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People v. Vidauri

Court of Appeals of Colorado, Third Division

September 5, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Alma Vidauri, Defendant-Appellant.

          Garfield County District Court No. 16CR3023 Honorable James B. Boyd, Judge.

          Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          The Noble Law Firm, LLC, Antony Noble, Taylor Ivy, Lakewood, Colorado, for Defendant-Appellant

          OPINION

          WEBB JUDGE.

         ¶ 1 After hearing evidence that Alma Vidauri had significantly understated her household income, a jury convicted her of one count of class 4 felony theft - $20, 000 to $100, 000 - and three counts of forgery in connection with her three applications for and receipt of Medicaid and Child Health Plan Plus (CHP) benefits. Addressing a novel question in Colorado, we conclude that because the prosecution presented only evidence showing the total amount of benefits paid, it failed to prove the value of the benefits which Vidauri obtained by deceit. So, we reverse the conviction for felony theft. On remand, the trial court shall enter a judgment for class 1 petty theft. In all other respects, we affirm.

         I. Background

         ¶ 2 According to the prosecution's evidence, Vidauri submitted three applications for medical assistance benefits to the Garfield County Department of Human Services (Department) between 2008 and 2011. Based on these applications, she and her children received a total of $31, 417.65 in benefits. But Vidauri understated her household income.

         ¶ 3 When Vidauri submitted her initial application in 2008, she was living with her first child and was pregnant with her second. On this application, Vidauri reported approximately $800 of monthly income from a housekeeping job. The income verification letter that Vidauri provided said that she was working for her soon-to-be mother-in-law. After the Department approved this application, Vidauri and her child started receiving Medicaid benefits.

         ¶ 4 In 2009, Vidauri married Jose Erick Rascon, the father of her second child. He was employed. But she did not promptly report his income to the Department.

         ¶ 5 Vidauri submitted her second application in March 2011, when she was pregnant with her third child and married to Rascon. She reported that her employment had ended and she was not earning any income. The Department denied her Medicaid benefits because of the income that she had reported for her husband, but approved Medicaid benefits for her older child and CHP benefits for the younger child.

         ¶ 6 Vidauri submitted her last application in October 2011, after the birth of her third child. On this application, Vidauri reported that her husband's hours had been reduced. She denied that anyone in her household was self-employed. The Department approved all three children for Medicaid benefits.

         ¶ 7 The following year, Vidauri submitted two handwritten statements to the Department explaining that her husband's employment had ended but that she was earning approximately $720 per month. The Department continued paying for Medicaid benefits for all three children.

         ¶ 8 From 2013 to 2016, the Department automatically re-enrolled Vidauri's children in Medicaid based on the financial information that she had provided in 2012. During that period, the Department sent Vidauri five redetermination notices that directed her to report any changes to her household's income. She did not report any changes.

         ¶ 9 In 2016, Cora Louthan, a Department fraud investigator, questioned Vidauri about the financial information in her applications. Vidauri brought Louthan additional information including tax returns, bank statements, and utility bills. These documents, together with information gleaned from public sources, showed that since 2006 Vidauri had owned her own housecleaning business, since 2012 her husband had owned his own electrical contracting business, and each owned significant property, none of which had been disclosed to the Department. At trial, Louthan - whom the trial court allowed to testify as an expert witness - opined that the applications did not accurately describe the financial state of Vidauri's household. But Louthan could not, or at least would not, opine on the amount of benefits - if any - to which Vidauri would have been entitled had her applications been accurate. Nor did Louthan testify that an inaccurate application forfeited all rights to benefits.

         ¶ 10 On appeal, Vidauri raises four contentions.

• The evidence was insufficient to sustain any of the convictions.
• The trial court admitted improper expert testimony of Louthan.
• The prosecutor engaged in misconduct during voir dire, witness examination, and closing argument.
• Cumulative error requires reversal.[1]

         ¶ 11 The Attorney General concedes that Vidauri preserved two insufficient evidence issues related to the theft conviction and improper burden-shifting by the prosecutor. He disputes preservation of her remaining insufficiency contentions, admission of improper expert testimony, and any other alleged prosecutorial misconduct.

