v. Vidauri , 2019 COA 140 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
September 5, 2019
2019COA140
No. 18CA0032, People v. Vidauri — Crimes — Theft; Health and
Welfare — Public Assistance Benefits — Medicaid
In this theft of public benefits case, a division of the court of
appeals concludes that because the prosecution presented only
evidence showing the total amount of benefits paid rather than the
total amount of benefits to which Alma Vidauri may have been
eligible, it failed to prove the value of the benefits which Vidauri
obtained by deceit. Therefore, the division reverses the conviction
for felony theft, but otherwise affirms.
COLORADO COURT OF APPEALS 2019COA140
Court of Appeals No. 18CA0032
Garfield County District Court No. 16CR3023
Honorable James B. Boyd, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Alma Vidauri,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE WEBB
Furman and Brown, JJ., concur
Announced September 5, 2019
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
¶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.
1
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
2
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
3
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
1 Vidauri does not address the effect of a partial reversal on the
restitution award.
4
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)).
5
¶ 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
6
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
7
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
8
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
9
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
10
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.
11
¶ 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
12
theft statutes. And in some states (not Colorado), these cases are
charged under more specific public assistance fraud statutes that
provide guidance on how to prove the value of benefits at issue.
¶ 30 At one end of the spectrum, in a case charged under a general
theft statute involving food stamps and cash assistance, the Ohio
Supreme Court adopted the total amount approach. State v.
Edmondson, 750 N.E.2d 587 (Ohio 2001). That decision turned on
the court’s interpretation of Ohio statutes governing its food stamp
and cash assistance programs. The Ohio regulations for the cash
assistance program stated that failure to provide “necessary
information” on an application for benefits would “result in a
denial” of all benefits. Id. at 591 (interpreting Ohio Admin. Code
5101:1-2-10 (2019)). A portion of the statute concerning food
stamps said that food stamps were government property “until they
are received by a household entitled to receive them.” Id.
(interpreting Ohio Rev. Code 5101.54(B) (West 2019)). Based on
these provisions, the court held that the defendant’s “deception
taints all of the [benefits] that [the state] gave to her based on her
materially false application.” Id.
13
¶ 31 Similarly, the Connecticut Supreme Court upheld a conviction
under a general larceny statute in a case involving a defendant who
had received cash assistance and medical benefits. State v. Robins,
643 A.2d 881 (Conn. App. 1994), aff’d, 660 A.2d 738 (Conn. 1995).
Like Colorado’s theft statute, Connecticut’s larceny statute
determines the grade of the offense by the value of the service. That
court refused to require the prosecution to prove a lack of
entitlement or to quantify the overpayment amount and adopted a
total amount approach, albeit without significant analysis. Id. at
884-85.
¶ 32 At the other end of the spectrum, the California Supreme
Court required that a loss to a government agency from public
benefits fraud must be calculated by subtracting the amount the
government “would have paid had no acts of fraud occurred” from
“the amount the government actually paid.” People v. Crow, 864
P.2d 80, 87 (Cal. 1993). Similarly, a division of the Arizona Court of
Appeals reversed a conviction under a welfare fraud statute because
the prosecution had failed to present sufficient evidence of the
defendant’s lack of eligibility or the overpayment amount. State v.
Roberts, 673 P.2d 974 (Ariz. Ct. App. 1983). The Arizona statute
14
specifically limits criminal liability for benefits “to which the person
is not entitled” or “greater than that to which the person is entitled.”
Ariz. Rev. Stat. § 46-215(A)(1), (2) (2019).
¶ 33 A few cases occupy the middle ground. For example, an
appellate division of the New York Supreme Court upheld a
conviction for grand larceny in a welfare fraud case where the state
based the grade of the offense on proof of the overpayment amount.
People v. Stumbrice, 599 N.Y.S.2d 325, 327-28 (N.Y. App. Div.
1993). Although New York’s grand larceny statute was silent on
how a court should value medical and food assistance benefits, the
prosecution presented undisputed evidence that if the defendant
had reported her husband’s income, her household would have
been ineligible for $17,938.97 of the $21,231,23 it received. Id. at
327.
¶ 34 For three reasons, we adopt the overpayment approach.
¶ 35 First, following the Ohio Supreme Court’s methodology of
looking to the relevant public assistance program statutes for
guidance, the Colorado Medical Assistance Act adopts the
overpayment approach to civil liability. Specifically, the state may
recover “any medical assistance paid to which a recipient was not
15
lawfully entitled,” plus interest on benefits that had been
fraudulently obtained. § 25.5-4-301(1)(c), (d), C.R.S. 2018.
