Ex parte Hunte

• Decision Date: 01 July 1983
• Citation: 436 So.2d 806
• Parties: Ex parte Eyston Asquith HUNTE. (Re: Ex parte State of Alabama, ex rel. Attorney General (In re: STATE of Alabama v. Eyston Asquith HUNTE)) 81-933.
• Court: Alabama Supreme Court

Page 806

436 So.2d 806

2 Soc.Sec.Rep.Ser. 1449

Ex parte Eyston Asquith HUNTE.

(Re: Ex parte State of Alabama, ex rel. Attorney General (In re: STATE of Alabama v. Eyston Asquith HUNTE))

81-933.

Supreme Court of Alabama.

July 1, 1983.

Rehearing Denied Aug. 5, 1983.

James E. Atchison and Richard D. Horne of Hess, Atchison & Horne, Mobile, for petitioner.

Charles A. Graddick, Atty. Gen., and J. Michael Horsley and Ferris W. Stephens, Asst. Attys. Gen., for respondent.

EMBRY, Justice.

The writ of certiorari was granted in this case to review an order of the Court of Criminal Appeals that granted the writ of mandamus compelling the Honorable Joseph D. Phelps to vacate his order granting the motion of petitioner Hunte for a change of venue to Mobile County from Montgomery County.

Petitioner Eyston Asquith Hunte, a practitioner of medicine in Mobile, Mobile County, Alabama, was indicted by the Montgomery County Grand Jury for violating § 22-1-11, Code 1975: Medicaid Fraud. The statute reads in pertinent part:

"(a) Any person who, with intent to defraud or deceive, makes, or causes to be made or assists in the preparation of any false statement representation or omission of a material fact in any claim or application for any payment, regardless of amount, from the medicaid agency, knowing the same to be false; or with intent to defraud or deceive, makes, or causes to be made, or assists in the preparation of any false statement, representation or omission of a material fact in any claim or application for medical benefits from the medicaid agency, knowing the same to be false; shall be guilty of a felony and upon conviction thereof shall be fined not more than $10,000.00 or imprisoned for not less than one nor more than five years, or both."

The one count of the indictment before us reads:

"The Grand Jury of Montgomery County, Alabama, charges that before the finding of this Indictment, Eyston A. Hunte, alias Dr. E.A. Hunte, whose identity is to the Grand Jury otherwise unknown, did with the intent to defraud or deceive, make or cause to be made or assist in the preparation of a false statement, knowing such to be false, in a claim or application for payment from the Medicaid Agency, the same being a request for payment bearing the date to wit: June 24, 1980 and bearing claim number to wit: 80184331070 a false statement, representation or omission of a material fact, to wit: that the pap smear laboratory test, a better description of which is unknown to the Grand Jury, for Medicaid recipient to wit: Vivian Steele was personally performed or rendered by or under the personal direction of said Eyston A. Hunte, on or about to wit: June 24, 1980 when in fact said laboratory test was not personally rendered by or under the personal direction of Eyston A. Hunte, M.D., in violation of Code of Alabama, 1975, Section 22-1-11(a) and against the peace and dignity of the State of Alabama." (Emphasis added.)

The dispositive issue for review is whether, under the undisputed facts of this case, the offense proscribed by § 22-1-11, Code 1975, was complete and took place wholly within Mobile County, thereby entitling Hunte, under the Constitution and laws of Alabama, to be tried in the county In analyzing the problem being addressed, we should first look to the statute proscribing the acts which gave rise to the indictment of petitioner:

                in which the offense was allegedly committed?   The answer is in the affirmative
                

"(a) Any person who, with intent to defraud or deceive, makes, or causes to be made or assists in the preparation of any false statement, representation or omission of a material fact in any claim or application for any payment ... from the medicaid agency, knowing the same to be false ... shall be guilty of a felony ...." (Emphasis added.)

