IN THE DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
KENNETH MICHAEL CARROSO,
Appellant/Cross-Appellee,
vs.
STATE OF FLORIDA,
Appellee/Cross-Appellant.
:
:
: Case No.
:
:
2D11-1282
:
APPEAL FROM THE CIRCUIT COURT
IN AND FOR PINELLAS COUNTY
STATE OF FLORIDA
INITIAL BRIEF OF APPELLANT/CROSS-APPELLEE
JAMES MARION MOORMAN
PUBLIC DEFENDER
TENTH JUDICIAL CIRCUIT
MAUREEN E. SURBER
Assistant Public Defender
FLORIDA BAR NUMBER O153958
Public Defender's Office
Polk County Courthouse
P. O. Box 9000--Drawer PD
Bartow, FL 33831
(863) 534-4200
ATTORNEYS FOR APPELLANT/CROSS-APPELLEE
TOPICAL INDEX TO BRIEF
PAGE NO.
STATEMENT OF THE CASE AND FACTS 1
SUMMARY OF THE ARGUMENT 6
ARGUMENT 7
ISSUE I
THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF LAWFUL WORKERS’ COMPENSATION PAYMENTS TO MR. CARROSO WHEN THEY WERE NOT RELEVANT TO A MATERIAL DISPUTED ISSUE. 7
ISSUE II
THE TRIAL COURT ERRED IN GIVING A SPECIAL JURY INSTRUCTION WHEN THE STANDARD JURY INSTRUCTION WAS ADEQUATE AND WHERE THE SPECIAL JURY INSTRUCTION WAS MISLEADING, IRRELEVANT, AND PREJUDICIAL. 11
CONCLUSION 18
CERTIFICATE OF SERVICE 18
TABLE OF CITATIONS
PAGE NO.
Cases
Brown v. State, 11 So. 3d 428 (Fla. 2d DCA 2009) 13, 16, 17
Cooter & Gell v. Hartmax Corp., 496 U.S. 384 (1990) 9
Dessaure v. State, 891 So. 2d 455 (Fla. 2004) 9
Edwards v. State,39 So. 3d 447 (Fla. 3d DCA 2010) 9
Hamilton v. State, 109 So. 2d 422 (Fla. 3d DCA 1959) 16
McDuffie v. State, 970 So. 2d 312 (Fla. 2007) 9
Moody v. State, 359 So. 2d 557 (Fla. 4th DCA 1978) 13
Rivera v. State, 561 So. 2d 536 (Fla. 1990) 9
Ruskin v. Travelers Ins. Co.,
125 So. 2d 766, 769 (Fla. 2d DCA 1960) 13
State v. Bryan, 290 So. 2d 482 (Fla. 1974) 12
State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986) 10, 17
Stephens v. State,787 So. 2d 747 (Fla. 2001) 12
Florida Rules
Florida Rule of Criminal Procedure 3.98 13
Florida Statutes
§90.106, Fla. Stat. 15
§90.401, Fla. Stat. 9
§440.09, Fla. Stat. 12
§440.105, Fla. Stat. 7-9, 11, 14
18
STATEMENT OF THE CASE AND FACTS
The State Attorney for the Sixth Judicial Circuit, in and for Pinellas County, Florida, filed an Information charging Appellant, KENNETH MICHAEL CARROSO, with one count of worker’s compensation fraud ($20,000-$100,000), in violation of section 440.105(4), Florida Statutes (2005).
Prior to the jury trial, the Appellant moved via motion in limine to omit into evidence any workers’ compensation benefits which were obtained prior to the date of Mr. Carroso’s deposition. (V2/R272-290) The deposition date of February 14, 2006, is when the State alleges Mr. Carroso made a fraudulent statement in violation of section 440.105(4), Florida Statutes (2005). The Appellant moved to prevent all workers’ compensation payments made to Mr. Carroso prior to February 14, 2006, as those payments were lawfully obtained. (V2/T73-74) The trial court denied the motion, and allowed into evidence all of payments Mr. Carroso received, both before and after February 14, 2006. The trial court ruled, “Well, the admissibility of this evidence is intertwined with the entire facts and circumstances of the case, and I’ll allow it to be admitted for that purpose.” (V2/R240-258; V3/T73-74)
At trial, State of Florida Insurance Fraud Detective Carl Reschke testified he received Mr. Carroso’s case when it was referred by the insurance company. Reschke looked for misrepresentations made during a deposition of Mr. Carroso taken on February 14, 2006. The insurance company, FCIC, was paying workers’ compensation benefits to Mr. Carroso. (V1/T144-150)
During his deposition, Mr. Carroso testified that he had not been injured prior to this accident, which occurred on July 20, 2005. (V2/T188) Specifically, Mr. Carroso testified he had no prior broken bones, sprains or strains, and no prior lower back pain before this accident. Further, Mr. Carroso testified he had visited a chiropractor, Dr. Donnelly, but was never treated. (V2/T189-196) Following the deposition, FCIC insurance company attorney Karen Ferguson noticed “areas of concern”: prior car accidents, prior broken bones, sprains, strains, and prior chiropractor treatment. (V2/T242-243) Ferguson testified that if fraud is found, there is a forfeiture of rights under Workers’ Compensation. (V2/T248)
Chiropractor Bruce Phillips testified he treated Mr. Carroso on 44 occasions in 1992 and 4 times in 1993 for neck, shoulder, and back pain. (V2/T255-258) Dr. Robert Donnelly, an orthopedic surgeon, testified he treated Mr. Carroso for neck pain, back pain and left arm numbness in June 2004. (V2/T272) Dr. James Napier, an osteopathic physician, testified he treated Mr. Carroso 12 times for back pain, neck pain and shoulder pain in 1995. (V2/T281-285)
The State requested a special jury instruction which read, “A person should not be entitled to compensation if any jury convened in this state determines that the employee is knowingly or intentionally engaged in Workers’ Compensation Fraud.” (V2/T296-299) Over defense objection, the trial court allowed the jury instruction to be read. (V2/T296-299; V3/T336) The following exchange occurred:
THE COURT: Approach. What’s your argument?
MS. FINKELSTEIN: Judge, my objection to that would be that I believe that it refers to the civil penalty. Obviously, since criminal juries don’t award or deny money, I believe that it refers to the civil penalty for a criminal act, whether it’s found by an administrative judge, compensation judge, jury in the civil realm, but what would be considered a criminal act under the criminal part of the statute 440.105, which we’re charged under.
In this case, it’s already done. The civil case is over. Benefits have been ceased at the civil hearing and trial. I would agree that it may apply if a civil hearing was after the criminal verdict or for some reason, the case hadn’t been to civil court yet or there was a plea to a criminal charge prior to the civil hearing.
But I think it’s confusing for the jury to find an element necessarily of what the jury here has to find. They find him guilty or not, and if they find him guilty, if the amount of benefits that he received pursuant to the evidence that was placed in regarding the checks.
So if the jury doesn’t have to decide that amount, and just found that he wasn’t entitled to anything, then there wouldn’t be different degrees of the crime. So I think that just refers to the civil penalty for that. I don’t think it really goes to an element of what we have to prove here.
THE COURT: Ms. Ellis?
MS. ELLIS: the case that I provided, which was CDL and Gallagher-Bassett Services, Incorporated v. Oscar Corea. It’s a civil case out of the First District, where they talk about statute 440.09(4)(a), which is where I’m getting the language from. And references that Section 440.09(a): “This section precludes all benefits to an employee who knowingly or intentionally provides any false, fraudulent or misleading oral or written statements for the purpose of obtaining benefits under Chapter 440,” which is exactly what our elements, and what the information reads.
And then it cites to Section 440.105(4)(b), which is also what’s in the Information. I think that’s what the law intends is that if the jury does find an intentional or knowing fraud – fraudulent statement, that they are to be advised that they’re not entitled to any compensation according to the Florida Law.
THE COURT: I just don’t understand why that’s relevant. Why is it relevant whether or not – if they don’t need to make a determination as to whether or not he gets any compensation.
MS. ELLIS: Because I feel –- I think the defense is going to argue in their closing statement that even as an alternative theory, that if they do find a fraudulent statement, that the checks after the deposition should be the only ones considered after the fraudulent statement. And I wasn’t to be able to respond to say no, if you find fraud, that the entire claim payments should be taken into consideration.
THE COURT: Okay.
MS. FINKELSTEIN: And I understand that, and I think it’s an accurate representation of the law as it goes to civil. I think in civil court, you say if you find him guilty, but I think here we’re saying guilty or not, and what’s the amount. My argument wouldn’t be that he’s necessarily entitled to those. It’s just the way the criminal charge is different than the civil charge. And the criminal charge says based on the fraudulent statement, he made those statements to receive benefits. So if he’s getting benefits prior to making a statement, then that statement can’t be used to obtain benefits if it already –- didn’t happen yet.
THE COURT: I understand where your argument may go with that. I’ve heard you discussing that already, so I’m going to allow the State’s version of that under the circumstances.
(V2/T296-299) As such, the following jury instruction was read:
If you find the Defendant guilty of Workers’ Compensation fraud, you must further determine whether the State has proven beyond a reasonable doubt that the benefit received was $20,000 or more, but less than a $100,000 or the benefit received was less than $20,000. A person shall not be entitled to compensation if any jury convened in this state determines that the employee has knowingly or intentionally engaged in Workers’ Compensation Fraud.
