                     IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0184
                              Filed March 11, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROSEMARY HARRIS,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Scott County, Nancy S. Tabor,

Judge.



       Rosemary Harris appeals from her convictions for fraudulent practice in

the third degree and tampering with records. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney

General, Katherine Walling, Student Legal Intern, Michael Walton, County

Attorney, and Patrick A. Mcelyea, Assistant County Attorney, for appellee.



       Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ. Tabor,

J., takes no part.
                                          2


VOGEL, P.J.

       On February 11, 2015, in State v. Harris, 14-0814, 2014 WL 7800459

(Iowa Ct. App. Feb. 11, 2015), our court filed the original opinion affirming

Harris’s convictions. We then granted Harris’s petition for rehearing, to further

address an issue involving jury instruction No. 12. Consequently, this opinion

now vacates and replaces the previous decision.

       Following a jury trial, Rosemary Harris appeals from her convictions for

fraudulent practice in the third degree and tampering with records. Harris argues

substantial evidence does not support the jury’s conclusion she intentionally

falsified a claim; alternatively, she frames this as an ineffective-assistance-of-

counsel argument. She also claims trial counsel was ineffective for failing to

object to various jury instructions, as well as the admission of two witnesses’

testimony and three exhibits, which contained unauthenticated documents and

consisted of hearsay.

       We conclude that, because substantial evidence supported the jury’s

guilty verdict, trial counsel was not ineffective for failing to assert the specific

grounds now raised in the appeal—namely, that the State failed to prove either

charge. We further conclude that both jury instructions challenged now were

proper statements of the law, and given that the exhibits of which Harris now

complains were duplicative, she was not prejudiced by counsel’s failure to object.

Furthermore, the testimony presented by the investigating officer that the forms

required the claims for payment be truthful was not hearsay, such that counsel

had a duty to object. However, we preserve for possible postconviction-relief

proceedings Harris’s claim that trial counsel was ineffective for failing to object to
                                        3


the testimony of the previous employee who stated she had concerns the

business was consistently billing for services not performed. Consequently, we

affirm her convictions.

I. Factual and Procedural Background

       As of April 2013, Harris owned Peace of Mind—a business operated out of

Harris’s home—that hires contractors to take care of disabled people in their own

homes.    Peace of Mind bills Iowa Medicaid directly, which compensates the

business for the services provided.     Iowa Medicaid requires a form called a

“claim for targeted medical care” to be completed and submitted.            After

submission, the business will receive compensation.        The types of services

performed, along with the dates, must be provided on the claim form.

Consequently, the business must rely on the supporting documents—that is, the

daily service records—so as to be able to accurately report which services were

provided and when. The service provider fills out and signs the daily service

records, which the business is then required to keep on file so the Iowa

Medicaid’s Fraud Control Unit can periodically review all records.

       On April 18, 2013, Peace of Mind filed a claim form with Iowa Medicaid

stating it had provided forty-three hours of services to Dorothy Whitfield, which

was billed for $817. Whitfield is Harris’s mother. The Fraud Control Unit decided

to investigate this claim and requested the daily service records on which the

claim relied. Harris submitted twelve such records signed by Felicia Smith, one

of the providers who worked for Peace of Mind. An investigation followed, and

on October 9, 2013, Harris was charged with fraudulent practices in the third

degree, in violation of Iowa Code section 714.8 and .11 (2013), and tampering
                                         4


with records, in violation of Iowa Code section 715A.5. The trial information was

later amended to reflect the more specific dates in which Harris engaged in the

illegal conduct—April 1 to May 6, 2013. Harris pled not guilty, and a jury trial was

held on January 15, 2014.1

       Several witnesses testified during the one-day trial, including Smith.

When the investigation initially began, Smith told the Fraud Control Unit that she

had not been told to fill out the forms. However, after being informed she faced

charges for theft, she stated she filled out twelve forms based on notes Harris

had given her and she had only provided one day of care for Whitfield. She did

think the services had been provided, but she had not been the one to perform

the care. She also testified she sometimes confused the daily service records

and the request for service forms.

       Melanie Thiering, an employee at Peace of Mind from March 2012 until

June 2013, testified as well. From March until November 2012 she served as an

officer manager. Then after a fallout with Harris, she was demoted to being a

provider of services. As the officer manager, she was responsible for reviewing

and organizing the records. However, she stated she did not see records for

Whitfield’s care until the summer of 2012, when the State’s review of the records

began. She stated she and Harris filled out 100 or so daily service reports, and

she assumed the care had been provided to Whitfield. She further testified she

was concerned Peace of Mind was billing the State for more hours than were




1
 We note an inconsistency in the electronic record—the verdict was file stamped the
day before the trial began.
                                          5


actually provided and, accordingly, she reported her concerns to Kevin

Greethurst, a criminal investigator with the Medicaid Fraud Control Unit.

