State v. Barnes

• Decision Date: 15 January 2008
• Docket Number: No. ED 88792.,ED 88792.
• Citation: 245 S.W.3d 885
• Parties: STATE of Missouri, Respondent, v. Jeffrey Chandler BARNES, and Jeff Barnes, Inc. d/b/a Best Buy Pharmacy of Louisiana, Appellants.
• Court: Missouri Court of Appeals

245 S.W.3d 885

STATE of Missouri, Respondent, v. Jeffrey Chandler BARNES, and Jeff Barnes, Inc. d/b/a Best Buy Pharmacy of Louisiana, Appellants.

No. ED 88792.

Missouri Court of Appeals, Eastern District, Division One.

January 15, 2008.

Rehearing Denied February 19, 2008.

Donald E. Heck, Chesterfield, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jayne T. Woods, Jefferson City, MO, for respondent.

KENNETH M. ROMINES, Judge.

Introduction

A jury convicted each Appellant of one count of stealing by deceit, Section 570.030 RSMo.¹ and thirteen counts of making a false statement to obtain a health care payment, Section 191.905.1 RSMo. Along with the jury's recommendation of one year in jail, the trial court ordered restitution and civil penalties and made Appellants jointly and severally liable for the total amount. Appellants argue there was insufficient evidence to support the convictions, that the charges overlapped and subjected them to double jeopardy, that the trial court improperly admitted some of the State's exhibits, and that the restitution and civil penalties exceeded the statutorily allowable amounts. We affirm the convictions and remand to the trial court to recalculate the proper amount of restitution.

Factual and Procedural Background

Appellant Jeffery Chandler Barnes ("Barnes") was at all relevant times the president and sole owner of Appellant Jeff Barnes, Inc. ("Barnes, Inc."). Barnes, Inc. is a Missouri corporation duly organized and existing according to law, and Barnes, Inc. did business as Best Buy Pharmacy of Louisiana. Best Buy Pharmacy applied for and was granted status as a Medicaid pharmacy provider by the Division of Medical Services (DMS). During 2003, Barnes served as the Pharmacist-in-Charge at Best Buy Pharmacy. Under the Board of Pharmacy regulations, this meant that he had final responsibility for all activity involving the dispensation, validity, authenticity, and accuracy of prescriptions. DMS holds both the Pharmacist-in-Charge and the owner of the property collectively responsible for the accuracy of claims submitted.

In October 2003, Clarita McGreevy, a Medicaid recipient, noticed that her quarterly benefits statement was incorrect. She saw that the statement contained a billing for the drug Regranex on 9 June 2003, which she never received. She had never used Regranex nor had a prescription for it. Ms. McGreevy brought this discrepancy to Barnes' attention, who told her he would reverse it. Ms. McGreevy also notified DMS about the incorrect billing. DMS referred the complaint to the Attorney General's office, which opened an investigation.

The investigator, Scott Hankins, spoke with both Ms. McGreevy and her physician, who confirmed that she had never received a prescription for Regranex. Mr. Hankins then examined Best Buy Pharmacy's billing history for the drug Regranex. He noticed that the drug was never billed before March 2003, but after that, billings for the drug spiked through the rest of the year. Hankins also examined the diagnosis codes for all of the patients of Best Buy Pharmacy and learned that none of the patients had medical histories indicating the need for Regranex.²

After discovering this, Mr. Hankins decided to expand the investigation to determine whether there were other drugs for which the billings exhibited a similar pattern. He identified four other such drugs: Dovonex, Lamisil, Maxalt, and Zyprexa ("the suspect drugs"). Mr. Hankins found that several patients who had been billed for the suspect drugs did not have medical histories indicating a need for them. Mr. Hankins subpoenaed prescription records for Best Buy Pharmacy in December 2003, and in the months following, he saw a sharp decline in billings for any of the suspect drugs.

Mr. Hankins also examined the bank account of Barnes, Inc., and he discovered that all of the money coming from billings of the suspect drugs was directly deposited into the account by Medicaid. Further, Barnes was the sole signatory on the account.

The State then filed an information against both Barnes and Barnes, Inc., containing fourteen counts against each. Count I was stealing by deceit, which included forty-five transactions of different drugs for a number of patients. Counts II through XIV were all counts of Medicaid fraud, each concerning a different patient and/or a different billing date. The jury found both Barnes and Barnes, Inc. guilty of the class C felony of stealing by deceit over $500, Section 570.030. RSMo., and guilty of thirteen counts of making false statements to Medicaid in order to receive reimbursement, Section 191.905.1 RSMo., each a class D felony.³ The jury recommended a sentence of one year and fines to be determined by the court. The court did sentence Barnes to one year in the county jail as to Count I. For Counts II through XIV, the court ordered that both Barnes and Barnes, Inc. were liable for $49,732.84 in restitution. The court then doubled that amount and added damages of $99,465.68. As civil penalties, which are authorized by Section 191.905.11, the court ordered $5,000.00 per count per defendant for a total of $130,000.00. The court then ordered that Barnes and Barnes, Inc. would be jointly and severally liable for the full amount, or $279,198.52.

