No. 92-204 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993

STATE OF MONTANA, Plaintiff and Respondent,

-vs

# . - SHARON F. YOUNG, Defendant and Appellant.

APPEAL FROM: District Court of theThirteenthJudicialDistrict, In and for the County of Yellowstone, TheHonorable RobertW. Holmstrom,Judgepresiding.

COUNSEL OF RECORD: For Appellant: Arthur J. Thompson, Thompson Et Sessions,Billings, Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant, Helena, 

### Montana; Dennis Paxinos,YellowstoneCountyAttorney,Billings;Mark J. Murphy, Assistant Attorney General, Special Deputy County Attorney, Helena, MontanaJustice James C. Nelson delivered the Opinion of the Court. This is an appeal from a jury verdict in the ~hirteenth Judicial District convicting Defendant of conspiracy to commit felony theft 

### by deception. We affirm. We state the issues on appeal as follows: 1. Was there sufficient evidence to support the jury's guilty verdict? 2. Does collateral estoppel bar the State from prosecuting the Defendant for conspiracy to commit felony theft by deception? The Defendant Sharon F. Young (Sharon) was charged with conspiracy to commit felony theft for obtaining workersf compensation benefits by deception. In January 1983, Sharon and her husband, co-defendant Robert Young, applied for workersf compensation insurance coverage through the State Fund Mutual Insurance Company (State Fund) for themselves as owners and employees of the West 

### Parrot Creek Properties. The Youngsf application for coverage indicated that the nature of their business was raising 

### fur animals, and claimed 

### an estimated $42,000 annual earnings for the business. The coverage began March 1, 1983.Thereafter,Robert Young filed a claim for benefits, claiming he had injured himself 

### on March 30, 1983. He reported he 

### was rebuilding a set of corrals when cross-ties fell on him. Sharon

was listed as a witness to the accident and signed the claim form

as employer. The claim form indicated that Robert Young was 

### earning $400 per week, 

### which 

### amount would provide 

### him with the 2maximum amount

### of benefits allowableunder law. Robert Young began receiving biweekly benefits after this alleged injury occurred. Subsequently, on May 6, 1983, Sharon filed a claim for benefits, claiming that she had injured herself while lifting a bale of hay on May 4, 1983. Sharon also reported that she earned $400per week. Sharon began receiving benefits onMay 6,1983. On that same day, Robert Young canceled their workerst compensation insurance. InNovember 1983,Robert Youngfsdoctor advised the StateFund that Roberttsmedical condition had stabilized. The State Fund notified Robert Young that his benefits would be terminated on December 28, 1983. Thereafter, on December 21, 1983, Sharon and Robert Young again applied for workerst compensation insurance as partners in the West Parrot Creek Properties. The Youngsr application for coverage indicated that the nature of their business was raising beef and feed,and claimed $41,600annual earnings for thebusiness

(or $400 per week per person). The insurance coverage was effective on December 21, 1983. Thereafter, Robert Young filed a 

### new claim for benefits, stating he was injured 

### on December 31, 1983, after inhaling the pesticide Furadan 44. Again, Sharon was listed as a witness to the accident and signed the claim form as employer. The claim form indicated that Robert Young 

### was earning $425 per week. From April 1983 to December 1988, the State Fund paid Robert Young total compensation payments in the amount of $72,426.71.FromMay 1983 toJuly 1987,the State Fundpaid Sharon compensation payments. On July 23, 1987, Sharon entered into a Full and Final Compromise Settlement with the State Fund. Sharon received total benefits in the amount of $116,148.14,plus an additional $21,650 formedical expenses. An investigation 

### into Sharon and Robert Young's 1983 claims

was initiated after a failed attempt by Robert Young and codefendants Edith andJackWilkerson to fraudulentlyobtainworkers' compensation benefits in 2988. Subsequently, criminal charges were filed against Sharon and RobertYoung and Edith and JackWilkerson. Evidence presented at trial in support of the State's case against Sharonwas as follows. At the time that theYoungs claimed annual earnings of $42,000 and $41,600, the West Parrot Creek Propertieswas an eighty-acre parcel of land near Roundup,Montana. In July 1983, a State Fund field examiner went to the Youngst property and foundno corrals,no livestock,and no farm equipment. The field examiner met 

