                IN THE SUPREME COURT, STATE OF WYOMING

                                         2015 WY 30

                                                            OCTOBER TERM, A.D. 2014

                                                                   February 26, 2015

ADEBOWALE OLUSEYI ADEKALE
a/k/a TED ADEKALE,

Appellant
(Defendant),
                                                     S-14-0035
v.

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Laramie County
                     The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:
      Office of the State Public Defender: Diane Lozano, State Public Defender; Tina
      N. Olson, Chief Appellate Counsel; and David E. Westling, Senior Assistant
      Appellate Counsel. Argument by Mr. Westling.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; and Hollis
      Ann Ploen, Student Intern. Argument by Ms. Ploen.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.



NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.

[¶1] A jury found Adebowale Oluyseyi Adekale guilty of fifteen counts of felony
Medicaid fraud and one count of misdemeanor Medicaid fraud under Wyo. Stat. Ann. §
42-4-111(a) and (b)(i). The district court sentenced Mr. Adekale to sixteen concurrent
terms of four to ten years but suspended that sentence in favor of eight years of
supervised probation. Mr. Adekale’s timely appeal followed. Mr. Adekale contends that
the State failed to present evidence that he provided “medical assistance” as defined in
Wyo. Stat. Ann. § 42-4-102(a)(ii) and that the district court erred in its instruction to the
jury. Mr. Adekale also appeals his sentence, which included a felony sentence for a
misdemeanor conviction. We affirm in part and remand in part.

                                                ISSUES1

[¶2]    Mr. Adekale raises essentially four issues on appeal:

              I.          Whether the district court abused its discretion when it
                   denied Mr. Adekale’s motion for judgment of acquittal
                   because the State produced no evidence that Mr. Adekale
                   provided “medical assistance” as required by W.S. § 42-4-
                   111(a).


             II.         Whether the district court abused its discretion when it
                   denied Mr. Adekale’s motion for judgment of acquittal
                   because the State failed to prove the instructional element
                   concerning the dates of the alleged fraud.


            III.          Whether the district court erred in its instructions to
                   the jury when it included the term “habilitation,” and omitted
                   the definitions of “medical assistance” and “knowingly.”


            IV.          Whether the district court erred in regard to one of the
                   counts when it imposed a felony sentence for a misdemeanor
                   conviction of Medicaid fraud.




1
   Mr. Adekale identified only three issues on appeal because the denial of his motion for judgment of
acquittal included a determination of the statutory definition of “medical assistance” as well as a rejection
of his argument that the State must prove the specific dates on which he committed fraud. We see these
issues as sufficiently distinct to warrant separate analysis.


                                                      1
Each issue requires examination under different standards of review. For this reason, we
address each issue independently herein.

                                         FACTS

[¶3] The Medicaid waiver program involved in this case provides residential
habilitation and day habilitation services for developmentally disabled patients.
Residential habilitation provides basic services to recipients able to live in their own
home. Day habilitation provides patients the necessary physical and occupational tools to
interact with society. Each recipient of these services has a plan which sets out the
necessary services as well as a necessary caregiver to patient ratio. Mr. Adekale was a
certified waiver services provider for both day and residential habilitation. Mr. Adekale
offered these services through his business, Developmental Resources Center. The
Medicaid fraud charges in this case deal with both categories of services.

[¶4] A complaint concerning billing discrepancies prompted an investigation of Mr.
Adekale, and an investigator identified a pattern of fraud in Mr. Adekale’s billing
practices. Following the investigation, the State filed a sixteen-count information against
Mr. Adekale for violating Wyo. Stat. Ann. § 42-4-111(a) and (b)(i) and (ii) (LexisNexis
2013).

[¶5] In pretrial motions, Mr. Adekale requested that the jury instructions include the
definition of “medical assistance” found in Wyo. Stat. Ann. § 42-4-102(a)(ii) (LexisNexis
2013):

             “Medical assistance” means partial or full payment of the
             reasonable charges assessed by any authorized provider of the
             services and supplies enumerated under W.S. 42-4-103 and
             consistent with limitations and reimbursement methodologies
             established by the department, which are provided on behalf
             of a qualified recipient, excluding those services and supplies
             provided by any relative of the recipient, unless the relative is
             a family caregiver providing services through a corporation or
             a limited liability company, which corporation or limited
             liability company the relative may own, under a home and
             community based waiver program, or for cosmetic purposes
             only[.]

