Appeal from Superior Court of Yakima County. Docket No: 92-1-00954-0. Date filed: 12/20/93. Judge signing: Hon. Susan Hahn.
Petition for Review Denied April 2, 1997,
Authored by Philip J. Thompson, J.. Concurring: Ray E. Munson, Dennis J. Sweeney
The opinion of the court was delivered by: Thompson
THOMPSON, J. After failing once to cut off his injured leg with a chain saw, Benjamin R. Hull tried to shoot it off with a shotgun, and then accepted state Department of Labor and Industries (L&I) benefits for the injury. He appeals his conviction for L&I fraud, contending primarily that the court's instructions failed to include necessary elements of or defenses to the crime. We agree and reverse.
Mr. Hull seriously injured his left knee in an industrial accident in 1973. During the next several years, he underwent three surgeries and received various other L&I benefits.
The surgeries did not relieve Mr. Hull's pain. In 1982, after the second surgery, his doctor said there was nothing more that could be done medically short of a total knee replacement, which the doctor viewed as "old man's surgery." Mr. Hull began taking high doses of powerful pain-killing medications. Mr. Hull's mother, who was dying of bone cancer, provided some of the strongest drugs.
Mr. Hull began to think about amputation as a solution. He testified the idea "just kind of grew on me. I just figured that if [the leg] was gone, what isn't there wouldn't hurt." Unable to find a doctor who would amputate the leg, Mr. Hull decided to do the job himself. In 1986, two weeks after his brother committed suicide, Mr. Hull recruited a friend to help him to cut off his leg below the knee with a chain saw.
A The idea was to cut it off so closely that in order to close the stump they'd have to take the knee off as well. The fleshy parts above the knee are a much greater risk of loss of life and I wanted to live, sir. I wanted to be able to live.
Q So it was a question of getting it high enough where you'd wreck the knee but not high enough where you'd die?
Mr. Hull staged the event as an accident, believing the truth would cause his mentally ill wife to attempt suicide. The chain saw stalled twice when it struck Mr. Hull's bone, and the amputation failed. The wound healed quickly; as Mr. Hull testified: "I missed everything important unfortunately."
Mr. Hull's pain continued. His renewed claim for L&I medical benefits was delayed for six months before the department approved a third surgery on his knee. By 1990, according to a psychologist, Mr. Hull was addicted to pain medication, and was suffering from major depression brought on by the persistent pain, "negative interactions with the health care system," and various family problems. His mother's death took away his source for potent pain killers. Mr. Hull began to plan again to amputate his leg, this time with a shotgun blast. He acquired a gun and recruited his loyal friend to help again.
On January 2, 1991, the two men met at Mr. Hull's Sunnyside workplace, which Mr. Hull claims they chose because it was near a telephone and emergency care would arrive quickly. Just outside the door, Mr. Hull leaned the shotgun against his friend's hip and pulled the trigger, blasting a hole in his left leg below the knee. *fn1 His friend helped Mr. Hull inside so he could summon help, then left with the shotgun, which he threw into the Yakima River.
The men concocted a story blaming the shooting on a group of Hispanic men whom Mr. Hull interrupted while working late. From his hospital bed, Mr. Hull helped a police artist compile a composite drawing of one of his imaginary assailants.
When Mr. Hull entered the emergency room at Sunnyside Community Hospital, employees quickly began working on health insurance claim forms.
The receptionist started filling out the form for Mr. Hull's private medical plan, but switched to an L&I form, concluding for unexplained reasons that Mr. Hull had been injured at work. Mr. Hull was not able to sign the form. Weeks later, after Mr. Hull had been transferred to Harborview Medical Center in Seattle, an L&I employee visited his room and asked him to sign another form to complete the claim. Mr. Hull testified he was heavily sedated at the time, and does not remember the visit or signing the document.
Shortly after the shooting, L&I received the first, unsigned claim for benefits. After its employee obtained Mr. Hull's signature in the hospital, L&I regularly sent forms directly to Mr. Hull for his signature; Mr. Hull regularly completed, signed, and returned those forms until October 1991. When the agency asked in writing if there were any third parties potentially responsible for the injury, or if there were any witnesses, Mr. Hull responded by writing "no idea" and "unknown." Mr. Hull received approximately $96,000 in benefits.
More than a year after the shooting, Mr. Hull confessed to investigators that he had shot himself. *fn2 However, he denied he intended to defraud L&I:
Q Why did you shoot your leg off?
A I shot my leg off because I wanted to live.
Q What do you mean by that?
A I meant that the life I was living the way I was going, the amount of help I believed I could get from the agency that was supposed to take care of me was death by inches. Pretty soon I would be forced to do what Dr. Irwin offered me and that is lie on my back and watch television and take pain pills. That to me is suicide. I didn't want to die. I wanted to live. If living meant a new leg, fine, but I wanted to live.
Q Oh, didn't you do all this to get money from L & I?
A No, sir. I believe the record will as will show that the first report I made was to Sunnyside General Hospital. And they asked me who was going to pay for it.
And I wrote down my Group Health number in the box.
After he began receiving L&I benefits, Mr. Hull continued to sign and return the claim forms, and accept the benefits, because he believed the claim "had its genesis back in '73."
The State charged Mr. Hull with first-degree theft, RCW 9A.56.030. It later added a charge of providing false information claiming L&I benefits, RCW 51.48.020(2). Its amended information alleged:
On or about between January 2, 1991 and March 1, 1992, in Yakima County, Washington, [Mr. Hull] did knowingly give false information in his claim and application for Labor and Industries benefits which resulted in the defendant obtaining Labor and Industries benefits including compensation and medical benefits in excess of $1,500 to which he was not entitled.
Over defense counsel's objection after the State had rested its case, the prosecutor amended the information again, as follows:
On or about between January 2, 1991 and March 1, 1992, in Yakima County, Washington, [Mr. Hull] did knowingly give false information required in his claim and application for Labor and Industries benefits which resulted in the defendant obtaining Labor and Industries benefits including compensation and medical benefits in excess of $1,500 to which he was not entitled[.] (Emphasis added.)
The jury was unable to reach a verdict on the theft count, but found Mr. Hull guilty of the L&I fraud count. By special verdict, the jury found the value of the benefits obtained was more than $1,500. The trial court calculated the standard sentencing range at 0 to 90 days, but ordered an exceptional sentence of 10 months. *fn3
Although we reverse the conviction because of an improper amendment of the information, we also address several other issues that may arise on remand.
Mr. Hull argues the two-count information violated his right against double jeopardy. The double jeopardy clauses of the Fifth Amendment and article I, section 9 of the Washington Constitution prohibit multiple punishments for the same offense. *fn4 State v. Calle, 125 Wash. 2d 769, 888 ...