COURT OF APPEALS OF VIRGINIA
Present: Judges Russell, AtLee and Senior Judge Haley
PUBLISHED
Argued by videoconference
JOHN CRESCENT NDUNGURU
OPINION BY
v. Record No. 0855-20-4 JUDGE JAMES W. HALEY, JR.
AUGUST 3, 2021
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
David Bernhard, Judge
Crystal A. Meleen (Keats & Meleen, PLC, on brief), for appellant.
Maureen E. Mshar, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
In a bench trial, defendant was convicted of five counts of felony making a false
statement in application for Medicaid payments for medical assistance, in violation of Code
§ 32.1-314, and five counts of felony obtaining money by false pretenses, in violation of Code
§ 18.2-178. The trial court sentenced him to twenty years in the penitentiary with fifteen years
suspended.
The assignment of error reads as follows: “[t]he trial court erred in allowing a
Commonwealth witness to testify after that witness observed the testimony of another
Commonwealth witness following the court’s invocation of the rule on witnesses when the
Commonwealth failed to show that its error had not prejudiced the defendant.”1
1
See Code § 19.2-265.1; Va. R. Evid. 2:615.
FACTS
The defendant owned and operated Mercy Services (“Mercy”), which provided long-term
medical care for patients after discharge from a hospital. To be paid for such care the Virginia
Department of Medical Assistance Services (DMAS), which oversees the taxpayer funded
Virginia Medicaid program, requires the provider to submit, in essence, two forms: A DMAS
(also called a DMAS-96) authorization form, which is required for long-term care paid by
Medicaid, and a Uniform Assessment Instrument (UAI), which defines what level, and what
duration, of long-term care a patient requires. The signature of the patient’s primary care
physician is required on the UAI form to attest to the accuracy of the patient’s hospital
admission, treatment plan, and approval of criteria for long-term care services.
At the beginning of the trial, upon motion, the trial court invoked and explained the rule
on excluding witnesses (hereafter “the rule”) and those witnesses who were present departed the
courtroom. A Commonwealth investigator, who knew all Commonwealth witnesses by sight,
was tasked with informing late-arriving witnesses of the rule. This investigator, stationed in the
hallway outside the courtroom, received a message that her spouse had suffered a life-threatening
medical emergency, and she departed the courthouse. Although a second Commonwealth
investigator was assigned, that investigator did not know a late-arriving Commonwealth witness,
Alice George. George entered the courtroom and heard a portion of the testimony of Jerry
St. Louis. When the prosecuting attorneys realized George was present, they immediately
advised the trial court of that fact. The court advised her of the rule, and she departed.
-2-
George had not been present when the court initially invoked and explained the rule.
There is no evidence in the record that either the Commonwealth or George intentionally
violated the rule, a point conceded by the defense at trial.2
St. Louis was the first Commonwealth witness; as here relevant, he testified that he had
been a case manager at the Virginia Hospital Center, where he had encrypted access to hospital
records. He admitted and discharged patients who received long-term care through Medicaid.
As part of his duties, he completed UAI and DMAS forms. Defendant paid him cash to
complete the UAI forms with false names, dates of birth, caregiver information, physician
information, notes provided by Mercy nurse employees, and information regarding patient
diagnosis and treatment, all provided by defendant. The defendant himself signed the portion of
the form requiring the physician’s signature. Thus, Medicaid paid money to Mercy for
non-existent individuals. His actions discovered, St. Louis had become a Commonwealth
witness after entering into a cooperation agreement with the Commonwealth.
For trial, the Commonwealth had obtained the false UAI and DMAS documents, as
related to each false patient. To aid in their identification and admission into evidence, each was
numbered and projected upon a screen in the courtroom. St. Louis identified each individual
document as it was progressively shown on the screen, Commonwealth’s exhibits 9 to 52.
2
The trial court:
I think there are two categories of cases; one was when I guess, the
Commonwealth fails to ensure that the witness doesn’t come into
the courtroom; and another one is where the Commonwealth
actively participates or takes affirmative action to violate the rule.