However, the statute does not create a separate crime of medical
assistance fraud.2
¶ 36 Second, adopting the overpayment approach and placing the
burden of proof on the prosecution would not impose an undue
obligation on prosecutors. After all, the prosecution has unlimited
access to fraud investigators and government employees who make
overpayment determinations. So, a prosecutor could request such
a determination to establish at trial the value of fraudulently
obtained benefits, even if the determination had not been made
during the investigation. By contrast, placing this burden on a
2 The overpayment approach also comports with other public
benefits programs in Colorado, including food stamps, cash
assistance, and unemployment insurance, which deduct the legal
entitlement amount from the total amount paid to determine
liability for overpayment. See § 8-74-109(2), C.R.S. 2018
(unemployment insurance; providing that “[i]f by reason of
fraud . . . a claimant receives moneys in excess of benefits to which
he is entitled . . .”) (emphasis added); § 26-2-128(1), C.R.S. 2018
(cash assistance; “[A]ny previously paid excess public assistance to
which the recipient was not entitled shall be recoverable . . . .”)
(emphasis added); § 26-2-305(1)(a), C.R.S. 2018 (“Any person who
obtains . . . food stamp coupons . . . the value of which is greater
than that to which the person is justly entitled . . . commits the crime
of theft . . . .”) (emphasis added).
16
defendant would ignore the defendant’s much more limited access
to this information as well as the lack of incentive for government
employees to cooperate with the defense.
¶ 37 Third, everyone would agree that where a defendant acquires
all the benefits fraudulently, the two approaches would yield the
same result. But where a defendant acquires only a portion of the
benefits by deceit, the overpayment approach is consistent with the
prosecution’s burden to prove any fact used to justify an enhanced
sentence. People v. Kyle, 111 P.3d 491, 501 (Colo. App. 2004) (“[A]
sentence enhancement factor . . . like the substantive predicate
offense, must be proved beyond a reasonable doubt.”), overruled on
other grounds by Zoll v. People, 2018 CO 70.
¶ 38 Viewing the prosecution’s case through the lens of the
overpayment approach, the evidence would be sufficient if the
prosecutor had presented evidence that any misrepresentation
worked a forfeiture of all benefits. But the prosecutor presented no
such evidence. And in any event, the statutory recovery formula
weighs against total forfeiture.
¶ 39 In the end, we return to the prosecutor’s failure to present any
evidence showing the amount of benefits obtained by deceit, i.e., the
17
difference between the total amount of benefits paid and the
amount to which Vidauri was entitled based on her household
income. See Crow, 864 P.2d at 87 (“[F]alsities resulting only in a
small gain to the defendant could nevertheless result in a sentence
enhancement in cases in which the defendant receives substantial
welfare benefits, most of which would be payable regardless of the
falsity. This would not implement [the Penal Code’s] goal of
deterring large-scale crime.”). So, in applying the overpayment
approach, we conclude that the prosecution did not present
sufficient evidence to prove that the amount of the overpayment
exceeded $20,000.
¶ 40 But did the prosecution present evidence that Vidauri
obtained any benefits by deceit? Recall that we concluded the
prosecution presented ample evidence from which a reasonable jury
could have found that Vidauri intended to obtain increased benefits
by understating her household income. This evidence also supports
a reasonable inference that, by understating her income, Vidauri
obtained increased benefits.
¶ 41 As well, Louthan testified that Medicaid and CHP+ are
income-based programs, that eligibility varies based on income, and
18
that Vidauri received benefits that she should not have received.
This testimony further supports a reasonable inference that
Vidauri’s understatement of her household income caused the
Department to pay her benefits that she should not have received.
¶ 42 In sum, we conclude that the prosecution presented sufficient
evidence of theft by deceit but no evidence of the value of benefits
stolen. The only grade of theft that does not require proof of value
is a class 1 petty offense. So, we reverse the class 4 felony theft
conviction and remand for entry of judgment for class 1 petty theft.
B. Forgery
¶ 43 Vidauri contends the prosecution failed to present sufficient
evidence to prove either that she intended to defraud the
Department or that any false assertions on those applications were
material. We reject these contentions.
