State v. Moore, Cr. N

• Decision Date: 28 November 1979
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Deborah MOORE, Defendant and Appellant. o. 682.
• Court: North Dakota Supreme Court

Page 274

286 N.W.2d 274

STATE of North Dakota, Plaintiff and Appellee, v. Deborah MOORE, Defendant and Appellant.

Cr. No. 682.

Supreme Court of North Dakota.

Nov. 28, 1979.

Rehearing Denied Dec. 20, 1979.

Larry E. Stern, Asst. State's Atty., Fargo, for plaintiff and appellee.

Jonathan T. Garaas, Fargo, for defendant and appellant.

SAND, Justice.

Deborah Moore was convicted on 1 March 1979 of theft of property in violation of North Dakota Century Code Section 12.1-23-02. The precise charge was that Moore obtained property of another by receiving assistance from Cass County Social Services Department to which she was not entitled in the amount greater than $100.00 between the period of September 1977 through March 1978. This was accomplished by her failure to notify the Cass County Social Services Department that her child, Corey, born 13 October 1974, was no longer living in her home during the period in question. Moore appealed her conviction. We affirm.

In the autumn of 1975, Deborah Moore separated from her husband and moved to North Dakota with her only child, Corey. While her divorce was pending, Moore applied for Aid to Families with Dependent Children (AFDC) at the Cass County social services center on 1 October 1975. Her application for AFDC assistance was processed in the usual manner which initially entailed an interview with an eligibility technician of the Cass County social services department wherein the program was explained to the applicant and the circumstances surrounding the application were ascertained. Based upon those circumstances, the eligibility technician determined whether or not Moore was eligible for assistance.

The eligibility application specifically required the listing of names of the children living with the applicant for whom assistance was asked, and accordingly Moore reported that Corey was residing with her as a member of her household. The application form also contained a certification and signature clause which read:

"State law provides for fine, imprisonment, or both for any person guilty of obtaining assistance to which he is not entitled by willfully withholding or giving false information. I certify that the information given by me on this form is correct and complete to the best of my knowledge. I agree to inform the county welfare board within five days of any change in my family, address, or living arrangement which might affect my right to receive public assistance. I further agree that if my case is selected for field review, my signature below constitutes my consent to obtain verifying information from any necessary source." (Underscoring ours.)

Moore signed and filed the application on 1 October 1975 and at that time also received a brochure explaining the AFDC programs. This brochure was not presented at the trial but a later publication was offered but not admitted into evidence.

Based upon the information in her application, Moore was declared eligible for AFDC benefits effective 1 November 1975, and began receiving assistance payments each month thereafter.

In mid-September of 1977, Moore placed Corey in the home of Mrs. Pat Simons, the child's aunt. Corey lived in the Simons home until the end of April 1978, and throughout that period of time Mrs. Simons was fully responsible for feeding, clothing, and caring for the child. Moore never visited Corey personally during this period, nor did she furnish Simons or Corey with any money for food, clothing, shelter, or support.

Recipients of AFDC are required to complete redetermination forms every six months to allow the eligibility technicians to review the recipient's eligibility, and on 15 November 1977 Moore signed and submitted a redetermination of eligibility form to the Cass County social services department. Moore, on the redetermination form, again listed Corey as living with her and in her household. This information was false, because at that time Corey was living in the home of his aunt, Mrs. Simons, who provided the child's maintenance and support.

The redetermination of eligibility form also contained a certification and signature clause which read almost identical to the one on the application form set out above. The application form contained the statement, "I agree to inform the county welfare board within five days . . ." whereas the redetermination form contained the statement, "I agree to inform the county social service board within five days . . . ." Moore signed this form on 15 November 1977.

Moore knew, or should have known, from the application form she signed or from the redetermination of eligibility form she signed that she was required to notify the welfare authorities of any change of circumstances which might affect her eligibility, including the absence from her home of the child for whom she was receiving assistance. The redetermination form instructions under "K. Dependent children (complete this section only if receiving in behalf of dependent children)" specifically stated, "List names of Children living with you for whom you are receiving assistance." At no time during the period did Moore inform the Cass County social services department that Corey was no longer living in her household. Moore continued to receive and continued to cash the monthly AFDC benefit checks without turning over any amounts from the checks to Mrs. Simons or Corey throughout the period in which Corey was living with and supported by Mrs. Simons.

