Frye v. State

• Decision Date: 17 April 1979
• Docket Number: 3 Div. 878
• Citation: Frye v. State, 369 So.2d 892 (Ala. Crim. App. 1979)
• Parties: Juanita FRYE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 892

369 So.2d 892

Juanita FRYE v.STATE.

3 Div. 878.

Court of Criminal Appeals of Alabama.

April 17, 1979.

William H. Mills, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Joseph M. Carlton, Jr., Asst. Atty. Gen., for the State.

BOOKOUT, Judge.

The appellant was charged in a five count indictment for violating ActNo. 645, Acts of Alabama 1976, approved August 24, 1976(now § 22-1-10,Code of Ala.1975, 1978 Supp.).That Act provides in pertinent part that any person who, "with intent to defraud or deceive, makes or causes to be made any false statement or representation of a material fact in any claim or application for any payment, regardless of amount, from the Medical Services Administration, knowing the same to be false," shall be guilty of a felony carrying a penalty of a fine of not more than $1,000 or imprisonment for not less than one nor more than five years.

Count One of the indictment reads as follows:

"Juanita Frye, whose identity to the Grand Jury is otherwise unknown, did after August 24, 1976, and before the finding of this indictment, with the intent to defraud or deceive, make or cause to be made in a claim or application for payment from Medical Services Administration of Alabama, to-wit: the 1977 Cost Report of the Carbon Hill Nursing Home for the fiscal year March 1, 1976, through February 28, 1977, knowing it to be false, a false statement or false representation of a material fact, to-wit: that the figure of, to-wit: $148,388.00 listed on Schedule D of the 1977 Cost Report represented salaries paid to the employees of the Carbon Hill Nursing Home for work actually performed, when in fact that figure of, to-wit: $148,388.00 contained the sum of, to-wit: $3,835.70 paid to Mrs. Vivian Keelon for work that she never substantially performed for the Carbon Hill Nursing Home."

Each of the four remaining counts of the indictment were the same except for listing different amounts paid to different persons for work they never substantially performed.Each of the persons set out in the indictment as receiving salaries for work not performed were shown by the evidence to be relatives of the owner of the nursing home, W. A. Keelon.

The jury found the appellant guilty and set a fine of $500 on each count.Since the sufficiency of the State's evidence was properly challenged in the trial court, it will be necessary to review that evidence.

Bob H. Nunelley was the first witness called for the State.He testified that he was an auditor with the Medical Services Administration (hereinafter MSA).He stated that MSA administers the Medicaid program in the state of Alabama.He explained how MSA computes its rate of payment to nursing homes for Medicaid patients:

"The nursing homes furnish the Medical Services Administration a cost report which is the basis for setting a rate for the payment to the nursing home for Medicaid patients for the succeeding year.This cost report tells the Medical Services Administration how much it costs the nursing home to operate in various cost centers during a period of time.Those costs are divided by the patient days, the amount of time Medicaid patients have spent in the nursing home during a year in order to develop a per diem rate, a rate of pay to be paid to that nursing home for the next year."

Based upon the cost report of the Carbon Hill Nursing Home for the fiscal year March 1, 1976, through February 28, 1977, filed by the appellant with MSA in Montgomery, the per diem rate which MSA would pay the Carbon Hill Nursing Home was calculated to be $16.07.However, when the salaries paid to relatives of the owner of the nursing home were deducted, the rate MSA would pay the nursing home was $15.25 per patient per day.

The cost report for the Carbon Hill Nursing Home filed with MSA by the appellant lists Rhonda Keelon as a full-time employee and Vivian Keelon and Brenda Parker as part-time employees in nursing service.W. A. Keelon, Jr., is shown to be a part-time employee in housekeeping, and Jerry Keelon to be a part-time employee in maintenance.

The cost report covering the same period of time on the Winfield Nursing Home, likewise owned by W. A. Keelon, lists Brenda Parker, Vivian Keelon and Rhonda Keelon as full-time employees of that nursing home holding the positions of "Nursing Care (aide)."W. A. Keelon, Jr., is listed as a full-time employee in the housekeeping department, and Jerry Keelon is listed as a full-time employee in the maintenance department of the Winfield Nursing Home.