The district court denied the request as premature and informed the parties that final
instructions would be decided at trial. On the day trial began, the district court reviewed
jury instructions with both parties. The State and Mr. Adekale stipulated to the general
instruction that “[t]he information in this case charges . . . Adekale with unlawfully
making false statements in providing habilitation services to Medicaid clients.”


                                             2
[¶6] At trial, the State presented evidence that Mr. Adekale developed a pattern of
billing the Medicaid program for services he did not perform. Service logs indicated that
Mr. Adekale provided care for certain patients, though those patients were out of town or
otherwise unavailable during the dates of the alleged care. The State also presented
evidence of numerous incidents where some amount of care was provided, but that Mr.
Adekale billed for services in excess of those actually provided.

[¶7] Following the conclusion of the State’s case in chief, Mr. Adekale moved for
judgment of acquittal arguing that the State failed to prove the precise dates on which he
committed fraud or that he provided medical assistance as defined in § 42-4-102. Mr.
Adekale’s proposed understanding of that term requires that the State prove he made
payment for the services received by his patients. The district court denied the motion
for judgment of acquittal. The court held that charges covering a range of dates afforded
due process in this case and that the alleged grammatical deficiency in the statutory
definition of “medical assistance” would not cause the fraud charges to fail.

[¶8] The defense rested without presenting evidence and the court excused the jury to
allow the parties to conference and determine final jury instructions. In conference, Mr.
Adekale objected to the inclusion of the terms “habilitation” or “habilitation services” in
the instruction describing the type of services provided.2 Mr. Adekale then requested that
instruction specifically define the terms “medical assistance” and “knowingly.” The
district court again emphasized that defining the term “medical assistance” would
unnecessarily confuse the jury. Further, the district court recognized fraud as a general
intent crime and therefore determined that including a definition of “knowingly” was
unnecessary. The district court issued its instructions to the jury and the jury returned a
guilty verdict on all sixteen counts.

[¶9] The district court sentenced Mr. Adekale to a minimum of four years to a
maximum of ten years of confinement for each count, ordering each count to run
concurrently. The district court suspended Mr. Adekale’s confinement sentence in favor
of eight years of supervised probation in addition to restitution. Mr. Adekale timely filed
his appeal.

                                           DISCUSSION

[¶10] A comprehensive examination of the Wyoming Medical Assistance and Services
Act indicates that while the statute under which the State charged Mr. Adekale is
2
     The State’s proposed instruction read: “providing habilitation services for the Medicaid waiver
program.” Mr. Adekale’s proposed instruction read: “the defendant foreknowingly made a false
statement or representation in providing medical assistance.” The final instruction read: “The Defendant
. . . knowingly made a false statement or misrepresentation in providing Medicaid medical assistance in
the form of habilitation services . . .”


                                                    3
ambiguous, the legislature’s intent to criminalize the conduct involved in this case is
clear. Accepted principles of statutory interpretation require this Court to implement that
intent if possible. The district court did not abuse its discretion when it denied Mr.
Adekale’s motion for judgment of acquittal and the instructions proffered to the jury
adequately advised them of the basis for his conviction. For these reasons we affirm Mr.
Adekale’s conviction as well as the district court’s denial of his motion for judgment of
acquittal. The district court, however, incorrectly sentenced Mr. Adekale for sixteen
felony counts rather than for the fifteen felony counts and one misdemeanor count for
which he was convicted. We remand the improper sentence for correction by the district
court.

Issue I

[¶11] Mr. Adekale first contends that the district court abused its discretion when it
denied his motion for judgment of acquittal because the State produced no evidence that
Mr. Adekale provided “medical assistance” as that term is defined in § 42-4-102(a)(ii).
Resolving this issue requires applying this Court’s tools of statutory construction.

[¶12] Statutory interpretation is a question of law which we review de novo. Crain v.
State, 2009 WY 128, ¶ 8, 218 P.3d 934, 938 (Wyo. 2009). The plain, ordinary, and usual
meaning of words used in a statute controls in the absence of clear statutory provisions to
the contrary. Id. Where there is plain, unambiguous language used in a statute there is
no room for construction, and a court may not look for and impose another meaning. Id.
Where legislative intent is discernible a court should give effect to the “most likely, most
reasonable, interpretation of the statute, given its design and purpose.” Rodriguez v.
Casey, 2002 WY 111, ¶ 20, 50 P.3d 323, 329 (Wyo. 2002).

