State v. Jones

• Decision Date: 26 May 1989
• Docket Number: No. 62119,62119
• Citation: 775 P.2d 183,13 Kan.App.2d 520
• Parties: STATE of Kansas, Appellee, v. Laufranze Keoka JONES, Appellant.
• Court: Kansas Court of Appeals

Page 183

775 P.2d 183

13 Kan.App.2d 520

STATE of Kansas, Appellee, v. Laufranze Keoka JONES, Appellant.

No. 62119.

Court of Appeals of Kansas.

May 26, 1989.

Review Granted Sept. 26, 1989

Syllabus by the Court

1. In order to rely upon the concealment exception to the statute of limitations, the State must allege concealment in the information. Following State v. Schonenberger, 173 Kan. 665, 250 P.2d 777 (1952).

2. Welfare fraud (K.S.A. 39-720) is a continuing offense.

3. Theft of public assistance benefits over an extended time is a continuing offense.

4. Where the information charges the defendant with the offense of welfare fraud, the court has no jurisdiction to convict the defendant of theft.

5. Evidence that a special prosecutor and various prosecution witnesses are employed by the same state agency and work in the same building is immaterial and properly excluded absent a specific allegation of collusion, contrived evidence, or other impropriety.

6. In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained.

7. A statement is willfully false if a person intentionally makes a statement that he or she knows is not true.

Paul Flake, Student Intern, Lucille Marino, Asst. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.

James Savage, Asst. Dist. Atty., Nick A. Tomasic, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Before DAVIS, P.J., LEWIS, J., and TERRY L. BULLOCK, District Judge, Assigned.

DAVIS, Presiding Judge:

The defendant, Laufranze Keoka Jones, was charged with two counts of welfare fraud (K.S.A. 39-720), one count of making a false writing (K.S.A. 21-3711), and one count of theft (K.S.A. 21-3701). The charges are based upon the State's contention that defendant had obtained benefits to which she was not entitled by falsely representing that her teenage son was living with her when, in fact, he was living with his grandmother. Following a jury trial, the defendant was convicted on all four counts and sentenced to four concurrent terms of one to five years' imprisonment. She raises the following issues on appeal: (1) Whether the statute of limitations barred prosecution on the welfare fraud and theft charge; (2) whether defendant was denied due process by being convicted of theft when she had been charged with welfare fraud; (3) whether defendant was denied her right to cross-examine prosecution witnesses; and (4) whether defendant's convictions are supported by the evidence. We vacate defendant's conviction of welfare fraud in Count I because it was barred by the statute of limitations, reverse and remand on Count II based upon a denial of due process, and affirm on the remaining convictions.

Two types of welfare benefits are involved in this case. The first type is "public assistance" which includes food stamps, medical benefits, and aid to dependent children cash funds. Cash benefits are paid by monthly checks from the Kansas Department of Social and Rehabilitation Services (SRS) mailed to the recipient from Topeka. Defendant received a total of $5,221 in public assistance benefits from July 1, 1982, through March 31, 1983. Defendant's alleged wrongful receipt of these benefits constitutes Count I. Defendant also received $10,342 in the form of public assistance benefits from December 1, 1983, through December 31, 1985. Defendant's alleged wrongful receipt of these benefits constitutes Count II. Counts I and II each charged defendant with violations of K.S.A. 39-720 (the welfare fraud statute).

The second type of benefit involved is "Section 8" rental assistance payments. These are paid by the United States Department of Housing and Urban Development (HUD) through a local housing authority, in this case, the Kansas City, Kansas, Housing Authority, to the tenant's landlord. Count III charges defendant with receiving these benefits in violation of K.S.A. 21-3711 (making a false writing). Count IV charges defendant with receiving the "Section 8" rental assistance payments in violation of K.S.A. 21-3701 (theft). The additional facts necessary to resolve the issues in this case are set forth below.

