### FILED JULY 1,2014 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) ) No. 30765-4-111 Respondent, ) ) 

### v. ) ) MELODYLYNNWRIGHT, ) UNPUBLISHED OPINION ) Appellant. ) SIDDOWAY, C.J.

- Melody Wright appeals her conviction of 1count offirst degree theft and 10 counts ofMedicaid fraud arising from her submission offalse telephonic time invoices for in-home careprovidedto her mother. She challenges the sufficiency ofthe evidence, asserts an equal protectionviolation, and contendsthatthe trial court abused its discretion in finding thatherconvictions offirst degree theft and Medicaid fraud did not encompassthe same criminal conduct. Finding sufficient evidence and no error orabuse ofdiscretion, we affirm. FACTS AND PROCEDURAL BACKGROUND InMay 2001, Melody Wright signed a four-year contractwiththe Washington Department ofSocial and Health Services (DSHS) toprovide in-home care services for hermother, Donna Siegfried, tobepaid for by the Medicaid-funded Community Options

# 1 J

No. 30765-4-111 State v. Wright Program Entry System (COPES). Medicaid is ajointly funded federal and state medical assistance program under which the federal governmentreimburses state governments for

aportion ofthe costs ofproviding medical assistance to low income individuals. Wash. State Hosp. Ass'n v. State, 175 Wn. App. 642,644,309 P.3d 534 (2013) (citing 42 U.S.C. § 1396(a)-(e». Ms. Siegfried's needs for in-home services were assessed by employees ofDSHS, which authorized her to receive 188 hours ofin-home care a month. Each month thereafter, Ms. Wright submitted invoices for payment for the full 188 hours telephonically, by calling in to a system and entering specific information when prompted by a recording. She was paid accordingly. 

### In April 2005, Ms. Wright signed a second four-year contractto care for her mother. Early in the.term ofthe new contract, a COPES case manager met with Ms. Wright and her mother for a reassessment ofMs. Siegfried's needs. The reassessment suggested that Ms. Siegfried needed far less in-home care than the 188 hours, so her authorized in-home care hours were reduced to 94 hours a month. Ms. Wright and her mother successfully appealed the reduction, obtaining reinstatement ofthe 188 authorized hours, and successfully represented a need for the 188 hours in the next reassessment. The case manager assignedto Ms. Siegfried remained skeptical about her care needs asserted on appeal and thereafter, suspectingthat herneed for 94 hours as assessed in 2005 was more accurate.

2No. 30765-4-III State v. Wright

In March 2008, an investigator with the Medicaid Fraud Control Unit ofthe Washington Attorney General's office received a complaintthat Ms. Wright was claiming care hours not worked for Ms. Siegfried, while working two otherjobs. The investigatorrequestedtimekeepingrecords for Ms. Wright from a privateretirement home where he learned she was employed full time and askedthat employees administering the COPES contract require Ms. Wright to provide time sheets reflecting hertime spentproviding care for Ms. Siegfried. In April 2008, Ms. Wrightwas askedby employees ofDSHS to provide time sheets for the period from May 2007 to April 2008. Ms. Wright and DSHS employees dispute whether Ms. Wright had beenprovidedwith time sheets a year earlier and told to keep an ongoingrecord ofherhours worked; in any event, she had not kept a record. Ms. Wrightwas therefore provided with time sheets to complete after-the-fact. She initially filled them outby indicatingthat she hadprovided in-home care either 10 or 24 hours each day ofthe month. As completed, they reflected an hourly total far in

excess of 188 hours a month. Ms. Wright was notified thatthe time sheets were unacceptable and was told to submit new time sheets that reflected her bestrecord ofthe 188 hours a month she claimedto have worked. Ms. Wright submitted a second set in response. Many ofthe hours reported by Ms. Wright on the second set oftime sheets proved to overlap with the time sheets she had submittedto herprivate employer.

