State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0843

State of Minnesota,
Respondent,

vs.
Twin Cities Care Services,
Appellant.

Filed June 11, 2018
Affirmed
Smith, Tracy M., Judge

Hennepin County District Court
File No. 27-CR-15-10323

Lori Swanson, Attorney General, Adam M. Kohnstamm, Assistant Attorney General,
St. Paul, Minnesota (for respondent)

Seamus R. Mahoney, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M., Presiding Judge; Cleary, Chief Judge;
and Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Twin Cities Care Services (TCCS) is a personal care provider
organization that bills the Minnesota Department of Human Services (DHS) for services it
provides to Medicaid recipients. Following a bench trial, TCCS was convicted of four
counts of theft by false representation based on claims that it submitted to DHS. On appeal,

2
TCCS argues that the evidence is insufficient to support the district court’s factual findings
and conclusion that TCCS intended to commit the offenses. TCCS also argues that its trial
counsel’s performance constituted ineffective assistance of counsel. We affirm.
FACTS
TCCS provides personal car e assistance (PCA) to Medica id recipients. It also
provides qualified professional (QP) services . QPs supervise and monitor PCA services
by visiting clients’ homes to ensure that the services are being provided as indicated in the
client’s care plan. TCCS submitted claims to DHS for QP services it provided to Medicaid
recipients.
Abdulkarim Dahir was a 50% owner of TC CS and became the 100% owner as of
April 21, 2011. DHS rules, which Dahir was aware of, required that TCCS document the
actual time of every QP service and that claims submitted reflect only the amount of time
actually documented by the QPs.
The state charged TCCS with six counts of theft by false representation.1 According
to the complaint, from April 2009 through No vember 2012, TCCS made false claims for
reimbursement on different o ccasions by billing for QP serv ices based on the amount of
services that DHS authorized a recipient to receive rather than the amount of services that
the QPs actually provided, resulting in overbilling.

1 All counts were charged as violations of ei ther Minn. Stat. § 609.52, subd. 2(3)(iii), or
Minn. Stat. § 609.52, subd. 2(a)(3)(iii), for conduct occurring between April 28, 2009 and
November 20, 2012. The langua ge of the applicable statutes in 2008, 2010 , and 2012 is
identical. In 2012, the legislature amended subdivision 2 to include clause (b). As a result,
Minn. Stat. § 609.52, subd. 2(3)(iii), was rearranged as Minn. St at. § 609.52, subd.
2(a)(3)(iii).

3
TCCS waived its right to a jury tria l, and a four-day bench trial began on
November 28, 2016. The state called 11 witnesses, including three DHS employees, three
former QPs, three former employees of TCCS, a supervisor of the digital forensic lab at
DHS, and an investigator fro m the Minnesota Attorney Gene ral’s Office (AGO). TCCS
did not call any witnesses. The district court received over 40 exhibits offered by the state
and one exhibit offered by TCCS.
After the state rested, TCCS moved for ju dgment of acquittal on all counts. The
district court granted the motion on count one but denied it on the remaining counts. After
the parties submitted their writte n closing arguments, the distri ct court issued its verdict
and order, finding TCCS not guilty of count two, but guilty of counts three through six.
TCCS appeals.
D E C I S I O N
I. The evidence is sufficient to support the district court’s factual findings and its
conclusion that TCCS intended to commit the offenses.

An appellate court uses “the same standard of review in bench trials and in jury
trials in evaluating the sufficiency of the evidence.” State v. Palmer, 803 N.W.2d 727, 733
(Minn. 2011). When an appe llant challenges the sufficiency of evidence, an appellate
court’s review “is limited to a painstaking analysis of the record to determine whether the
evidence, when viewed in a light most favorable to the conviction, was sufficient to permit
the [fact-finder] to reach the verdict which [it] did.” State v. Webb, 440 N.W.2d 426, 430
(Minn. 1989). The district court’s factual findings are reviewed under the clearly erroneous
standard. State v. Bourke, 718 N.W.2d 922, 927 (Minn. 2006). “A finding of fact is not