### with Robert Young again in February, 1984, regarding thepesticide claim. Robert Young was unable toproduce the package of pesticide but claimed to have purchased it in Hardin. The field examiner was unable to locate any business in Hardin which sold any pesticide to Robert Young. other evidence presented by the State showed that no game 

### or fur farm licensewas ever issued to either Sharon or Robert Young. There were no statetax recordswhich showed that eitherYoungpaid any taxes on any equipment ormachinery. TheMontana Departmentof Livestock records indicated thatbetween 1982 and 1989,the Youngsowned or shipped only sixteen head of cattle. There was no other documentation of any fur animal or cattle business. In 1986, Dr. William Shaw, a board-certified physician specializingin occupationalmedicine,examined theYoungs upon the State Fund's request. Dr. Shaw indicated that Robert Young had a long history ofmedical problems,but concluded thatnone of Robert Young's preexisting injuries were aggravated by any injuries in 1983. He also concluded thatRobert Young's lung problemswere not associatedwith the inhalation of pesticide,butwere the result of smoking. Dr. Shaw reported that, during the examination, Robert Young made the following statements: "That subsidy that Workers' Comp is the best thing I've ever had," "All these injuries have causedme tobe thisway," and llCollecting Workers' Comp 

### is better than stealing." Dr. Shaw also examined Sharon, who also had a long history of medical problems. Sharon told Dr. Shaw that her May 4, 1983, injury occurred when she fell off the back of a pickup while feeding cattle. There were no cattle on theproperty inMay, 1983, and Sharon's prior claim to the State Fund did not state that she fell from a pickup. During Dr. Shawls examination of Sharon, he saw no evidence that she had any problems sitting or moving, nor did she exhibit any signs of pain or discomfort. Dr. Shaw concluded that Sharon's medical problems predated the alleged injury of May, 1983. This evidence was presented to a jury on August 19 and 20, 1992. The jury found Sharon guilty of conspiracy to commit felonytheft by deception. Sharon

### was sentenced to fiveyears in prison, all suspended, and was ordered to make restitution. From that verdict and sentence, she appeals. When the issue on appeal is whether there was sufficient evidence to support a jury verdict, the standard of review is lrwhether, afterviewing the evidence in the light most favorableto the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.I1 State


### v. McLain, (1991), 249 Mont. 242, 246, 815 P.2d 147, 150. I 

## - SUFFICIENCY OF THE EVIDENCE Sharon was convicted of conspiracy to commit felony theft by obtaining unauthorized control of State Fund monies through deception. Sharon contends that therewas insufficient evidence to support her conviction because the State Fund "authorizedrr or frconsented"to her actions by entering into a Full and Final Compromise Settlement of her workers' compensation claim. Viewing the evidence in the light most favorable to the prosecution, we hold that there is sufficient evidence to support the conviction. The only issue raised by Sharon regarding the sufficiency of the evidence is whether or not she obtained the workers' compensation benefitsby deception. Section 45-2-211,MCA, states that "the consent of thevictim to conduct charged to constitute

### an offense or to the result thereof is a defense." Sharon would use this statute as a complete defense, and thus a bar to this conviction. We note that consent is ineffective if it is induced bydeception. Deception, as defined at 3 45-2-101 (17)

## , MCA, means knowingly to: (a) create or confirm in another an 

### impression

### which is false and which the offender does not believe to be true; (b) fail to correct a false impression which the offender previouslyhas created or confirmed;

# . .. There are a number of instances in this case where Sharon Itdeceivedttthe StateFund. For example, Sharon deceived the State Fund into issuing workerst compensation insurance on the West Parrot Creek Properties, when the same was not a legitimate, ongoing enterprise. She indicated that Robert Young and she both earned $400per week,when she knew the same to be untrue. Sharon created or confirmed in the State Fund the impression that shehad been injured while in the course and scope of her legitimate employment with theWest Parrot Creek Properties. After the State Fund accepted liability for Sharon's purported injury, Sharon failed to correct the false impression that she created regarding her injury, the nature of her business, and the earnings of that business. There is no question that the State Fund's consent to liability in this case was induced through Sharon's deception. The State Fund did not know Sharon's claim for benefits was fraudulent at the time 

