Garfield County District Court No. 16CR3023 Honorable James
B. Boyd, Judge.
J. Weiser, Attorney General, Brenna A. Brackett, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Noble Law Firm, LLC, Antony Noble, Taylor Ivy, Lakewood,
Colorado, for Defendant-Appellant
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.
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
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
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
• The trial court admitted improper expert testimony of
• The prosecutor engaged in misconduct during voir dire,
witness examination, and closing argument.
• Cumulative error requires reversal.
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
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,
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
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.
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).
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,
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.
18 We begin with intent because insufficient evidence would
require reversal; failure to prove value requires only 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
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
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.
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
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