And we don’t have that here; right? We don’t have that.
Defense counsel: “I don’t have any reason to believe that.”
-3-
The trial court conducted a hearing concerning the circumstances of George’s presence in
the courtroom, the extent of the overheard St. Louis testimony, and the possibility of that
testimony adulterating her later testimony. Clarification of the issue to be determined requires a
summary and recital of portions of that testimony at that hearing.
George testified that she arrived at the courthouse around 10:00 a.m. and waited in the
hallway until about 11:00 a.m., when she entered the courtroom. She was not present when the
rule was invoked. She told no one she was present. No one told her to wait outside. When she
entered the courtroom, a man was testifying. She did not know him and had never seen him
before. She took no notes. She was in the courtroom about twenty minutes. A “guy” (later
identified as a Commonwealth investigator) whom she had never seen before, told her to leave
the courtroom. George was called as a witness by the defense:
Q. And what did you hear?
A. . . . the guy was testifying about the -- what we have today. And at
the time I came in he was testifying about the paperwork something.
He was showing the screen.
....
Q. So do you remember the substance of what he said?
A. Not really.
Q. Well what do you remember?
A. I remember the top page. He was discussing about the first top
page. I also remember the name of the client and some demographic
information.
....
Q. And what do you remember him testifying to about the demographics I
think you said?
-4-
A. I remember he talked about the paperwork that he – he kind of – he
is the one who – I don’t know – I don’t – specifically I don’t
understand, but he said he dealt with the paper – the paperwork . . .
The Commonwealth cross-examined George:
Q. Is that the full extent of what you heard – what you just described?
A. Yes, sir.
Q. About one document?
A. Two. There were – the top page and the – the other page.
....
Q. So the first page of the UAI and the first page of the DMAS-96; is
that correct?
A. Yes.
Q. Did you hear anything beyond that that you remember?
A. I don’t remember. That’s what I remember.
....
Q. . . . Would you change your testimony at all based on what you heard
yesterday?
A. I’m not sure if it will influence negatively or positively because I dealt
with the paperwork. So I’m not really sure how it’s going to influence.
Q. Would you be able to exclude what you heard and testify honestly?
A. Maybe yes; maybe no.
The Commonwealth then asked six times about aspects of her work at Mercy and whether she
could testify honestly about the same. George replied affirmatively to each question.
It is clear from the testimony that George had heard St. Louis identifying one of the 9 to
52 exhibits offered by the Commonwealth, and nothing more.
-5-
After hearing argument encompassing each of the cases quoted below and after reviewing
George’s testimony in detail, specifically relying on Young v. Commonwealth, No. 1744-17-1
(Va. Ct. App. Oct. 30, 2018), the trial court held: “[s]o at this point we don’t – the [c]ourt does
not have evidence that [the overheard testimony] has shaped or had an adulterating effect on her
testimony so as to unfairly prejudice the defendant.”
The court reserved the right of the defense to again raise the issue following George’s
later testimony. The substance of that testimony was as follows. George worked at Mercy as a
nurse assistant from October 2016 through December 2018. Her job responsibilities included
submitting UAI forms to DMAS. George recognized the UAI forms identified as
Commonwealth’s exhibits 9-52. After a Mercy nurse went to see a patient, the nurse would
bring patient paperwork back and give it to George. With that paperwork in hand, George would
complete the “final touches” and questionnaires and submit the UAI to DMAS for authorization
for payment. At some point, defendant himself directed George to use information on the UAIs
to complete the questionnaires without the nurse present, because the nurses’ paperwork was
missing. George noticed that information from the nurses was not consistent, or “correlating,”
with information on the UAIs. Sometimes, the nurses returned client information after the UAIs
had been submitted for payment. After researching Medicaid regulations, George learned that
what she was doing was “not good” and reported it the Federal Bureau of Investigation.
As a result of these fraudulent authorizations, the evidence shows that, through Mercy,
the defendant received $2.7 million.