### it entered into the settlement agreement. Had the State Fund received accurate information from Sharon, they would not have extended over $135,000inbenefits toher. The State Fund did not consent to Sharon's actions in this case. Sharon claims that the State Fund could have ascertained the 7fraudulent nature of her claim if it had exercised due diligence. In essence, Sharon would have the State Fund conduct a "merits 

### evaluation" of each and every claim filed 

### with the State Fund before accepting liability and beginning benefits payments. We refuse to impose this burden 

### on the State Fund. The State Fund should be able to rely on the truthfulness, completeness, and accuracy of the representations made by the claimant and employer. WillernVisser, a claimsmanager for the State Fund, estimated that the State Fund has approximately 20,000 claimsper year. To force the State Fund to thoroughly investigate each claim on its merits before providing benefits would causeunduehardship on analreadyburdened system. In addition, such a requirement would hurt claimants, in that it would unreasonably delay benefits payments and settlement of legitimate claims. We hold that the State presented sufficient evidence to support the conviction in this case. IT 

### - COLLATERAL ESTOPPEL Sharon contends that the doctrine of collateral estoppel bars the 

### State from prosecuting her in this case. She argues that the State isprecluded fromprosecution by the State Fund's compromise settlement of the workers' compensation claim. We disagree, and hold that collateral estoppel does not apply in this case. The doctrine of collateral estoppel is also known as ltissue preclu~ion.~ It is similar to resjudicata; however, res judicata "bars the same parties from relitigating the same cause af action while collateral estoppel.bars the same parties from relitigatingissues which were decided with respect to a different cause of action." Boyd v. ~irst InterstateBank (1992), 253 Mont. 214, 218, 833 P.2d 149, 151. This Court has previously established a threeprong test to determine if the doctrine of collateral estoppel applies to a particular case. Boyd, 833 P.2d at 151. 1. The identical issueraisedhasbeen previously decided in

a prior adjudication; 2. A final judgment on the merits was issued in the prior adjudication; and 3. The party against whom the plea is now asserted was a party or in privity with a party to the prior adjudication. 

# m,833 P.2d at 151. The firstprong, identity of issues, is the most crucial of the three elements. Anderson v. State (1991), 250 Mont. 18, 21, 817 P.2d 699,702. In order to satisfy this element, the identical issue or "precise questionwmust have been litigated in the prior action. Anderson, 817 P.2d at 702. Collateral estoppel does not apply in this case, because Sharon cannot establish the threshold first element. The Full and Final Compromise Settlement reached between the State Fund and Sharon on July 23, 1987, dealt solely with the amount of benefits thought to be owed to Sharon. Sharon's conspiracy to commit theft was not known at the time the compromise agreementwas reached, and thus the fraud issue was not actually raised or litigated. Therefore, the issue in the workers1 compensation case and the issue in this criminal prosecution are not identical.A party who obtains workers' compensation benefits through trick and deception cannot assert the doctrine of collateral estoppel against the innocent victim. The State Fund is entitled to rely upon facts presented by the employer when applying for insurance coverage and by the employeewhen applying for benefits. If it is later discovered that the State Fund provided coverage or benefits because of fraud or deception, the State has the right to criminally prosecute those individualsto the fullest extent of the law. Affirmed.

We Concur:July20, 1993 

### CERTIFICATEOFSERVICE Iherebycertifythatthefollowing orderwassentby United Statesmail,prepaid,tothe followingnamed:

Marvin

### L.Howe,

### Esq. Simonton,Howe&Schneider,

### P.C. P.O.Box 1250 Glendive,MT 59330 Gary

### L.Day,Esq. Lucas&

### Monaghan,

### P.C. P.O. Box728 MilesCity,

### MT 59301



### EDSMITH 

### CLERKOFTHESUPREMECOURT 

### STATEOF

### MONTANA