State v. Harris
| Decision Date | 03 July 2018 |
| Docket Number | Appeal No. 2016AP2489-CR |
| Parties | STATE OF WISCONSIN, PLAINTIFF-RESPONDENT, v. YVETTE L. HARRIS, DEFENDANT-APPELLANT. |
| Court | Court of Appeals of Wisconsin |
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.
APPEAL from a judgment and orders of the circuit court for Milwaukee County: JEAN A. DIMOTTO and MARK A. SANDERS, Judges. Affirmed.
Before Stark, P.J., Hruz and Seidl, JJ.
Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
¶1 Yvette Harris appeals a judgment of conviction, entered following a jury trial, for Medicaid fraud1 and theft by false representation of an amount under $2500. Harris also appeals two orders. Harris appeals an order denying her postconviction motion contending: (1) the two convictions were multiplicitous and thus in violation of the constitutional prohibition against double jeopardy; (2) her trial counsel provided ineffective assistance; and (3) the evidence at trial was insufficient to support her convictions. In addition, she appeals an order denying her motion for reconsideration of the circuit court's denial of her postconviction motion. On appeal, Harris again contends that: (1) Medicaid fraud and theft by false representation are multiplicitous charges; (2) she was denied effective assistance of counsel on various grounds; (3) insufficient evidence was presented at trial to support her convictions; and (4) she should receive a new trial in the interest of justice. We reject all of Harris's arguments and affirm.
¶2 The State charged Harris with three counts: Medicaid fraud totaling $32,330.41, in violation of WIS. STAT. § 49.49(1)(a)1. (2011-12);2 theft by false representation totaling $32,330.41, in violation of WIS. STAT. § 943.20(1)(d) and (3)(c); and unauthorized use of personal identification information, in violation of WIS. STAT. § 943.201(2). All three charges stemmed from Harris billing Medicaidfor private nursing care she allegedly provided to Kayla,3 a child with muscular dystrophy, between June 18, 2010, and April 1, 2011. The State alleged Harris did not actually perform all of the billed services.
¶3 The case was tried to a jury. In its opening statement, the State explained, "Essentially the allegation the State is making is that Yvette Harris submitted those claims for payment from Medicaid when she did not actually provide services for [Kayla], the seven year old child." The State described Kayla's mother's likely testimony, stating:
Most importantly[,] I think in the context of this case, [Mary4], the mother of the child, will tell you that Yvette Harris did not provide cares for [Kayla] in her residence on 27th Street between May and November of 2010 or in [Mary]'s house on 17th Street between November and April of 2011.
The State also predicted the evidence would show Harris provided some care for Kayla—because she filled in for Kayla's regular nurse several times—but she did not work on all the days for which Medicaid paid her.
¶4 The State called three witnesses to establish the Medicaid billing process: David Miess, Cindy Zander, and Lori Schey. Miess, the provider relations manager for Hewlett Packard, testified that Hewlett Packard was the fiscal agent for the Wisconsin Department of Health Services (DHS), running the day-to-day activities for Medicaid. He stated that Harris had been a certified provider eligible to bill Medicaid in Wisconsin since December 1992. Miessfurther testified that Harris billed Medicaid electronically for her work via a billing service, and he explained that billing process. Schey testified that she ran Badger Land Billing, the billing service Harris used. Schey explained that in order to submit her claims to Medicaid, Harris reported her hours for each patient by phone to Schey. Schey would then transmit those claims to Hewlett Packard on Harris's behalf on a weekly basis.
¶5 Zander, a nurse consultant with DHS, testified that Harris was listed as a care provider on multiple prior authorization care plans for Kayla. Zander explained that those forms indicate the treatment and orders for Medicaid services requested for a particular patient. Zander also explained that a nurse, Lawana Al-Dhari, prepared Kayla's forms.
¶6 Two witnesses testified as to Harris's work for other companies—namely, as a field staffer for a home health services company and at a nursing home—during the same time period that Harris had submitted claims for her care of Kayla. Kayla's other care providers, Al-Dhari and Loretta Lee, testified that Harris never provided care for Kayla. Al-Dhari testified that she and Harris had both a professional and personal relationship for close to twenty years. Al-Dhari also described various instances when Harris came to Kayla's home and when Al-Dhari took Kayla to Harris's home. Al-Dhari, Mary, and several witnesses presented by the defense testified that Kayla and her family attended Harris's son's graduation party.5 Harris's daughter, Harris's friend, and two of Harris's neighbors all testified that they saw Kayla with Harris on various occasions.
