State v. Classen

• Decision Date: 11 December 1987
• Docket Number: 59912,Nos. 59911,s. 59911
• Citation: 747 P.2d 784,242 Kan. 192
• Parties: STATE of Kansas, Appellee, v. Teresa E. CLASSEN a/k/a Latisa Mecheux a/k/a Theresa E. Classen a/k/a Latricia E. Mecheaux, Appellant. STATE of Kansas, Appellee, v. Latisa MICHEAUX, Appellant.
• Court: Kansas Supreme Court

Page 784

747 P.2d 784

242 Kan. 192

STATE of Kansas, Appellee, v. Teresa E. CLASSEN a/k/a Latisa Mecheux a/k/a Theresa E.

Classen a/k/a Latricia E. Mecheaux, Appellant.

STATE of Kansas, Appellee, v. Latisa MICHEAUX, Appellant.

Nos. 59911, 59912.

Supreme Court of Kansas.

Dec. 11, 1987.

Syllabus by the Court

1. The sufficiency of an indictment or information is to be measured by whether it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and by whether it is specific enough to make a plea of double jeopardy possible.

2. An indictment or information for an offense is sufficient if it follows the language of the statute substantially or charges the offense in equivalent words or others of the same import.

3. While an information may be insufficient if it fails to allege an essential element of the offense, an information should be read in its entirety, construed according to common sense, and interpreted to include facts which are necessarily implied.

4. The crime of welfare fraud under K.S.A. 39-720 is an independent crime from the crime of theft as defined by K.S.A. 1986 Supp. 21-3701.

5. The crime of welfare fraud (K.S.A. 39-720) is essentially the crime of obtaining welfare assistance by deception or fraud. Although a fraudulent act must be proved, an intent to deprive permanently need not be alleged or proved. Once the fraudulent act is willfully done, the crime is complete.

Brad L. Keil, Asst. Appellate Defender, argued, and Benjamin C. Wood, Chief Appellate Defender, was with him on the brief, for appellants.

Geary N. Gorup, Asst. Dist. Atty., argued, and Robert T. Stephan, Atty. Gen., Clark V. Owens, Dist. Atty., and Debra Barnett, Asst. Dist. Atty., were on the brief, for appellee.

PRAGER, Chief Justice:

This is a direct appeal by the defendant, Latisa Micheaux, from her conviction following a plea of guilty to one count of welfare fraud (K.S.A. 39-720 and K.S.A. 1986 Supp. 21-3701). The trial judge refused to follow the State's recommendation that defendant be placed on probation and imposed sentence. Defendant then filed a timely appeal. The Court of Appeals reversed defendant's conviction in an unpublished opinion filed June 18, 1987. The Supreme Court granted the State's petition for review.

The sole issue before this court is whether the trial court lacked jurisdiction to convict defendant Micheaux of welfare fraud or theft because the information failed to allege a crime. The facts in this case are undisputed. The complaint/information charged the defendant with welfare fraud under K.S.A. 39-720 and K.S.A. 1986 Supp. 21-3701, which provide as follows:

"39-720. Penalty relating to fraudulent acts, civil actions, evidence. 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. 21-3701; and he shall be required to remit to the secretary the amount of any assistance given him under such fraudulent act. In any civil action for the recovery of assistance on the grounds the assistance was fraudulently obtained, proof that the recipient of the assistance possesses or did possess resources which does or would have rendered him ineligible to receive such assistance shall be deemed prima facie evidence that such assistance was fraudulently obtained."

K.S.A. 1986 Supp. 21-3701:

"21-3701. Theft. Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner's property:

"(a) Obtaining or exerting unauthorized control over property; or

"(b) Obtaining by deception control over property; ..."

"Theft of property of the value of $150 or more is a class E felony. Theft of property of the value of less than $150 is a class A misdemeanor, except that theft of property of the value of less than $150 is a class E felony if committed by a person who has, within five years immediately preceding commission of the crime, been convicted of theft two or more times."

The complaint/information on which defendant was convicted alleged one count of welfare fraud as follows:

"COMPLAINT/INFORMATION

"COMES NOW, Mark Sevart, a duly appointed, qualified and acting Assistant District Attorney of the 18th Judicial District of the State of Kansas, and for and on behalf of the said State gives the Court to understand and be informed that in the County of Sedgwick, and State of Kansas, and on or about the 11th day of May, 1984, A.D., and from then on continuously until and including the 4th day of September, 1984, one Latisa Micheaux, did then and there unlawfully, willfully and knowingly obtain or attempt to obtain cash assistance to which defendant was not entitled in a total and aggregate amount of $756.00, by means of a false statement or other fraudulent device, to wit: submission of income reporting forms to the State Department of Social and Rehabilitation Services on which defendant failed to disclose she was employed and receiving wages by otherwise failing to report to the State Department of Social and Rehabilitation Services that she was receiving income from a source other than welfare assistance."