1. Law
¶ 44 The prosecution charged Vidauri under section 18-5-102(1)(c),
C.R.S. 2018, which states, “with intent to defraud, [a] person falsely
. . . completes . . . a written instrument which . . . does or may . . .
affect a legal right, interest . . . or status[.]” “[F]alsely complete”
includes a requirement that the false information be material such
19
that it “affects the action . . . or decision of the person who receives
. . . the asserted information in a manner that directly or indirectly
benefits the person making the assertion.” § 18-5-101(3)(b), C.R.S.
2018. And the jury may infer intent when a defendant passes an
instrument the defendant knows to be false. People v. Brown, 193
Colo. 120, 122, 562 P.2d 754, 755 (1977).
2. Application
¶ 45 Vidauri concedes that her applications were “instruments
capable of having the [legal] effect.” As indicated, she did not
dispute the prosecution’s evidence that she and her children
received medical assistance benefits.
a. Intent to Defraud
¶ 46 Like her intent argument with respect to the theft conviction,
Vidauri asserts that “because no evidence established that [she]
knew what information she should report or omit on her
applications in order to qualify for medical assistance,” the
circumstantial evidence was not sufficient to prove her intent to
defraud the Department. This argument misses the mark because
whether Vidauri knew how much income she could report and still
20
be eligible for benefits — a quantitative inquiry — is irrelevant to
the forgery charge.
¶ 47 Rather, the prosecution’s burden is qualitative: to present
sufficient evidence for a reasonable jury to find that Vidauri
intentionally included false information in, or omitted material
from, her applications for the purpose of misleading the
Department. And based on the same evidence from which the jury
could have found that Vidauri intended to commit theft, a
reasonable jury could have found that she intended to commit
forgery.
b. Materiality
¶ 48 Next, and like her primary theft argument, Vidauri argues that
the prosecution failed to prove that the allegedly false information
was material because ineligibility is “a necessary condition
precedent” to establishing materiality. Although we agreed as to
gradation of the theft, for materiality this argument falls short.
¶ 49 Vidauri points out what she asserts is an inconsistency in the
forgery statute. One element of forgery is a written instrument that
“does or may . . . affect a legal right.” § 18-5-102(1)(c) (emphasis
added). By contrast, the statutory definition of “falsely complete”
21
requires that the false assertion “affect[]” the decision of the person
who receives it. § 18-5-101(3)(b). From this purported
inconsistency, Vidauri argues that because the Department never
calculated the benefits to which she would have been entitled based
on her actual household income, the prosecution failed to prove
that the allegedly false information affected the Department’s
decision.3
¶ 50 Were we presented with a case in which a falsely completed
instrument may have, but ultimately did not, affect a legal right,
further inquiry into this supposed inconsistency might be required.
For example, the evidence could have shown that while Vidauri
submitted an application with false information, the Department
approved payment of benefits without considering that information.
But the evidence in this case showed more.
3 We are not persuaded that the statute is inconsistent. The phrase
“may . . . affect” partly defines what is an instrument, which is one
element. § 18-5-102(1)(c), C.R.S. 2018. The word “affect[]” appears
in the definition of materiality, which limits “falsely completes,” a
different element. § 18-5-101(3)(b), C.R.S. 2018. So, the General
Assembly may only have intended to define the former element
more broadly than the latter element.
22
¶ 51 Recall, we have concluded that, despite the prosecution’s
failure to prove an amount of overpayment, the evidence was
sufficient for a reasonable jury to have found that by significantly
understating her household income Vidauri affected the
Department’s eligibility determination. From this same evidence, a
reasonable jury could have found that Vidauri’s understatements
were material, even using the “affect[]” rather than the “may . . .
affect” interpretation.4
¶ 52 In short, we conclude that the prosecution presented sufficient
evidence to prove the three felony forgery counts.
III. Expert Testimony of Louthan
¶ 53 The trial court accepted five current and former employees of
the Department to testify as experts. On appeal, Vidauri focuses
solely on Louthan’s testimony. The court accepted her as an expert
in “medical assistance benefits eligibility determinations.” Vidauri
argues that the court abused its discretion when it accepted
4 Unlike the theft statute, where evidence of value is necessary to
prove the grade of the offense, forgery is a class 5 felony regardless
of the value of the benefits, if any, received by the forger.
§ 18-5-102(2).
23
Louthan as an expert witness and overruled objections during her
testimony because
• she lacked the requisite qualifications;
• her testimony exceeded the scope of her expertise;
• her testimony was not helpful to the jury; and
• her testimony usurped the role the of the jury.
Vidauri also asserts that the probative value of Louthan’s testimony
was substantially outweighed by its unfair prejudice.