3No.30765-4-III State v. Wright

In light ofthe discrepancy, Ms. Siegfried was askedto come into the attorney general's office to speakwith an investigator. She did, accompanied by Ms. Wright. Bothwomen agreedto speakwith investigators afterbeing givenMirandal warnings and both affirmed, when asked, that the second set oftime sheets accurately reflected the hours Ms. Wright had workedproviding in-home care. When asked, both annotated and initialed the sheets as "accurate." Report ofProceedings at 397,402-03. Ms. Wright was then confronted with the time sheets submitted to herprivate employer and, when questioned aboutthe many overlappinghours, beganto cry, tellingthe investigator, "'my husband left me and I have kids to take care ofand I'm going to lose my house. I'm in debt.'" Id. at 403. She offered no other explanation for the inconsistent hours onher time sheets and later submitted a written statement saying the hours she turned in were not correct. Ms. Wright was eventually charged with first degree theft and with 10 counts of Medicaid false statement, a type ofMedicaid fraud provided by RCW 74.09.230. At trial, Ms. Wrighttestified that she had worked the 188 hours claimedeach month duringthe chargingperiod, but not necessarily at the times she later reported on her time sheets. Thejury did not believe her, finding her guilty as charged. The court ordered $12,605 in restitution and, sentencing her as a first-time offender, accepted the

1Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 

### L. Ed. 2d 694 (1966). 4No. 30765-4-111 State v. Wright

State's recommendation that it impose a sentence of30 days convertedtQ 240 hours of community service. She appeals. ANALYSIS I. Sufficiency ofEvidence: First Degree Theft Ms. Wright's first assignment oferror is to the allegedly insufficient evidence supporting her conviction offirst degree theft. The gist ofher argument is thatthe State's theory and evidence were directed to a means ofcommitting first degree theft that it did not charge. She focuses on the difference betweentwo alternative means ofcommitting first degree theft providedby RCW 9A.56.020(1): what is commonly referredto as "theft by taking," provided by the statute's subsection (a), and what is commonly referred to as "theftby deception," provided by its subsection (b). State 

### v. Smith, 115 Wn.2d 434,438, 798 P.2d 1146 (1990) (citing State v. Southard, 49 Wn. App. 59, 741 P.2d 78 (1987». She argues that the theft by taking that the State elected to charge required that it prove a trespass, which it did not undertake to do. She argues that her conviction oftheft by taking absent any evidence ofa trespass denied her due process. In orderto prove that Ms. Wright committed first degree theft underRCW 9A.56.020(1)(a), the State was requiredto provethat during the charging period she "wrongfully obtained or exerted unauthorized control overproperty ofanother";2that the

2To "wrongfully obtain" or "exertunauthorized control" means: (a) To take the property or services ofanother; 5No. 30765-4-111 State v. Wright property exceeded $1,500 in value; that she intended to deprive the otherperson ofthe property; that her acts were part ofa common scheme, plan, or a continuing course of conduct; and that her acts occurred in the state ofWashington. Clerk's Papers (CP) at 186 (Jury Instruction 7). When reviewing a sufficiency ofthe evidence challenge, we ask whether, "after viewing the evidence in the light most favorable to the State, any rational trier offact could have found the essential elements ofthe crime beyond a reasonable doubt." State

v. Hosier, 157 Wn.2d 1,8, 133 P.3d 936 (2006). Relying on State v. Thorpe, 51 Wn. App. 582,754 P.2d 1050 (1988), Ms. Wright contends thattrespass is a required element oftheftby taking under RCW 9A.56.020(1)(a). In Thorpe, the State provedthatthe defendants in that case knowingly submitted inflated invoices to the State for meat delivered to a state institution, and that