       Greethurst became the lead investigator, and at trial, he testified he pulled

billing records for services provided to Whitfield from April 1 to April 19, 2013.

The records reflected Peace of Mind had received payment for the services in

the amount of $817 on May 6, 2013. The State also used Greethurst as a

foundation witness to enter into evidence various Medicaid documents.

Specifically, Greethurst accessed a database known as MMIS, in which

information from the Medicaid system is stored, and took a screen shot of the

billing information for Whitfield. He also printed off two blank documents, a daily

service record and a claim form. These were entered into evidence as Exhibits

13, 14, and 15, respectively.

       Harris testified as well. She asserted she and her son, Devon Tate, had

provided services to Whitfield, and the daily service reports were accurate.

Tate’s testimony supported this claim, although the timing of the visits reflected in

the service reports and the visits to which he testified differed substantially.

Harris further testified she kept her mother’s records separate due to the volume

of records in Peace of Mind and she had not asked Smith to fill out the service

records; rather, she asked Smith to complete a service agreement for Whitfield.

Harris speculated Smith was confused regarding the instructions and filled out

the service records instead. She further claimed the prior records for Whitfield’s

care had been destroyed during a flood.

       Harris also stated once she realized that Smith had completed the service

records Harris attempted to call Iowa Medicaid to correct the error but claimed
                                         6


“they just refused to talk to me.” Asserting she used a landline, she offered no

phone records to support her version of events. Additionally, she was contacted

in May regarding the investigation into her claim forms.      Cell phone records

Harris submitted showed both incoming and outgoing phone calls to Iowa

Medicaid but not until July and August 2013, long after the investigation had

begun.

      Following the close of the evidence, Harris moved for judgment of

acquittal, arguing the “testimony of the defense witnesses showed there were

services done and the State still hasn’t shown that there was any intent to

defraud anybody. [The State hasn’t] proved the amount of fraud. [The State

hasn’t] proved that records were intentionally destroyed.” Following argument

from both parties, the district court denied the motion. The jury then returned a

verdict of guilty as to both counts. On February 7, 2014, Harris was sentenced to

240 days on each count, suspended. Harris appeals.

II. Standard of Review

      With regard to Harris’s ineffective-assistance claims, she may raise this

issue on direct appeal if the record is adequate to address the claim. See State

v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). We may either decide the record is

adequate and issue a ruling on the merits, or we may choose to preserve the

claim for postconviction proceedings. Id. We review ineffective-assistance-of-

counsel claims de novo. Id. To succeed on this claim, the defendant must show,

first, that counsel breached an essential duty and, second, that she was

prejudiced by counsel’s failure.   Id.   If the defendant’s ineffective-assistance
                                          7

claim lacks prejudice, we may decide the claim on that ground alone.             See

Ledezma v. State, 626 N.W.2d 134, 144 (Iowa 2001).

       To the extent we are directly reviewing Harris’s claim the district court

erred in denying her motion for judgment of acquittal, we review the court’s

decision for correction of errors at law. See State v. Quinn, 691 N.W.2d 403, 407

(Iowa 2005).

III. Substantial Evidence

       Harris first asserts substantial evidence does not support the jury’s guilty

verdicts, and therefore, the district court erred when it denied her motion for

judgment of acquittal; alternatively, she frames this as an ineffective-assistance-

of-counsel claim.   Specifically, she argues the evidence was not sufficient to

show she knowingly made or caused to be made false statements to Iowa

Medicaid or that she falsified a record with the intent to deceive Iowa Medicaid,

given she offered evidence that services had actually been provided to Whitfield.

She further claims her actions did not fall within the purview of Iowa Code section

249A.8 because the service records were not an “application for payment.” The

State responds Harris failed to preserve error on this specific argument.

Alternatively, it asserts she cannot establish prejudice because the ultimate issue

was a question of credibility, which the jury, as factfinder, was free to determine.

       As an initial matter, we do not agree with the State’s argument Harris

failed to preserve error with regard to her overall claim substantial evidence did

not support the jury’s verdicts.    In her motion for judgment of acquittal, she

stated:
                                         8


       [F]or it to be a fraudulent practice, the person has to knowingly fail
       to disclose material facts in application for payment or services. In
       this case there’s absolutely no evidence before the jury that this
       was intentionally done or that there was any intent to either hide
       facts or fail to disclose material facts. Application for payment,
       there’s not one iota of evidence that payment was even made in
       this matter. Also, as far as Tampering with Records, the element is
       with the intent to deceive, injure or conceal any wrongdoing. The
       State has not shown that this was done by the defendant with the
       intent to deceive anyone, injure anyone or do any wrongdoing.

