McKennie v. State, 3 Div. 386

• Decision Date: 12 October 1982
• Docket Number: 3 Div. 386
• Parties: Maurice McKENNIE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 706

439 So.2d 706

3 Soc.Sec.Rep.Ser. 1090

Maurice McKENNIE v. STATE.

3 Div. 386.

Court of Criminal Appeals of Alabama.

Oct. 12, 1982.

Rehearing Denied Nov. 23, 1982.

James T. Upchurch, III of Rushton, Stakely, Johnston & Garrett, Montgomery, and David B. Cauthen, Decatur, for appellant.

Charles A. Graddick, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

This appellant was found guilty under Counts 2 and 4 of an indictment. The only two other counts therein had been nol-prossed. Count 2 charged in pertinent part the following:

"... [Maurice McKennie] did, with intent to defraud or deceive, make or cause to be made a false statement of material fact in a claim or application for payment from the Medical Services Administration of Alabama, to wit: The 1977 Uniform Cost Report for Nursing Facilities under Title XIX (Medicaid), for the period January 1, 1977 to June 30, 1977, knowing the same to be false, in the amount of, to wit: $81,028.40 which amount is included in the figure to wit: $181,236.25 which appears in Schedules C and K of the said 1977 Uniform Cost Report for Nursing Facilities under Title XIX (Medicaid) for the period January 1, 1977 to June 30, 1977, which said amount of to wit: $81,028.40 was alleged to have been for equipment purchased by the said Maurice McKennie for Flint City Nursing Home, when in fact some of the items of equipment so claimed had not been purchased and used at the Flint City Nursing Home, or some of the prices attributed to particular items of equipment purchased were false, or which said amount to wit: $81,028.40 included loans not the indebtedness of Flint City Nursing Home, against the peace and dignity of the State of Alabama."

The only difference between Counts 2 and 4 is that in Count 2 the time involved stated is "for the period January 1, 1977 to June 30, 1977," while in Count 4 it is alleged that it is "for the period July 1, 1977 to June 30, 1978."

The court fixed defendant's punishment at imprisonment for three years and sentenced him accordingly; upon consideration of defendant's application for probation, the following order was made:

"And the defendant having heretofore applied for the benefit of probation and having requested that he be given a suspended sentence and upon consideration of such request the court is of the opinion that the same should be granted. It is therefore considered and ordered by the Court that the sentence of the law imposed upon the defendant in this cause be and the same is hereby suspended and the defendant placed on probation for three years conditioned upon defendant's serving eight weeks in the Montgomery County Jail and making restitution to the State of monies collected illegally."

The law that defines the crime for which defendant was charged and convicted is found in Acts 1976, No. 645, p. 895, which was superseded by Acts 1980, No. 80-539, p. 837, which left unchanged that part of Act No. 645 of Acts 1976, that is now set forth in Code of 1975 (1982 Cum.Supp.) § 22-1-11 as follows:

"(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 imprisonment for not less than one nor more than five years, or both.

"....

"(e) Any two or more offenses in violation of this Section may be charged in the same indictment in separate counts for each offense and such offenses shall be tried together, with separate sentences being imposed for each offense of which defendant is found guilty."

A major contention of appellant is that "The trial court erred in denying defendant's motion to dismiss for proper venue." Appellant argues that whatever offense, if any, was committed by defendant was not committed in Montgomery County, the county in which the indictment was preferred and in which the trial and conviction occurred. Appellant relies upon Code of Alabama 1975, § 15-2-2 that provides that "Unless otherwise provided by law, the venue of all public offenses is in the county in which the offense was committed." To be considered also, however, is Code, § 15-2-6, as follows:

"When an offense is committed partly in one county and partly in another or the acts or effects thereof constituting or requisite to the consummation of the offense occur in two or more counties, venue is in either county."

