En Banc. Utter, J. Dore, C.j., Brachtenbach, Dolliver, Andersen, Durham, Smith, and Guy, JJ., and Callow, J. Pro Tem., concur. Johnson, J., did not participate in the disposition of this case.
Charlette and Nolan Delcambre petitioned for review of a Court of Appeals decision affirming their convictions of theft in the first degree by welfare fraud. They claim the information charging them with the crime was constitutionally defective because it failed to allege "intent to deprive" as an essential element of the crime. We hold that "intent to deprive" is not an element of the crime of welfare fraud, and affirm the petitioners' convictions.
Charlette and Nolan Delcambre, wife and husband, were charged by information with theft in the first degree by welfare fraud. The information alleged the crime in the language of the welfare fraud statute, RCW 74.08.331, and the first degree theft statute, RCW 9A.56.030.
Petitioners waived their right to a jury trial. The case was tried to the court on the basis of stipulated exhibits. The court found petitioners guilty.
Petitioners moved to arrest the judgment on the grounds that the information failed to set out the essential element of intent to deprive, and was, therefore, fatally defective.
The court denied the motion and entered judgment and sentence.
The court then allowed a new motion in arrest of judgment. After reargument, the court again denied the motion.
Petitioners appealed to the Court of Appeals which affirmed their convictions. State v. Delcambre, 55 Wash. App. 681, 779 P.2d 1166 (1989).
RCW 74.08.331 defines the crime of welfare fraud. This statute provides in part:
Any person who by means of a wilfully false statement, or representation, or impersonation, or a wilful failure to reveal any material fact, condition or circumstance affecting eligibility of need for assistance, including medical care, surplus commodities and food stamps, as required by law, or a wilful failure to promptly notify the county office in writing as required by law or [ sic ] any change in status in respect to resources, or income, or need, or family composition, money contribution and other support, from whatever source derived, or any other change in circumstances affecting his eligibility or need for assistance, or other fraudulent device, obtains, or attempts to obtain, or aids or abets any person to obtain any public assistance to which he is not entitled or greater public assistance than that to which he is justly entitled shall be guilty of grand larceny and upon conviction thereof shall be punished by imprisonment in the state penitentiary for not more than fifteen years.
RCW 9A.56.100 provides that all offenses defined as larcenies elsewhere will be treated as thefts under RCW Title 9A. This provision impliedly repealed the portion of RCW 74.08.331 making welfare fraud grand larceny and providing for a specific punishment. State v. Sass, 94 Wash. 2d 721, 726, 620 P.2d 79 (1980). The crime of welfare fraud is now a theft, the degree of which depends upon the monetary amount involved. Sass, 94 Wash. 2d at 725.
Petitioners argue that language in Sass that the theft definitions and penalties in RCW Title 9A apply to welfare fraud makes the theft definitions of RCW 9A.56.020 essential elements of welfare fraud. RCW 9A.56.020 defines theft by taking, by deception, and by possession, ...