Mrs. Jimmie Little was employed at the Carbon Hill Nursing Home during a portion of the period covered in the cost report in question.She stated that she was a licensed practical nurse and was employed there as director of nurses.During the fiscal year March 1, 1976, the record indicates that she worked at the nursing home only during March and April and then again during July and August.During the time employed at the nursing home, Mrs. Little primarily worked from 6:30 a. m. until 3:00 p. m., five days a week.However, she often worked more than five days a week and more than eight hours a day and at times her working hours would be from 11:00 a. m. until 8:00 p. m.

Mrs. Little testified that she knew all the employees of the nursing home during the time she worked there, and did not know of any work done during that time by Brenda Parker, William A. Keelon, Jr., Jerry Keelon, Rhonda Keelon, or Vivian Keelon.She only saw Mrs. Vivian Keelon around the nursing home at Christmas parties.On cross-examination, when asked whether any of those persons did any work during the nine and one-half months when Mrs. Little was not employed, she stated that she did not know.Mrs. Little likewise testified that the records of the Carbon Hill Nursing Home were kept in Winfield and that she did not know if any of the family members had worked on those records at Winfield.

Jeannette Kelly testified that she worked as a nurse's aide at the Carbon Hill Nursing Home from March 1, 1976, through September 3, 1977, except for a six week period when she was sick.During that employment, she worked for a "long period of time" from 2:30 until 11:00 p. m., and for a "small amount of time" from 11:00 p. m until 7:00 a. m. Her working days varied and sometimes she worked on weekends and holidays.Mrs. Kelly stated that she knew all of the part-time and full-time employees who worked at the nursing home during the fiscal year in question.She said that neither Rhonda Keelon, Brenda Parker, nor Vivian Keelon ever worked there during the course of her employment.She had only see Vivian Keelon around the nursing home at Christmas parties.She did not know Jerry Keelon nor William A. Keelon, Jr., but stated that she had never seen either of them working there.

Maudie Hunt testified that she was employed at the Carbon Hill Nursing Home as a nurse's aide until September 1977.She worked in all areas of the nursing home, usually five days a week on the 3:00 until 11:00 p. m. shift.The days she worked would vary and would sometimes include holidays or weekends.She did not know Brenda Parker or Rhonda Keelon.She did know Vivian Keelon, but had never seen her working at the nursing home.However, she had seen her attending parties there.Mrs. Hunt had seen Mr. Keelon's sons working at the nursing home helping repair the furnace and helping strip wax from the floors; however, she did not see them working there regularly.

Lucy Dozier testified that she worked as a nurse's aide at the Carbon Hill Nursing Home from the end of 1969 until September 5, 1977.During the period covered by the cost report in question, she worked the evening shift, 3:00 until 11:00 p. m. She worked normally five days a week rotating weekends with other employees and occasionally would work another shift to fill in for an absent employee.The witness stated that she knew all of the employees on all the shifts at the nursing home.She did not know Brenda Parker or Rhonda Keelon, but had seen Vivian Keelon attending parties at the nursing home.She stated that she had seen the Keelon's sons working at the nursing home, but not on a full-time basis.She did not know how much time they worked, and she never saw the name of any of the members of the Keelon family listed on the work schedule that was posted at the hospital each week.

On cross-examination, Mrs. Dozier testified that the two Keelon sons had once been called to the nursing home when the furnace would not function, but they did not know how to fix it and another maintenance man had to be called in.She said the plumbing and furnace maintenance work was normally done by people other than the Keelon's sons.However, Mrs. Dozier had seen the sons working on the evening shift stripping wax from the floors.She said that job had to be started and completed on the evening shift while the patients were in bed.The floors were stripped on "something like" six month intervals.All of the employees at the nursing home maintained time cards; however, Mrs. Dozier never saw a time card there for any of the Keelons.

Donna Dodd worked at the Winfield Nursing Home from September 1974 until July 21, 1976.She was hired as a relief registered nurse for part-time work in the office.Later, additional duties were given to her as a relief nurse at the Carbon Hill Nursing Home two days a week and as a consultant nurse there four hours per week.One of Mrs. Dodd's duties was keeping the books and doing payrolls for both nursing homes.As the consultant registered nurse for the Carbon Hill Nursing Home, she reviewed the patients' charts, but had never seen a notation on any such charts made by Vivian Keelon, Rhonda Keelon or Brenda Parker.Likewise, in reviewing activity reports from that nursing home, she never saw a notation by any of the three and had never found any evidence of their having worked at that nursing home.

Mrs. Dodd testified that she had...