         II. Sufficiency of the Evidence

         ¶ 12 Whether the record contains sufficient evidence to support a conviction is subject to de novo review; if the evidence is insufficient, we reverse regardless of whether the defendant preserved the argument below. See McCoy v. People, 2019 CO 44. An appellate court must decide whether the prosecution presented evidence sufficient in both quantity and quality to sustain the defendant's conviction. See, e.g., People v. Lybarger, 700 P.2d 910, 916 (Colo. 1985). The court considers "whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt." Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010) (quoting People v. Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)).

         ¶ 13 Two principles bookend the analysis. On the one hand, a criminal conviction may not be based on guessing, speculation, and conjecture. People v. Gonzales, 666 P.2d 123, 128 (Colo. 1983). But on the other, an appellate court does not sit as a thirteenth juror, reweighing the evidence. Id.

         A. Theft

         ¶ 14 The prosecution charged Vidauri under section 18-4-401(1)(a), C.R.S. 2018, which criminalizes obtaining anything of value by deceit with the intent to permanently deprive another of its value. Vidauri contends the prosecution failed to present evidence sufficient to prove her intent or to establish the value of the purportedly stolen benefits. We reject her first contention but agree with her second contention.

         1. Law

         a. Intent

         ¶ 15 A fact finder may infer a defendant's intent to permanently deprive another of use or benefit from the defendant's conduct and other circumstances of the case. People v. Stewart, 739 P.2d 854, 856 (Colo. 1987). An intent to deprive can be found even when a victim has authorized the defendant to use the thing of value if the authorization was obtained by deceit. Id. A party is presumed to know the contents of a document that the party signs. B & B Livery, Inc. v. Riehl, 960 P.2d 134, 138 n.5 (Colo. 1995).

         b. Gradation of Theft Offenses by Value

         ¶ 16 The value of the thing stolen determines the grade of the offense. § 18-4-401(2). Value is a sentence enhancer, not an element of the offense. People v. Simpson, 2012 COA 156, ¶ 14. Still, due process requires the prosecution to prove value beyond a reasonable doubt. People v. Jamison, 220 P.3d 992, 993 (Colo.App. 2009). The prosecution meets this burden by presenting sufficient evidence of the value of the thing stolen at the time of the offense. People v. Jaeb, 2018 COA 179, ¶ 40.

         ¶ 17 Although section 18-4-414, C.R.S. 2018, addresses proving retail value, neither the theft statute nor any Colorado case explains how the prosecution proves the value of public assistance benefits obtained as a result of a defendant's deceit. If the prosecution presents sufficient evidence of theft but not value, the case must be remanded for entry of judgment for a lesser level offense. People v. Codding, 191 Colo. 168, 169-70, 551 P.2d 192, 193 (1976). And if the prosecution presents no evidence of value, the conviction defaults to lowest level, class 1 petty theft. Jaeb, 434 P.3d at ¶¶ 44, 51.

         2. Application

         ¶ 18 We begin with intent because insufficient evidence would require reversal; failure to prove value requires only a downgrade.

         a. Proof of Intent

         ¶ 19 The prosecution presented documentary and testimonial evidence from which a reasonable juror could conclude that Vidauri understood the importance of accurately reporting changes to her income and household composition. She attested that each application was true and accurate. Each application included a statement that Vidauri was to report all changes in income to the Department within ten days. She never did so.

         ¶ 20 Given that the Department reduced her benefits in response to her husband's income that she declared on the second application, a reasonable juror could have concluded that Vidauri intended to obtain benefits to which she was not entitled when, on the third application, she declared that her husband's hours had been reduced. The same objective could be inferred from Vidauri's decision in 2012 to tell the Department that her husband's employment had ended in response to the redetermination notice.