A. Preservation and Standard of Review
¶ 54 A trial court’s decision to admit or exclude expert testimony is
reviewed for an abuse of discretion. Estate of Ford v. Eicher, 250
P.3d 262, 266 (Colo. 2011). A trial court abuses its discretion only
if its ruling is manifestly arbitrary, unreasonable, unfair, or it
misinterprets the law. Huntoon v. TCI Cablevision of Colo., Inc., 969
P.2d 681, 690 (Colo. 1998).
¶ 55 Preserved claims are reviewed for harmless error; unpreserved
claims are reviewed for plain error. Hagos v. People, 2012 CO 63,
¶ 12 (discussing harmless error review); id. at ¶ 14 (discussing plain
error review); see also Wend v. People, 235 P.3d 1089, 1097 (Colo.
2010) (refusing to impose constitutional harmless error standard
24
broadly). While an appellant need not use “talismanic language” at
trial to preserve an argument for appeal, “the trial court must be
presented with an adequate opportunity to make findings of fact
and conclusions of law on any issue” for appellate review. People v.
Melendez, 102 P.3d 315, 322 (Colo. 2004).
¶ 56 Before trial, Vidauri moved to strike the proposed expert
testimony of Louthan and the other current or former Department
employees. That motion challenged their qualifications and noted
the possibility that their testimony would not help the jury, would
usurp the role of the jury, and would be unfairly prejudicial under
CRE 403. At a pre-trial motions hearing, Vidauri made no further
argument and the court qualified these witnesses. It said, “To the
extent there is expertise about how the [Department] rules work in
terms of benefits of being eligible for them, I do think that’s a
legitimate topic for expert testimony, which seems to be what this
generally is.”
¶ 57 At trial, Vidauri objected to some of Louthan’s testimony as
unhelpful to the jury and exceeding her expertise. She also
objected to testimony by Louthan as expressing an improper
opinion about Vidauri’s credibility. She objected to questions by
25
the prosecutor as improperly shifting the burden of proof to Vidauri.
So, Vidauri preserved these issues.
¶ 58 The Attorney General argues that when Vidauri did not object
to Louthan’s qualifications at trial, she waived the claim. But
because the court had already made a definitive ruling on the
record, Vidauri did not need to renew her objection. CRE 103(a)(2);
Uptain v. Huntington Lab, Inc., 723 P.2d 1322, 1330 (Colo. 1986)
(holding that when a specific evidentiary issue is presented by a
motion in limine, no contemporaneous objection is necessary to
preserve the issue).
B. Law
¶ 59 CRE 702 governs the admissibility of expert testimony. The
inquiry focuses on the reliability and relevance of the proffered
expert testimony. People v. Shreck, 22 P.3d 68, 77-79 (Colo. 2001).
A trial court must consider whether the testimony will be helpful to
the jury and whether the witness is qualified. Id.
¶ 60 The bar for helpfulness is low — whether the expert can offer
“appreciable assistance” on a subject beyond the understanding of
a typical juror. People in Interest of Strodtman, 293 P.3d 123,
129-30 (Colo. App. 2011). Helpfulness “hinges on whether the
26
proffered testimony is relevant to the particular case: whether it
‘fits.’ Fit demands more than simple relevance; it requires that
there be a logical relation between the proffered testimony and the
factual issues” of the case. People v. Martinez, 74 P.3d 316, 323
(Colo. 2003).
¶ 61 A court may qualify an expert based on knowledge, skill,
experience, training, or education. CRE 702. The rule does not
impose a bright-line requirement that a witness hold a specific
credential to testify on an issue. Rather, a court may qualify an
expert witness on any of five factors listed in CRE 702. People v.
Douglas, 2015 COA 155, ¶ 71.
¶ 62 An expert may express an opinion or inference based on the
facts and data in a particular case. CRE 703. An expert’s opinion
that embraces an issue which the jury must decide does not affect
its admissibility. CRE 704. However, an expert cannot express an
“ultimate” conclusion about truthfulness of another witness’s
testimony. People v. Bridges, 2014 COA 65, ¶ 15.
¶ 63 An expert witness may present lay testimony if the lay portion
satisfies the requirement of CRE 701. See Salcedo v. People, 999
P.2d 833, 837-38 (Colo. 2000) (allowing a police detective to testify
27
as dual-capacity witness); see also People v. Fortson, 2018 COA
46M, ¶ 99 (“[I]n the absence of binding appellate authority
condemning [dual-capacity] testimony, it remains for the trial court
to excise its discretion to control . . . such testimony . . . .”). CRE
701 permits lay testimony if the witness’s opinions and inferences
are rationally based on the perceptions of the witness, helpful to the
jury, and not based on scientific, technical, or other specialized
knowledge.
