People v. Vargo , 139 Mich. App. 573 ( 1984 )

139 Mich. App. 573 (1984) 362 N.W.2d 840

PEOPLE
v.
VARGO

Docket No. 68905.

Michigan Court of Appeals.

Decided December 17, 1984.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, G. Scott Stermer, Prosecuting Attorney, and Jo Ellen O'Connor, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Peter Jon Van Hoek), for defendant on appeal.

Before: ALLEN, P.J., and HOOD and W.S. WHITE,^[*] JJ.

W.S. WHITE, J.

Defendant Stanley Vargo was convicted of welfare fraud over $500, MCL 400.60(2); MSA 16.460(2), following a jury trial in the Tuscola County Circuit Court. Defendant appeals as of right raising five issues for our consideration.

Defendant and his wife originally qualified for $440 per month in ADC benefits, paid in two equal installments each month. MCL 400.60(2); MSA 16.460(2) places an affirmative duty on anyone receiving benefits under the Social Welfare Act to report any change in circumstances which would decrease the amount of the grant. The information in the instant case alleged that during the period of August through October, 1980, defendant did not notify the Department of Social Services that he was employed and therefore ineligible to receive benefits. Although no single benefit payment was in excess of $500, the total amount of benefits paid during that time period was between $1,500 and $1,700.

Defendant first argues that the prosecutor should have been precluded from aggregating benefit payments to reach the statutory $500 felony limit. We disagree.

In People v Raymond Smith, 84 Mich. App. 376, 379; 269 NW2d 469 (1978), the defendant was convicted of welfare fraud over $500 under MCL 400.60(2); MSA 16.460(2). It is clear that the total amount of benefits received during the defendant's period of ineligibility were aggregated to reach the statutory $500 limit. The Court in Smith, however, did not directly address the issue of aggregation, and therefore we do so now.

Defendant herein relies on People v Robinson, 97 Mich. App. 542; 296 NW2d 99 (1980). In Robinson, this Court reversed a conviction for larceny by false pretenses over $100, which was based on aggregating separate unemployment benefit checks in order to meet the statutory $100 limit. In ruling the aggregation improper, this Court noted that "defendant's individual and separate acts did not meet the criterion of the same transaction test, viz., occurring in a continuous time sequence and displaying a single intent and goal". Robinson, pp 551-552. In so holding, this Court was specifically relying on the "same transaction" double jeopardy cases, set forth in People v White, 390 Mich. 245; 212 NW2d 222 (1973), and Crampton v 54-A District Judge, 397 Mich. 489; 245 NW2d 28 (1976). Contra, Anno, 22 ALR4th 534, 604, § 16. Since this Court's decision in Robinson, however, the Michigan Supreme Court has specifically disavowed this test. People v Wakeford, 418 Mich. 95, 111; 341 NW2d 68 (1983).

More importantly, the defendant in Robinson was charged with larceny by false pretenses, not with welfare fraud. A conviction for larceny by false pretenses required a finding that defendant obtained her unemployment checks through a misrepresentation of a past or present fact. If defendant had not returned and made a new representation regarding her continued unemployment, she would not have received her unemployment check. This Court therefore held that

"as each act necessitated an additional false statement, they were not the result of a single intent and goal. Every two weeks, defendant had to make another false statement in order to get an additional separate and distinct benefits check. Since defendant could only receive another check after falsely swearing anew that she had not worked and thus was still elegible for unemployment benefits, each of the misrepresentations was distinct and separate." 97 Mich. App. 552.

The instant case, however, was brought under MCL 400.60(2); MSA 16.460(2), and therefore the reasoning in Robinson is inapplicable. The amount of benefits received by defendant in the instant case was determined by information initially supplied by defendant. If the DSS is never informed of a change in circumstances, it will continue making payments based upon the initial information. MCL 400.60(2); MSA 16.460(2) makes it a crime to neglect or refuse to provide certain information. It does not require that a false statement be made. Therefore, the instant case is significantly different from Robinson, where an essential element of the offense was always missing until a new representation was made concerning defendant's continued unemployment. Under the welfare fraud statute, once a person has neglected or refused to provide the information, the crime is complete except for determining the amount of relief improperly obtained. There is no basis for an argument that these are separate and distinct frauds. We therefore hold that the aggregation was proper, and defendant's motion to quash the information was properly denied.

Defendant next argues that he was denied due process when the prosecutor, after the charge was dismissed following the first preliminary examination, issued a new complaint and warrant on the same charge. This Court has recognized that repeated prosecutions of a defendant for the same offense may violate the defendant's right to due process. People v Turmon, 128 Mich. App. 417; 340 NW2d 110 (1983); People v George, 114 Mich. App. 204; 318 NW2d 666 (1982), lv den 414 Mich. 931 (1982). Among the factors to be considered in determining whether a due process violation has occurred are the reinstitution of charges without additional, noncumulative evidence not introduced at the first preliminary examination, the reinstitution of charges to harass and judge-shopping to obtain a favorable ruling. People v George, supra; People v Turmon, supra; People v Walls, 117 Mich. App. 691; 324 NW2d 136 (1982).

