Cole v. State

334 Ga.App. 752

780 S.E.2d 406

COLE

v.The STATE.

No. A15A1534.

Court of Appeals of Georgia.

Nov. 19, 2015.

Thomas Michael Florio, for Appellant.

Samuel S. Olens, James Philip Mooney, for Appellee.

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, OCGA § 49–4–146.1(b)(1), and theft by taking, OCGA § 16–8–2. In Count 1, the indictment charged that Cole committed medicaid fraud in that,

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 Medicaid made payments to Cole in the total amount of $297,831.39 as a result of the fraudulent scheme.

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 S.E.2d 413 (2003). See Palatini v. State, 333 Ga.App. 523, 524, 774 S.E.2d 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 S.E.2d 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 entitled to an indictment perfect in form and substance." State v. Gamblin, 251 Ga.App. 283, 284(1), 553 S.E.2d 866 (2001).

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 S.E.2d 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 S.E.2d 276 (2003), and Driggers v. State, 295 Ga.App. 711, 717(4)(a), 673 S.E.2d 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), 503 S.E.2d 585.

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 last four digits the patients' unique Medicaid identification number, ensured that each patient was specifically identified.² In contrast to Sellers, the record does not show that "the initials ... could apply to any [person] having [the same] initials." Sellers v. State, 263 Ga.App. at 146, 587 S.E.2d 276. Notwithstanding its identification of the patients, in part, by their initials, the indictment was sufficient to allow Cole "to prepare [her] defense intelligently and to protect [her] from double jeopardy." (Citation and punctuation omitted.) State v. English, 276 Ga. at 346(2)(a), 578 S.E.2d 413. Accordingly, the trial court did not err in finding that the indictment was sufficiently detailed as to the patients' identities.

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 OCGA § 17–7–54, the form of the indictment shall "state with sufficient certainty the offense and the time and place of committing the same [.]" And as a general rule, "an indictment which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer." (Punctuation and footnote omitted.) State v. Layman, 279 Ga. 340, 340–341, 613 S.E.2d 639 (2005). This Court recognizes an "exception to this rule where the evidence does not permit the State to identify a single date on which the offense occurred[.]" (Citation and punctuation omitted.) State v. Meeks, 309 Ga.App. 855, 857(1), 711 S.E.2d 403 (2011). But "the exception does not apply unless the State first presents evidence to the trial court showing that it cannot more specifically identify the dates of the offenses." (Citation and punctuation omitted.) Id.

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...