Beech v. State

Decision Date04 December 1974
Docket NumberNo. 2--673A129,2--673A129
Citation319 N.E.2d 678,162 Ind.App. 287
PartiesEvelyn June BEECH, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Appellate Court

Mary Beth Ramey, Julian D. Pace, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert A. Zaban, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Presiding Judge.

Beech appeals from a conviction of theft by deception. The conviction by court sitting without jury, is based upon an alleged fraud perpetrated upon the Marion County Department of Public Welfare with respect to receipt of welfare benefits.

The evidence and facts most favorable to the State and to the trial court's judgment are as follows:

On April 13, 1970, Beech applied for Aid to Dependent Children (ADC) assistance at the Marion County Department of Public Welfare. This category of public assistance serves to provide aid to financially deprived and dependent children. Beech made application for herself and her three year old son. On the application form, Beech indicated that she separated from her husband in October of 1969 following his penal incarceration. Further, she placed a checkmark next to a provision whereby she agreed to notify the department 'of any changes in my family income or resources, and also to report promptly any change in my living arrangements or family conditions which affect the amount of my assistance.'

Beech received monthly payments of $115.00 from June, 1970 to August, 1972. This monthly amount was the maximum grant to an ADC household of two persons. During this period, pursuant to welfare regulations, the county welfare department conducted four home interviews with Beech. These periodic interviews, called 'restudies' are conducted for the purposes of ascertaining changes in the expenses situation, and to verify the expenses and income of the recipient. In each instance, the department caseworker, following agency procedure, inquired as to the whereabouts of Beech's husband. Beech consistently denied knowledge of her husband's residence or employment, although she stated to the caseworker that she occasionally spoke with Mr. Beech. During the period in which she received welfare assistance, Beech held several jobs for short periods of time and promptly reported such changes in employment status and income to her caseworker.

In May, 1972, the caseworker referred the Beech case to the welfare department's investigative branch for the purpose of investigating a possible welfare fraud. This referral was occasioned by a home restudy visit by the caseworker in which the caseworker extensively searched Mrs. Beech's home and discovered some articles of men's clothing. On June 27, 1972, Mr. Whobrey, an investigator for the welfare department, visited Mrs. Beech's residence at 6:30 A.M. A man, later identified by Whobrey as Mr. Beech, answered the door, claimed to be a 'Bob Jones', and stated that Mrs. Beech was not home. Whobrey then situated himself one-half block from the house and observed Mr. and Mrs. Beech together in the back yard.

Whobrey, on July 27 to 31, August 1 to 4, and on August 7, set up surveillance of Mrs. Beech's home. On those mornings, he observed Mr. and Mrs. Beech leave the house at approximately 6:45 A.M., followed the couple to the business address of Central Kitchens, observed Mr. Beech disembark from the auto, and followed Mrs. Beech back to her home. Whobrey later verified Mr. Beech's employment at Central Kitchens.

On August 11, 1972, the welfare department terminated Mrs. Beech's assistance effective October 1, 1972, and referred the case to the county prosecutor for prosecution. On September 26, 1972, both Mr. and Mrs. Beech were charged by indictment with theft by deception of the August 1972 welfare check. At the trial, without jury, the State produced witnesses, including Whobrey and some neighbors and landladies of Mrs. Beech, whose testimony consisted of observations placing Mr. Beech in the home at various times, and admissions by Mrs. Beech to neighbors that she was receiving welfare benefits while living with her husband.

Mrs. Beech presented evidence consisting primarily of testimony by Mr. Beech's brothers that Mr. Beech was residing, during the time in question, either in jail or at the homes of his brothers. Further evidence tended strongly to portray Mr. Beech as an alcoholic continually in pursuit of his dissipative lifestyle. 1

At the close of the State's evidence, counsel for Beech made a 'motion for discharge' (more properly termed a Motion to Dismiss; see Indiana Rules of Procedure, TR. 41(B)) alleging the impropriety of the charges brought under the general theft statute and asserting the unconstitutionality of the welfare regulations which formed the underpinnings of the theft charge. The motion was denied.

The trial court found Mr. Beech not guilty, but held Mrs. Beech guilty and sentenced her to a term of one to ten years.

Beech attempts to raise the following issues:

1. The trial court committed error in not sustaining Beech's motion to dismiss because:

a. The charges should have been brought under the specific welfare fraud statutes, not the general theft statute;

b. Criminal charges cannot be based upon statutes or administrative regulations which are unconstitutional due to a conflict with the Supremacy Clause of the United States Constitution;

c. The State failed to prove that Mr. and Mrs. Beech were living together regularly and continuously d. The State failed to show that the act of living together by a husband and wife is deceptive;

e. The State failed to show that Mr. Beech was not 'continually absent' from the home during the time period for which Mrs. Beech was indicted, or the period during which she received welfare benefits;

f. The State must prove all elements of the specific offense under the Offenses Against Property Act;

g. Welfare regulation, Burns' Adm. Rules & Reg. § (52--1001)--2 is unconstitutional under the Supremacy Clause of the United States Constitution;

h. When the State prosecutes a welfare fraud under the Offenses Against Property Act, it must prove the specific elements which constitute welfare fraud;

i. The State failed to introduce welfare regulations and show how the defendant contravened such regulations and thereby deceived the welfare agency;

j. The State failed to establish the federal or state regulations and statutes, and therefore failed to show how the defendant did not comply with them;

k. The State failed to show that Beech, at the time of making application, understood or was capable of understanding the instructions and information provided by the welfare department;

l. If a welfare recipient is eligible for assistance, then such recipient is not required to reapply for benefits if any change in circumstance would not alter the welfare grant. Such an unreported change in circumstance is not a ground sufficient to form the basis of a criminal prosecution;

m. Because mental or physical incapacity is a ground for receiving ADC and because Mr. Beech was an alcoholic, Mrs. Beech was entitled to receive ADC benefits for her son;

n. Since parental absence due to imprisonment is one ground for ADC and the welfare department had knowledge of Mr. Beech's frequent incarcerations, Mrs. Beech was qualified to receive ADC benefits.

