Argued and submitted on February 19, 2013.
Multnomah County Circuit Court 091235109 Adrienne C. Nelson, Judge.
David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M Joyce, Solicitor General.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.
This is a criminal appeal in which defendant challenges her convictions for six counts of theft in the first degree, ORS 164.055 (Counts 1, 3, 5, 7, 42, and 43); four counts of making a false claim for health care payment, ORS 165.692 (Counts 2, 4, 6, and 8); two counts of unlawfully obtaining a food stamp benefit, ORS 411.840 (Counts 40 and 41); and one count of tax evasion, ORS 314.075 (Count 45). Defendant assigns error to the trial court's failure to enter a judgment of acquittal on each of those counts, arguing that the state introduced insufficient evidence to prove that defendant committed those crimes. We conclude, based on the evidence in the record, that no rational factfinder could reasonably find that the state proved the elements of Counts 3 through 8 beyond a reasonable doubt. However, a rational factfinder could reasonably find that the state proved the elements of Counts 1, 2, 40 through 43, and 45 beyond a reasonable doubt. We therefore reverse and remand Counts 3 through 8 for a new trial, remand the case for resentencing, and otherwise affirm.
We state the evidence in the light most favorable to the state. State v. Hall, 327 Or 568, 570, 966 P.2d 208 (1998); State v. Bell, 220 Or.App. 266, 268, 185 P.3d 541 (2008). For the sake of clarity, we present the facts in roughly chronological order. The facts, which are numerous, relate to the state's allegations that defendant (1) aided and abetted her husband and sister in a scheme to obtain health care payments to which they were not entitled, (2) received food stamp benefits to which she was not entitled, and (3) falsely claimed her nephew as a dependent on a tax return.
From at least December 2005 to June 2009, defendant was married to and living with codefendant Harvey Gaither. The State of Oregon paid a home care provider, Francine DeWeese--defendant's sister--to care for Gaither during that time period. Gaither represented that he needed assistance because he had a severe essential tremor due to Parkinson's disease. At trial, the state did not dispute that, for many years, Gaither had had a severe essential tremor that impaired his fine motor skills; rather, the state asserted, Gaither had exaggerated the severity of the tremor and his resulting impairment.
Mesirow, Gaither's case manager since 2005, conducted an assessment each December to determine the level of care that the state would support. Mesirow testified that she was required to conduct an assessment in the event of a significant medical change, or at least once a year, if no significant medical change occurred. Those assessments, which were attended by Mesirow, Gaither, and DeWeese, were largely based on Gaither's self-reports. After each assessment, Mesirow prepared a detailed report of Gaither's needs, as well as a synopsis called a "Client Plan, " which she sent to Gaither for his signature. Gaither and Mesirow were the only two individuals who were required to sign the client plans, although DeWeese signed some of the plans and defendant signed one of the plans. Based on the assessments, Mesirow authorized a monthly number of hours for which the state would pay DeWeese. Defendant did not attend any assessments, sign any payment vouchers, or receive any home health care payments.
Of the five client plans that Mesirow prepared for Gaither, defendant signed only the 2005 client plan, which was based on a December 12, 2005, assessment. Defendant was not present at the assessment. Defendant signed the plan on December 14, 2005, as did Gaither, DeWeese, and Mesirow. The 2005 client plan, a printed form on which certain columns were marked, stated that Gaither "agrees to have assistance" with the following areas at least once a day: adaptation to change, meals, ambulation, danger to self, demands on others, eating, memory, toileting, and transfers. The 2005 client plan also stated that Gaither "agrees to have assistance" with dressing, grooming, and hygiene "[e]ach time." The 2005 client plan had an anticipated "review date" of December 31, 2006. Mesirow's next assessment of Gaither occurred on December 21, 2006, and Gaither signed the associated client plan on January 4, 2007.
In addition to paying DeWeese to care for Gaither, the state also paid DeWeese to care for children, including defendant's children. The state introduced vouchers showing that, between January 1, 2006 and February 28, 2009, the state paid DeWeese to care for children other than defendant's children. The mother of one of those children testified that she dropped her daughter off at DeWeese's apartment in the morning and picked her up in the afternoon from various locations, most frequently DeWeese's apartment or defendant's house.