(b) Having any property or services in one'spossession, custody or control as bailee, factor, lessee, pledgee, renter, servant, attorney, agent, employee, trustee, executor, administrator, guardian, or officer ofany person, estate, association, or corporation, or as a public officer, orperson authorized by agreement or competent authority to take or hold such possession, custody, or control, to secrete, withhold, or appropriate the same to his or her own use orto the use ofany person other than the true owner orperson entitled thereto; or (c) Having any property or services in one's possession, custody, or control as partner, to secrete, withhold, or appropriate the same to his or her use or to the use ofany person other than the true owner orperson entitled thereto, where the use is unauthorized by the partnership agreement. Former RCW 9A.56.010(19)(a)-(c) (2006). 6No. 30765-4-111 State v. Wright they received paymenttherefor. The State submittedthe case to thejury on alternative theories, one ofwhich was theft by taking. The defendants argued that while the evidence would support theft by deception, it did not support theft by taking and the court agreed. Construing the statute as "incorporat[ing] what were several distinct crimes under former statutory and common law," the court stated that "[o]ne element of wrongfully obtaining, or taking, property (including money) under RCW 9A.56.020(1)(a) is a trespass." Id. at 585. Because there was no evidence ofa trespass and no way of knowing the basis for thejury'sverdict, the court reversed the conviction offirst degree theft and remandedthat charge for a new trial. Ms. Wright correctly characterizes Thorpe but fails to take into consideration a later and controlling decision, Smith, 115 Wn.2d 434, in which the Washington Supreme Court disapproved ofcases that, like Thorpe, had required proofofa trespass to establish theft by taking. The Court ofAppeals decision in Smith had assumed as much, but the Supreme Court disagreed, explaining that while statements to that effect had been made in some earlier decisions, as dicta or otherwise, [t]respass is not required for statutory theft by taking. "The Legislature may define crimes. Where it does so, its statutory definition may supersede common law."

... Both this court and the Court ofAppeals have affirmed convictions for theft by taking under RCW 9A.56.020(1)(a) without requiring evidence ofa trespass. [A]ny other decision inferring the contrary is disapproved.

7No. 30765-4-111 

### State 

### v. Wright
Id. at441 (citations omitted) (quoting 

### State v. 

### Komok, 113 Wn.2d 810, 814, 783 P.2d 1061 (1989». Evidence oftheftby taking thatthe court found sufficient in 

### Smith is conceptually indistinguishable from the State's evidencehere. In 

### Smith, a college studenthad ordered and paidby check for copyrighted software onmultiple occasions, proceededto copy both the software and instruction manuals upon receipt, and then stoppedpayment on his checks and returned the software either as an unauthorizedpurchase or as unusable on his computer. The manufacturer ofone ofthe software programs discovered the student's practice and complained, resulting in the studentbeing charged with theft by taking. The Supreme Court implicitly heldthatto convict a defendant oftheftby taking, the item wrongfully taken could be one that the victim voluntarily delivered to the defendant. Here, the State provedthat whatwas wrongfully obtained by Ms. Wright were COPES payments voluntarily made in response to hertelephonic invoices. In light of 

### Smith, that evidence was sufficient. II. Sufficiency ofEvidence: Medicaid Fraud Ms. Wright's second assignment oferror is to herMedicaid fraud convictions and is also based on a contention thatthe State chargedthe wrong crime. RCW 74.09.230(1), under which Ms. Wright was charged, makes it a crime to knowingly make or cause to be made any false statement orrepresentation ofa material fact 

### "in anyapplication/orany payment" under a medical careprogram authorized under chapter74.09 RCW. 

### 8No. 30765-4-III State 

### v. Wright (Emphasis added.) Subsection (2) ofthat statute criminalizes knowingly making or causing to be made any false statement or representation ofa material fact ''for use in determining rights to suchpayment," or knowingly falsifying, concealing, or covering up
a material fact "inconnection with such application orpayment." (Emphasis added.) Ms. Wright argues that, plainly read, [s]ection (1) criminalizes the falsification ofthe actual request for payment, i.e. a false statement, bill, or invoice for services, whereas section (2) criminalizes the falsification ofinformation used in determining one's eligibility to participate in a given state-funded medical care program. Br. ofAppellant at 21. Ms. Wright argues that the State's evidence demonstrated only thatthe time sheets she was asked toprepare after the fact were not accurate-but since those time sheets

were never offered orrelied upon as her application for payment, they cannot establish a crime. She concedes that the State could prove a violation ofsubsection (1) by proving that she made knowingly false claims in hertelephonic invoices submitted during the chargingperiod, but argues "[t]he Stateprovided no evidencethat would lead a rational juryto reach such a conclusion." Id. at 22. The State'sposition is thatMs. Wright's criminal acts were, indeed, her submission ofthe 10 telephonic invoices duringthe chargingperiod, each seeking payment for 188 hours ofin-home care for her mother. Thejury found Ms. Wright guilty ofmaking false statements on or about IOdates: May 31, June 30, July 31, August 31,