2. The court erred in admitting certain evidence without proper foundation, and such evidence was prejudicial.

3. The court's finding of guilt is not sustained by sufficient evidence.

4. The court's finding of guilt is contrary to law and contrary to the welfare regulations.

5. The court's finding of guilt is contrary to law because the finding was based on IC 1971, 35--17--5--11, Ind.Ann.Stat. § 10--3038, being Misapplication of Entrusted Property and Property of Government or Credit Institutions rather than theft by deception under IC 1971, 35--17--5--3, Ind.Ann.Stat. § 10--3030.

6. The trial court's finding is erroneous in lacking sufficient evidence to overcome a reasonable doubt as to guilt.

In an effort to ascertain the precise issues properly before us, we have critically surveyed the motion to correct errors and its accompanying memorandum, appellant's brief, and appellant's reply brief. Beech has waived issues 1(i), 1(j), 2 and 4 by failing to cite supporting authorities in her appellate brief. Ind. Rules of Appellate Procedure, AP. Rule 8.3(A)(7). In so holding, we are mindful of our Supreme Court's definitive statement in Williams v. State (1973), Ind., 297 N.E.2d 805, 807:

'Appellant's additional allegations of error are presented with absolutely no legal argument or citation of authority. Under Rule AP. 8.3(A)(7), this court need not consider such matters, and they are deemed waived. The cases are uniformly in accord with this proposition. Yeary v. State (1971), Ind., 273 N.E.2d 96; Miller v. State (1971), Ind., 268 N.E.2d 299. We cannot answer bald assertions of error that are not supported by legal authority. To do so would be to encourage inadequate and poor work on the part of the attorney.' (original emphasis).

Further, Beech has waived issue 5 above, due to a failure to preserve such issue by inclusion in her motion to correct errors. Ind. Rules of Trial Procedure, TR. Rule 59(G); Bennett v. State (1973), Ind.App., 304 N.E.2d 827.

Synthesizing the remaining issues for purposes of clarity, we are presented with the following questions:

1. Whether in view of the facts presented, the State can charge an offense under the general theft statute when two specific statutes governing welfare fraud exist.

2. Whether welfare regulation, Burns' Adm. Rules & Reg. § (52--1001)--2 is unconstitutional, and, if so, whether it may properly form the basis of a criminal prosecution.

3. Whether the State proved by sufficient evidence every material element of the crime of theft by deception.

I

THE STATE MAY PROSECUTE EITHER UNDER SPECIFIC OR GENERAL

STATUTE WHEN ACT COMMITTED BY DEFENDA...

To continue reading

Request your trial
22 cases
  • Snyder v. State
    • United States
    • Indiana Appellate Court
    • 30 août 1979
    ...N.E.2d 349; Hitch v. State (1972), 259 Ind. 1, 284 N.E.2d 783; Wright v. State (1958), 237 Ind. 593, 147 N.E.2d 551; Beech v. State (1974), 162 Ind.App. 287, 319 N.E.2d 678. The next contention is that the trial court erred in refusing to admit defendant's exhibits F, DDDD, I and Exhibit F ......
  • Thomas v. State
    • United States
    • Indiana Appellate Court
    • 1 juillet 1975
    ...of Procedure A.P. 8.3(A)(7). 268 N.E.2d at 302. See also, Williams v. State (1973), Ind., 297 N.E.2d 805, 807; Beech v. State (1974), Ind.App., 319 N.E.2d 678, 681--682; Maynard v. State (1973), Ind.App., 301 N.E.2d 200, 203--204; Matthew v. State (1972), Ind.App., 289 N.E.2d 336, ISSUE THR......
  • Ingmire v. Butts
    • United States
    • Indiana Appellate Court
    • 25 septembre 1975
    ...358; Williams v. State (1973), Ind., 297 N.E.2d 805, 807; Miller v. State (1971), 256 Ind. 296, 268 N.E.2d 299; Beech v. State (1974), Ind.App., 319 N.E.2d 678, 681--682; Maynard v. State (1973), Ind.App., 301 N.E.2d 200, 203--204; Rule AP. 8.3(A)(7).3 Transcript, p. 199.4 Rule TR. 53(A) de......
  • Arnold v. State
    • United States
    • Indiana Appellate Court
    • 12 décembre 1974
    ...is sufficient if the indictment or affidavit charges and the evidence proves an offense under the statute.' See also, Beech v. State (1974), Ind.App., 319 N.E.2d 678; Taylor v. State (1968), 251 Ind. 236, 236 N.E.2d 825; Adams v. State (1974), Ind., 314 N.E.2d 53; Kindred v. State (1970), 2......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT