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COURT OF APPEALS DECISION DATED AND RELEASED March 5, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1236-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ORLANDER ISABELL,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County:
RAYMOND E. GIERINGER, Reserve Judge.
Affirmed.
Before Wedemeyer, P.J.,
Sullivan and Schudson, JJ.
PER CURIAM. Orlander Isabell appeals from a judgment of
conviction, following a jury trial, for welfare fraud (failure to report
receipt of income/failure to report a change in circumstances), contrary to
§§ 49.12(9) & (1), Stats.[1] She argues that the evidence was
insufficient to support the jury's finding that she failed to notify her
caseworker of a change in circumstances within the statutorily prescribed
ten-day reporting period. She also
argues that the trial court improperly excluded the testimony of one of her
witnesses. Because we conclude that the
evidence was sufficient to support Isabell's conviction and that the trial
court did not erroneously exercise its discretion in excluding the testimony of
the witness, we affirm.
Isabell worked for
Milwaukee County as an economic support specialist (caseworker) for several
years. Her primary duties consisted of
determining applicants' eligibility for public assistance. In the summer of 1992, she took a medical
leave of absence from her job and began receiving public assistance. On September 29, 1992, she stopped by the
office to let her supervisors and co-workers know that she would be returning
to work on October 1. She then worked
daily, and routinely saw James Seymour, who had been her caseworker when she
was receiving benefits. Isabell,
however, illegally continued to receive welfare benefits until December of
1992.
Section 49.12(9), Stats., provides:
If any person obtains for himself or herself,
or for any other person or dependents or both, assistance under this chapter on
the basis of facts stated to the authorities charged with the responsibility of
furnishing assistance and fails to notify said authorities within 10 days of
any change in the facts as originally stated and continues to receive
assistance based on the originally stated facts such failure to notify shall be
considered a fraud and the penalties in sub. (1) shall apply. The negotiation of a check, share draft or other
draft received in payment of such assistance by the recipient or the withdrawal
of any funds credited to the recipient's account through the use of any other
money transfer technique after any change in such facts which would render the
person ineligible for such assistance shall be prima facie evidence of fraud in
any such case.
Further,
§ 49.12(1) provides:
Any person who, with intent to secure public
assistance under this chapter, whether for himself or herself or for some other
person, wilfully makes any false representations may, if the value of the
assistance so secured does not exceed $300, be required to forfeit not more
than $1,000; if the value of the assistance exceeds $300 but does not exceed
$1,000, be fined not more than $250 or imprisoned for not more than 6 months or
both; if the value of the assistance exceeds $1,000 but does not exceed $2,500,
be fined not more than $500 or imprisoned for not more than 5 years or both;
and if the value of the assistance exceeds $2,500, be punished as prescribed
under s. 943.20 (3) (c).
On November 18, 1992,
while Isabell was working and still receiving public assistance, Seymour
received a sanction regarding Isabell's case.
He took it to her and, according to his trial testimony, requested that
she write him a note indicating that her case should be closed. Isabell complied with Seymour's
request. Seymour testified that if
Isabell had notified him of her return to work within ten days of October 1,
Isabell would have been ineligible to receive the November and December checks
totalling $1,234.00. Eventually,
Isabell's benefits were terminated and welfare fraud charges were brought
against her.
The crux of this case
was whether Isabell gave Seymour sufficient notice of her change of
circumstances under § 49.12(9) & (1), Stats. Isabell maintains
that given Seymour's knowledge that she had returned to work, the evidence
could not prove that she intentionally failed to notify the authorities of the
change in her circumstances within ten days.
The State, however, argues that under § 49.12(9) & (1), Isabell
had to affirmatively inform Seymour of her return to work, her expected future
monthly income, and that she was receiving paychecks.
Our standard of review
is as follows:
[I]n
reviewing the sufficiency of the evidence to support a conviction, an appellate
court may not substitute its judgment for that of the trier of fact unless the
evidence, viewed most favorably to the state and the conviction, is so lacking
in probative value and force that no trier of fact, acting reasonably, could
have found guilt beyond a reasonable doubt.