9No.30765-4-II1 State v. Wright September 30, October 31, November 30, and December 31 of2007; andJanuary 31 and February 29 of2008. Those were the dates on which Ms. Wright submitted telephonic invoices. There is no dispute overthe criminal acts onwhichthe State relied. It characterizesthe time sheetsprepared afterthe fact not as the crime, butas circumstantial evidence thatthe earliertelephonic invoices were knowingly false. Thejury was instructed that circumstantial evidence and direct evidence are equallyreliable andthatthe term "circumstantial evidence"refers to evidence "from which, based on your common sense and experience, you may reasonably infer something that is at issue in this case." CP at 184. Evidencethat Ms. Wrightwas unable to provide a credible account ofthe times that she worked during the chargingperiod when asked to do so is not direct evidence ofcrime, but itis certainly circumstantial evidence from which thejury could inferthathertelephonic invoices were false when made. Other circumstantial evidence that Ms. Wright's telephonic invoices were false included evidence thatthe hours worked by Ms. Wright for her private employerwere during the time ofday thatMs. Siegfriedwas most likely to need the in-care services that Ms. Wright was supposedto beproviding. Itincludedthe State's surveillance evidence conflicting with the hours Ms. Wright allegedly provided in-home care. 

### It included testimony from neighbors and other witnesses who had seenMs. Siegfried able towalk unassisted, baby-sither grandchildren, walkher grandchildren the several blocks to

10No. 30765-4-111 State v. Wright school, and perform basic household tasks, all ofwhich cast doubt on whether Ms. Siegfriedhad ever needed a 188-hourper-month level ofcare in the first place. An evidence sufficiency challenge admits the truth ofthe State's evidence and any inferences thejurymay reasonably draw from it. State v. Salinas, 119 Wn.2d 192,201, 829 P.2d 1068 (1992). The State's evidence was clearly sufficient. III. Concurrent Charges and Equal Protection Ms. Wrightnext contends that the statutes criminalizing first degree theft and Medicaid fraud are concurrent in the sense that a violation ofthe more specific Medicaid statute constitutes a violation ofthe general theft statute in every instance. Accordingto her, one cannot make a knowingly false statement in an application for payment under a medical care program withoutthereby wrongfully obtaining or exerting unauthorized control overthe money. She argues that it is a denial ofequal protection for aprosecutor to charge a crime under a general statute where a more specific statute prohibits the same conduct, yet carries a differentpenalty, citingState v. Alfonso, 41 Wn. App. 121, 125-26, 702 P.2d 1218 (1985). Alfonso and cases like it reason that the principle ofequality before the law is inconsistentwith the existence ofa power in a prosecuting attorney to elect, from person to person committing an offense, which degree ofproofto apply to his

orherparticular case. See State v. Zornes, 78 Wn.2d 9,24,475 P.2d 109 (1970). She asks that we reverse the first degree theft conviction with directions to the trial courtto dismiss the charge. 11No.30765-4-III State v. Wright Alfonso's characterization ofstatutory concurrency as creating an equal protection issue is no longer good law, at least to the extent it was based on the federal constitution. Zornes, and by extension,Alfonso, was abrogated by the United States Supreme Court's decision in UnitedStates v. Batchelder, 442 U.S. 114,99 S. Ct. 2198, 60 L. Ed. 2d 775 (1979) insofar as it heldthat equal protection under the FourteenthAmendment was violated by statutes definingthe same offense but prescribing differentpunishments. As explained in City of Kennewick v. Fountain, 116 Wn.2d 189, 193, 802 P.2d 1371 (1991), there is not an appreciable difference between the discretion a prosecutor exercises when deciding whetherto charge under different statutes having different elements and the discretion he or she exercises when choosing to charge one oftwo statutes with identical elements. The discretion exercised "does not empower the government to predetermine ultimate criminal sanctions." 