4
clearly erroneous if it is reasonably supported by the evid ence as a whole.” State v.
Barshaw, 879 N.W.2d 356, 366 (Minn. 2016). A ppellate courts defer to the fact-finder’s
credibility determinations. Id. “The verdict will be upheld if the fact finder, giving due
regard to the presumption of innocence and to the state’s burden of proof beyond a
reasonable doubt, could reasonably have fo und the defendant gu ilty of the offense
charged.” State v. Thomas, 590 N.W.2d 755, 757-58 (Minn. 1999).
To prove theft by false representation, th e state had to prove that TCCS obtained
“for the actor or another the possession, custody, or title to property of . . . a third person
by intentionally deceiving the third person with a false representation which is known to
be false, made with intent to defraud, and which does defraud the person to whom it is
made.” Minn. Stat. § 609.52, subd. 2(a)(3) (2012).
The district court found that QPs did not record the time they spent per client visit.
It further found that TCCS, despite knowle dge of DHS rules, intentionally submitted
claims for QP services based not on the actual time that QP s spent providing services but
rather on the two-hour monthly maximum that TCCS was permitted to bill for QP services
to each Medicaid recipient. By billing for tw o hours per QP service event, regardless of
the time actually spent, TCCS on multiple occasions billed for a QP’s services in excess of
eight hours per day, even though no QP worked more than eight hours per day. TCCS thus
intentionally submitted false claims to DHS and, based on those cl aims, was overpaid by
DHS.

5
A. The evidence supports the specific factual findings challenged by TCCS.
TCCS challenges several specific findings of fact as clearly erroneous. First, it
challenges the district court’s finding that “PCA clients are, by law, automatically
authorized to receive eight units (two hours) of QP time per month. ” TCCS argues that
there is no law that sets a two-hour-per-visit maximum. But a DHS employee testified that
“in 2009 [the state] had health care reform in legislation . . . this is the absolute requirement,
where people will automatically get the 96 [units] per year,” and that “[t]he average is
about two hours per month.” While the district court’s factual finding is not quite as precise
as the testimony, the finding of an e ffective two-hour monthly maximum for
reimbursement is not clearly erroneous.
Second, TCCS challenges the district court’s finding that TCCS personnel “Dahir,
Kassim, and an employee named Ade (or Adde) trained others within the corporation to
bill DHS for reimbursements.” TCCS assert s that DHS, not TCCS personnel, trained
employees. But three former billers of TCCS testified at trial regarding who trained them
to bill for reimbursements, and they identified Dahir, Adde, an d Kassim. This finding is
not clearly erroneous.
Third, TCCS challenges the district court’ s finding that, in an interview with the
AGO investigator, Dahir acknowledged that TCCS billed for QP services “according to the
number of hours the client was entitled to receive,” which “contravene[d] the DHS
requirement that QP services be billed by act ual time spent.” The investigator testified
that, during her interview with Dahir, Dahi r admitted that TCCS always billed the
maximum number of hours allowed by the se rvice agreement. And testimony from DHS

6
established that it reimburses only for time actually spent by QPs at recipients’ homes.
TCCS argues that Dahir’s interview with the investigator “was taken out of context.” But
Dahir did not testify at trial, and thus no other context was provided. TCCS also argues
that the finding is erroneous because it cont radicts the district court’s oral rulings on
TCCS’s motion for judgment of acquittal. Those rulings, however, concern “overbilling
for the visits documented by the QP notes,” whereas the district court’s factual findings
supporting the guilty verdicts concern “billing for visits that exceeded the length of the
QPs’ work day.” There is no inconsistency, and the challenged finding is not clearly
erroneous.
B. The evidence supports the findings and conclusion that TCCS intended
to commit the offenses.

TCCS argues that the evidence is insufficient to support the district court’s findings
and legal conclusion that TCCS had the intent to defraud. Again, we review factual
findings for clear error. See Bourke , 718 N.W.2d at 927. And “[a] district court’s
application of statutory criteria to the facts found is a question of law that [this court]
review[s] de novo.” State v. Perez, 779 N.W.2d 105, 108 (Minn. App. 2010), review denied
(Minn. June 15, 2010).
Theft by false representation is a specific-intent crime. See State v. Schoenrock, 899
N.W.2d 462, 467 (Minn. 2017) (citing State v. Williams, 324 N.W.2d 154, 158-59 (Minn.
1982)). A corporation is determined to have specific intent under the following test:
[A] corporation may be guilty of a specific intent crime
committed by its agent if: (1) th e agent was acting within the
course and scope of his or her employment, having the
authority to act for the corporation with respect to the particular

7
corporate business which was conducted criminally; (2) the
agent was acting, at least in part, in furtherance of the
corporation’s business interests; and (3) the criminal acts were
authorized, tolerated, or ratified by corporate management.