Statute of Limitations

Count I of the amended information charges that an offense was committed between July 1, 1982, and March 31, 1983. Count II charges that an offense was committed between December 1, 1983, and December 31, 1985. Count IV, which is a theft charge, charges that an offense was committed between November 1, 1983, and September 10, 1986. A prosecution for any one of these three offenses must be commenced within two years after the offense is committed. K.S.A. 21-3106(3). In this case, the prosecution commenced when the original information was filed on September 10, 1986. Part of the offenses charged in Counts II and IV and the entire part of the offense charged in Count I were committed more than two years prior to the commencement of the prosecution. This, the defendant argues, bars prosecution of these three counts.

At trial and upon appeal, the State argues that the statute of limitations was tolled because the defendant concealed her crimes. K.S.A. 21-3106(4) provides that "the period within which a prosecution must be commenced shall not include any period in which: ... (c) the fact of the crime is concealed." The State argues that this "exception" is applicable because defendant, after making her initial applications for benefits, continued to represent on her monthly reporting forms and during her subsequent reviews that her son resided with her. Defendant argues that this is not concealment because she did nothing to hide her initial fraud, she merely repeated it.

We need not resolve this contention, for we conclude that the State is foreclosed from relying upon concealment because it failed to include allegations of concealment in the information charging the offenses. Failure to allege concealment in the information bars the State from relying on concealment as an exception to the statute of limitations. State v. Schonenberger, 173 Kan. 665, 669, 250 P.2d 777 (1952); see also Annot., "Necessity of Alleging in Indictment or Information Limitation-Tolling Facts," 52 A.L.R.3d 922 (majority of jurisdictions consider it necessary). Even though the defendant did not raise this argument below, a defect in the complaint "shall be noticed by the court at any time during the pendency of the proceeding." State v. Rasch, 243 Kan. 495, Syl. p 2, 758 P.2d 214 (1988).

Although the State may not rely on concealment if, as it contends, the nature of the crimes charged are continuing offenses, the question of whether the statute of limitations bars prosecution must still be addressed. K.S.A. 21-3106(5) provides that "[a]n offense is committed either when every element occurs, or, if a legislative purpose to prohibit a continuing offense plainly appears, at the time when the course of conduct or the defendant's complicity therein is terminated. Time starts to run on the day after the offense is committed."

State v. Gainer, 227 Kan. 670, 608 P.2d 968 (1980), interprets K.S.A. 21-3106(5). In Gainer, the defendant stole guns from a neighbor's attic and his theft was not discovered for some time. In order to avoid the statute of limitations, the State argued that the theft was a "continuing offense" since defendant had retained possession of the stolen guns. 227 Kan. at 671, 608 P.2d 968. The Supreme Court rejected this "rather inventive theory," explaining:

"The concept of continuing offenses is essentially a legal fiction. Fictions are usually avoided in the criminal law. [Citation omitted.] The courts have taken a very limited view of those crimes which constitute continuing offenses." 227 Kan. at 672, 608 P.2d 968.

In its analysis, Gainer adopted the rule announced by the U.S. Supreme Court in Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970):

"These principles indicate that the doctrine of continuing offenses should be applied in only limited circumstances since, as the Court of Appeals correctly observed in this case, '[t]he tension between the purpose of a statute of limitations and the continuing offense doctrine is apparent; the latter, for all practical purposes, extends the statute beyond its stated term.' [U.S. v. Toussie] 410 F.2d [1156] at 1158 [ (2d Cir.1969) ]. These considerations do not mean that a particular offense should never be construed as a continuing one. They do, however, require that such a result should not be reached unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one." 227 Kan. at 672, 608 P.2d 968 (quoting 397 U.S. at 115, 90 S.Ct. at 860).

In rejecting the State's argument, Gainer concluded:

"To constitute a continuing offense it must plainly appear in the statute defining such offense that there is a clear legislative purpose to make the prohibited course of conduct a continuing offense." 227 Kan. at 673, 608 P.2d 968.

Defendant argues that no legislative intent appears to make welfare fraud (K.S.A. 39-720) or theft (K.S.A. 21-3701) a continuing offense. The difference between Gainer and the three charges we deal with is readily apparent. Unlike the theft in Gainer, which involved a single taking of another's property, welfare fraud in Counts I and II and the theft of public assistance benefits in Count IV involve the wrongful taking of benefits on a monthly basis over a period of...