People v. Premen

• Decision Date: 21 April 1995
• Docket Number: Docket No. 152049
• Citation: 210 Mich.App. 211,532 N.W.2d 872
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Victor PREMEN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 872

532 N.W.2d 872

210 Mich.App. 211

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Victor PREMEN, Defendant-Appellant.

Docket No. 152049.

Court of Appeals of Michigan.

Submitted Nov. 3, 1994, at Detroit.

Decided April 21, 1995, at 11:10 a.m.

Released for Publication June 19, 1995.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Karen M. Woodside, Asst. Pros. Atty., for people.

Tuchow & Trahey Law Offices by Gerald Tuchow, Charles H. Noble, of counsel), Flat Rock, for defendant.

Before FITZGERALD, P.J., and MICHAEL J. KELLY and POST, ^* JJ.

FITZGERALD, Presiding Judge.

Defendant is a licensed dentist. Following a jury trial, he was convicted of three counts of filing a false claim for health care benefits, M.C.L. § 752.1003(3); M.S.A. § 28.547(103)(3), and was sentenced to two years' probation. Defendant was also ordered to pay restitution in the amount of $4,000. He appeals as of right. We affirm.

Defendant's convictions arose from instances in which he billed Blue Cross and Blue Shield of Michigan for applying amalgams to the teeth of three children when in actuality sealants, which were not a covered benefit, were applied. The statute under which defendant was convicted, subsection 3 of § 3 of the Health Care False Claim Act, M.C.L. § 752.1003(3); M.S.A. § 28.547(103)(3), provides:

A person shall not knowingly make or cause to be made a false statement or false representation of a material fact to a health care corporation or health care insurer for use in determining rights to health care benefits. Each claim which violates this subsection shall constitute a separate violation.

Subsection h of § 2 of the act provides that "knowingly" means:

[T]hat a person is in possession of facts under which he or she is aware or should be aware of the nature of his or her conduct and that his or her conduct is substantially certain to cause the payment of a health care benefit. "Knowing" or "knowingly" does not include conduct which is an error or mistake unless the person's course of conduct indicates a systematic or persistent tendency to cause inaccuracies to be present. [M.C.L. § 752.1002(h); M.S.A. § 28.547(102)(h).]

Subsection c of § 2 defines "false" as "wholly or partially untrue or deceptive." Subsection b of § 2 defines "deceptive" as "making a claim to a health care corporation or health care insurer which contains a statement of fact or which fails to reveal a material fact, which statement or failure leads the health care corporation or health care insurer to believe the represented or suggested state of affair to be other than it actually is."

On appeal, defendant raises three arguments in support of his assertion that the act is unconstitutional. First, defendant maintains that § 3 is unconstitutionally vague because it does not provide fair notice of the conduct proscribed and because it is so indefinite that it confers unlimited discretion on the trier of fact to determine whether an offense was committed. Such challenges must be examined in the light of the facts at hand. People v. Gunnett, 158 Mich.App. 420, 426, 404 N.W.2d 627 (1987), after remand 182 Mich.App. 61, 451 N.W.2d 863 (1990).

A statute must be sufficiently clear and definite to give a person of common intelligence fair notice of prohibited conduct. Allison v. Southfield, 172 Mich.App. 592, 596, 432 N.W.2d 369 (1988). The statute, on its face, provides that a person, as defined by the statute, may not make an untrue or partially untrue statement or representation on a claim to a health care insurer. The person must be aware, or should be aware, of the nature of the untrue statement or representation, and aware that this statement will, with substantial certainty, cause payment of a health care benefit. Giving the word "untrue" its ordinary meaning, People v. Jackson, 140 Mich.App. 283, 287, 364 N.W.2d 310 (1985), the statute gives a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited, and allows such a person to avoid that conduct. People v. Hayes, 421 Mich. 271, 284, 364 N.W.2d 635 (1984).