This demonstrates Harris adequately presented the argument she now asserts

on appeal to the district court. Consequently, the court considered the argument

and, when it denied Harris’s motion, ruled on the issue. Error was therefore

preserved. See Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012).

       When reviewing a ruling on a motion for judgment of acquittal, we view the

record in the light most favorable to the non-moving party—here, the State—and

make all legitimate inferences and presumptions that may be reasonably

deduced from the evidence.      See Quinn, 691 N.W.2d at 407.         If substantial

evidence supports the verdict, we will affirm. Id. Evidence is substantial if it

would convince a reasonable trier of fact the defendant is guilty beyond a

reasonable doubt. Id.

       To convict Harris of fraudulent practices, the State was required to prove

she   knowingly    made    or   caused    to   be   made    false   statements   or

misrepresentations of material facts in an application for payment of services to a

medical assistance program. See Iowa Code § 249A.8. Additionally, to prove

the second charge of falsifying documents, the State was required to show Harris

falsified or concealed a writing or record with the intent to deceive or conceal any

wrongdoing on her part. See id. § 715A.5.
                                          9


       The jury was presented with conflicting evidence at trial. Harris and Tate

testified the services billed to Iowa Medicaid, as reflected in the daily service

reports submitted to the Fraud Control Unit, were in fact provided to Whitfield.

However, Tate stated he never worked from 8:00 p.m. until midnight, which were

the times contained in the service reports. Moreover, Smith testified that Harris

instructed her to fill out and sign those documents even though she had not been

the one to provide the services. Thiering also testified she had concerns Peace

of Mind was billing Iowa Medicaid for services not actually provided to Whitfield.

Additionally, phone records contradict Harris’s claim that she was the one to call

Iowa Medicaid, ostensibly to alert them to the fact that, though Smith had signed

the records, she had not been the one to provide services.

       While Harris is correct that there is evidence Smith confused the service

report and the service agreement documents, this is not enough to conclude the

district court erred in denying her motion for judgment of acquittal on both counts.

Viewing the evidence in the light most favorable to the State, the jury was free to

reject the testimony of Harris and conclude the service reports had been falsified,

and that the subsequent claim form submitted to Iowa Medicaid billed for

services that were not in fact performed. See Quinn, 691 N.W.2d at 407; see

also State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006) (stating credibility

determinations are within the province of the jury, and it is within the factfinder’s

purview to accept or reject testimony when deciding factual issues of the case).

Consequently, the evidence submitted at trial supports both convictions, and the

district court properly denied Harris’s motion for judgment of acquittal.
                                            10


       Harris takes issue with the fact the service records were not the actual

forms submitted for billing, and therefore they are not an “application for

payment” as contemplated by Iowa Code section 249A.8.2 However, we find no

case law supporting Harris’s interpretation of the statute. Furthermore, though

the service reports documented the days and services that were purportedly

delivered, the claim form ultimately submitted showed the same services

performed and relied on the daily service reports.            Given this factual basis,

Harris’s actions fall within the purview of section 249A.8. Therefore, trial counsel

was not ineffective for failing to assert this ground in the motion for judgment of

acquittal, given it would have been unsuccessful.           See State v. Greene, 592

N.W.2d 24, 29 (Iowa 1999) (holding trial counsel has no duty to assert a

meritless argument).

IV. Jury Instructions

       Harris next claims trial counsel was ineffective for failing to object to jury

instructions Nos. 12 (entitled fraudulent practices) and 15 (labeled tampering with

records).   With respect to instruction No. 12, Harris argues it should have

specified Harris or “the defendant” as the person whom the jury must find guilty.

She further asserts it does not specify a time period in which the offense

occurred, which allowed the jury to convict her of uncharged conduct and thus

constituted a fatal variance. Regarding instruction No. 15, Harris contends the

phrasing, “If you find that the State has not proven both 1 and 2 then Rosemary


2
  Harris did not assert this argument at the district court level, and therefore, error was
not preserved. See Lamasters, 821 N.W.2d at 864. However, we will address this
argument in the ineffective-assistance context to determine if Harris suffered prejudice
through counsel’s failure to present this argument to the district court.
                                           11


Harris is Not Guilty under Count 2,” improperly lessened the State’s burden to

prove both elements of the tampering-with-records charge. The State counters

that jury instruction No. 15 was a proper recitation of the law, 3 and, with the

instructions viewed as a whole, instruction No. 12 did not amount to a fatal

variance.