### ld. The State recognizes thatthe assignment oferror may raise an issue ofstatutory construction, since "[i]t is a well established rule ofstatutory construction that 'where a special statute punishes the same conduct which is punished under a general statute, the special statute applies and the accused canbe charged only under that statute.'"State v. Shriner, 101 Wn.2d 576,580,681 P.2d 237 (1984) (quotingState v. Cann, 92 Wn.2d 193, 197, 595 P.2d 912 (1979». In order for statutes to implicate this statutory construction concern, the general statute must be violated every time the special statute has been violated. ld. We determine whether two statutes are concurrent by examining 12No.30765-4-III State 

### v. Wright

the elements ofeach to determine whether a person can violate the special statute without necessarily violating the general statute. State 

### v. Heffner, 126 Wn. App. 803, 808, 110 P.3d 219 (2005). First degree theftrequires proofthat the defendantwrongfully obtained or exerted unauthorized control over another's property valued at more than the statutory minimum, with the intent to deprive thatperson oftheproperty. RCW 9A.56.030(1)(a); RCW 9A.56.020(1)(a). The Medicaid false statement with which Ms. Wright was charged requires proofthat the defendantknowingly made or causedto be made any false statement orrepresentation ofa material fact when applying for paymentunder a medical

care program. RCW 74.09.230(1). One can make a false statement in applying for apaymentyet not receive the payment. Ifso, no theft has occurred. RCW 74.09.230(1); RCW 9A.56.020(1)(a). At the same time, the false statement ofmaterial fact knowingly made in applying for a Medicaid-funded payment completes the crime ofMedicaid false statement. Becausethe first degree theft statute is not violated every time the Medicaid fraud statute is violated, the State was free to charge Ms. Wright with first degree theft in addition to Medicaid fraud. IV. Same Criminal Conduct Finally, Ms. Wright argues that the trial court erred in failing to treat her convictions offirst degree theft and Medicaid fraud as the same criminal conduct. In the 13No. 30765-4-II1 State 

### v. Wright
trial court, she argued that because the State elected to aggregate 10 payments she received in order to arrive at the dollar amount required for first degree theft, the Medicaid fraud occurred during the same, roughly 10-monthtime frame as the theft. Contending thatthe Medicaid fraud was the "same criminal conduct" as the theft in all other relevant respects, she argued that her offender score should be zero. The State disagreed, taking the positionthatthe crimes were notthe same criminal conduct and her offender score was 10. The sentencing court adopted the State'sposition. Except in the case ofserious violent crimes, the SentencingReform Act of 1981, chapter 9.94A RCW, directs a trialjudgewh<? is sentencing a defendant for mUltiple current offenses to count other crimes being sentenced as part ofthe offender score for each other crime, butthen have the sentences for the crimes run concurrently with each other. RCW 9.94A.589(1). Anexception exists ifa trialjudge finds that multiple current offenses constitutedthe "same criminal conduct." Inthat instance, the multiple offenses

are to be treated as one crime for scoring purposes. RCW 9.94A.589(1)(a). "Same criminal conduct" for this purpose "means two ormore crimes thatrequire the same criminal intent, are committed at the same time and place, and involve the same victim." 

### Id. Ifany element is missing, the crimes do not constitute the same criminal conduct. State v. Maxfield, 125 Wn.2d 378, 402,886 P.2d 123 (1994). "[B]ecause a finding by the sentencing court ofsame criminal conduct favors the defendant, 'itis the defendant who must establish [that] the crimes constitute the same criminal conduct.'" State 

### v. Johnson, 14No.30765-4-II1 

### State 

### v. Wright

_ Wn. App. _,320 P.3d 197,203 (2014) (alteration in original) (quoting 

### State v. 

### Graciano, 176 Wn.2d 531,539,295 P.3d 219 

### (2013)),petitionjor reviewfiled, No. 90276-3 (Wash. May 27, 2014). We review an offender score calculation de novo but review a determination ofwhat constitutes the same criminal conduct for abuse of discretion ormisapplication ofthe law. 