State v. Christy Pontiac-GMC, Inc., 354 N.W.2d 17, 20 (Minn. 1984). TCCS focuses on
the third element only, arguing that the evid ence is insufficient to s h o w t h a t T C C S ’ s
management knew, authorized, tolerated, or ratified the billings with intent to commit
Medicaid reimbursement theft. 2
TCCS argues that the eviden ce is insufficient because (1) TCCS’s QPs were not
pressured or incentivized by management to exaggerate the number of visits, (2) the AGO
found no memoranda directing employees to falsify time, and (3) a former TCCS biller
testified that Dahir “was very strict about compliance with the [billing] rules.” We find
these arguments unpersuasive because they invite us to examine evidence as isolated facts.
We decline to do so because, “[i]n determining whether there is sufficient evidence . . . [,]
we examine the evidence as a whole.” State v. Hurd, 819 N.W.2d 591, 599 (Minn. 2012).
At trial, the state called 11 witnesses and introduced over 40 exhibits. Based on that
evidence, the district court found that (1) Dahir signed an agreement agreeing to abide by
the rules and requirements for participati ng providers, including to “[a]ssume full
responsibility for the accuracy of claims submitted to DHS in accordance with” applicable
rules and statutes; (2) the QPs did not record the actual time they spent per client visit, and
no one at TCCS regularly asked or recorded how long each QP visit lasted; (3) on no

2 In its briefing, TCCS makes no argument th at the circumstantial-evidence standard
articulated in State v. Silvernail, 831 N.W.2d 594, 598-99 (Minn. 2013), applies, nor does
it make any argument as to why the convictions fail under that standard.

8
occasion did any of the QPs pr ovide client services in excess of eight hours per day;
(4) Dahir knew that each QP worked a maximum of eight hours per day; (5) TCCS
repeatedly billed for more than eight hours of client vis its by a single QP in a single day;
(6) in an interview w ith the AGO, Dahir stated the QP services were billed by TCCS
according to the number of hours the client was entitled to receive; and (7) Dahir received
notice of the bills and paymen ts relative to counts three through six, accepted those
payments, and did not reverse them.
The evidence, when “viewed in a light most favorable to the conviction,” is
sufficient to support these findings. See Webb, 440 N.W.2d at 430. And these findings
support the district court’s further finding that TCCS’s management knew of the false
nature of the billings and tolerated or ratifie d them after the fact. Under the test for
corporate specific intent, the findings are su fficient to support the district court’s
conclusion that TCCS had the requisite intent to commit the offenses.
TCCS also argues that the district cour t violated public policy by lowering the
standard of proof for fraud. However, TCCS does not expl ain how the district court
lowered the standard of proof for fraud or for intent to commit fraud. Therefore, we do not
find TCCS’s public-policy argument persuasive.
C. TCCS’s other challenges to the dist rict court’s findings and conclusions
are without merit.

TCCS makes several additional challenges to the district court’s findings and
conclusions. First, it asserts that the district court’s findings and conclusions are erroneous
because they represent the “wholesale adoption” of the state’s proposed findings of fact

9
and conclusions of law. This court has stated that, while “the verbatim adoption of a party’s
proposed findings and conclusions of law is not reversible error per se,” the “wholesale
adoption of one party’s findings and conclu sions raises the question of whether the
[district] court independently evaluated each party’s testimony and evidence.” Bliss v.
Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993). No
such question is raised here. Not only are the district court’s thorough findings supported
by the record, but the court acquitted TCCS of count two—obvious ly not adopting the
state’s proposed findings and conclusions wholesale.
Second, TCCS argues that the overpayments were due to billers’ errors. But the
district court, in finding that TCCS was guilty of counts three through six, clearly did not
accept this theory or believe any evidence suggesting it. Because we view the evidence in
a light most favorable to the conviction, we reject this argument.
Third, TCCS argues that the district cour t did not give proper weight to certain
witnesses’ testimony and that some witnesses lacked credib ility. These assertions fail
because weighing the credibility of witnesses is a function that belongs to the district court
acting as the fact-finder. See State v. Ashby, 567 N.W.2d 21, 27 (Minn. 1997) (recognizing
that the fact-finder “is in the best position to evaluate the cr edibility of witnesses and the
weight given to the testimony of those witnesses”).3