[¶13] We have said that we will not add language or choose other words to change the
meaning of a statute. Stutzman v. Office of Wyoming State Eng’r, 2006 WY 30, ¶¶ 14-16,
130 P.3d 470, 475 (Wyo. 2006). On the other hand, “it is one of the surest indexes of a
mature and developed jurisprudence . . . to remember that the statutes always have some
purpose or object to accomplish, whose sympathetic and imaginative discovery is the
surest guide to their meaning.” Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945),
judgment aff’d, 326 U.S. 404, 66 S.Ct 193, 90 L.Ed. 165 (1945); 2A Norman J. Singer
and J.D. Shambie Singer, Sutherland on Statutory Construction § 45:9 (7th ed. 2014).
This Court will not interpret a statute in a way which renders any portion of it
meaningless or in a manner producing absurd results. Stutzman, ¶ 16, 130 P.3d at 475.

[¶14] For these reasons, the majority of courts have transposed words and phrases when
necessary to effect a manifest legislative intent and to give a statute meaning and avoid
absurdity. See 2A Sutherland on Statutory Construction, supra, § 47:35. Courts have
also permitted the substitution of one word for another if necessary to carry out
legislative intent. Id. at § 47:36. Although they do so with care and only when necessary


                                              4
to effect legislative intent, courts even go so far as to insert or add words to do so. Id. at
§ 47:38.

[¶15] This case also demands consideration of the long-standing rule that statutes be
read in pari materia. Crain, ¶ 8, 218 P.3d 938. This requires a construction which
reconciles inconsistencies in one portion of a statute with another statute dealing with the
same subject. Id. The resolution of this case requires that we approach these tools of
statutory interpretation cautiously, but we are convinced their prudent use is warranted
here.

[¶16] The Wyoming Medical Assistance and Services Act, Wyo. Stat. Ann. § 42-4-101,
et seq., governs Wyoming’s administration of the combined state and federal health
program commonly known as Medicaid. This Court gave a concise overview of the
Medicaid program in Estate of Marusich v. State ex rel. Dep’t of Health, 2013 WY 150,
¶ 9, 313 P.3d 1272, 1276-77 (Wyo. 2013). The Medicaid program provides medical
benefits to qualified recipients as a payer of last resort. Id. This appeal turns on the
legislature’s definition of the exchange by which Medicaid benefits flow from the State
as “payer of last resort” to those receiving medical services. A thorough reading of the
Wyoming Medical Assistance and Services Act shows that “medical assistance” is a term
used throughout the Act to describe this exchange. See, e.g., Wyo. Stat. Ann. § 42-4-
103(a) (LexisNexis 2013) (Services and supplies authorized for medical assistance);
Wyo. Stat. Ann. § 42-4-104(c)(ii) (LexisNexis 2013) (medical assistance computed on
the per diem basis rate); Wyo. Stat. Ann. § 42-4-201(a) (LexisNexis 2013) (the recipient
shall not be deprived of any medical assistance for which he is entitled under this
chapter).

[¶17] Into this benefit program enters a provider of services, such as Mr. Adekale, who
renders medical services and would ordinarily bill his patient for those services. In the
waiver program, however, Mr. Adekale provides services to Medicaid beneficiaries and
accounts to the Wyoming office administering Medicaid for payment of those services.

[¶18] The heart of this issue lies with the language of Wyo. Stat. Ann. § 42-4-111(a)
(LexisNexis 2013), the charging statute, which provides that:

              No person shall knowingly make a false statement or
              misrepresentation or knowingly fail to disclose a material fact
              in providing medical assistance under this chapter.

The statute is ambiguous when read together with Wyo. Stat. Ann. § 42-4-102(a)(ii)
(LexisNexis 2013), which defines “medical assistance” as:

              “Medical assistance” means partial or full payment of the
              reasonable charges assessed by any authorized provider of


                                               5
              the services and supplies enumerated under W.S. 42-4-103
              and consistent with limitations and reimbursement
              methodologies established by the department, which are
              provided on behalf of a qualified recipient, excluding those
              services and supplies provided by any relative of the
              recipient, unless the relative is a family caregiver providing
              services through a corporation or a limited liability company,
              which corporation or limited liability company the relative
              may own, under a home and community based waiver
              program, or for cosmetic purposes only[.] [Emphasis added.]