       Jury instruction No. 12 stated:

              A person who knowingly
              1. Makes or causes to be made [a]
              2. False statement or misrepresentation of material facts or
       knowingly fails to disclose material facts in application for payment
       or services rendered
              3. By a provider in the medical assistance program.
              If the State has proved all three of the elements, the
       defendant is guilty under Count 1. You must then determine the
       degree of Fraudulent Practice, as explained to you in Instruction
       No. 14. If the State has failed to prove any of the elements, the
       defendant is not guilty.

       Harris concedes the date of the offense is not a material element of the

crime. See Iowa Code § 249A.8. Consequently, the State did not have the

burden of proving the offenses occurred within the time period alleged in the

indictment. See State v. Griffin, 386 N.W.2d 529, 532 (Iowa Ct. App. 1986)

(holding when the date is not a material element of the crime, the State does not

have the burden of proving when the offense occurred).

       Additionally, the lack of a date in the instruction, combined with Thiering’s

testimony that she had concerns Peace of Mind was billing for services not



3
  In its brief, the State cites State v. Carey, 695 N.W.2d 505 (Iowa Ct. App. 2005)
(holding the defendant “has not proved both elements of a meritorious due process
claim”), to support its argument the proper phrasing was used in the jury instruction; it
then asserts counsel was not incompetent because: “Using language the same way
Iowa’s Court of Appeals does is not incompetent.” We would like to note we appreciate
the State’s faith that our court constructs phrases in a grammatically competent manner.
                                             12


completed in early 2012,4 did not amount to a fatal variance.               The charging

instrument properly set forth the dates in which Harris allegedly committed the

offenses; consequently, she was given notice of the charges against her, and no

fatal variance with respect to the trial information occurred. See State v. Grice,

515 N.W.2d 20, 22–23 (Iowa 1994) (noting a fatal variance occurs when the

evidence presented at trial does not support the charged conduct). The fact that

some evidence admitted at trial indicated Harris might have improperly billed

Iowa Medicaid at some other point in time does not affect her right to know the

charges against her, even when the jury instruction did not list the exact dates of

the offense. See generally State v. Bell, 223 N.W.2d 181, 184–85 (Iowa 1974)

(holding a variance is only fatal when the defendant is deprived of the right to

know the charges against him and defend against them at trial; consequently, the

fact the indictment alleged a day on which the defendant did not beat his

daughter did not constitute a fatal variance). Therefore, trial counsel was not

ineffective for failing to object to instruction No. 12 on the grounds there was a

fatal variance.

         Harris next asserts instruction No. 12 did not properly identify Harris as the

person who was required to make the false statement or misrepresentation for

4
    Harris complains of the following exchange:
                   Q: Did you see the billing records that Rosemary Harris prepared?
          A: I had seen . . . . [A] billing record laying on the table that she had
          printed out.
                   Q: Did that reflect the change in the hours? A: It reflects how
          many hours they got each month.
                   Q: Okay. And was that always the same? A: Whatever hours
          they got each month, yes, but that didn’t reflect what we did.
                   Q: So you’re saying somebody might submit a service record for
          eight hours a month on a client, but the information that you saw while in
          the office indicated the State was being billed for ten? A: Yes.
                   Q: Was that consistent? A: I do believe so.
                                          13


the State to prove the fraudulent-practice charge; consequently, trial counsel was

ineffective for failing to object to the instruction on these grounds.

       We do not find Harris’s argument persuasive.            The evidence at trial

showed that, even if Smith filled out the forms, Harris told her to do so and gave

her the notes to copy onto to the forms. Specifically, Smith testified she relied on

these notes when completing the form and had further assumed the work had

been completed. Furthermore, the instruction identifies “the defendant” as the

person the jury must find not guilty if the State failed to prove any of the

elements. The instruction is therefore a proper statement of the law containing

the elements the State was required to prove to convict Harris of fraudulent

practice. See Iowa Code § 714.8 & .11 (2013). Consequently, trial counsel was

not ineffective for failing to object to this instruction. See Greene, 592 N.W.2d at

29 (holding trial counsel has no duty to assert a meritless objection).

       Harris’s next objection is to Jury instruction No. 15, which stated:

              1. On or about the period of April 1, 2013 to and including
       May 6, 2013, Rosemary Harris falsified a writing or record; AND
              2. Rosemary Harris did so with the intent to deceive the Iowa
       Medicaid Unit OR to conceal a wrongdoing.
              If you find that the State has proven both 1 and 2 above,
       then Rosemary Harris is Guilty under Count 2. If you find that the
       State has not proven both 1 and 2 then Rosemary Harris is Not
       Guilty under Count 2.