The Court of Appeals held that the information was fatally defective for the reasons stated in State v. Bryan, 12 Kan.App.2d 206, 738 P.2d 463, rev. denied 241 Kan. ---- (July 16, 1987). In Bryan, the defendant appealed her conviction of four counts of felony theft pursuant to K.S.A. 39-720 and K.S.A.1986 Supp. 21-3701, commonly known as welfare fraud. The four counts of welfare fraud alleged in the information were essentially the same as the allegations contained in the information now before us. In Bryan, the court pointed out that none of the four counts alleged that the defendant had obtained control of the State's property with the intent to deprive the owner permanently of the possession, use, or benefit of the property, which is an element of theft as set forth in K.S.A.1986 Supp. 21-3701. Defendant Bryan contended that the district court erred in convicting her of welfare fraud on the grounds that an intent to deprive the owner permanently of the possession or ownership of the property is an essential element of the crime and, because the information failed to specifically include that necessary intent in each of the counts, the information was fatally defective. The court in Bryan agreed, stating in the opinion as follows:

"A conviction for welfare fraud under K.S.A. 39-720 is a conviction for theft. K.S.A. 39-720; State v. Ambler, 220 Kan. 560, 552 P.2d 896 (1976). An essential element of the crime of theft is that the accused obtain the property 'with intent to deprive the owner permanently of the property.' K.S.A. 1986 Supp. 21-3701; State v. Burnett, 4 Kan.App.2d 412, Syl. p 1, 607 P.2d 88 (1980).

"The State contends that a person who fraudulently obtains welfare assistance to which the person is not entitled, according to K.S.A. 39-720, 'shall be guilty of theft.' The problem with the State's argument is that K.S.A. 39-720 does not stop at the point where it states that '[a]ny person who obtains ... by means of ... fraudulent device, assistance to which the [person] is not entitled, shall be guilty of the crime of theft.' (Emphasis added.) Presumably, the Legislature could have stopped at that point. See State v. Jones, 214 Kan. 568, 570, 521 P.2d 278 (1974) ('The Legislature has the power to define and prescribe punishment for criminal offenses.') However, the statute continues, saying that such person 'shall be guilty of the crime of theft, as defined by K.S.A. 21-3701.' (Emphasis added.) K.S.A. 1986 Supp. 21-3701 in fact defines 'theft' as obtaining control over property 'with intent to deprive the owner permanently of the possession ... of the owner's property.' A person is not guilty of theft 'as defined by K.S.A. 21-3701' unless that person obtains control of the property with the intent to permanently deprive the owner of his property. Thus, we hold that an information charging an accused of 'welfare fraud' under K.S.A. 39-720 must allege that the accused obtained control of the property with the intent to permanently deprive the owner of his property." 12 Kan.App.2d at 207-08, 738 P.2d 463.

The court in Bryan rejected the State's contention that K.S.A. 39-720 is an independent penal statute and that the specific elements listed in that statute constitute an independent crime. The court stated that a conviction for fraudulently obtaining welfare assistance is a conviction for theft, specifically theft by deception under K.S.A. 1986 Supp. 21-3701(b), and that K.S.A. 39-720 does not define welfare fraud as a crime independent of theft, but defines it as theft. Thus, the State's argument that K.S.A. 39-720 constitutes an independent crime was held to be without merit. In Bryan, the State contended that the reference in K.S.A. 39-720 to 21-3701 exists only for dispositional purposes; that is, to determine whether the proscribed act is a felony or a misdemeanor depending on the value of the assistance fraudulently obtained. The court in Bryan refused to accept this argument, concluding that the use of the words in K.S.A. 39-720 "shall be guilty of the crime of theft, as defined by K.S.A. 21-3701," in place of the prior statutory language, showed that the legislature intended that the elements of theft under 21-3701 had to be proved in order to convict the defendant of welfare fraud under K.S.A. 39-720.

The issue presented in this case is difficult because of the peculiar language used in K.S.A. 39-720. Before determining the issue, it would be helpful to consider some of the general principles of law which are followed in this state in construing and...