[¶19] The language of § 42-4-111 is ambiguous because strict construction of the statute
would render it meaningless. By using the word “providing,” the legislature clearly
intended to criminalize false representations by those seeking compensation for providing
services or supplies (i.e., care) to Medicaid recipients when those misrepresentations
resulted in payment. This conclusion is reinforced by § 42-4-111(b), which provides for
a penalty of up to ten years in prison if “the value of medical assistance” is five hundred
dollars or more, but for a misdemeanor if it is less. In other words, the punishment is
related to the amount of payment received.

[¶20] A completely literal reading of § 42-4-111(a) in conjunction with § 42-4-102(a)(ii)
could cause one to accept the absurd notion that the legislature intended to criminalize
payment of money by those who provide services to Medicaid recipients. However,
providers do not pay; rather, they receive payment for the services they render. The
statute would be meaningless if read in that fashion, as it would apply to no one.

[¶21] When § 42-4-111(a) is read in pari materia with the other Medicaid provisions, it
is clear that the legislature intended to provide that “[n]o person [providing services] shall
knowingly make a false statement or misrepresentation or knowingly fail to disclose a
material fact in applying for medical assistance (payment) under this chapter.”

[¶22] One may argue that § 42-4-111(c) by its terms is the statute applicable to the
conduct Mr. Adekale was charged with. That statute provides:

              No person shall knowingly make a false statement or
              misrepresentation or knowingly fail to disclose a material fact
              in obtaining medical assistance under this chapter. A person
              violating this subsection is guilty of a misdemeanor
              punishable by imprisonment for not more than six (6) months,
              a fine of not more than seven hundred fifty dollars ($750.00),
              or both.

Wyo. Stat. Ann. § 42-4-111(c) (LexisNexis 2013).


                                               6
[¶23] The argument would go that Mr. Adekale literally obtained medical assistance by
the above definitions and could only be convicted of a misdemeanor regardless of how
much money he was paid. This interpretation is incorrect. This statute applies to those
whom have received care from a provider. This unremarkable conclusion is supported by
two simple reasons. First, as heretofore explained, § 42-4-111(a) would still be rendered
meaningless and applicable to no one. Secondly, the penalty section, which is related to
the amount of payment made, would also be meaningless and contrary to the statutory
scheme. We can only conclude that the legislature intended to say that “no person
applying for Medicaid benefits shall knowingly make a false statement or
misrepresentation or knowingly fail to disclose a material fact in obtaining medical care
from a provider.” The legislature intended to punish those applying for Medicaid
benefits less harshly for false misrepresentations than it did those in the business of
providing services to many Medicaid benefit recipients.

[¶24] This is not to suggest that the legislature should not consider simplifying the crime
in question by eliminating the technical jargon it contains. It did so in the Wyoming
Medicaid False Claims Act of 2013, where it granted the State the right to recover treble
damages if a claimant “knowingly presents or causes to be presented a false or fraudulent
claim for payment or approval.” Wyo. Stat. Ann. § 42-4-303(a)(i) (LexisNexis 2013).
Iowa uses the term “medical assistance,” but also defines the term “provider,” and more
clearly defines the elements of the crime as follows:

             A person who knowingly makes or causes to be made false
             statements or misrepresentations of material facts or
             knowingly fails to disclose material facts in application for
             payment of services or merchandise rendered or purportedly
             rendered by a provider participating in the medical assistance
             program under this chapter commits a fraudulent practice.

I.C.A. § 249A.2(12) (definition of provider); § 249A.51 (West 2013). The federal health
care fraud statute is also quite simple:

             (a) Whoever knowingly and willfully executes, or attempts to
             execute, a scheme or artifice--
                   (1) to defraud any health care benefit program; or
                   (2) to obtain, by means of false or fraudulent
                   pretenses, representations, or promises, any of the
                   money or property owned by, or under the custody or
                   control of, any health care benefit program, in
                   connection with the delivery of or payment for health
                   care benefits, items, or services, shall be fined under
                   this title or imprisoned not more than 10 years, or both.


