State v. Malveaux, WD 31241.

• Decision Date: 15 October 1980
• Docket Number: No. WD 31241.,WD 31241.
• Parties: STATE of Missouri, Respondent, v. Joyce MALVEAUX, Appellant.
• Court: Missouri Court of Appeals

604 S.W.2d 728

STATE of Missouri, Respondent, v. Joyce MALVEAUX, Appellant.

No. WD 31241.

Missouri Court of Appeals, Western District.

August 4, 1980.

Motion for Rehearing and/or Transfer Denied September 2, 1980.

As Modified September 9, 1980.

Application to Transfer Denied October 15, 1980.

COPYRIGHT MATERIAL OMITTED

Gary Oxenhandler of Tofle & Oxenhandler, Columbia, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Earl W. Brown, III, Asst. Atty. Gen., Kansas City, for respondent.

Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 2, 1980.

MANFORD, Judge.

This is a direct appeal from a jury conviction of two counts of stealing property (the property being valued at more than fifty dollars) by deceit in violation of § 560.156, RSMo 1969. The jury affixed punishment at six months incarceration in the county jail on each count. The trial court judgment ordered the sentences to run concurrently. Timely motion for new trial was overruled and this appeal followed. The judgment is affirmed.

Appellant presents six alleged errors. In summary, these are: (1) the trial court erred in taking judicial notice of the rules and regulations of the Division of Family Services; (2) the trial court erred in taking judicial notice of such rules and regulations because of the state's failure to comply with Rule 25.32¹; (3) the trial court erred in refusing to grant a mistrial or in the alternative, to confiscate notes allegedly made by a juror during trial; (4) the trial court erred in permitting the state to amend the information prior to trial, and in the instructions the court gave because neither the information nor the instructions charged appellant with the offense pursuant to §§ 205.966/205.967, RSMo 1978; (5) the trial court erred in overruling appellant's objection to the state's final argument since the prosecutor failed to argue punishment in the initial portion of the state's closing argument and (6) the trial court erred in giving instruction no. 11 because this instruction allegedly failed to comply with MAI-CR 2.80.

Appellant does not challenge the sufficiency of the evidence, therefore a summary of the evidence pertinent to the disposition of the alleged errors suffices.

Original charges were filed against appellant. On April 25, 1979, the information was amended alleging she had stolen food stamps valued in excess of $50.00 between March 19, 1976 and July 30, 1977. State's evidence revealed appellant received substantial monies in the form of child support from her former husband during the above specified period of time. Appellant continually listed one of her children as a member of her household and as a dependent. This child was gainfully employed at a local hospital. Appellant applied for and ultimately was granted social security disability benefits, which resulted in an initial lump sum payment of $3,823.50, along with continuous monthly social security benefits for herself and her children. These monthly benefits continued until October, 1977. During the questioned period of time, appellant received, on several occasions, aid to dependent children under the state's welfare program. In April 1976, appellant applied for and received $247.00 worth of food stamps under the welfare program.

The state produced witnesses who explained the procedural and substantive requirements which enable an applicant to receive welfare assistance. As an integral part of the program, the applicant is required to sign a form referred to as a fraud provision, indicating that the information on the application for assistance is true and accurate.

While the evidence was controverted as to whether or not specific attention was given to the fraud provision relative to appellant's application, witnesses for the state recalled specific contacts, conversations, and processing of appellant's applications, including specific reference to the status of appellant's income. On her application of March 29, 1977, appellant indicated no receipt of monies from social security or child support. On subsequent applications during the questioned period, appellant did not list any income from social security or child support. Appellant applied for food stamps, listing her employed son as a member of the household and listing her only source of income as aid to dependent children. Appellant, at no time during the questioned period, listed any financial changes. During this same period, appellant signed the fraud provision attending her applications.

In addition to witnesses who explained the substantive and procedural aspects of the welfare program, the state introduced documentary evidence supporting the charges, with specific reference to the application forms, the fraud provision and cancelled checks.