¶ 64 A trial court may allow testimony from a “summary witness” if
the court determines that the evidence is sufficiently complex and
voluminous that a summary would help the jury. Murray v. Just In
Case Bus. Lighthouse, LLC, 2016 CO 47M, ¶ 31.
¶ 65 Still, relevant evidence may be excluded if a court finds that
“its probative value is substantially outweighed by the danger of
unfair prejudice . . . or misleading the jury.” CRE 403. Unfairly
prejudicial means “an undue tendency to suggest a decision on an
improper basis . . . such as sympathy, hatred, contempt,
retribution, or horror.” People v. Dist. Court, 785 P.2d 141, 147
(Colo. 1990). “In weighing those dangers and considerations, the
proffered evidence ‘should be given its maximal probative weight
28
and its minimal prejudicial effect.’” Alhilo v. Kliem, 2016 COA 142,
¶ 9 (quoting Murray, ¶ 19).
C. Application
¶ 66 We reject Vidauri’s arguments that the trial court abused its
discretion with respect to accepting Louthan as an expert and
overruling objections to some of her testimony.
1. Louthan’s Qualifications
¶ 67 Louthan had more than ten years of experience in public
assistance administration as a case manager, benefits technician,
and fraud investigator. She also had extensive training from the
Colorado Department of Human Services. Vidauri argues that
Louthan “possessed no academic or experience-based credentials”
to justify the court’s decision to qualify her as an expert. But CRE
702 does not require such qualifications. Louthan’s experience was
sufficient under the liberal standard of CRE 702. See Golob v.
People, 180 P.3d 1006, 1012 (Colo. 2008).
2. Scope of Louthan’s Testimony
¶ 68 According to Vidauri, Louthan’s testimony exceeded the
bounds of her purported expertise: “Ms. Louthan did not opine as
29
an expert in eligibility determination,” but rather, “she testified as a
fraud investigator.”
¶ 69 True, Louthan’s testimony encompassed both benefits
eligibility, a subject matter for which the trial court had accepted
her as an expert, and her findings from the fraud investigation,
which the court had not separately addressed in its pretrial order.
The court’s decision to allow Louthan to testify about the fraud
investigation was not manifestly erroneous. Louthan had
conducted the investigation. Her opinions and inferences were
limited to those rationally based on her perceptions, which CRE 701
allows. Cf. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002)
(approving of a trial court’s decision to admit portions of a police
officer’s testimony about observations of the crime scene and his
investigation as lay opinion testimony). And to the extent that her
testimony about the fraud investigation exceeded the knowledge of
an ordinary citizen, Louthan had sufficient experience and training
in fraud investigations to satisfy CRE 702’s threshold.
¶ 70 The better course would have been for the trial court to
instruct the jury that Louthan was testifying in a dual capacity.
See United States v. Tucker, 714 F.3d 1006, 1016 (7th Cir. 2013)
30
(Trial courts “must take precautionary measures to ensure the jury
understands how to properly evaluate [dual-capacity witnesses].
Such safeguards can include cautionary jury instructions . . . .”).
But such an instruction is not required by rule or our case law.
And because Vidauri did not ask the court to do so, we cannot say
that the court abused its discretion. See, e.g., People v. Sanchez,
184 Colo. 379, 382, 520 P.2d 751, 752 (1974) (“[W]hether or not to
give a cautionary instruction is within the trial court’s discretion.”).
3. Helpfulness to the Jury
¶ 71 At trial, Vidauri objected to Louthan reading computerized
records from the Colorado Benefits Management System and
discussing spreadsheets that Louthan had created during the fraud
investigation. Vidauri argues that these aspects of Louthan’s
testimony were not helpful to the jury “because it was based on
exactly the same information the jury had[.]”
¶ 72 This argument misapprehends the role of an expert witness.
Louthan’s testimony may have helped the jury understand complex
evidence. A lay juror would not have been familiar with how the
state tracks correspondence with recipients of public assistance
through the Colorado Benefits Management System. This
31
testimony may have helped the jury understand how frequently the
Department contacted Vidauri and Vidauri’s failure to respond.