                                             7
18 U.S.C.A. § 1347 (2000).

The Rule of Lenity

[¶25] No discussion of this issue would be complete without addressing the rule of
lenity or strict construction of criminal statutes. That rule provides that an ambiguity in a
criminal statute should be resolved in favor of lenity. See, e.g., Amrein v. State, 836 P.2d
862, 864-65 (Wyo. 1992). Another formulation of the rule is that penal statutes are to be
strictly construed against the government. 3 Norman J. Singer and J.D. Shambie Singer
Sutherland on Statutory Construction, § 59:3 (7th ed. 2008). Still another formulation is
that when a court is faced with two reasonable interpretations of a criminal statute and
legislative intent is ambiguous, the court should adopt the less punitive alternative. Id. at
§ 59:4.

[¶26] The rule has its limitations, however. As observed in 3 Sutherland on Statutory
Construction, supra, at § 59:6:

                      The rule of strict construction is not the only factor
              which influences the interpretation of penal laws. Instead, the
              rule is merely one among various aids which may be useful to
              determine the meaning of penal laws. This has been
              recognized time and again by the decisions, which frequently
              enunciate the principle that the intent of the legislature, or the
              meaning of the statute, must govern, and that strict
              construction should not be permitted to defeat the policy and
              purposes of the statute. One court has noted that “While
              criminal statutes must be strictly construed to avoid the
              creation of penalties by construction, such reasonable view
              must be taken of a statute as will effectuate the manifest
              intent and purpose of the lawmakers.” A federal district court
              has said, “The strict construction of a criminal statute does
              not mean such construction of it as to deprive it of the
              meaning intended. Penal statutes must be construed in the
              sense which best harmonizes with their intent and purpose.”

If legislative intent is sufficiently clear, strict construction cannot defeat that intent, even
in the case of criminal statutes.

[¶27] In addition, the rule applies with greater vigor when the statute establishes an
offense which is malum prohibitum, a crime merely because it is prohibited by statute, as
opposed to a crime which is inherently immoral and therefore malum in se. 3 Sutherland
on Statutory Construction, supra, § 59:4. This is because conduct which is otherwise


                                                8
innocent and lawful should not become criminal without a clear and positive expression
of legislative intent. People v. Adamkeiwicz, 81 N.E.2d 76, 78 (N.Y. 1948).

[¶28] By these standards, the statute is sufficiently definite and the legislative intent
clear. Although the charging statute and definition of medical assistance read in isolation
are somewhat ambiguous, that ambiguity is resolved by a review of the entire statutory
scheme, including the penalty structure. See Rodriguez, ¶ 20, 50 P.3d at 329. In
addition, obtaining property by making false statements is malum in se – it is a form of
theft. The crime of false pretenses has been in existence since at least 1757. 3 Wayne R.
LaFave, Substantive Criminal Law § 19.7, at 114 (2003). It was prohibited when the
statute in question was adopted in 1967 and continues to be a crime today in Wyo. Stat.
Ann. § 6-3-407 (LexisNexis 2013).3 Someone in Mr. Akekale’s position could not
reasonably have believed, after reading the statute in its entirety, that he could obtain
payment for services through the Medicaid program by misrepresenting the work he had
performed or the number of clients he served at a time. A review of the penalties in § 42-
4-111(b) should have made it clear that misrepresentations resulting in payment of over
$500 were felonies.

[¶29] We next consider whether the evidence is sufficient for a jury to conclude that
each element of the crime was proven beyond a reasonable doubt. Anderson v. State,
2009 WY 119, ¶ 6, 216 P.3d 1143, 1145 (Wyo. 2009). In this case, the State presented
evidence that on numerous occasions Mr. Adekale billed for services he did not perform.
In accord with our discussion above, this is precisely the behavior the legislature
criminalized when it passed § 42-4-111. Thus, a jury could conclude beyond a
reasonable doubt that he made false statements or misrepresentations in providing
medical assistance to Medicaid recipients. For these reasons, we find the district court
did not abuse its discretion when it denied Mr. Adekale’s motion for judgment of
acquittal on this issue.

