State v. Ambler, 48221
| Decision Date | 23 July 1976 |
| Docket Number | No. 48221,48221 |
| Citation | 220 Kan. 560,552 P.2d 896 |
| Parties | STATE of Kansas, Appellee, v. Maudry AMBLER, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
The record on appeal from a conviction by a jury of the offense of theft of property of the value of $50 or more (K.S.A. 39-720 and K.S.A. 21-3701), commonly referred to as welfare fraud, is examined, and, as more fully set forth in the opinion, it is held: (1) the constitutional ground for reversal asserted for the first time on appeal is not properly before this court for review; (2) the state's evidence did establish a legal requirement that the defendant report to the Department of Social and Rehabilitation Services social security payments she received for her son; (3) the admission of evidence relating to the illegitimacy of the defendant's son was harmless error.
W. J. Fitzpatrick of Independence, argued the cause and was on the brief for appellant.
David L. Thompson, County Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.
This is an appeal from a conviction by jury trial of the crime of theft of property of the value of $50 or more (K.S.A. 39-720 and K.S.A. 21-3701).
The offense proscribed by these statutes is commonly referred to as welfare fraud. K.S.A. 39-720 provides in pertinent part:
'Any person who obtains or attempts to obtain, or aids or abets any other person to obtain, by means of a willfully false statement or representation, or by impersonation, collusion, or other fraudulent device, assistance to which the applicant or client is not entitled, shall be guilty of the crime of theft, as defined by K.S.A.1972 Supp. 21-3701; and he shall be required to remit to the secretary the amount of any assistance given him under such fraudulent act. . . .'
K.S.A. 21-3701 provides in pertinent part:
'Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of his property:
'(a) Obtaining or exerting unauthorized control over property; or
'(b) Obtaining by deception control over property . . .
The information charged the defendant, Maudry Ambler, with willfully failing to report income she received from social security during the period of February 1, 1973, through July 1, 1974. This willful false statement was said to have resulted in an overpayment of approximately $900 in Aid to Dependent Children (ADC) payments from the Department of Social and Rehabilitation Services (SRS).
The evidence showed that the defendant had four minor children and had received ADC payments since 1970. About one month after the ADC payments started, the defendant's oldest son began receiving social security payments as the result of his father's death. These social security payments continued throughout the period of the offense.
The amount of ADC payments depends upon household income-i. e., earned income and household resources. ADC recipients are required to submit monthly and semiannual reports on household resources to SRS on forms which are provided. The defendant prepared and submitted all required forms. On each, she listed her current job or jobs and the amount of her wages. On none of the forms did she report the social security payments she received for her son.
That a member of the defendant's household was receiving social security payments first came to light in July of 1974 in a discussion an SRS income maintenance worker had with the defendant. In examining other possible sources of income for the defendant's household in order to reduce the amount SRS had to pay, the worker asked the defendant about the possibility of her getting social security payments. The defendant first said she was not sure she would be able to get such payments. As the discussion continued, she indicated she had recently started receiving a small social security payment of about $5 a month. Upon further questioning, she said her payments had gone up a little in July to maybe $70 a month.
The income maintenance worker checked with the local Social Security Office and learned that defendant had received social security benefits on behalf of her son continuously since January, 1971. At the time of the worker's conversation with the defendant in July, 1974, her monthly social security payments were $102.90.
The defendant gave two reasons for not reporting the social security payments. She told the income maintenance worker she was acting on the advice of some attorney. However, she did not give the attorney's name nor did she have the attorney contact the worker as requested. At trial, her stated reason for not reporting the social security payments was that the report forms did not require it.
Various mandatory report forms the defendant had filled out were admitted into evidence. Each of the forms had a section for reporting 'income.' On each form, this section was divided into subsections of 'earnings' and 'other income.' On one form, the following language prefaced the two subsections: 'Report below all income received by persons in the household whose needs are included in your assistance.' Another form used this prefatory language: 'Do you or anyone included in your assistance payment have any income?' On each form, social security was enumerated as one of several sources of 'other income.' Some of the forms also included a space for the name of the person in the household who was receiving social security payments.
After deliberating four hours, the jury rendered a verdict of guilty of theft. The defendant was sentenced to one to ten years and was subsequently placed on probation for two years. One of the conditions of parole was that she make restitution to the Montgomery County SRS, and pay the costs of this action.
The appellant raises three...
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...evidence is of such a nature as to affect the outcome of a trial so as to amount to a denial of substantial justice. State v. Ambler, 220 Kan. 560, 564, 552 P.2d 896 (1976); State v. Farris, 218 Kan. 136, 542 P.2d 725 (1975); K.S.A. 60-2105. Whether inadmissible testimony constitutes harmle......
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