The spreadsheets collated disparate financial information into a
single source. Thus, Louthan served as a summary witness to aid
the jury’s understanding of Vidauri’s finances.
4. Usurping the Role of the Jury
¶ 73 Next, Vidauri argues that statements made by Louthan about
aspects of Vidauri’s benefit applications which Louthan found to be
“odd and questionable,” “concerning,” “inappropriate,”
“inconsistent,” or “incomplete” usurped the role of the jury. Vidauri
conflates the CRE 608 prohibition against opining on another
witness’s truthfulness on a specific occasion with whether
something the witness created was accurate. A court may allow
opinion testimony even if it touches on credibility under CRE 704.
See People v. Ashley, 687 P.2d 473, 475 (Colo. App. 1984). The
portions of Louthan’s testimony at issue focused on specific
inconsistencies between Vidauri’s applications and tax returns.
These statements by Louthan were the type of opinions allowed by
CRE 704. See People v. Weeks, 2015 COA 77, ¶ 89 (discussing
factors to determine whether an expert has usurped the jury’s
32
function). The trial court’s decision to overrule Vidauri’s objections
to these portions of Louthan’s testimony was not manifestly
arbitrary, unreasonable, or unfair.
5. Danger of Unfair Prejudice
¶ 74 In her pre-trial motion, Vidauri argued that the prosecution
was “attempting to paint a veneer of ‘expertise’ over the factual
testimony that should be analyzed by the jury like any other lay
witness.” She renews this argument on appeal, adding that
Louthan’s testimony “served no purpose but to present unqualified
opinions . . . about Ms. Vidauri’s veracity and guilt, under the guise
of expertise.” However, we have already rejected her challenge to
Louthan’s qualifications and her mischaracterization of the
opinions as going to her veracity.
¶ 75 Of course, an expert cannot opine on guilt. See People v.
Destro, 215 P.3d 1147, 1152 (Colo. App. 2008) (“[T]he expert offered
no opinion regarding defendant’s guilt.”). But as discussed above,
Louthan only expressed opinions on the inconsistencies between
Vidauri’s applications and other sources of information. These
opinions left the jury free to determine guilt or innocence by, for
example, crediting Vidauri’s assertion that she had been merely
33
careless. And given CRE 403’s strong preference for admissibility
and the relevance of Louthan’s testimony, we discern no abuse of
the trial court’s considerable discretion.
IV. Prosecutorial Misconduct
¶ 76 Vidauri points to statements made by the prosecutor during
voir dire, witness examination, and closing arguments that she
argues denied her a fair trial. We see no reversible error.
A. Background
¶ 77 During voir dire, the prosecutor presented prospective jurors
with a pair of analogies to explain the concepts of circumstantial
evidence and reasonable doubt. One analogy involved a picture of a
puppy with red dirt on its nose sitting by a hole in yard. The
prosecutor asked if anyone would “have trouble concluding what
happened.” Then the prosecutor asked, “[D]o you think it’s a
reasonable doubt to think that aliens could have come down to the
backyard and dug the hole?” or “maybe it was the Russians who
invade and steal the dog away. Are you able to exclude those as
possibilities because they’re not reasonable?”
¶ 78 The second analogy involved a law school student who
embellished facts on his admissions application. The prosecutor
34
asked jurors if they were tasked with deciding whether the student
lied, could they set aside their sympathies and biases and make a
decision about the student’s veracity. For this analogy, the
prosecutor engaged in a brief dialogue with the jurors. One juror
suggested that the false information in the student’s application
may not have been “a material part of [the student’s] acceptance to
law school[.]” Then the prosecutor moved on to ask other jurors
what they thought about his hypothetical before returning to the
juror who raised materiality. The prosecutor reframed the
hypothetical so that all they had to do was “merely decide if there
[had been] a technical violation” of the application process. Vidauri
did not object during voir dire.
¶ 79 While the prosecutor examined Louthan, he asked Louthan if
she “believe[d] that [Vidauri’s] application packet . . . was
complete[,]” if Louthan “had any reason to believe” that Vidauri or
her husband was self-employed, and if Vidauri had failed to provide
the Department information about her income for the period in
question. Vidauri’s counsel objected to this line of inquiry as
burden-shifting, which the court overruled.
35
¶ 80 During closing arguments, the prosecutor revisited the puppy
and law student analogies. He also introduced a new analogy:
[A] good analogy here is you walk into Best
Buy . . . and you steal a DVD player . . . .