(Emphasis added.)

       Harris asserts the last sentence should have read: “If you find that the

State has not proven either 1 or 2 then Rosemary Harris is Not Guilty under

Count 2.” However, this amounts to the same meaning as instruction No. 15.

The last sentence of the instruction requires the State to prove both elements of
                                          14

the crime. If the State failed to prove both element one and element two, then

Harris is not guilty. This is a proper recitation of the law and the State’s burden

of proof. See State v. Templeton, 258 N.W.2d 380, 383 (Iowa 1977) (noting it is

the State’s burden to prove all elements of the offense beyond a reasonable

doubt); see also Iowa Code § 715A.5.           Consequently, trial counsel was not

ineffective for failing to assert this meritless objection. See Greene, 592 N.W.2d

at 29.

V. Evidentiary Issues

         Harris’s final argument asserts trial counsel was ineffective for failing to

object to the introduction of Medicaid documents and the testimony of

Greethurst, who acted as a foundation witness and testified to the contents of the

documents. She contends the State’s Exhibits 13, 14, and 15 were inadmissible

for lack of foundation and authentication; additionally, she asserts they were

hearsay. Harris also takes issue with the testimony of Thiering—who stated she

had concerns Peace of Mind was billing for services not provided—as

inadmissible prior-bad-acts under Iowa Rule of Evidence 5.404(b). The State

responds the evidence was duplicative, and therefore Harris did not suffer

prejudice.

         We agree with the State’s argument the exhibits of which Harris now

complains were duplicative of other properly admitted evidence. State’s Exhibit

13 was a screenshot showing $817 was paid to Peace of Mind for Whitfield’s

care. However, defense Exhibit D was the claim form requesting payment for

Whitfield’s care in the amount of $817. These two exhibits, with exhibit D being

properly admitted, show the same evidence—that is, the amount Peace of Mind
                                         15


claimed for the ostensible services provided to Whitfield. Additionally, State’s

Exhibits 14 and 15 were blank forms, which were duplicative of State’s Exhibits

1–12 and defense Exhibit D. Consequently, regardless of the propriety of using

Greethurst as a foundation witness, the evidence entered through his testimony

is duplicative of the evidence properly admitted by either Harris or the State.

Therefore, Harris was not prejudiced by the admission of the evidence she now

challenges on appeal. See State v. Neiderbach, 837 N.W.2d 180, 205 (Iowa

2013) (holding evidence is not prejudicial if it is duplicative of other, properly

admitted evidence).

       Harris further objects to the testimony of Greethurst, who stated the

person providing the information was obliged to fill out the forms truthfully, as

required by the language on the forms. Greethurst’s testimony of which Harris

now complains consists of the following exchange:

              Q: When [someone] become[s] a CDAC provider, are they
       agreeing that they’re going to abide by the terms on the back page?
       A: Yes.
              Q: And what kind of terms are those? A: Basically that they
       have to be forthcoming and truthful on all the documentation that
       they submit.

Exhibit 14, which is the form that Harris signed and the exhibit to which

Greethurst was testifying, stated: “I certify that . . . . The information provided on

the front of this claim is true, accurate, and complete.”        Thus, Greethurst’s

testimony was not admitted for showing the truth of the matter asserted—that is,

Harris herself, when signing the form, had an obligation to provide truthful and

accurate information. Rather, Greethurst testified to the fact that anyone signing

the form as a CDAC provider was obligated to provide truthful information, as per
                                          16


the form’s language. This testimony is therefore not hearsay within the meaning

of Iowa Rule of Evidence 5.801, and trial counsel was not ineffective for failing to

object.

          Harris’s last argument asserts trial counsel was ineffective for failing to

object to the testimony of Thiering when she stated she believed Peace of Mind

was billing Iowa Medicaid for services not completed prior to April 2012, given

that this is both uncharged conduct and evidence of prior bad acts. Upon review

of the record, we conclude it is not adequate to resolve this claim. See State v.

Truesdell, 679 N.W.2d 611, 616 (Iowa 2004) (“Ordinarily, ineffective assistance

of counsel claims are best resolved by postconviction proceedings to enable a

complete record to be developed and afford trial counsel an opportunity to

respond to the claim.”).       Consequently, we preserve this claim for possible

postconviction-relief proceedings, where a more complete record may be

established. See Straw, 709 N.W.2d at 133.

          Having considered Harris’s arguments, we affirm her convictions.

However, we preserve for possible postconviction-relief proceedings her

argument counsel was ineffective for failing to object to the testimony of Thiering.

          AFFIRMED.
