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Perritt v. State9/23/2005
Before HILL, C.J., and GOLDEN, KITE, VOIGT and BURKE, JJ.
HILL, Chief Justice, delivered the opinion of the Court; VOIGT, Justice, filed a specially concurring opinion.
[ ] Appellant, Laura Lee Perritt (Perritt), seeks review of her conviction for obtaining property by false pretenses. She contends that the evidence was insufficient to sustain her conviction, that the district court erred by including an award of restitution to the State as a part of her sentence, that the prosecutor engaged in misconduct throughout her trial, that irrelevant evidence was admitted concerning her husband's bad behavior that prejudiced her right to a fair trial, and that the cumulative effect of trial errors mandate reversal of her conviction. We will reverse the judgment and sentence of the district court on the basis that the evidence was not sufficient to sustain the conviction and remand to the district court with directions that the information be dismissed with prejudice.
[ ] Perritt raises these issues:
I. Was there insufficient evidence that [Perritt] obtained "property" from the State of Wyoming through false pretenses?
II. Did the trial court err in ordering [Perritt] to pay restitution to the State of Wyoming?
III. Did the prosecutor commit misconduct in opening statement and closing argument?
IV. Did the trial court err in admitting irrelevant, prejudicial information concerning [Perritt's] husband?
V. Does cumulative error warrant reversal of [Perritt's] conviction?
The State's recitation of the issues essentially conforms to that of Perritt.
FACTS
[ ] On August 6, 2000, Perritt submitted an Application for Day Care Certification to the Department of Family Services (DFS). The application form included a requirement that Perritt answer this question: "Have you or anyone in your home/staff been charged with a felony or the subject of a substantiated child abuse/neglect investigation?" Perritt answered the question "No." The record is clear, and Perritt makes no contention to the contrary, that she knew that her husband, Kris Perritt (Kris or Husband), had been convicted of sexual assault in the second degree on June 11, 1996. However, she characterizes her answer as truthful, or at least not false, on the basis that she did not consider Kris to be "in her home" or "on her staff" because, although married to him, they were separated and he did not live in their home on a regular basis. She also contended that he was to have nothing to do with the day care business, and was to have no unsupervised contact with the children served by her business. There was some evidence presented that Perritt admitted to DFS investigators that she did not disclose to DFS that her husband resided with her because she assumed that certification of her business would not be forthcoming if DFS knew of the marriage and the extent to which the Perritts still "lived" together. Perritt denied that she made such a statement.
[ ] On August 18, 2000, in response to her application, Perritt received Certificate No. 6975 authorizing her to operate a family day care home. On August 21, 2000, Perritt submitted a Provider Registration Form (DFS 203). Completion of that form allowed Perritt to receive payments for child care services from DFS on behalf of eligible clients. One provision of that form was this:
2. The provider must furnish the name and Social Security Number of all adult household members and any substitute provider(s) who have access to the children placed in care. Each adult listed below must provide a signed and dated Authorization Release of Child or Disabled
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