of Appeals Office of Appellate Courts
Swanson, Attorney General, Nicholas B. Wanka, Assistant
Attorney General, Saint Paul, Minnesota, for respondent.
Engh, Minneapolis, Minnesota, for appellant.
alleged omission of an element of the crime of theft by false
representation under Minn. Stat. § 609.52, subd.
2(a)(3)(iii) (2016), in a jury instruction was harmless
beyond a reasonable doubt.
question presented to us is whether the district court
committed reversible error when it declined to include the
phrase "with intent to defraud" in its jury
instruction on the elements of theft by false representation
under Minn. Stat. § 609.52, subd. 2(a)(3)(iii) (2016).
Following a jury trial, appellant Tammy Jo Schoenrock was
convicted of two counts of theft by false representation for
submitting timesheets and receiving payments for personal
care assistant services that she did not perform. The court
of appeals affirmed her convictions, concluding that the
district court did not err because its jury instructions
fairly and adequately explained the law. We need not decide
whether the omission of the phrase "with intent to
defraud" from the jury instruction on the elements of
theft by false representation was error because, even
assuming that it was, the error was harmless beyond a
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 personal care assistant (PCA)
services. A PCA is a person employed by a health care agency
to provide various personal services that allow the recipient
of those services to live at home rather than move to a care
facility. To work as a PCA, the person must pass a background
check, complete required training, and receive a Certificate
of Training. During the training, an individual is taught the
role and responsibilities of a PCA, as well as how to respond
to medical and non-medical emergencies, to control infection,
to lift and transfer individuals properly, and to deal with
paid by the agency, the PCA must complete timesheets
recording the hours that he or she has worked. The agency is
reimbursed by the State of Minnesota or the recipient's
health plan. The PCA's timesheets must be accurate for
the proper distribution of those funds.
completed training, passed a competency test and a background
check, and was hired by an agency, Accra Care, to serve as
M.S.'s PCA. Schoenrock also signed documents
acknowledging that "[t]he PCA . . . can only be paid for
work done when the PCA is physically present and providing
medically necessary care for the [recipient]" and
"cannot submit a timesheet for hours not worked."
J.M., Schoenrock's close friend, became M.S.'s
responsible party. A responsible party acts on behalf of a
PCA-services recipient who is unable to make decisions in her
own best interests. A recipient's PCA and responsible
party cannot be the same person, and they both must sign the
began to serve as M.S.'s PCA in spring 2010. For about a
year, Schoenrock and M.S. lived together in Eden Prairie,
during which time Schoenrock provided PCA services to M.S.
Schoenrock was authorized to claim payments for a maximum of
9 hours of PCA services a day. In January 2011, M.S. started
an adult day program. That month, Schoenrock contacted a
manager at Accra Care to discuss how she should fill out the
online timesheet now that M.S. was attending the day program.
According to Schoenrock, the manager said, "Well, since
your mother lives with you 24 hours a day, seven days a week,
you can just put any hours down. Just do not go over your
2011, M.S. became unable to navigate the stairs in
Schoenrock's home. Consequently, M.S. moved in with
Schoenrock's sister, L.S., who lived in a single-level
home in Fergus Falls. L.S. had not passed a background check,
completed the required PCA training, or received a
Certificate of Training. Schoenrock informed Accra Care and
Medica that she would continue to provide care for her mother
by "making the trip back and forth" between Eden
Prairie and Fergus Falls. Employees of Accra Care and Medica
believed that M.S.'s move to Fergus Falls was a temporary
solution while Schoenrock considered renovations to her Eden
M.S. moved in with L.S., Schoenrock initially visited
L.S.'s home frequently, occasionally spending Friday
night and leaving on Saturday morning. These visits gradually
declined in frequency, causing L.S. to assume the role of
caregiver for M.S. But Schoenrock continued to communicate
with the various care facilities and nurses to ensure that
M.S. received the proper care and treatment. When M.S.'s
needs increased, Accra Care ...