The gist of defendant's argument, however, is that the terms of the statute are liberal enough to include a clerical mistake. We disagree. The definition of "knowingly" specifically excludes inadvertent error unless a "systematic or persistent tendency" toward inaccuracies is present. Further, a defendant can not challenge a statute by asserting the hypothetical rights of others. Gunnett, supra, 158 Mich.App. at 427, 404 N.W.2d 627. Although defendant claims that the false claims were the result of clerical mistakes, the evidence was sufficient to permit a rational trier of fact to find that defendant engaged in a systematic attempt to defraud Blue Cross and that the claims did not occur as the result of a mistake. ¹

Subsection 2 of § 7 of the statute creates a rebuttable presumption that a person knowingly made a claim for a health care benefit if the person signed or stamped the health care claim. M.C.L. § 752.1007(2); M.S.A. § 28.547(107)(2). Defendant maintains that the presumption eliminates the element of intent by nullifying that portion of the definition of "knowingly" that provides an exception for errors or mistakes.

The standard for presumptions in criminal cases was set forth in Leary v. United States, 395 U.S. 6, 33-34, 89 S.Ct. 1532, 1547, 23 L.Ed.2d 57 (1969):

[A] statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may not be created upon a view of relation broader than that a jury might take in a specific case. But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them, it is not competent for the legislature to create it as a rule governing the procedure of courts.

Here, there is a rational connection between the fact proved and the fact presumed. Nonetheless, the statute provides for situations wherein the connection between the fact proved and the fact presumed is not established by making the presumption rebuttable. Evidence that the claims were submitted as the result of an error could, therefore, rebut the presumption and prevent a conviction where the claims were not knowingly made. We decline to reverse on vagueness grounds.

Second, defendant claims that the act violates the title-object clause of Const 1963, art 4, § 24. Specifically, defendant maintains that the provisions of the act are broader than the title because the act allows prosecution for conduct that is not accompanied by fraudulent intent. Defendant fails to recognize, however, that the act requires that any false statement or representation be made "knowingly." Where a statute requires that the criminal act be committed "knowingly," the crime is a specific intent crime. People v. American Medical Centers of Michigan, Ltd., 118 Mich.App. 135, 153, 324 N.W.2d 782 (1982). Accordingly, health care fraud is a specific intent crime.

Defendant further claims that the statute is broader than its title, which discusses fraud "in the obtaining of benefits or payments in connection with health care coverage and insurance," because the statute does not require receipt of benefits. We disagree. Mirroring the title, the statute requires that the false statement or representation be made "for use in determining rights to health care benefits." M.C.L. § 752.1003(3); M.S.A. § 28.547(103)(3).

Last, defendant argues that the statute is unconstitutional because it (1) requires no actor, (2) eliminates the prosecution's burden of proof, and (3) eliminates the presumption of innocence.

Statutes are presumed to be constitutional and are to be so construed unless their unconstitutionality is clearly apparent. Caterpillar, Inc. v. Dep't. of Treasury, 440 Mich. 400, 413, 488 N.W.2d 182 (1992); People v. Trinity, 189 Mich.App. 19, 21, 471 N.W.2d 626 (1991). Every reasonable presumption must be indulged in favor of a statute's constitutionality. Petrus v. Dickinson Co. Bd. of Comm'rs., 184 Mich.App. 282, 293, 457 N.W.2d 359 (1990).

First, the act requires an actor. There must be a "person," as statutorily defined, who makes a false statement or representation.

M.C.L. § 752.1003(3); M.S.A. § 28.547(103)(3).

Second, the offense is a specific intent crime. Where knowledge is an element of an offense, it includes both actual and constructive knowledge. People v. American Medical Centers, supra at 154, 324 N.W.2d 782. Hence, the statute does not eliminate the element of knowledge by providing that it is not necessary to show that a provider "had actual notice that the acts by the persons acting on the person's behalf occurred." M.C.L. § 752.1007(1); M.S.A. § 28.547(107)(1). Rather, the statute merely addresses the prosecutor's burden of proof.

Finally, the presumption of knowledge does not eliminate the presumption of innocence or shift the burden of proof. The Fourteenth Amendment of the United States Constitution requires that the prosecution prove every element of a criminal offense beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 520, 99 S.Ct. 2450, 2457, 61 L.Ed.2d 39 (1979). Thus, the prosecution may not use a conclusive presumption, or one that shifts the burden of persuasion to a defendant. Here, the statute creates a "rebuttable presumption." Such a presumption shifts only the burden of production, not the burden of persuasion. Nonetheless, the trial court did not instruct the jury regarding the presumption and, therefore, the presumption had no effect on defendant's trial. Gunnett, supra, 158 Mich.App. at 427, 404 N.W.2d 627.

Next, we reject defendant's argument...