3 In its brief to this court, TCCS also lists a number of instances in which the district court
overruled several of defense counsel’s objec tions at trial. However, TCCS makes no
argument as to how the rulings undermine the sufficiency of the evid ence to support its
convictions. “Arguments are forfeited if they are presented in a summary and conclusory
form, do not cite to applicable law, and fail to analyze the law when claiming that errors of
law occurred.” State v. Bursch, 905 N.W.2d 884, 889 (Minn. App. 2017).

10
II. TCCS’s trial counsel’s performance does not constitute ine ffective assistance
of counsel.

To prevail on an ineffectiv e-assistance-of-counsel clai m, “[t]he defendant must
affirmatively prove that his counsel’s repres entation ‘fell below an objective standard of
reasonableness’ and ‘that there is a reas onable probability that , but for counsel’s
unprofessional errors, the result of the pr oceeding would have been different.’” Gates v.
State, 398 N.W.2d 558, 561 (Minn. 1987) (quoting Strickland v. Washington , 466 U.S.
668, 688, 694, 104 S. Ct. 2 052, 2064, 2068 (1984)). Appellate courts “need not analyze
both prongs if either one is determinative.” State v. Vang, 847 N.W.2d 248, 266 (Minn.
2014). The “objective standard is defined as representation by an attorney exercising the
customary skills and diligence that a reasonably competent attorney would perform under
similar circumstances.” Opsahl v. State , 677 N.W.2d 414, 421 (Minn. 2004) (quotation
omitted). “There is a strong presumption that a counsel’s performance falls within the wide
range of reasonable professional assistance.” State v. Jones, 392 N.W.2d 224, 236 (Minn.
1986).
TCCS provides two reasons to support its in effective-assistance-of-counsel claim.
First, TCCS challenges counsel’s performance before and during trial, arguing that
counsel, among other things, did not properly bring, write, or argue motions; did not call
witnesses who had been subpoenaed; did not submit sufficient exhibits; and did not view
the state’s exhibits. Appellate courts “will generally not review an ineffective-assistance-
of-counsel claim that is based on trial strategy.” Andersen v. State , 830 N.W.2d 1, 10
(Minn. 2013). Whether to object, what evidence to present, what witnesses to call, and the

11
level of investigation are matters of trial strategy. State v. Bobo , 770 N.W.2d 129, 138
(Minn. 2009); Boitnott v. State, 631 N.W.2d 362, 370 (Minn. 2001). TCCS’s challenges
clearly fall within the scope of trial strategy. In addition, trial counsel did make numerous
objections during the trial, seve ral of which were sustained. Trial counsel also achieved
acquittals on two counts and helped to subs tantially reduce the overpayment amount in
counts three through six. Therefore, we reject TCCS’s argument that counsel’s
performance before and during trial was ineffective.
Second, TCCS argues that trial counsel’s posttrial performance was unprofessional
because counsel failed to appear at TCCS’s sentencing hearing, failed to hand over files
for appeal, and did not timely inform Dahir that he was leaving the United States.
However, this conduct, assuming it is true, occurred after the trial had concluded.
Therefore, it could not have caused TCCS to suffer prejudice at trial. 4 This argument
provides no basis for reversing TCCS’s convictions.
We conclude that trial counsel’s perform ance does not amount to ineffective
assistance of counsel.
Affirmed.

4 TCCS also claims that trial counsel “lost in terest in the case” and intended to withdraw.
However, because these claims were not part of the record, we declin e to consider them.
See State v. Morse , 878 N.W.2d 499, 501- 02 (Minn. 2016) (citing Thiele v. Stich , 425
N.W.2d 580, 582 (Minn. 1988)).