Following George’s testimony in chief, defendant renewed the argument to exclude her
testimony. Relying again on the language of Young, the trial court stated:
the [c]ourt finds that there is not evidence that [George’s]
testimony was shaped by her exposure or that she adulterated her
testimony by her exposure to Mr. St. Louis’s testimony, such as it
-6-
is. Furthermore, there does not appear to be unfair prejudice in this
case . . . so I find that my original ruling remains proper.
ANALYSIS
The law concerning the issue before us is as follows:
Factors to be considered in resolving the question include whether
there was prejudice to the defendant and whether there was
intentional impropriety attributable to the prosecution. It is also
pertinent whether the out-of-court comments concerned any
substantive aspect of the case and whether they had any effect of
the witness’ testimony. See United States v. Buchanan, 787 F.2d
477, 485 (10th Cir. 1986). In Huddleston v. Commonwealth, 191
Va. 400, 405 (1950), we explained that “the purpose of excluding
the witnesses from the courtroom is, of course, to deprive a later
witness of the opportunity of shaping his testimony to correspond
to that of the earlier one.”
Bennett v. Commonwealth, 236 Va. 448, 465 (1988).
This Court has addressed this issue and held that it was an abuse of the trial court’s
discretion to exclude testimony where “[t]here was no showing that [a witness’] presence in the
courtroom influenced his testimony” after an unintentional violation of an exclusion order. Jury
v. Commonwealth, 10 Va. App. 718, 721 (1990). In Young, under circumstances similar to the
case at hand, this Court found that “[t]he record does not indicate any conformity of testimony
except perhaps regarding the title of and the general content contained in the spreadsheets. . . .
Thus, there is no evidence that the brief conversation shaped, or had an adulterating effect on
[the witness’] testimony . . .”. No. 1744-17-1, slip op. at 8-9.
The trial court found as a fact that George had not adulterated her testimony as a result of
what she overheard of St. Louis’s testimony. Without adulteration there can be no prejudice to a
defendant.
“To properly review the trial court’s application of the law to the facts, ‘we give deference
to the trial court’s factual findings and view the facts in the light most favorable to . . . the prevailing
-7-
party below.’” Stone v. Commonwealth, 297 Va. 100, 102 (2019) (quoting Kim v. Commonwealth,
293 Va. 304, 311 (2017)). We here give that deference to the trial court’s finding of fact concerning
George’s testimony and the absence of any adulteration of that testimony.
Accordingly, the issue thus narrows to resolve whether the trial court abused its
discretion in permitting George’s testimony. “[A] [trial] court has discretion to decide whether a
witness who violates [a rule on witnesses] should be prohibited from testifying.” Wolfe v.
Commonwealth, 265 Va. 193, 214 (2003) (citing Brickhouse v. Commonwealth, 208 Va. 533, 537
(1968)).
Most recently, the Virginia Supreme Court enunciated the parameters of that discretion.
When we say that a circuit court has discretion, we mean that “the
[circuit] court has a range of choice, and that its decision will not
be disturbed as long as it stays within that range and is not
influenced by any mistake of law.” Landrum v. Chippenham and
Johnston-Willis Hosps, Inc., 282 Va. 346, 352 (2011). There are
three principal ways in which a circuit court abuses its discretion:
When a relevant factor that should have
been given significant weight is not considered;
when an irrelevant or improper factor is considered
and given significant weight; and when all proper
factors, and no improper ones are considered, but the
court, in weighing those factors, commits a clear
error of judgment.
“Thus, only when reasonable jurists could not differ can we say an
abuse of discretion has occurred.’ Sauder v. Ferguson, 289 Va.
449, 459 (2015).
Galiotos v. Galiotos, ___ Va. ___, ___ (June 3, 2021).
CONCLUSION
We find that the trial court did not abuse its discretion in permitting George to testify.
Accordingly, the convictions here challenged are affirmed.
Affirmed.
-8-