Too well settled to require citation of authority, is the rule of statutory construction that requires looking at the words of the statute to determine the intent of the Legislature. Abiding by that rule, we perceive nothing in the language of the statute evidencing that the offense therein proscribed required receipt by, or reliance upon the part of, the Medicaid Agency of the allegedly false claim in order that the offense be completed or consummated. Unlike the civil action for fraud and misrepresentation brought by the Medical Services Administration, sub nominee of the same, versus Dickerson at 362 So.2d 906 (Ala.1978), to recover funds allegedly improperly paid under the medicaid program, this case is a prosecution for a statutory offense requiring no reliance on any misrepresentations in order to finally approve payment to the supplier of services. Here the crime is complete, once one, with intent to defraud, makes or causes to be made or assists in the preparation of any false statement, representation or omission of a material fact in any claim or application for any payment. This is in marked contrast to the holding of this court in Dickerson:

"[W]e construe the 'thrust of the complaints' to be in tort for misrepresentation and fraud. Since the cost reports required by the Medical Services Administration and containing the alleged misrepresentations were mailed to its offices in Montgomery and since these cost reports were allegedly relied upon by the Administration in finally approving payments made to the nursing homes, we are of the opinion that Montgomery County is 'the county in which the act or omission complained of may have been done or may have occurred.' ..." (Emphasis added.)

362 So.2d at 909.

We find support for this construction of the subject statute, by analogy, to the statutory crimes of falsifying business records, § 13A-9-45, Code 1975, and forgery, § 13A-9-2 through -4. Section § 13A-9-45, reads:

"(a) A person commits the crime of falsifying business records if, with intent to defraud, he:

"(1) Makes or causes a false entry in the business records of an enterprise; or

"(2) Alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise when he knows the retention or preservation of a true entry is required by law independent of this section; or

"(3) Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imposed upon him by law; or

"(4) Prevents the making of a true entry or causes the omission thereof in the business records of an enterprise when he knows a true entry is required by law independent of this section."

We think it significant that the Commentary to this section states:

"Such records as bills of lading, applications, reports, ledgers and warehouse receipts are examples of the broad coverage; however, government records are not included, being subsumed by § 13A-10-12. Even so, the aim of the Code is not to give protection to the records themselves. Note that the proposal begins: 'A person commits the crime ... if, with intent to defraud ....' Thus, its thrust is directed toward the prevention of contemplated frauds committed through the use of the records."

We think the more apt analogies found in the statutory crimes of forgery are stated in portions of § 13A-9-3:

"(a) A person commits the crime of forgery in the second degree if, with intent to defraud, he falsely makes, completes or alters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:

"(1) A deed, will, codicil, contract, assignment or a check, draft, note or other commercial instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status; or

"(2) A public record, or an instrument filed or required or authorized by law to be filed in a public office or with a public employee; or

"(3) A written instrument officially issued or created by a public office, public employees or government agency.",

and in § 13A-9-4:

"(a) A person commits the crime of forgery in the third degree if, with intent to defraud, he falsely makes, completes or alters a written instrument."

We think the following a pertinent analogy to the offense here charged:

"[F]orgery of an endorsement is complete as a crime when the endorsement having the capacity to defraud, is placed on the instrument without authority and with the intent to injure or defraud. 'It is not necessary that any prejudice should in fact have happened by reason of the fraud. The capacity of the false and fraudulent writing to work injury, is the material question. If the writing has that capacity, the offense is committed.' ..." Wyatt v. State, 257 Ala. 90, 57 So.2d 366 (1952).

It seems clear the statute under examination here is aimed at the prevention of contemplated frauds to be worked upon the Medicaid Agency, to paraphrase the Commentary regarding this statute.

Therefore, it follows that venue lies in Mobile County, the alleged offense having been fully completed or consummated there. Const.1901, Art. I, § 6; § 15-2-2, Code 1975. The intent to defraud, if in fact there existed such an intent, was present at the moment the claim or application was completed requesting payment just as in the case of forgery or falsification of business records. The claim, application, or request for payment, if false and if intended to defraud, had the capacity to harm, injure, or defraud, when completed.

We think it would be helpful to address issues raised by the State, although not dispositive, that merit consideration. They are three in number but one of them is that disposed of above. The other two are:

"I

"Whether the Alabama Court of Criminal Appeals can issue a writ of mandamus vacating a trial court order changing venue when the trial court was without authority under Code of Alabama 1975 § 15-2-20 to change venue.

"...

"II

"Whether the Alabama Supreme Court should not review a decision of the Alabama Court of Criminal Appeals on a writ of certiorari when Rule 39 A.R.A.P....