                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                                STATE OF MINNESOTA
                                IN COURT OF APPEALS
                                      A15-1371

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                 Tammy Jo Schoenrock,
                                     Appellant.

                                   Filed June 13, 2016
                                        Affirmed
                                      Reilly, Judge

                             Hennepin County District Court
                               File No. 27-CR-14-23742

Lori Swanson, Attorney General, Scott E. Haldeman, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Paul Engh, Minneapolis, Minnesota (for appellant)

       Considered and decided by Worke, Presiding Judge; Reilly, Judge; and Smith,

Tracy, Judge.

                         UNPUBLISHED OPINION

REILLY, Judge

       Appellant challenges her two convictions of theft by false representation (over

$5,000), arguing that the jury instructions failed to accurately explain the elements of the

crime. Because the district court did not abuse its discretion in instructing the jury about

the charged crime, we affirm.
                                         FACTS

       A personal care assistant (PCA) is an individual who is employed by an agency to

provide various services that allow the recipient of those services to continue to live at

home rather than move to a care facility. To be paid by the agency, the PCA is required to

fill out timesheets recording the hours that have been worked. The agency is reimbursed

by the State of Minnesota or the recipient’s health plan.   The PCA’s timesheets must be

accurate and are relied upon for the proper disbursement of those funds. A responsible

party is an individual who acts on behalf of a recipient of PCA services who is unable to

make decisions in her own best interests. A recipient’s PCA and responsible party cannot

be the same person, and both the PCA and the responsible party must sign the PCA’s

timesheets.

       An individual must complete training and pass a competency test and a background

check to become a PCA. See Minn. Stat. § 256B.0659, subds. 11(a)(3), (8) (2014)

(requiring PCA applicant to pass background study, complete standardized training, and

demonstrate competency to provide PCA services); Minn. R. 9505.0335, subp. 3 (2015)

(providing PCA training requirements). As part of the training, PCA applicants are told

that a “time card is your official statement that you have actually worked these hours”;

“[y]ou are breaking the law if you claim even one hour of PCA services on your time card

that you did not provide”; “[t]o avoid fraudulent behavior, only document hours of work

. . . [w]hen you are present in your role as a PCA” and “engage[d] in PCA work activity”;

and “[d]o not . . . [a]ccept money when you have not done the work” or “[f]ill out a time

card for days you do not provide any PCA services.” PCA applicants are also told during


                                             2
training, “you must be careful only to bill for hours you actually worked and complete the

time card and signatures after the hours have been worked. You are making a promise that

you have actually worked these hours.”

       Appellant Tammy Jo Schoenrock’s elderly mother, M.S., was diagnosed with

Alzheimer’s disease. M.S.’s health plan, Medica, authorized M.S. to receive PCA services.

Schoenrock completed training, passed a competency test and a background check, and

was hired by Accra Care, an agency, to serve as M.S.’s PCA. J.M., Schoenrock’s close

friend, was selected to serve as M.S.’s responsible party.

       In April 2010, Schoenrock signed documents acknowledging her understanding that

“[f]raud” is “an intentional act of deception, misrepresentation or concealment in order to

gain something of value”; examples of fraud include “billing for services that were never

rendered” and “deliberately misrepresenting services, resulting in unnecessary cost to the

Medicare program, improper payments to providers or overpayments”; and “[i]t is a crime

to provide false information for Medical Assistance payment.”         Schoenrock further

acknowledged her understanding that “[t]he PCA . . . can only be paid for work done when

the PCA is physically present and providing medically necessary care for the Consumer”

and “cannot submit a timesheet for hours not worked.”

       Schoenrock began to serve as M.S.’s PCA during the spring of 2010. M.S. lived

with Schoenrock in Eden Prairie until M.S. became unable to navigate the stairs in

Schoenrock’s home. In May 2011, M.S. moved in with L.S., M.S.’s daughter and

Schoenrock’s sister, who lived in a single-level home in Fergus Falls. Schoenrock

informed Accra Care and Medica that she would continue to reside in Eden Prairie, that


                                             3
she would continue to provide care for M.S. in Fergus Falls, and that she would be “making

the trip back and forth.” Employees of Accra Care and Medica believed that M.S.’s move

to Fergus Falls was temporary and that Schoenrock “was considering having renovations

made to her house.” After M.S. moved, Schoenrock initially visited L.S.’s home every

Friday and occasionally spent the night and left on Saturday morning, but these visits

progressively declined in frequency. L.S. instead provided care for M.S., and eventually

other women were employed to provide additional care because, according to L.S.,

“[M.S.]’s care[] became too much for one person.”