Issue II

[¶30] The second issue raised by Mr. Adekale is whether the district court abused its
discretion when it denied his motion for judgment of acquittal because the State failed to
prove the instructional element concerning the dates of the alleged fraud. Because a
range of dates has previously been acceptable as proof of a charge, we affirm the district
court’s decision here.

[¶31] As stated above, we review the denial of a motion for judgment of acquittal under
a sufficiency of the evidence standard. See Martinez v. State, 2009 WY 6, ¶ 11, 199 P.3d

3
  The 1957 statute was in a section headed “Cheats, Swindlers, False Pretenses, etc.” A person who
obtained anything of value worth twenty-five dollars or more was subject to up to ten years of
imprisonment. Wyo. Stat. § 6-38 (1957).


                                                 9
526, 530 (Wyo. 2009) (citing Aragon v. State, 627 P.2d 599, 602 (Wyo. 1981)). In
reviewing the sufficiency of the evidence, we assume evidence favoring the successful
party is true and we also afford the successful party every favorable inference that may be
drawn from the evidence. Daley v. Wenzel, 2001 WY 80, ¶ 24, 30 P.3d 547, 553 (2001).
The evidence is sufficient if a jury could conclude that each element of the crime was
proven beyond a reasonable doubt. Anderson, ¶ 6, 216 P.3d 1145.

[¶32] Regarding dates of a crime, proving criminal activity on a specific date may not be
relevant to proving a crime was committed. Lee v. State, 2001 WY 129, ¶ 11, 36 P.3d
1133, 1138 (Wyo. 2001). Furthermore, unless time is an essential element of an offense,
proving the specific date of the offense is unnecessary. Spagner v. State, 2009 WY 12,
¶ 17, n.6, 200 P.3d 793, 801 (Wyo. 2009). Adequate notice, however, may require that
the State allege a general time frame within which a crime was committed. See Lee, ¶ 11,
36 P.3d at 1138.

[¶33] Here, the State presented Mr. Adekale’s billing information and service logs to the
jury along with witness testimony explaining how these documents evidence Medicaid
fraud. Further testimony regarding Mr. Adekale’s pattern of fraud included exhibits with
billing dates submitted by Mr. Adekale. The instructions submitted to the jury included a
range of dates for each count which corresponds to the charging information in this case.

[¶34] The jury could have reasonably inferred from the testimony and exhibits presented
at trial that Mr. Adekale fraudulently billed the Medicaid program on or between the
dates provided. From here, the jury could reasonably conclude, beyond a reasonable
doubt, that Mr. Adekale made false statements and misrepresentations in violation of
§ 42-4-111.

Issue III

[¶35] Mr. Adekale next challenges the instructions provided to the jury. Specifically,
Mr. Adekale argues that the district court abused its discretion when it omitted the
statutory definition of “medical assistance,” added the term “habilitation services,” and
denied Mr. Adekale’s request for a definition of the term “knowingly” within the
instructions.

[¶36] The district court provided instructions that all took the following general form:

              The elements of the crime of Medicaid Fraud as charged in
              this case under Count I are:
                     1. On or between March 1, 2011 and March 31,
                     2011;
                     2. In Laramie County, Wyoming;



                                             10
                     3. The Defendant, Adebowale Oluseyi “Ted”
                     Adekale;
                     4. Knowingly;
                     5. Made a false statement or misrepresentation;
                     6. In providing Medicaid medical assistance in the
                     form of habilitation services to [the patient], and;
                     7. The value of the medical assistance was greater
                     than five hundred dollars ($500.00).

[¶37] On appeal, challenges to jury instructions are reviewed under an abuse of
discretion standard. Budder v. State, 2010 WY 123, ¶ 7, 238 P.3d 575, 577 (Wyo. 2010).
District courts have substantial latitude to tailor jury instructions to the facts of the case.
Id. “A trial court does not abuse its discretion by referring the jury to instructions that,
when viewed as whole and in the context of the entire trial, fairly and adequately cover
the issues.” Id. As long as the instructions correctly report the law and the charges cover
the relevant issues, there is no reversible error. Garza v. State, 2010 WY 64, ¶ 19, 231
P.3d 884, 890 (Wyo. 2010).