If any possibility exists that the trier of fact could have drawn the
appropriate inferences from the evidence adduced at trial to find the requisite
guilt, an appellate court may not overturn a verdict even if it believes that
the trier of fact should not have found guilt based on the evidence before it.
State
v. Poellinger, 153 Wis.2d 493, 507, 451 N.W.2d 752, 757-758 (1990)
(citations omitted). Where there are
inconsistencies within testimony, it is the trier of fact's duty to determine
the weight and credibility of the testimony.
Thomas v. State, 92 Wis.2d 372, 381-382, 284 N.W.2d 917,
922 (1979). We will substitute our
judgment for that of the trier of fact when the fact-finder relied on evidence
that was “inherently or patently incredible” -- that kind of evidence which
conflicts with nature or with fully established or conceded facts. State v. Tarantino, 157 Wis.2d
199, 218, 458 N.W.2d 582, 590 (Ct. App. 1990).
In support of her
argument that she gave direct notice to Seymour on September 29 and, thus, that
the jury lacked sufficient evidence to convict her, Isabell points to Seymour's
testimony on cross-examination when Seymour acknowledged that he testified at the
preliminary hearing that it might have been “possible” that Isabell stated that
she would return to work on October 1.
Seymour further testified, however, that while that might have been
“possible,” he did not recall Isabell informing him of her return date. In fact, Seymour testified that despite
seeing Isabell around the office, he did not know of her exact return date, the
amount of hours she was working, or her wages.
Despite Isabell's protests to the contrary, Seymour's testimony was not
so contradictory or “so lacking in probative value and force that no trier of
fact, acting reasonably, could have found guilt beyond a reasonable doubt.”
Additionally, Isabell
never reported to Seymour that she had begun receiving paychecks. Isabell also left blank the section of the
September monthly report form which required her to report future income for
the upcoming month despite the fact that she completed the form on October 9,
and despite the fact that she had been back at work since October 1 and thus knew
what her income would be. The evidence
was sufficient to support Isabell's conviction.
Isabell also argues that
the trial court improperly excluded the testimony from a former caseworker,
James Haller, who would have supported Isabell's contention that her case
should have been retrospectively budgeted.
The State presented four witnesses who discussed what would have been
the proper method of calculation in this case.
Isabell argues that Haller's testimony would have supported her claim
that she wrongfully “secured” only $177 instead of $1,234. The trial court excluded Haller's testimony
explaining:
I
believe the entire testimony would involve the law. It's the duty of the Court to instruct on the law, not to get
laymen's opinion as to what the law is and why the law could be
misinterpreted. It's not the function
of a witness to come forth and testify as to what the law is and how it could
be mistaken. That's not the function of
a witness. So, therefore, it would
serve no purpose because the law is the law and the law is only one way, so it
will be absolutely cumulative, it would not be the proper grounds to
testify—what would the words be—testimony for the witness to testify about,
because he's testifying on the law.
Period. So we'll proceed without
him.
In welfare fraud cases
involving more than $100, as in theft cases, the jury must make a finding of
the value of the amount of public assistance fraudulently secured. See comment 3 to Wis J I—Criminal 1850 (cross-referenced
by Wis J I—Criminal
1854). “While the value may not,
strictly speaking, be an element of the crime, it determines the range of
permissible penalties and should be established ‘beyond a reasonable doubt.’” Id.
We conclude that even if
exclusion of Haller's testimony was wrong, it was harmless. In light of the substantial evidence
presented regarding how public assistance benefits would have been calculated
if Isabell had complied with the ten-day reporting period of § 49.12(9), Stats., admission of Haller's testimony
would not have changed the outcome of the proceedings. See State v. Dyess, 124
Wis.2d 525, 543-545, 370 N.W.2d 222, 231-232 (1985). Therefore, we affirm the judgment.[2]
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] We note that the judgment of conviction lists Isabell as having violated § 943.20(3)(c), Stats., applicable when a defendant's welfare fraud exceeds $2,500, and the penalty provision cross-referenced by § 49.12(1), Stats. Because the amount of Isabell's fraud was $1,234.00, § 943.20(3)(c) is inapplicable. Therefore, we order that the judgment be amended.