       Between May 2011 and April 2012, Schoenrock and J.M. signed and submitted

timesheets reporting that Schoenrock provided M.S. 63 hours of PCA services per week.

Schoenrock claimed to have provided PCA services even at times when she was working

at another job and during an approximately two-week period in March 2012 when she was

in Florida. Each timesheet noted that a signature verified that the hours recorded were

“true and accurate” and that “[e]mployees are only paid for time they are physically present

and working with the consumer.” L.S. testified that Schoenrock never provided M.S. 63

hours of PCA services per week while M.S. lived with L.S. Schoenrock was paid by Accra

Care for the hours reported on her timesheets. Schoenrock gave L.S. between $400 and

$500 per week for L.S.’s care of M.S., and L.S. believed that this money came from M.S.’s

social security payments.

       During the spring of 2012, employees of Accra Care and Medica discovered that

M.S.’s move to Fergus Falls was permanent and began an investigation. Schoenrock was

subsequently charged with two counts of theft by false representation (over $5,000), in


                                             4
violation of Minn. Stat. § 609.52, subd. 2(3)(iii) (2010). During the jury trial, Schoenrock

testified that, when she was submitting timesheets and being paid by Accra Care while L.S.

was caring for M.S., she “had no idea” “that was wrong or somehow illegal,” did not

“believe that [she was] providing false information,” and “[n]ever” had an “intent to steal

any money from Accra Care.” Schoenrock explained: “I figured my sister was an extension

of me and I didn’t really see how it mattered since I had been filling [the timesheets] out.”

She further testified that “since my sister and I were working together, I thought it was fine

because I was giving her the money,” and “I viewed [L.S.] and myself as one unit, two

daughters taking care of my mother, and [L.S.] and I shared the responsibilities and we

shared the income.” Schoenrock acknowledged that “by filling out a time card for Accra

Care, [it] was [her] intent to get paid by that time card.” She testified that she received

approximately $3,000 per month from Accra Care while M.S. lived with L.S. and that she

paid L.S. approximately $1,800 per month.

       During trial, Schoenrock requested that the jury instructions list intent to defraud as

one of the elements of the charged crime. The district court denied this request. The court

determined that the element of intent to defraud was adequately explained in the jury

instruction guides for the crime of theft by false representation and provided the jury with

instructions consistent with the jury instruction guides. The jury was instructed:

              The statutes of Minnesota provide that whoever obtains for
              herself the possession, custody, or title to [the] property of
              another person by intentionally deceiving the other with a false
              representation that is known to her to be false and is made with
              intent to defraud and does defraud the person to whom it is
              made, is guilty of a crime.



                                              5
                      The elements of theft by false representation are: One,
               the defendant obtained possession of monetary funds. Two,
               the monetary funds were the property of . . . Accra Care. Three,
               the defendant intentionally made the representation to Accra
               Care in order to obtain the monetary funds. This means the
               defendant made the representation for the purpose of obtaining
               the monetary funds.

                      Four[], the defendant knew or believed the
               representation was false. Fi[ve], the defendant intended Accra
               Care to believe . . . the representations were true. Six[], Accra
               Care believed the representations were true and, in reliance on
               those representations, gave the defendant possession of the
               monetary funds. Seven, the defendant’s acts took place on or
               about May 2nd, 2011 through October 26th, 2011 in Hennepin
               County [for count one and] . . . on or about November 2nd,
               2011 through April 2nd, 2012 in Hennepin County [for count
               two].

The jury was also asked to determine for each count whether Schoenrock obtained more

than $5,000.     The jury found Schoenrock guilty of two counts of theft by false

representation (over $5,000), and this appeal follows.

