State of Ohio v. Sekou B. Kpoto State of Ohio v. Caritas Home Healthcare & Supported Living, LLC

{¶ 1} The two above-captioned criminal matters involve a health care company and

its principal owner, each having been prosecuted separately and under separate case

Nos. 19AP-492 & 19AP-519 2

numbers before the Franklin County Court of Common Pleas. Because these matters were

tried b efore a jury together, involved coordinated sentencing, appealed at the same time,

and briefed nearly identically, we render a single decision after having reviewed both

appeals.

{¶ 2} Defendant-appellant, Sekou B. Kpoto, and defendant-appellant, Caritas

Home Healthcare & Supported Living, LLC, appeal judgments of the Franklin County Court

of Common Pleas issued on July 12, 2019 following a jury trial, convicting each of them of

one count of Medicaid fraud and sentencing both of them to three years of community

control. We overrule Kpoto's and Caritas' assignment of error and affirm the trial court's

judgments because the evidence in this case showed that Kpoto, owner and president of

Caritas, knew that he was required to transport his passengers in a wheelchair, knew that

he was not doing so, and either actually knew that Caritas was billing these trips to Medicaid

or at least believed that was so and failed to carry out his responsibilities under the law.

I. FACTS AND PROCEDURAL POSTURE

{¶ 3} On April 17, 2018, a Franklin County Grand Jury indicted Kpoto and his

company, Caritas, each for one count of Medicaid fraud and one count of grand theft by

deception. (Apr. 17, 2018 Indictment 18CR-1837; Apr. 17, 2018 Indictment 18CR-1839.)

Kpoto and Caritas pled "not guilty" and these matters proceeded to an informally

consolidated trial. (May 2, 2018 Plea Form 18CR-1837; May 2, 2018 Plea Form 18CR1839.)

{¶ 4} The first witness to testify in this single trial of both defendants was a

supervisor of provider compliance with the Ohio Department of Medicaid. (Tr. Vol. I at

18.)1 The supervisor testified that an entity that obtains a provider agreement with the Ohio

Department of Medicaid may bill Medicaid for services rendered. (Tr. Vol. I at 20.) Caritas

enrolled as a sole proprietorship wheelchair van provider on February 26, 2013 and listed

Kpoto as the contact. (Tr. Vol. I at 30-35; State's Ex. 1 at 1-7.) As part of the provider

agreement, Caritas agreed to provide only necessary services and bill them at the usual and

customary rate. (Tr. Vol. I at 34; State's Ex. 1 at 7.) The supervisor stated that, in general,



1 The first and second volumes of the trial transcript as well as associated exhibits were filed in Franklin County

Court of Common Pleas case No. 18CR-1837 on August 28, September 4, and September 13, 2019,

respectively. Due to the non-consecutive pagination of the transcript volumes, we cite each by reference to its

volume number and page number.

Nos. 19AP-492 & 19AP-519 3

the Ohio Department of Medicaid relies on the honesty of participants to determine

whether a claim submitted is accurate and truthful. (Tr. Vol. I at 36.)

{¶ 5} The next witness to testify was an external audit manager for the Ohio

Department of Medicaid. (Tr. Vol. I at 41.) She testified that approximately every two years,

her group sends a survey to ambulette (wheelchair van) providers such as Caritas to confirm

information it has about the company and to provide education to the company about

Medicaid policies. (Tr. Vol. I at 42-43.) Such a survey was sent to Caritas and apparently

completed and signed by Kpoto on May 19, 2014. (Tr. Vol. I at 45, 49-50; State's Ex. 11 at

10.) In that document, Kpoto indicated that he was aware that, in order for an ambulette

transport to be covered by Medicaid, the individual being transported must actually be

nonambulatory and transported in a wheelchair. (Tr. Vol. I at 46-47; State's Ex. 11 at 5.)

Kpoto wrote that he became aware of this requirement on February 26, 2013. (State's Ex.

11 at 5.) Kpoto also stated that, as of 2013, he was aware of the requirement that, if an

attendant is used in addition to the driver of the ambulette (or wheelchair van), the

circumstances must be extraordinary and there must be documentation supporting the

need and use of the attendant. Id. at 6. Kpoto's survey response indicated confusion,

however, about the requirement that he have on file a Certificate of Medical Necessity

signed by the authorized attending practitioner for the individual being transported. Id.

Kpoto also wrote, during the survey, that Caritas "ONLY PROVIDE[D] MEDICAID

SERVICE." Id. at 5.

{¶ 6} An administrative and billing assistant who worked in the Caritas office

testified next. (Tr. Vol. I at 53-54.) Kpoto, she said, was the person who trained her in how

to bill Medicaid for Caritas. (Tr. Vol. I at 55.) She also clarified that she did not personally

learn or review Medicaid laws or regulations for herself. (Tr. Vol. I at 58.) She testified that

Caritas had one wheelchair van that she knew of and that Kpoto was one of three drivers of

the van. (Tr. Vol. I at 54.) She said that Kpoto spent most of his time out of the office as a

driver. (Tr. Vol. I at 57.) She billed miles and services based on called-in reports from

drivers stating what services were provided and to whom. (Tr. Vol. I at 55-57.) She said no

additional attendant personnel for the van were ever identified to her. (Tr. Vol. I at 56.)

{¶ 7} A Medicaid recipient, Veda Blake, testified next. (Tr. Vol. I at 62.) Blake

testified that she received rides from Kpoto through Caritas approximately three times per

Nos. 19AP-492 & 19AP-519 4

week during 2013-14. (Tr. Vol. I at 62-64.) She stated that she did not pay for these rides

from he own pocket and assumed that Medicare or Medicaid paid. Id. She said that her

rides were either in a car or a passenger van. (Tr. Vol. I at 62, 64-65.) She never rode in a

wheelchair van, however, never owned or used a wheelchair, and Kpoto never offered her a

wheelchair to use during transport. (Tr. Vol. I at 63, 65-66.) She acknowledged that her

memory was somewhat inexact and that she was also transported during 2013-14 by a

company called Elite Medical Transportation. (Tr. Vol. I at 66-67.)

{¶ 8} A second Medicaid recipient, Annie Williams, also testified. (Tr. Vol. I at 70.)

Williams testified that during 2013-15 she used a walker and a cane, but never a wheelchair.

(Tr. Vol. I at 74, 76.) She said that during this timeframe, Kpoto often drove her in his

personal vehicle, not a wheelchair van. (Tr. Vol. I at 73-74.) Like Blake, she also recalled

being transported during the same timeframe by Elite Medical Transportation. (Tr. Vol. I

at 71, 76.)

{¶ 9} The next to last witness was an agent of the Ohio Attorney General's Office

who received documentary evidence Kpoto produced according to a subpoena. (Tr. Vol. I

at 78-79, 86-87.) She testified that, when dropping off the documents, Kpoto remarked

something to the effect that he could not say he had done nothing wrong, but that he wanted

the chance to make it right. (Tr. Vol. I at 89.) The agent was unable to identify Kpoto,

however. (Tr. Vol. I at 89-90.)

{¶ 10} The final witness in the case was the investigator who handled the case for

the Ohio Attorney General's Office. (Tr. Vol. I at 95.) He testified that he interviewed six

of Caritas' Medicaid-recipient clients (of which there were 62, in total), as well as a number

of employees of Caritas, and Kpoto himself. (Tr. Vol. I at 104-07.) During the course of the

investigation, he learned that Caritas had one ambulette vehicle (wheelchair van). (Tr. Vol.

I at 101-02.) He also learned that three of Caritas' clients, Veda Blake, Annie Williams, and

Crystal Chambliss, were regularly transported despite not being in wheelchairs or using

wheelchairs. (Tr. Vol. I at 105-07, 126; Tr. Vol. II at 20.) The agent then testified that he

compiled (in State's Ex. 4) billing records from Medicaid showing what Caritas billed,

entries from the Ohio Office of Budget and Management showing what Caritas was paid

(State's Ex. 6), copies of checks to Caritas (State's Ex. 10), and copies of bank records

showing receipt of such payments by Caritas (State's Exs. 7-9). (Tr. Vol. II at 10-19.) From

Nos. 19AP-492 & 19AP-519 5

those records, the agent created a summary document (State's Ex. 15) showing expenses

and billing associated with each trip by Blake, Williams, and Chambliss, purportedly taken

in a wheelchair van or ambulette. (Tr. Vol. II at 20-33.) The agent acknowledged that Blake

told him, during her interview, that she was in a wheelchair during two days, and the agent

said he gave credit for these trips in creating his summary. (Tr. Vol. II at 48, 76; State's Ex.

15 at 11-12.) The agent's summary showed in total that Caritas billed the Ohio Department

of Medicaid and was paid for $22,081.63 related to wheelchair van transport for Blake,

Williams, and Chambliss. (Tr. Vol. II at 33; State's Ex. 15 at 36.)

{¶ 11} The agent admitted that none of the data represents personal observations

and that he had not directly observed Kpoto or Caritas transport anyone without a

wheelchair. (Tr. Vol. II 46-47.) He also agreed that he did not attempt to obtain

corroboration of the admissions by Blake, Williams, and Kpoto that Blake, Williams, and

Chambliss did not use wheelchairs. (Tr. Vol. II at 42-46.) He agreed that the payments

were to Caritas, not to Kpoto, individually, and that he did not analyze Caritas' expenses

and overhead. (Tr. Vol. II at 53-55.) However, he did find evidence, in the form of bank

records, that some money from Caritas went to Kpoto, individually, and he testified that

Kpoto was the owner of Caritas. (Tr. Vol. I at 99; Tr. Vol. II at 54-55, 73-75.)

{¶ 12} During the agent's testimony, a recording of Kpoto's interview was played.

(Tr. Vol. I at 109-14.) The recorded conversation between Kpoto and the interviewing

agents makes clear that Kpoto did not understand the preauthorized medical necessity

requirement for clients' trips, that he was not obtaining Certificates of Medical Necessity

from treating physicians for his clients, and that he was essentially running the medical

transport business like a taxi service. (State's Ex. 16 at 6:40-19:07.) On the issue of whether

the people he transported were in wheelchairs, Kpoto agreed with the agents that, by law,

the people he transported were required to be in a wheelchair, but he drew a distinction

between a doctor's requirement that they be in a wheelchair and whether they complied

with their doctors' orders and actually used a wheelchair. Id. at 1:52-3:15, 19:55-20:14.

Kpoto equivocated and was evasive in answering the question, "Did you ever transport

someone who was not in a wheelchair?" Id. at 20:43-22:50. The only specific person Kpoto

admitted he transported without the use of a wheelchair was Chambliss. Id. at 34:01-34:15,

Nos. 19AP-492 & 19AP-519 6

36:31-36:43, 39:20-39:30. Kpoto confirmed, however, that he did most of the driving for

Caritas. Id. at 20:12-20:43.

{¶ 13} The jury found Caritas and Kpoto guilty of all charged offenses. (Tr. Vol. II

168-72.) As a prelude to sentencing, the trial court found that the theft and fraud charges

were allied offenses requiring merger into a single conviction for the purposes of

sentencing, and the State elected to proceed on the Medicaid fraud count. (July 12, 2019

Sentencing Tr. at 2-3, filed Sept. 9, 2019.) The defense informed the trial court that Caritas

had ceased to operate as an entity and the State did not dispute the statement. Id. at 4. The

trial court imposed three years of community control on Kpoto. Id. at 6-8; July 12, 2019

Jgmt. Entry 18CR-1837 at 1. Although the court made no separate oral mention of the nowdefunct Caritas, by subsequent entry the trial court imposed the same sentence on the

company. (July 12, 2019 Sentencing Tr. at 6-8; July 12, 2019 Jgmt. Entry 18CR-1839 at 1.)

{¶ 14} Kpoto now appeals in case No. 19AP-492. Caritas also appeals in case No.

19AP-519.

II. ASSIGNMENT OF ERROR

{¶ 15} Kpoto and Caritas have filed identical briefs, each alleging a single

assignment of error:

THE TRIAL COURT ERRED WHEN IT ENTERED

JUDGMENT AGAINST THE DEFENDANT WHEN THE

EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE

CONVICTIONS AND WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

III. DISCUSSION

{¶ 16} The Supreme Court of Ohio has "carefully distinguished the terms

'sufficiency' and 'weight' * * *, declaring that 'manifest weight' and 'legal sufficiency' are

'both quantitatively and qualitatively different. ' " Eastley v. Volkman, 132 Ohio St.3d 328,

2012-Ohio-2179, ¶ 10, quoting State v. Thompkins, 78 Ohio St.3d 380 (1997), paragraph

two of the syllabus.

Weight of the evidence concerns "the inclination of the greater

amount of credible evidence, offered in a trial, to support one

side of the issue rather than the other * * *. Weight is not a

question of mathematics, but depends on its effect in inducing

belief."

Nos. 19AP-492 & 19AP-519 7

(Emphasis sic.) Eastley at ¶ 12, quoting Thompkins at 387; Black's Law Dictionary 1594

(6th Ed.1990). In manifest weight analysis, "the appellate court sits as a 'thirteenth juror'

and disagrees with the jury's resolution of the conflicting testimony." Thompkins at 388,

quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). " 'The court, reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the jury clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and a

new trial ordered. The discretionary power to grant a new trial should be exercised only in

the exceptional case in which the evidence weighs heavily against the conviction.' "

Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).

{¶ 17} In contrast, sufficiency is:

"[A] term of art meaning that legal standard which is applied to

determine whether the case may go to the jury or whether the

evidence is legally sufficient to support the jury verdict as a

matter of law." * * * In essence, sufficiency is a test of adequacy.

Whether the evidence is legally sufficient to sustain a verdict is

a question of law.

Eastley at ¶ 11, quoting Thompkins at 386; Black's at 1433. "In reviewing a record for

sufficiency, '[t]he relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.' " State v. Monroe, 105 Ohio

St.3d 384, 2005-Ohio-2282, ¶ 47, quoting State v. Jenks, 61 Ohio St.3d 259 (1991),

paragraph two of the syllabus.

{¶ 18} The Ohio Revised Code section defining the offense of Medicaid fraud

provides, "[n]o person shall knowingly make or cause to be made a false or misleading

statement or representation for use in obtaining reimbursement from the medicaid

program." R.C. 2913.40(B).

A person acts knowingly, regardless of purpose, when the

person is aware that the person's conduct will probably cause a

certain result or will probably be of a certain nature. A person

has knowledge of circumstances when the person is aware that

such circumstances probably exist. When knowledge of the

existence of a particular fact is an element of an offense, such

knowledge is established if a person subjectively believes that

there is a high probability of its existence and fails to make

Nos. 19AP-492 & 19AP-519 8

inquiry or acts with a conscious purpose to avoid learning the

fact.

R.C. 2901.22(B). Caritas can also be held criminally liable, "[i]f, acting with the kind of

culpability otherwise required for the commission of the offense, its commission was

authorized, requested, commanded, tolerated, or performed by the board of directors,

trustees, partners, or by a high managerial officer, agent, or employee acting in behalf of

the organization and within the scope of such a board's or person's office or employment."

R.C. 2901.23(A)(4).

{¶ 19} Under relevant Ohio Administrative Code provisions in effect during the

relevant time period, a provider of transport via ambulette (or wheelchair van) could only

seek reimbursement for transporting individuals if, among other requirements, the

individuals were "actually transported in a wheel chair" and the ambulette service was

medically necessary because the individuals to be transported had been certified by an

attending practitioner to be nonambulatory. Former Ohio Adm.Code 5160-15-03(B)(2)(a)

and (e).2 Additional billing, such as for an attendant's services was appropriate and

permissible, "only when the safe transportation of the patient requires additional handling,

such as due to unusual patient obesity, or the need to negotiate a minimal number of

accessible steps." Former Ohio Adm.Code 5160-15-03(B)(2)(f).

{¶ 20} The testimony by the investigating agent in the case and the records he

compiled show that Caritas billed and was paid for a very large number of wheelchair van

trips for Blake, Williams, and Chambliss, at a total cost to the Ohio Department of Medicaid

of $22,081.63. (Tr. Vol. II at 20-33; State's Ex. 15 at 36, in passim.) Kpoto was the owner

of Caritas. (Tr. Vol. I at 99.) See also, e.g., State's Ex. 11 at 1 (Kpoto self-identifying as the

owner, president, and CEO of Caritas). Kpoto trained the person who did the billing for

Caritas. (Tr. Vol. I at 55.) The person who did the billing for Caritas billed what the drivers

reported to her. (Tr. Vol. I at 55-57.) Kpoto, by his own admission, drove most of the routes

billed by Caritas. (State's Ex. 16 at 20:12-20:43.) In addition, Kpoto, by his own admission,

knew quite well that he could not legally charge Medicaid for wheelchair van transport for

someone who was not in a wheelchair. Id. at 19:55-20:14; State's Ex. 11 at 5. Yet, Blake and



2 Former Ohio Adm.Code 5160-15-03 became effective March 27, 2006 and was rescinded effective April 1,

2016. Though former Ohio Adm.Code 5160-15-03 has been rescinded, analogous requirements are now found

in Ohio Adm.Code 5160-15-22(B).

Nos. 19AP-492 & 19AP-519 9

Williams testified that, although Kpoto drove them frequently, they were not transported

in wheelchairs and never owned wheelchairs. (Tr. Vol. I at 62-66, 73-76.) With respect to

Chambliss, Kpoto himself admitted, during his interview with agents from the Ohio

Attorney General's Office, that "most times" he transported her without a wheelchair.

(State's Ex. 16 at 33:58-34:15.)

{¶ 21} The manifest weight of this evidence is to the effect that Kpoto, owner,

president, and CEO of Caritas, knew that he was required to transport his passengers in a

wheelchair, knew he was not doing so, and either actually knew that Caritas was billing

these trips as wheelchair van trips or at least believed that was so and, as the chief owner

and operator of Caritas, failed to carry out his responsibilities under the law to ensure

Caritas was operating lawfully. See R.C. 2913.40(B); R.C. 2901.22(B); former Ohio

Adm.Code 5160-15-03(B)(2)(e). While the witnesses showed uncertainty about the fact

that they were also transported by Elite Medical Transportation during the time in question

that Kpoto engaged in Medicaid fraud, and even given Kpoto's somewhat evasive and

equivocating responses during the investigative interview, we find no indication that "the

jury clearly lost its way and created [] a manifest miscarriage of justice" in finding Kpoto

and Caritas guilty. (Internal quotations and citations omitted.) Thompkins at 387.

"[V]iewing the evidence in a light most favorable to the prosecution," we also find this

evidence is easily sufficient for a rational trier to have "found the essential elements of the

crime proven beyond a reasonable doubt." (Internal quotations and citations omitted.)

Monroe at ¶ 47. We accordingly overrule Kpoto's and Caritas' assignment of error.

The evidence showed that Kpoto, owner, president, and CEO of Caritas, knew

that he was required to transport his passengers in a wheelchair, knew that (at least in some

cases and for some clients) he was not doing so, and either actually knew that Caritas was

billing these trips as wheelchair van trips or at least believed that was so and failed to carry

out his responsibilities under the law to ensure Caritas was operating lawfully. Kpoto's

conviction and his company's conviction for Medicaid fraud are supported by sufficient

evidence and not against the manifest weight of the evidence. We overrule Kpoto's and

Nos. 19AP-492 & 19AP-519 10

Caritas' identical assignments of error and affirm both judgments of the Franklin County

Court of Common Pleas.