In addition to several witnesses called on her behalf who testified as to her reputation for honesty and truthfulness, appellant testified on her own behalf. She contended that as a result of injuries sustained during employment in September, 1975, she filed for social security benefits. She contacted her caseworker in March of 1976, informing him that her gas was about to be shut off. The caseworker advised her that she should file for unemployment benefits and that she borrow funds from a friend to meet the utility cost. At the time of trial, this caseworker no longer worked for the state and did not appear at trial. Appellant denied receiving child support from her husband during the year 1976 and the first three months of 1977.

Appellant continued her testimony, explaining that her caseworker instructed her to notify the state about social security benefits after she received the "Award Letter" granting the social security benefits, although she had advised this caseworker she already received checks from the Social Security Administration. Appellant continually listed her employed son as a member of the household, but denied receiving any part of his wages. A witness for the appellant testified the son resided with her and not with appellant.

Appellant testified she made several attempts upon the record to effect changes in her financial status, but was opposed in her attempts by persons with the state whom she contacted. Appellant denied she intentionally took money from the state and that she was guilty of any wrongdoing.

A witness for appellant, in addition to testifying about appellant's character, testified that appellant had served as an active member on the county welfare commission. This commission met once a month to discuss matters involving the welfare program and specific problems of welfare recipients.

The state alleged and appellant strenuously denied the charge of willfully and intentionally obtaining food stamps, which resulted in the substantial overpayment thereof. The evidence and the inferences therefrom, if believed, were sufficient to support the finding by the jury.

Since the first and second alleged errors address the same basic issue, they are taken up and disposed of together. Appellant charges the trial court erred in taking judicial notice of the code of regulations, and appellant's argument in support appears predicated upon three basic contentions. First, appellant argues the court cannot take judicial notice of such regulations and cites in support thereof, Kersey v. Harbin, 531 S.W.2d 76 (Mo.App.1975); Abbott v. Civil Service Commission of the City of St. Louis, 546 S.W.2d 36 (Mo.App.1976); Allen v. State Department of Public Health and Welfare, 479 S.W.2d 183 (Mo.App.1972), overruled on other grounds by Hill v. State Department of Public Health and Welfare, 503 S.W.2d 6, 11 (Mo. banc 1973); and Missouri Dental Board v. Riney, 429 S.W.2d 803 (Mo.App.1968). In further support, appellant cites Mo.Const. Art. IV, § 16.

The first portion of appellant's argument must fail. In the first instance, Mo.Const. Art. IV, § 16, which reads, "All rules and regulations of any board of other administrative agency of the executive department, except those relating to its organization and internal management, shall take effect not less than ten days after the filing thereof in the office of the secretary of state," has no application to the instant case because there is no evidence to support any alleged application of the rules herein within a period of less than ten days after such rules were filed. Additionally, appellant, in holding to the prohibition against courts taking judicial notice of rules, ignores the legislative change in 1975 to § 536.031 5 applicable to the instant case. This section reads, "The courts of this state shall take judicial notice, without proof, of the contents of the code of regulations."

Appellant broadens her argument that the court cannot take judicial notice of such rules if they have been changed, modified or repealed subsequent to the particular offense or occasion in question. Appellant draws too narrowly the interpretation of judicial notice and would conclude with such an argument that although a rule or regulation was viable and in effect at the time of an offense, if subsequent thereto, that rule or regulation were changed, modified or repealed, the court is prohibited from taking judicial notice thereof at the time of trial upon the alleged offense regardless of the reason or justification for the change, modification or repeal of the rule. Even absent the citing of authority for such a proposal, such interpretation as that urged by appellant cannot stand, because it ignores the existence, validity and viability of a rule or regulation as such rule or regulation bears in point of time to the question involved. Absent the declaration that a rule or regulation is unconstitutional, which would categorize such rule or regulation null and void for all purposes, both prior and subsequent to its enactment, there is no merit to appellant's contention for such a conclusion.

In pursuing her...