                                      DECISION

       A “[d]enial of a requested jury instruction is reviewed for abuse of discretion.” State

v. Wenthe, 865 N.W.2d 293, 302 (Minn. 2015), cert. denied, 136 S. Ct. 595 (2015). “While

district courts have broad discretion to formulate appropriate jury instructions, a district

court abuses its discretion if the jury instructions confuse, mislead, or materially misstate

the law.” State v. Taylor, 869 N.W.2d 1, 14-15 (Minn. 2015) (quotation omitted).

“Whether a district court’s jury instructions correctly state the law presents a question of

statutory interpretation, which [appellate courts] review de novo.” State v. Davis, 864

N.W.2d 171, 178 (Minn. 2015). Jury instructions are reviewed “in their entirety to



                                              6
determine whether the instructions fairly and adequately explain the law of the case” and

“define the crime charged and explain the elements of that crime to the jury.” State v.

Milton, 821 N.W.2d 789, 805 (Minn. 2012) (quotations omitted). “[A] court need not give

a requested instruction if the substance of the instruction is already contained in the existing

jury instructions.” State v. Yang, 774 N.W.2d 539, 559 (Minn. 2009).

       A person commits theft by “obtain[ing] for the actor or another the possession,

custody, or title to property of . . . a third person by intentionally deceiving the third person

with a false representation which is known to be false, made with intent to defraud, and

which does defraud the person to whom it is made.” Minn. Stat. § 609.52, subd. 2(3)

(2010). “‘False representation’ includes . . . the preparation or filing of a claim for

reimbursement . . . for medical care provided to a recipient of medical assistance under

chapter 256B, which intentionally and falsely states the costs of or actual services provided

by a vendor of medical care . . . .” Id., subd. 2(3) (iii); see also Minn. Stat. §§ 256B.01-.84

(2010 & Supp. 2011) (providing laws governing medical assistance for needy persons).

       Schoenrock argues that the district court violated the doctrine of in pari materia and

the rule of lenity when the court declined to list intent to defraud as one of the elements of

the crime in the jury instructions. In pari materia is a canon of statutory interpretation that

“allows two statutes with common purposes and subject matter to be construed together to

determine the meaning of ambiguous statutory language.” State v. Nelson, 842 N.W.2d

433, 441-42 (Minn. 2014) (quotations omitted). The rule of lenity requires that a statutory

ambiguity be resolved in favor of a criminal defendant “when a grievous ambiguity or

uncertainty in the statute remains after [the court] ha[s] considered other canons of statutory


                                               7
construction.”   Id. at 443-44 (quotation omitted).      The language of section 609.52,

subdivision 2(3), explicitly provides that proof of the crime of theft by false representation

requires proof that the representation was made with intent to defraud. See Minn. Stat.

§ 609.52, subd. 2(3) (stating that theft is committed by obtaining property of “a third person

by intentionally deceiving the third person with a false representation which is known to

be false, made with intent to defraud, and which does defraud the person to whom it is

made” (emphasis added)). Schoenrock has not identified a statutory ambiguity, and

therefore application of the doctrine of in pari materia or the rule of lenity is inapposite.

See State v. Grigsby, 818 N.W.2d 511, 517 (Minn. 2012) (stating that rule of lenity does

not apply if challenged statute is unambiguous); State v. Lucas, 589 N.W.2d 91, 94 (Minn.

1999) (stating that doctrine of in pari materia is not used absent statutory ambiguity).

       Schoenrock maintains that the jury instructions failed to accurately explain the

elements of the crime of theft by false representation. She cites State v. Williams, 324

N.W.2d 154 (Minn. 1982), to support her argument that the district court’s failure to list

intent to defraud as an element is reversible error. The codefendants in Williams owned a

business that sold “precut log home packages” and issued checks for payment to companies

that supplied and delivered logs. Id. at 155-56. The defendants’ business had accounts

receivable but, due to some defective logs, the business’s checking account had insufficient

funds to cover the checks to the supplier and deliverer, the checks were dishonored, and

the business was eventually forced into bankruptcy. Id. at 156. The defendants were

charged with theft by false representation for issuing checks from an account with

insufficient funds to cover the checks. Id. at 156-57. The jury returned guilty verdicts after