We do not find that the reinstitution of the charge against defendant was violative of due process. At the second preliminary examination new evidence was presented to the same judge who presided over defendant's initial preliminary examination. While the new evidence could have been introduced at the first preliminary examination, the failure to do so was more a product of neglect than a deliberate attempt to harass defendant. People v Laslo, 78 Mich. App. 257, 260; 259 NW2d 448 (1977). The trial court, therefore, did not abuse its discretion in binding defendant over for trial.

Defendant also asserts that the lapse of time between the date of his alleged offense and the initiation of prosecution denied him due process. Defendant was charged with fraudulently receiving welfare benefits for the period of August to October, 1980. Defendant was initially charged on July 6, 1981. In People v Bisard, 114 Mich. App. 784, 791; 319 NW2d 670 (1982), this Court stated the test to be used in determining whether a delay in instituting prosecution denies a defendant due process.

"[W]e hold that, once a defendant has shown some prejudice, the prosecution bears the burden of persuading the court that the reason for the delay is sufficient to justify whatever prejudice resulted. This approach places the burden of coming forward with evidence of prejudice on the defendant, who is most likely to have facts regarding prejudice at his disposal. The burden of persuasion rests with the state, which is most likely to have access to facts concerning the reasons for delay and which bears the responsibility for determining when an investigation should end."

The prejudice which defendant claims resulted from the delay was the loss of a carbon copy of a letter sent to the DSS informing it of his employment. At trial, the police officer who investigated the complaint testified that he interviewed defendant on February 9, 1981. At that time, defendant said nothing about the existence of a copy of the letter. A DSS investigator interviewed defendant in March, 1981, at which time defendant stated that he did not have a copy of the letter. At trial, defendant testified that he never made, kept or saw a carbon copy of the letter. His belief that a copy existed was based solely upon his wife's telling him that a copy was made. Defendant's wife did not testify at trial, and the DSS had no record of a letter having been written.

The fraud referral from defendant's caseworker was received by the DSS investigator in January, 1981. Within one month, defendant was contacted by the investigating police officer, and no copy of the letter was mentioned. Within two months after the investigation began, the copy was claimed to be missing. Certainly the existence of a copy of the letter would have benefited defendant. However, we do not believe that its inexplicable absence can be attributed to the short delay in instituting the investigation. We therefore hold that defendant has not met his burden of coming forward with sufficient evidence of prejudice and affirm the trial court's denial of defendant's motion to dismiss.

In his fourth allegation of error, defendant argues that the trial court erred in refusing to admit into evidence a form provided to defendant when he applied for CETA employment. The form contained, inter alia, an authorization signed by defendant allowing the DSS and CETA to exchange information. Defendant sought to have the form admitted as a business record under MRE 803(6) and, alternatively, as a public record under MRE 803(8).

For a proper foundation to be established for the admission of this document as a business record, a qualified witness must establish that the record was kept in the course of a regularly conducted business activity and that it was the regular practice of such business activity to make that record. MRE 803(6). Knowledge of the business involved and its regular practices are necessary. Defendant admitted that his contact with CETA was extremely limited. He was not able to establish that it was a regular practice of CETA to complete that report. He therefore was not qualified to establish a proper foundation for the admission of the form, and the objection was properly sustained. We note that defendant could have subpoenaed a CETA employee to lay a proper foundation in that manner.

Turning to the public records exception, the form included five questions and answers and an authorization for DSS and CETA to exchange information. That information does not fall into either category of MRE 803(8). The authorization merely allows the exchange of information; it does not state that the information is, has been, or will be exchanged. The questions and answers do not constitute matters observed. Rather, they are merely a written record of defendant's statements.

We further note that defendant sought the introduction of the form to show the exchange of information concerning defendant's employment between CETA and DSS. As stated previously, the authorization allows the exchange of information but does not state that the information is or was exchanged. The authorization to exchange information was testified to by DSS employees, and therefore defendant was able to establish that the authorization was made. The trial court has broad discretion to exclude needlessly cumulative evidence. MRE 403. We therefore affirm the trial court's ruling.

Lastly, defendant argues that the trial court's questioning of a prosecution witness elicited evidence of an inadmissible adoptive admission of defendant. Defendant's caseworker testified that she called defendant and told him that his benefits had been terminated due to his CETA employment. Upon questioning by the trial court, the witness testified that defendant did not respond. We can find nothing in this exchange that suggested that defendant had been accused of not reporting his employment. The only inference that could be drawn was that defendant had tacitly acknowledged that he was, in fact, employed at that time, a fact never disputed by defendant at trial. We therefore find no error.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.