On 17 March 1978, Moore finally submitted a notice of change form to the Cass County social services department stating that Corey was no longer living as a member of her household. At that point the Cass County social services department determined that Moore was no longer entitled to receive AFDC benefits and the payments to her ceased.

Theft of property charges were thereafter filed against Moore by the Cass County state's attorney's office, alleging that she knowingly received the AFDC benefits for the period of time in which Corey was not living in her home by deceiving the Cass County social services department as to her eligibility. Moore was found guilty on 1 March 1979 and this appeal followed.

I

The first point raised by Moore in this appeal was that the statutes of the state of North Dakota nowhere specifically proscribe the conduct for which she was convicted. This challenge raises the constitutional issues of due process of law.

The Legislature of the state of North Dakota, except as limited by the state and federal constitutions and federal law, has unquestionable power to define what acts shall constitute criminal offenses and what penalties shall be imposed on offenders. So long as the legislative enactments do not infringe upon constitutional rights and privileges, expressly or necessarily implied, the legislature's will is absolute. State v. Gronna, 79 N.D. 673, 59 N.W.2d 514 (1953).

The 1973 North Dakota Legislature enacted a new criminal code, and consolidated the separate offenses of larceny, stealing, embezzlement, and obtaining property by false pretenses into the single crime of theft. Section 12.1-23-01, North Dakota Century Code. Deborah Moore was convicted of theft of property in violation of § 12.1-23-02, NDCC. The pertinent portion of that statute states:

"A person is guilty of theft if he:

"2. Knowingly obtains the property of another by deception or by threat with intent to deprive the owner thereof, or intentionally deprives another of his property by deception or by threat;"

Moore contended that her failure to notify the Cass County social services department that Corey was not living in her home thus, making her ineligible to receive AFDC benefits was not within the purview of this, or any other, North Dakota statute. Section 50-09-23, NDCC, which was repealed in 1975 specifically provided a penalty for obtaining public welfare assistance by means of a willfully false statement or representation. Moore argued, therefore, there was no criminal statute under which she could be charged or convicted. Section 50-09-23, NDCC, however, was replaced with § 12.1-23-02, NDCC, under which Moore was charged.

This Court has said many times that the primary purpose of statutory construction is to ascertain the intent of the Legislature, and when that intent is directed toward an objective not prohibited by the state or federal constitutions, our construction of the legislation should be in aid of and compatible with this intent. Hughes v. State Farm Mut. Auto. Ins. Co., 236 N.W.2d 870 (N.D.1975); VanOrnum v. Otter Tail Power Company, 210 N.W.2d 207 (N.D.1973); and State v. Weigel, 165 N.W.2d 695 (N.D.1969).

A review of the legislative history surrounding the repeal of § 50-09-23, NDCC, discloses that the principal reasons for the repeal were to consolidate the various related provisions and to make all criminal penalties conform to the offense classification format contained in the new criminal code and to delete outmoded or unnecessary sections. The broad definition of theft in the new criminal code encompassed all of the former offenses wherein the property of one person was unlawfully taken. Report of the Legislative Council, Forty-Fourth Legislative Assembly, Judiciary "A" 1975.

At the Judiciary "A" Committee meeting on 25 October 1973, Attorney Robert Wefald was called on for a presentation of the proposed revision of criminal sections in Title 50. A discussion was held on § 50-09-23, NDCC, and Wefald noted that the section could be repealed because it was covered by the new criminal code. It was then moved, seconded, and carried that § 50-09-23 be repealed. North Dakota Legislative Council Minutes, Committee on Judiciary "A", 25 October 1973.

We conclude that § 12.1-23-02, NDCC, is a consolidation of all theft-of-property offenses, and included obtaining AFDC assistance to which one was not entitled by willfully making false statements or representations as to eligibility. Therefore, the conduct of...