                                              8
being instructed that the elements of the crime were that the defendants “obtained for

themselves or their company the possession, custody, or title of the logs”; “intentionally

issued a check to obtain the logs”; “kn[ew] or believed that [they were] not entitled to issue

the check or checks”; “intended that [a victim] believe[] that defendant[s were] entitled to

issue the check or checks”; the victim “believed that defendant[s were] entitled to issue the

check or checks and . . . in reliance on that belief, he must have given defendants or another

possession, custody, or title to the logs”; and “the defendants’ actions [took] place in Aitkin

County.” Id. at 156, 158. The supreme court determined that the instruction was

inadequate because it permitted the jury to find the defendants guilty of theft by false

representation “despite the fact that the[y may have] intended to cover the check (for

instance, with accounts receivable or receipts from the sale of goods obtained by issuing

the check).” Id. at 159. The supreme court stated that, under the instruction given,

              a defendant can be found criminally liable without the jury
              having found the statutorily required element of specific intent
              to defraud, i.e., that the defendant, at the moment he issued the
              check, had the intention to defraud the other party by
              permanently depriving him of his property by never covering
              the check.

Id. The supreme court concluded that the instruction was reversible error and remanded

for a new trial. Id. at 159-60.

       While Schoenrock and the Williams defendants were similarly charged with theft

by false representation, Williams is factually distinguishable from this case. The supreme

court in Williams focused on the fact that a check initially written from an account with

insufficient funds can later be covered by depositing funds into the account, and that intent



                                              9
to defraud may be lacking in such a situation. See id. at 159. There is no evidence in this

case of a similar way to cover or cure a PCA timesheet that is submitted to an agency and

inaccurately reports hours that supposedly were already worked.

       The criminal statutes do not define fraud, defraud, or intent to defraud. Black’s Law

Dictionary defines “defraud” as “[t]o cause injury or loss to (a person) by deceit” and

“fraud” as “[a] knowing misrepresentation of the truth or concealment of a material fact to

induce another to act to his or her detriment.” Black’s Law Dictionary 488, 731 (9th ed.

2009). In this case, the jury was instructed that Schoenrock was guilty of theft by false

representation if she intentionally made a representation to Accra Care for the purpose of

obtaining Accra Care’s monetary funds, knowing or believing the representation was false

and intending Accra Care to believe the representation was true; Accra Care believed the

representation was true and relied on the representation to give Schoenrock possession of

monetary funds; and Schoenrock’s acts took place in Hennepin County between certain

dates. The jury instructions did not separately list intent to defraud as one of the elements

of the crime. But we conclude that the elements as explained to the jury encompassed the

element of intent to defraud and that the jury instructions when viewed in their entirety

fairly and adequately explained the law applicable in this case. See Milton, 821 N.W.2d at

805 (stating that jury instructions viewed in their entirety must “fairly and adequately

explain the law of the case,” “define the crime charged[,] and explain the elements of that

crime to the jury” (quotations omitted)); Yang, 774 N.W.2d at 559 (stating that “a court

need not give a requested instruction if the substance of the instruction is already contained

in the existing jury instructions”).


                                             10
       Schoenrock contends that the jury instructions as given negated her defense that she

thought submitting the timesheets was “fine,” was not “wrong or somehow illegal,” and

“didn’t really . . . matter[].” At oral argument, Schoenrock argued that proof of her guilt

required proof that she knew she had done something “criminally wrong.” We note that

knowledge that one’s actions constitute a crime is not a recognized element of the crime of

theft by false representation.    Here, the jury was instructed to determine whether

Schoenrock knew or believed her timesheets were false, intended Accra Care to believe

the timesheets were true, and intentionally submitted the timesheets to Accra Care for the

purpose of obtaining Accra Care’s monetary funds. Because the substance of the element

of intent to defraud was contained in the jury instructions and the instructions did not

misstate the law, the district court’s denial of Schoenrock’s requested instruction was not

an abuse of discretion. We therefore need not address the parties’ arguments regarding

whether any error in the instructions may have been harmless.

       Affirmed.




                                            11