### State v. 

### Mutch, 171 Wn.2d 646, 653,254P.3d 803 (2011). Ms. Wright argues that it is "undisputed" that the crimes ofwhich she was found guilty involved the same criminal intent (theftby color or aid ofdeception) and the same victim (the State), and "obvious" thatthe crimes all occurred in the same place. Br. of Appellant at 28. The only issue, she contends, is whether the crimes occurred at the same time. She argues thatthe 10 counts ofMedicaid fraud occurred overthe same date range (June 4, 2007 and April 2, 2008) as the acts oftheft thatthe State elected to aggregate for 1count offirst degree theft. While the State disputes Ms. Wright's contention that the crimes constitute the

same criminal conduct on the merits, it also makes a threshold argument that Ms. Wright was sentenced as a first-time offender under RCW 9.94A.650 and may not appeal her sentence. UnderRCW 9.94A.585(1), "a sentence imposed on a first-time offender under RCW 9.94A.650 shall

...be deemedtobe within the standard sentence range for the offense and shall notbe appealed." Ms. Wright's briefdoes not challenge her sentence, however; it challenges the "same criminal conduct" determination, which, having been 15No. 30765-4-111 State v. Wright

made by the sentencing court, will bind any future court should she be charged and convicted ofother crimes. RCW 9.94A.525(5)(a)(i); Johnson, 320 P.3d at 202-03. Given the nature ofher challenge, RCW 9.94A.585(1) does notpreclude appeal. Turningto the merits, the State will concede only that the victim was the same. As to intent, the relevant inquiry is to what extentthe criminal intent, when viewed objectively, changed from one crime to the next. State v. Tili, 139 Wn.2d 107, 123,985 P.2d 365 (1999). "This, in tum, can be measured in part by whether one crime furthered the other." State v. Vike, 125 Wn.2d 407,411, 885 P.2d 824 (1994). In State v. Dunaway, 109 Wn.2d 207, 743 P.2d 1237, 749 P.2d 160 (1987), the Washington Supreme Court held that kidnapping and robbery constitutedthe same criminal conduct where the objective ofabducting the victim was to commitrobbery. While the State argues that the criminal intent in this case changed from the Medicaid fraud to the theft,

we are not persuaded. Viewed objectively, Ms. Wright's Medicaid fraud furthered her theft in the same way thatkidnapping furthered robbery inDunaway. We agree with the State, however, thatMs. Wright fails to establish thatthe crimes occurred at the same time and place. As to the time when the crimes occurred, the charging decision to aggregate Ms. Wright's receipt ofa series ofpayments as a common scheme orplan does not change the fact that her theft was not continuous but involved a series oftransactions taking place on discrete dates-andthose dates were consistently several days after she submitted the corresponding false telephonic invoice. Even former 16No.30765-4-II1 

### State v. 

### Wright

RCW 9A.56.01O(IS)(c), which defines "value"to pennitthe State to aggregate third degree thefts in order to charge first degree theft, recognizes that what is being aggregated is 

### "any series a/transactions which constitute theft." (Emphasis added.) As to the place where the crimes occurred, the State correctlypoints outthat Ms. Wright has not identified any evidencethat the crimes were committed in the same place. Itsubmits that "it defies common sense to suppose she placedthe calls from her bank, the place she wrongfully obtainedthe funds." Br. ofResp't at 34. Because Ms. Wright fails to establish that the Medicaid fraud and theft were committed at the same time and place, the trial court's refusal to treat them as the same criminal conductwas not error. Affinned. A majority ofthe panel has detennined thatthis opinion will not be printed in the Washington Appellate Reports but itwill be filed for public record pursuant to RCW 2.06.040.

# 5z~/C~ Siddoway, C.J. WE CONCUR:

Fearing, J. 17