; State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, {¶}78). In evaluating the sufficiency of the evidence, we do not determine whether the evidence is believable, but rather, if believed, whether the evidence supports the conviction. See Cassell, (citing Jenks); Thompkins at 390 (Cook, J., concurring); Yarbrough at {¶}79) (noting that appellate
{¶26} By contrast, when determining whether a verdict is against the manifest weight of the evidence, the court of appeals sits as a “thirteenth juror,” reviewing the entire record, weighing all the evidence and reasonable inferences therefrom, and considering the credibility of the witnesses to resolve any conflicts therein. Thompkins at 387 (quoting Tibbs v. Florida (1982), 457 U.S. 31, 42; State v. Martin (1983), 20 Ohio App.3d 172, 175). When resolving apparent conflicts or inconsistencies in the evidence, the reviewing court may not disturb the jury‘s verdict unless the record shows that the jury “clеarly lost its way,” creating “such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Thompkins at 378 (quoting Martin). Reversal on manifest weight grounds is reserved for only the most exceptional case where the evidence weighs heavily against the conviction. Additionally, the Ohio Constitution provides that the court of appeals may not reverse a jury‘s verdict on the manifest weight of the evidence unless all three appellate judges concur in the decision to revеrse. See
{¶27} Turning to the evidence in this case, we will first examine the sufficiency of the evidence supporting Frazier‘s convictions of theft by deception, and identity fraud. To
{¶28} To prove that appellant committеd theft by deception, the State must show: (1) intent, (2) to deprive the owner, (3) of something of value—i.e., property or services, (4) without the owner‘s consent, and (5) by deception. See
{¶30} Identity fraud and its elements are provided in
(B) No person * * * shall use, obtain, or possess any personal identifying information оf another person with intent to do either of the following:
(1) Hold the person out to be the other person[.]
{¶31} Furthermore, no person is permitted to use another‘s personal identifying information or hold his or herself out to be the other person with the intent to defraud another. See
{¶32} The testimony of Beverly Squire substantiated that appellants used Squire‘s social security number, and other personal data, and combined with the testimony of Special Agent Long, and others, Frazier held herself out to ODJFS as Beverly Squire and Jacquelyn Baker. Finally, the jury found that Frazier‘s intent in perpetrating this behavior
{¶33} Appellant‘s supposition that she did not know that it was unlawful for an individual other than the authorized independent Medicaid provider to provide in-home health services (and collect payment for those services) is wholly irrelevant here. To hold otherwise, would lend credence to the mistake-of-law defense, whiсh, of course, we do not recognize in Ohio. See, e.g., State v. Pinkney (1988), 36 Ohio St.3d 190, 198. Furthermore, knowledge that certain conduct is unlawful is not a necessary element for conviction. Id.
{¶34} Having found that there is sufficient evidence to sustain Kesha Frazier‘s conviction, and that the verdict is not against the manifest weight of the evidence, we overrule the second and third assignments of error.
{¶35} Having overruled all three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BRYANT and CONNOR, JJ., concur.
_____________