Then the next day you get a coupon in the mail
that said, ‘Hey, you’ve won one free Best Buy
DVD player.’ Does it wash out in the end?
Sure, it does. But does that negate the fact
that you actually went in and you did steal the
DVD player? No, it doesn’t.
Following the Best Buy analogy, the prosecutor said that Vidauri’s
“lack of honesty, her lack of being forthright is what caused all of
these issues . . . .”
¶ 81 The prosecutor also said that none of the Department’s
employees could “recall a single phone call from Ms. Vidauri or a
single attempt from Ms. Vidauri to activate or update her
application.” However, Sabrina Hickel, an eligibility training
specialist with the Department, had spoken with Vidauri once to
verify income information for one of Vidauri’s employees, but
Vidauri did not attempt to update her information on that call.
Patricia Ulloa, an eligibility technician with the Department, was a
friend of Vidauri. But when Vidauri reached out to Ulloa about her
36
case, Ulloa responded that she could not assist on account of the
conflict of interest.
¶ 82 Finally, during the prosecutor’s rebuttal closing, he listed
several questions that Vidauri should have asked the Department.
And he said that the benefits Vidauri received “are expenses that
the State of Colorado paid out. Those are expenses and money that
we are not going to get back as taxpayers . . . .” At no point during
the closing argument did Vidauri object.
B. Preservation and Standard of Review
¶ 83 The parties agree that Vidauri preserved the burden-shifting
claim. Vidauri argues that she preserved other claims of
prosecutorial misconduct because she filed a pre-trial motion to
strike Louthan’s testimony. But Vidauri concedes that she did not
object to the prosecutor’s statements during voir dire or closing
arguments.
¶ 84 “The determination of whether a prosecutor’s statements
constitute inappropriate prosecutorial argument is an issue within
the trial court’s discretion, and we will not disturb its ruling . . . in
the absence of a showing of gross abuse of discretion resulting in
prejudice and a denial of justice.” People v. Strock, 252 P.3d 1148,
37
1152 (Colo. App. 2010) (citation omitted). An appellate court
reviews unpreserved claims of alleged misconduct under the plain
error standard, which requires reversal only “when there is a
substantial likelihood that [the misconduct] affected the verdict or
that it deprived the defendant of a fair and impartial trial.” Id. at
1153.
C. Law
¶ 85 “[A] prosecutor, while free to strike hard blows, is not at liberty
to strike foul ones.” Domingo-Gomez v. People, 125 P.3d 1043, 1048
(Colo. 2005) (citation omitted). We draw the line when a prosecutor
misstates the evidence or uses arguments calculated to inflame the
jury. People v. Brown, 313 P.3d 608, 618 (Colo. App. 2011).
¶ 86 An appellate court uses a two-step approach to analyze claims
of prosecutorial misconduct. First, we must determine whether the
prosecutor’s conduct was improper based on the totality of the
circumstances. If the conduct was improper, then we must decide
whether the misconduct warrants reversal. Wend, 235 P.3d at
1096. And we evaluate improper arguments “in the context of the
argument as a whole and in light of the evidence before the jury.”
People v. Samson, 2012 COA 167, ¶ 30.
38
¶ 87 A prosecutor “may employ rhetorical devices . . . so long as he
or she does not thereby induce the jury to determine guilt on the
basis of passion or prejudice, attempt to inject irrelevant issues into
the case, or accomplish some other improper purpose.” People v.
Allee, 77 P.3d 831, 837 (Colo. App. 2003). But the devices cannot
trivialize the state’s burden. People v. Camarigg, 2017 COA 115M,
¶ 45.
¶ 88 During voir dire, a prosecutor engages in misconduct when
the prosecutor misstates the law, uses voir dire to present facts that
the prosecutor knows will not be proven at trial, or argues the case
to the jury. People v. Krueger, 2012 COA 80, ¶ 50.
¶ 89 To assess allegations of burden-shifting, courts
consider the degree to which: (1) the
prosecutor specifically argued or intended to
establish that the defendant carried the
burden of proof; (2) the prosecutor’s actions
constituted a fair response to the questioning
and comments of defense counsel; and (3) the
jury is informed by counsel and the court
about the defendant’s presumption of
innocence and the prosecution’s burden of
proof.
People v. Santana, 255 P.3d 1126, 1131-32 (Colo. 2011) (footnotes
omitted).
39
¶ 90 Finally, a prosecutor cannot encourage jurors to place
themselves in the victim’s position. These “golden rule” arguments
are improper because “they encourage the jury to decide the case
based on personal interest . . . rather than on a rational assessment
of the evidence.” People v. Munsey, 232 P.3d 113, 123 (Colo. App.