(V3/T336)
The prosecutor argued during closing arguments: “Let me clarify this. If you find him guilty of fraud, he is not entitled to any benefits. That’s what this is saying. So he’s not entitled to any benefits at all. None of those 31 checks that were given to him.” (V3/T352) Further, the prosecutor argued that the checks totaled $27,399.36. (V3/T348)
The State introduced 31 checks paid to Mr. Carroso between July 26, 2005, and August 24, 2006. Payments received by Mr. Carroso before the February 14, 2006, deposition total $15,280.08, and payments received by Mr. Carroso after the February 14, 2006, deposition total $12,119.58.(V1/R19-49)
Following the evidence, the jury found Mr. Carroso guilty of workers’ compensation fraud, specifically finding the benefit received between $20,000-$100,000. (V1/R71) The Honorable Thane B. Covert, Circuit Judge, adjudicated Mr. Carroso guilty and sentenced him to 14 months state prison. (V1/R85-90; V2/R296-16)
A timely notice of appeal was filed on March 11, 2011, and a cross-appeal was filed on March 25, 2011. (V1/R92; R98)
SUMMARY OF THE ARGUMENT
Reversible error occurred when the trial court erred in allowing evidence of workers’ compensation benefits which were obtained lawfully to be used in calculating the monetary value of the fraudulent violation. Because Mr. Carroso was found criminally liable for benefits he received lawfully, he is entitled to have the degree of his felony reduced from second-degree to third-degree.
The trial court erred in giving a special jury instruction, instructing the jury, “A person shall not be entitled to compensation if any jury convened in this state determines that the employee has knowingly or intentionally engaged in Workers’ Compensation Fraud.” This instruction was derived from a civil statute which controls the civil penalties for someone found criminally liable for workers’ compensation fraud. Here, the trial court used it for the opposite, and unintended, purpose – to aid in convicting Mr. Carroso of workers’ compensation fraud. The jury instruction is not relevant, is not pertinent to a material fact, and is misleading to the jury. Because the error is magnified by the trial court’s direction to convict Mr. Carroso criminally of the entire amount of benefits paid to him, which included lawful payments he received, this Court must reverse and remand for a new trial.
ARGUMENT
ISSUE I
THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF LAWFUL WORKERS’ COMPENSATION PAYMENTS TO MR. CARROSO WHEN THEY WERE NOT RELEVANT TO A MATERIAL DISPUTED ISSUE.
The fraudulent statements made by Mr. Carroso at the deposition did not render the lawful workers’ compensation payments he received prior to making the fraudulent statements unlawful. The trial court erred in allowing the State to aggregate the workers’ compensation payments made to Mr. Carroso before he made fraudulent statements, which is when the crime was committed, with the payments made to him after the fraudulent statements. Because the payments were improperly combined and the State was allowed to prove the fraud involved the total monies received from all the payments instead of those received after the crime was committed, the trial court rendered lawful conduct, or payments before any crime occurred, unlawful.
Mr. Carroso was charged with violating section 440.105(4)(b)1, Florida Statutes (2005) which reads, in pertinent part:
(b) It shall be unlawful for any person:
1. To knowingly make, or cause to be made, any false, fraudulent, or misleading oral or written statement for the purpose of obtaining or denying any benefit or payment under this chapter.
The amount the State alleged Mr. Carroso obtained illegally is $27,399.66. The Appellant moved via motion in limine to omit into evidence any worker’s compensation benefits which were obtained prior to the date of Mr. Carroso’s deposition, as those payments were prior to any fraudulent statements and were therefore lawfully obtained. The deposition date of February 14, 2006, is when the State alleges Mr. Carroso made a fraudulent statement in violation of section 440.105(4), Florida Statutes (2005). Payments received by Mr. Carroso before the February 14, 2006, deposition total $15,280.08, and payments received by Mr. Carroso after the February 14, 2006, deposition total $12,119.58. The trial court denied the motion, and allowed into evidence all of payments Mr. Carroso received, both before and after February 14, 2006. The trial court ruled, “Well, the admissibility of this evidence is intertwined with the entire facts and circumstances of the case, and I’ll allow it to be admitted for that purpose.” The State introduced 31 checks paid to Mr. Carroso between July 26, 2005, and August 24, 2006, which totaled $27,399.66.
Section 440.105(f), Florida Statutes (2005) controls the applicable criminal penalties, and reads, in pertinent part:
(f) If the monetary value of any violation of this subsection:
1. Is less than $20,000, the offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.