Appellant is correct in stating in his brief that "Flint City Nursing Home is located in Flint City, Alabama, near Decatur" and that "Cost reports were prepared, and the accounting work necessary to prepare the costs reports were done there." However, the evidence is clear and undisputed that the "claim or application for payment from the Medical Services Administration of Alabama" alleged in each count of the indictment as supported by the "Uniform Cost Report for Nursing Facilities" was sent or caused to be sent by defendant to that agency at Montgomery, in Montgomery County.

Appellant seeks to distinguish the instant case from Medical Service Administration v. Dickerson, Ala., 362 So.2d 906 (1978), in which it was held that Montgomery County, as well as Cullman County, was a proper venue in a case based upon a complaint that defendant had sent "faulty financial statements" to the plaintiff at "its Montgomery offices" and that plaintiff "relied upon these statements in reimbursing the nursing homes." The appellant's only point of distinction is that the cited case "was a civil case." We fail to see that the same rationale does not apply in this, a criminal, case.

Appellant also attempts to distinguish the instant case from Seay v. State, 21 Ala.App. 339, 108 So. 620 (1926), cert. denied, 214 Ala. 666, 108 So. 622, in which it was held that the presentation in Pike County of an instrument that had been forged in another county constituted an utterance of the forged instrument and that the prosecution for forgery was proper in Pike County.

In our opinion, the submission in Montgomery County to the Medical Services Administration of Alabama of defendant's claim "or application for payment," which included a "Uniform Cost Report for Nursing Facilities," gave rise to a situation in which Code of Alabama, § 15-2-6, as quoted above, applies and proper venue was in Montgomery County.

Another issue presented by appellant pertains to the following portion of the transcript, as quoted in appellant's brief, during the direct examination of State's witness David Billingsley:

"Q. What did you do and where did you go in Greenville, South Carolina?

"A. I went to the office of United Medical and Surgical Supply Company and interviewed Mr. C.D. Stone in regard to invoices and whatever other supporting documents he may have in order to substantiate a purchase money security agreement.

"Q. Did he have them?

"A. No, sir, he did not.

"MR. UPCHURCH: I object, your Honor, this is hearsay.

"THE COURT: Did he have them? I don't see That calls for hearsay. Overruled.

"Q. You may answer, Mr. Billingsley.

"A. Sir?

"Q. Did he have any documents?

"A. No, sir."

The portion of the transcript quoted by appellant in his brief does not, we think, show clearly whether the information sought by the question constituted hearsay, and we are unable to determine therefrom that it did or that the trial court was in error in ruling otherwise. Furthermore, the objection was made after the witness had answered the question and was too late.

"When a question is asked of a witness calling for inadmissible matter, it is mandatory upon the party against whom it is offered to object after the question but before the answer. The effect of such a rule is that a timely objection is a condition precedent to assigning the admission of such an answer as grounds for error on appeal." Gamble, McElroy's Alabama Evidence, § 426.01(3) (1977)

The only other issues presented by appellant (A, B, C and D) pertain primarily to action of the trial court in denying "defendant's motion for directed verdict of acquittal." By Issue A, appellant contends that there was error in denying such motion "based on the failure of proof that certain 'items of equipment so claimed had not been purchased and used at Flint City Nursing Home,' as claimed by the indictment." By Issues B and C, respectively, appellant asserts that the denial of the motion was error "based on the failure of proof that 'some prices attributed to particular items of equipment purchased were false,' as claimed by the indictment" and in denying such motion "on failure of proof that an amount shown on Cost Reports 'A' and 'B' 'included loans not the indebtedness of Flint City Nursing Home,' as claimed by the indictment." By Issue D, appellant urges that the "trial court erred in denying defendant's motion for directed verdict of acquittal based on failure of proof to support the allegations of the indictment."

It is to be seen from the above and from defendant's "motion for directed verdict of acquittal" that defendant sought a "directed verdict of acquittal," on separate and several grounds. In Issues A, B and C, appellant contends that he was entitled to a directed verdict of acquittal as to each of the three alternative means of committing the offense as alleged in each count of the indictment. The validity of the indictment was not challenged by demurrer or otherwise. In this connection, reference is made to Code of Alabama 1975, § 15-8-50, as follows:

"When an...