2009).
D. Application
¶ 91 We conclude that the trial court did not abuse its discretion in
overruling the burden-shifting objection and discern no plain error
in other statements made by the prosecutor.
1. Burden-Shifting During Witness Examination
¶ 92 The line of questioning to which Vidauri objected dealt with an
essential part of the case — Vidauri’s honesty in dealing with the
Department. It did not involve proof at trial. The prosecutor never
said that Vidauri bore the burden of disproving anything. The
prosecutor acknowledged the state’s burden repeatedly throughout
his opening statement and closing arguments, and the court
properly instructed the jury on the prosecution’s burden. See
Santana, 255 P.3d at 1131 (“[E]ven though a prosecutor’s
comments and questions may imply that a defendant has the
40
burden of proof, such comments and questions do not necessarily
shift the burden of proof[.]”).
2. The Analogies
¶ 93 According to Vidauri, “[u]sing a picture of a cute puppy,
particularly when . . . juxtaposed with the suggestion of aliens or
. . . ‘Russians who invade and steal the dog away’” was an attempt
to trivialize the prosecution’s burden of proof. With the law student
and Best Buy analogies, Vidauri argues that the prosecutor
misstated the law and “encouraged the jury to disregard an
essential element” of the charges against her.
¶ 94 Viewed in the totality of this case, these analogies were not
obviously improper. The discussion about all three was brief. The
prosecutor properly emphasized the importance of jurors using
common sense and everyday experience to understand the concept
of reasonable doubt. See Clark, 232 P.3d at 1293 (“Jurors must
rely on the evidence presented at trial and their own common sense
to determine the question of guilt.”). He never drew a direct parallel
between the puppy, aliens, Russians, or hypothetical law students
— all rhetorical devices — and the anticipated evidence, the
41
prosecution’s burden, or what the defense might argue. See Allee,
77 P.3d at 837.
3. Misstatement of Evidence
¶ 95 The prosecutor’s statement that three Department employees
couldn’t “recall a single phone call from Vidauri” was inaccurate.
But the significance of this misstatement, when evaluated in the
context of the prosecutor’s closing argument as a whole and in light
of the evidence presented over a three-day trial, was minimal. See
People v. Eckert, 919 P.2d 962, 967 (Colo. App. 1996) (holding that
certain “inappropriate characterizations” by the prosecutor were not
numerous and did not predominate over the rest of the argument
that appropriately addressed the evidence, and concluding that
these comments did not prevent the jury from rendering a fair
verdict). The court instructed the jury that statements by the
attorneys are not evidence. We discern no way in which this single
misstatement could have affected the verdict or deprived Vidauri of
a fair trial. See People v. Denhartog, 2019 COA 23, ¶ 66 (“The
prosecutor’s single misstatement does not cause us to question the
reliability of the judgment of conviction and we therefore discern no
plain error.”).
42
4. Appealing to the Jurors as Taxpayers
¶ 96 The prosecutor’s statement during closing argument that “we
are not going to get back [the benefits that Vidauri received] as
taxpayers” was an improper golden rule argument. However, given
the brevity of this statement in the context of the entire closing
argument, as well as the obvious adverse impact on the public fisc
of all fraudulently obtained benefits, we cannot say that this
argument substantially affected the verdict or deprive Vidauri of a
fair trial. See Munsey, 232 P.3d at 123 (holding that a golden rule
argument that appeals to jurors as taxpayers was inappropriate,
but that isolated comment was unlikely to substantially influence
the verdict).
V. Cumulative Error
¶ 97 Vidauri contends the combined impact of numerous errors
denied her right to a fair trial. We have found only two unpreserved
errors that were not plain. Even though plain errors can be
considered for cumulative error purposes, see Howard-Walker v.
People, 2019 CO 69, we cannot discern how any combination of the
two unpreserved errors in the prosecutor's closing argument —
which were not plain — could have deprived Vidauri of a fair
43
trial. See People v. Herdman, 2012 COA 89, ¶ 79 (holding that two
unrelated errors were not sufficient to warrant reversal under
cumulative error).
VI. Conclusion
¶ 98 The felony theft conviction is reversed and the case is
remanded for the trial court to enter a conviction of class 1 petty
theft. In all other respects, the judgment is affirmed.
JUDGE FURMAN and JUDGE BROWN concur.
44