Medical Assistance

[¶38] The instructions given adequately informed the jury of the elements of Medicaid
fraud included in § 42-4-111. Reviewing the lengthy discussion of Mr. Adekale’s issue
with the term “medical assistance” is unnecessary. It is within the discretion of the
district court to tailor jury instructions to the particular case. That is exactly what the
district court did when it omitted a definition of medical assistance.

[¶39] The State charged Mr. Adekale for making false statements and misrepresenting
facts relating to the exchange of benefits he participated in as an authorized provider of
Medicaid services. It is entirely possible that both the manner in which the legislature
defined “medical services” and the awkward insertion of that term into the charging
statute would confuse the jury. The district court recognized that the definition could
confuse the jury into believing that the statute criminalizes only fraudulent payments
made by Medicaid officials to authorized providers of medical services, and not medical
service providers who fraudulently bill for and receive Medicaid payments for services
rendered.

[¶40] A provider of Medicaid services who makes false statements and
misrepresentations concerning those services is subject to Wyoming’s Medicaid fraud
statute. That is why Mr. Adekale was charged, that is what the entire trial centered
around, and that is what the jury was instructed on.




                                               11
Habilitation

[¶41] Again, a district court does not abuse its discretion when it provides the jury with
instructions that, when considered as a whole and in the context of the entire trial, fairly
and adequately cover the issues. Budder, ¶ 7, 238 P.3d at 577. Throughout trial, the jury
considered evidence on the type of services Mr. Adekale provided in addition to the
general context of the Medicaid program. While not specifically defined in the Medicaid
statute, “habilitation services” was a term used at trial to describe “[s]ervices provided
under a federal home and community based waiver,” a type of service eligible for
“medical assistance” as defined in § 42-4-102(a)(ii). Wyo. Stat. Ann. § 42-4-103(a)(xvii)
(LexisNexis 2013). The district court placed the fraud charges in this context when it
included the term “habilitation services” in the instructions. Accordingly, it was within
the discretion of the district court to include the term “habilitation services” in Mr.
Adekale’s jury instructions.

Knowingly

[¶42] Mr. Adekale’s contention that the district court abused its discretion when it
omitted a definition of the term “knowingly” is misplaced. The 2012 statute, under
which the State charged Adekale, and which was in effect at the time of trial included no
such definition. See 2013 Wyo. Sess. Laws, ch. 118, sec. 2. Unless otherwise defined by
statute, the term “knowingly” requires no clarification because the legal meaning of the
term is not so separate from its ordinary meaning. Morris v. State, 2009 WY 88, ¶ 16,
210 P.3d 1101, 1105 (Wyo. 2009).

[¶43] Furthermore, Mr. Adekale argues for a definition that encompasses a broader
possibility of mens rea than the ordinary and common understanding of “knowingly”
provides. As we have noted in a prior case, if a lesser mens rea suffices to establish an
element of a crime, such element is established if a person acts with a greater mens rea.
See O’Brien v. State, 2002 WY 63, ¶ 20, 45 P.3d 225, 232 (Wyo. 2002) (recognizing that
when recklessness suffices to establish an element, such element also is established if a
person acts purposely or knowingly).

[¶44] For all of these reasons, a definition of “knowingly” was properly omitted from
the instructions in this case. In sum, we find no abuse of discretion in the district court’s
decision to omit definitions of “medical assistance” and “knowingly” and to include the
term “habilitation” in its instructions.

Issue IV

[¶45] The last issue raised by Mr. Adekale concerns his illegal sentence. The State
correctly concedes Mr. Adekale’s sentence inappropriately incorporated the misdemeanor
charge as a felony charge. The record also supports Mr. Adekale’s contention. Under


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W.R.Cr.P. 35(a): “The court may correct an illegal sentence at any time.” Coy v. State,
2014 WY 49, ¶ 21, 322 P.3d 821, 826-27 (Wyo. 2014) (applying W.R.Cr.P. 35(a)). We
therefore hold that the district court erred in its sentence on Count XVI and remand this
case to the district court for a sentence that conforms with § 42-4-111(b)(ii).

                                    CONCLUSION

[¶46] We reject Mr. Adekale’s challenge of the district court’s denial of judgment of
acquittal as well as his challenge to the jury instructions in this case. We affirm his
conviction on all counts but remand this case for resentencing in conformance with Wyo.
Stat. Ann. § 42-4-111(b)(ii) (LexisNexis 2013).




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