         ¶ 21 Each time that Vidauri was required to verify her household income, she did so. For example, she submitted pay stubs along with all three benefit applications, and bank statements for both 2011 applications. But she did not tell the Department that she had gotten married in 2009, which may have affected her second child's Medicaid eligibility. On the third application, Vidauri said that no one in her household was self-employed. But her 2011 and 2012 tax returns show $17, 314 and $30, 896 of net income respectively from her housecleaning business.

         ¶ 22 The prosecution's evidence also included notices that the Department had mailed to Vidauri every year beginning in 2012, each of which asked her to update her household income information. In response to the 2012 notice, Vidauri faxed the Department two statements. One said that her husband was no longer working for the employer that Vidauri had reported on her third benefits application. But Vidauri failed to say that her husband had started his own business the month before. The second statement said that she was earning only about $720 per month, or $8, 640 per year, which is contradicted by her 2011 and 2012 tax returns. And Vidauri never told the Department that her husband's business was generating substantial income from 2012 through 2015, years during which their family continued to receive medical assistance benefits.

         ¶ 23 Vidauri argues that these inaccuracies and omissions could be interpreted as instances of excusable neglect or misunderstanding, especially given her limited education and that English is her second language. But a reasonable juror could also have concluded that the prosecution's evidence showed a pattern of duplicity whereby Vidauri intended to secure benefits to which she was not entitled. See People v. Gonzales, 2019 COA 30, ¶ 37 ("[T]he inferences drawn from [the] evidence are solely for the jury to draw, not an appellate court.").

         ¶ 24 Despite all of this evidence, Vidauri asserts that she could not possibly have intended to obtain benefits by deceit because she did not know exactly what information to include on her applications to "ensure eligibility[.]" But this argument would prove too much - under this theory, only a benefits eligibility specialist could defraud a public assistance program. And as indicated, ample evidence created a reasonable inference that Vidauri understood the generally inverse relationship between income and eligibility.

         b. Proof of Value to Establish the Grade of Theft

         ¶ 25 The prosecution presented a claims summary report from the Colorado Department of Health Care Policy and Financing showing that, over eight years, Vidauri and her three children had received medical assistance benefits totaling $31, 417.65. Vidauri never disputed the total amount of benefits received. But when Louthan was asked on both direct and cross-examination if she had determined whether Vidauri would have been eligible for any medical assistance had she accurately reported her household income, and, if so, in what amount, Louthan said that she had not made either determination.

         ¶ 26 Importantly, the prosecutor did not introduce any evidence to establish the value of benefits to which Vidauri would have been entitled had she fully disclosed her household income. Nor did he offer evidence that any fraud in the application process results in a total forfeiture of benefits. Perhaps the prosecutor did not do so because Colorado law is silent on whether the prosecution must prove the value of public assistance benefits obtained by deceit.

         ¶ 27 Be that as it may, other states have answered this question in two ways: based on either the amount of benefits paid above those to which the defendant would have been entitled, i.e., the overpayment amount, or the total amount of benefits received, without offsetting the entitlement amount. Unsurprisingly, the Attorney General urges us to adopt the total amount approach and affirm the theft conviction as a class 4 felony. For her part, Vidauri advocates the overpayment approach under which, she continues, the theft conviction must be vacated.

         ¶ 28 After examining both lines of authority, we agree with Vidauri on the point of adopting the overpayment approach. But because we conclude that the prosecution presented sufficient evidence for a reasonable juror to have found that Vidauri obtained some benefits by deceit, the conviction need only be downgraded.

         ¶ 29 To begin, comparing the present case to public benefits theft or fraud cases in other jurisdictions is problematic. True, the facts of these cases are similar - a public benefits applicant understates income or fails to report the presence of additional wage earners in the household and receives benefits. But prosecutors in other states charge these defendants under a variety of general fraud and theft statutes. And in some states (not Colorado), these cases are ...


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