Appellants raise twelve points on appeal. We categorize them into four arguments: 1) that the evidence was insufficient to convict either Appellant of any count; 2) that Appellants were subject to double jeopardy; 3) that admission of State's graphical exhibits violated discovery rules, constituted improper evidence of other crimes, and were improperly admitted without validation by an expert; 4) that the sentences were improper.

Sufficiency of the Evidence

Standard of Review

"We review the denial of a motion for a judgment of acquittal to determine whether the state adduced sufficient evidence to make a submissible case." State v. Agnew, 214 S.W.3d 398, 400 (Mo.App. E.D.2007). "To make this determination, we view all of the evidence, and all reasonable inferences that may be drawn therefrom, in the light most favorable to the verdict, and we disregard all contrary evidence and inferences." Id. "We ascertain whether there was sufficient evidence from which reasonable persons could have found the defendant guilty beyond a reasonable doubt." Id.

Count I

The State has the burden to prove each and every element of its case beyond a reasonable doubt. State v. Taylor, 126 S.W.3d 2, 4 (Mo.App. E.D.2003). Barnes argues that the State did not make a submissible case as to himself nor as to the corporation, Barnes, Inc. In order to find Barnes guilty, the court instructed the jury that they had to find the following beyond a reasonable doubt:

First, that on or about January 22, 2003, through January 5, 2004, in the County of Pike, State of Missouri, the defendant Jeffrey Chandler Barnes obtained Medicaid program funds, property in the possession of the State of Missouri, and Second, that Jeffrey Chandler Barnes did so by deceit by representing to the State of Missouri that he dispensed various prescription drugs to multiple Medicaid recipients, and

Third, that such statement was false, and

Fourth, that Jeffrey Chandler Barnes knew such statement was false, and

Fifth, that the State of Missouri relied on such statement and was thereby induced to part with such property, and

Sixth, that Jeffrey Chandler Barnes obtained such property for the purpose of withholding it from the owner permanently, and

Seventh, that the property so obtained had a combined value of at least five hundred dollars[.]

In order to find Barnes, Inc. guilty, the jury had to further find these two elements beyond a reasonable doubt:

Eighth, that Jeffrey Chandler Barnes was then a high managerial agent for the defendant Jeff Barnes, Inc. d/b/a Best Buy Pharmacy of Louisiana, and

Ninth, that Jeffrey Chandler Barnes engaged in or knowingly tolerated the conduct described in paragraphs First through Seventh within the scope of his employment and in behalf of the defendant Jeff Barnes, Inc.

Appellants claim that the evidence for each Appellant was insufficient for several reasons. First, they claim that the evidence failed to demonstrate that Barnes knowingly and personally submitted any false claim to Medicaid or that he knowingly directed or caused any employee of Barnes, Inc. to do so. Barnes bases this argument on testimony at trial from Best Buy Pharmacy employees, who testified that Barnes himself rarely called in prescriptions or submitted billings to Medicaid.

However, Dr. George Oestreich, Deputy Director of DMS, testified that Barnes' initials were on many, if not all, of the prescriptions at issue for the suspect drugs. Furthermore, as Pharmacist-in-Charge, Barnes was responsible for the validity of prescriptions regardless of who actually submitted billings for them to Medicaid. There was abundant evidence presented on the point that prescriptions for the suspect drugs were invalid because most of these patients did not suffer from any ailment the drugs could treat, nor had they ever been prescribed the drugs. Finally, there was evidence showing that after Mr. Hankins subpoenaed billing records from the pharmacy, billings for the suspect drugs dropped dramatically. Count I consisted of forty-five allegedly false transactions, and it would be reasonable for a jury to conclude that this amounts to more than a mistake. All of this evidence leads to a reasonable inference that Barnes knew the billings were false.

Appellants additionally argue that in order to find paragraph Second of the verdict director to be true, the jury had to find that the medications for which Medicaid was fraudulently billed were not actually delivered to the patients listed on the billings. One witness, Ms. McGreevy, did testify that she did not receive the medication, but the other witnesses said they did not remember. However, due to the testimony that those...