Defendant and Gaither applied for food stamp benefits on November 29, 2007. Defendant and Gaither both signed the application, as was required. They attached three receipts to the 2007 application, indicating monthly payments of $400 to DeWeese for child care in August, September, and October 2007. The state set defendant and Gaither's monthly food stamp benefit level at $149 in December 2007.
In late 2007, defendant and Gaither applied to be foster parents through the Albertina Kerr Center. The application form, dated November 5, 2007, lists four individuals living in the home: defendant, Gaither, and defendant's two children, a 12-year-old daughter and a 10-year-old son. On December 27, a foster parent recruiter visited defendant and Gaither in their home for the first time. During that visit, defendant and Gaither told the recruiter that Gaither received disability payments due to "a hereditary condition called actinovosa which creates so much adrenaline, fine motor skills are lost." The recruiter observed Gaither's tremor, but she was not aware that he had a paid home health care worker. The recruiter was introduced to defendant's two children.
In March 2008, the recruiter again visited defendant and Gaither in their home. The recruiter did not observe Gaither experience any difficulty walking. The recruiter believed that Gaither would be the primary caregiver for any foster children. She also believed that he was able to drive.
On June 22, 2008, defendant and Gaither successfully completed a foster parent training that required them to practice physical restraint holds. The trainer noticed that Gaither had "a bit of a hand tremor" but "didn't think that it would be hugely detrimental to their ability to be foster parents" and "didn't feel concerned about it." The trainer observed that, despite the tremor, Gaither was able to drink coffee from a paper cup without assistance.
Also, at some point during June 2008, defendant called Mesirow to report that Gaither was experiencing greater difficulty swallowing and was going to be tested to try to determine the cause. Mesirow testified, "[Defendant] was asking for increased hours for the home care worker if it was needed for this week as she was working. And I just requested that [defendant] call me back today with an update as to the outcome of the testing * * *." Defendant did not call back with an update, and Mesirow did not increase the hours authorized for DeWeese.
At a meeting on July 28, 2008, defendant and Gaither told a foster care social worker that defendant's children, who were then 13 and 11 years old, would be living in the home. At the time, defendant's nephew, whom defendant later claimed as a dependent on the 2008 tax return that she and Gaither filed, was about four years old. A foster child, a 15-year-old boy, was placed with defendant and Gaither in August 2008. From August 2008 through June 2009, defendant and Gaither received state funds to care for that foster child.
On August 17, 2008, defendant and Gaither performed a fire drill required by Albertina Kerr Center. Defendant reported that she, Gaither, her two children, and the foster child were present in the home during the drill. Six more fire drills occurred between that date and March 2009; the only children that defendant reported as present for the drills were her two children and the foster child. Each fire drill report states that each person in the house evacuated the house in two and one-half minutes or less.
From August to December 2008, defendant signed foster parent daily log notes stating that Gaither performed such tasks as walking to the store, cleaning the yard, and taking the foster child to appointments.
Defendant and Gaither reapplied for food stamp benefits on October 22, 2008, using an application that they both signed. They attached three receipts to the 2008 application showing that defendant had made monthly payments of $700 to DeWeese for child care in September, October, and November 2008. The state set defendant and Gaither's monthly food stamp benefit level at $400.37 in November 2008.
On December 12, 2008, Mesirow observed Gaither shopping unassisted in the grocery store, which prompted an investigation of the home health care payments and other government assistance that Gaither, DeWeese, and defendant had received. Vickie Shaffer, an investigator for the Medicaid Fraud Unit at the Oregon Department of Justice, conducted intermittent surveillance of Gaither and DeWeese from January 2009 through April 2009.
On January 13, 2009, Gaither was cited for driving without a valid license. Gaither called defendant, who picked him up.
On January 15, 2009, Shaffer arrived at defendant and Gaither's house at 6:48 a.m. There were no vehicles outside the house. Approximately one hour later, Shaffer drove to DeWeese's house, where she arrived at 8:05 a.m. The vehicle registered to DeWeese was not present. Shaffer immediately returned to defendant and Gaither's house, where she arrived at 8:24 a.m. DeWeese's vehicle was not present at defendant and Gaither's house.
On February 2, 2009, defendant and Gaither met with a tax preparer to prepare their 2008 tax return. Defendant and Gaither told the tax preparer that three children--defendant's two children and her nephew--had resided in the home for more than seven months during 2008. On defendant and Gaither's 2008 tax return, which they filed jointly, ...