¶7 Kayla lived with Mary, though Kayla had been hospitalized for the first years of her life before her mother could arrange in-home care. Kayla's father testified he was always involved in Kayla's care, despite having been "split up" with Mary for some time. Mary and Kayla's father both testified that Harris never provided care for Kayla. While Mary testified that she interviewed Harris in 2010 to provide in-home care to Kayla, she explained that she hired Al-Dhari and Lee, not Harris. Mary initially stated that she did not authorize Harris to bill Medicaid on behalf of Kayla or provide Kayla's Medicaid member identification number to Harris. On cross-examination by Harris's counsel, Mary acknowledged that she had signed a prior authorization form allowing Harris to provide care for Kayla. Kayla's aunt testified that she did not know Harris, and that Lee and Al-Dhari were Kayla's private nurses.
¶8 Alfredo Gutierrez, the Medicaid fraud investigator who investigated Harris, also testified. Gutierrez explained that Harris had billed Medicaid for 138 dates of service related to care for Kayla, and she had been paid for 136 dates of service for a total of about $32,000.6 Gutierrez interviewed Mary during his investigation, and she told him that she did not know Harris. Gutierrez also interviewed Harris as part of his investigation. Although Harris told him she provided care to Kayla, she seemed unsure of Kayla's home address. Gutierrez asked Harris if she had her nursing notes, and she told him she did not have them but that Al-Dhari should have a copy of her nursing notes.
¶9 The State then asked Gutierrez to look at nursing notes signed by Harris, which Harris's counsel had "supplied," and to compare them to progress notes from one of Harris's employers. Gutierrez examined these exhibits and explained that they showed some days on which Harris provided care for Kayla (based on her nursing notes), but, at the same time, Harris had been working at another job (based on the progress notes). Gutierrez also explained that, for one particular date, Harris's nursing notes indicated that she worked from 7:30 a.m. to 9:30 a.m., but she billed Medicaid for twelve hours. When asked what he could conclude from that, Gutierrez stated, "It could be just a mistake on Ms. Harris'[s] part instead of putting 0730 to 1930, which she usually documented, she put 0—a zero instead of a one—9[:]30." Harris's counsel did not object to the introduction of this evidence.
¶10 Janice Gordon, a registered nurse, testified that she worked as a prior authorization liaison (PAL) and explained this work meant she would complete the paperwork for private duty nurses. Gordon was a PAL for Al-Dhari and prepared Kayla's plan of care. Gordon testified that Al-Dhari told her to put Harris on the plan of care, and she did so. Gordon further testified that Al-Dhari said Harris provided care for Kayla.
¶11 The State acknowledged in its closing argument that there was evidence Harris had provided some care for Kayla, but it argued Harris did not provide all the care for which Medicaid had paid her. Harris argued that her nursing notes showed merely a few unintentional billing mistakes, but not fraud.
¶12 The jury found Harris guilty of medical assistance fraud and theft by fraud, but it acquitted her of unauthorized use of personal identification information. On the verdict form, the jury was asked that if it found Harris guiltyof theft, to answer whether the value of the property to which Harris obtained title was more than $10,000. The jury answered "No" to this question. The circuit court then convicted Harris of medical assistance fraud and Class A misdemeanor theft, rather than of a Class G felony theft as charged.7
¶13 Harris then filed a postconviction motion raising substantially the same issues she now raises on appeal. With respect to her ineffective assistance argument, Harris alleged that if her trial counsel had advised her to testify, she would have explained that the nursing notes on which the State relied could have been inaccurate because she recreated them after the originals were destroyed in a July 2010 flood. Further, Harris claimed she would have addressed and explained the specific billing dates Gutierrez identified during his testimony. Harris's explanations for the instances of double-billing included that she took Kayla with her when she visited several other patients for her other job, and that she made a data entry mistake. Harris also argued that her trial attorney was ineffective for...
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