The Colorado Supreme Court on April 19 concluded that a person convicted of theft of public benefits may be held responsible for the total amount received, even if they would have been eligible for some benefits. But the dissenting justices in the 4-3 decision warned that the majority’s opinion could have “draconian consequences” and urged the legislature to make changes to theft laws.
The defendant in the case, Alma Vidauri, submitted applications for medical assistance benefits to the Garfield County Department of Human Services between 2009 and 2016, and her three children were enrolled in Medicaid and Colorado’s Child Health Plan Plus. Vidauri was investigated on suspicion that she had misrepresented her financial situation in the paperwork. In 2012, Vidauri submitted statements to the department attesting that her husband had left his job and her income was about $720 per month, which allowed all of her children to qualify for Medicaid.
From 2013 to 2016, Vidauri failed to update the department about changes to her income, according to court documents, despite the fact that her tax returns showed she earned much more than she had reported on the Medicaid application. She and her children received more than $30,000 in benefits based on the inaccurate forms. Vidauri was convicted of multiple offenses, including class 4 felony theft, which carries a sentence of up to six years in prison and applies when the value of the stolen property is between $20,000 and $100,000.
On appeal, Vidauri argued the prosecution did not present evidence that she was ineligible for the assistance she received, and it therefore could not establish the value of the theft. A division of the Court of Appeals agreed the prosecution failed to prove value but found it did present sufficient evidence for a juror to find Vidauri had obtained some benefits by deceit and concluded the conviction need only be downgraded, rather than vacated. The intermediate court reversed Vidauri’s felony theft conviction and remanded the case for the trial court to enter a conviction for class 1 petty theft.
The Court of Appeals noted that Colorado law is silent on whether prosecutors must prove the value of benefits obtained by deceit, but it described two approaches used in other jurisdictions: The “total amount approach” treats the total amount of benefits obtained by deception as the amount stolen. The “overpayment approach” favored by the division requires the prosecution to subtract the amount for which the defendant would have been eligible.
The question before the Supreme Court was whether the prosecution must prove how much assistance the defendant would have received, had she been honest, or whether to value the property based on the total amount stolen. The high court favored the latter approach, reversing the Court of Appeals’ decision and reinstating the class 4 felony conviction.
“The theft statute places no burden on the prosecution to establish that Vidauri would have been ineligible for any of the benefits she received. Eligibility is not entitlement,” states the majority opinion authored by Justice William Hood. Because an applicant lacks a “legally cognizable interest” in any benefits until she has submitted accurate information demonstrating her eligibility, Hood wrote, all the benefits Vidauri received were obtained by deception.
The majority turned to a 2001 Ohio Supreme Court case when deciding to adopt the total amount approach, reasoning that Ohio’s theft statute is similar to Colorado’s. In the Ohio case, the court found that, until an applicant is deemed eligible to receive benefits, the benefits are government property rather than that of the applicant.
The Court of Appeals had opted for the overpayment approach in part because the Colorado Medical Assistance Act uses the same approach when requiring defendants in civil cases to disgorge improper benefits. But “in this criminal case,” Hood wrote, “we must focus on the theft statute. And the CMAA provisions addressing civil liability do not dictate how the theft statute should be construed.”
In a dissent joined by justices Monica Márquez and Melissa Hart, Justice Maria Berkenkotter stated that the majority’s total amount approach is “likely to cause draconian consequences” for people charged with public benefit theft under the general theft statute. Berkenkotter wrote that the majority’s conclusion is at odds with the court’s “longstanding recognition” that the value of stolen items is a sentence enhancer that must be proven beyond a reasonable doubt.
The CMAA states that benefits paid “to which a recipient was not lawfully entitled shall be recoverable from the recipient,” Berkenkotter noted, adding that this undermines the majority’s conclusion that eligibility does not mean entitlement.
Berkenkotter added that there is “no precedent in Colorado for valuing theft based on notions of forfeiture.” For example, she wrote, if an employee fills out timesheets claiming to have worked 2,000 hours when they only worked 1,900 hours, “there is no basis to suggest that the employee must forfeit all of his or her wages for that year.”
The dissent also pointed out that under the majority’s approach, the severity of punishment is driven by a defendant’s health circumstances, “not the magnitude of his or her deception.” This could result in chronically ill people being charged with more serious crimes just because their health care costs are greater, the dissent states.
“I see it as a troubling precedent, because there is a basic concept of proportionality that we have in our laws, in our sentencing schemes, and in our in our criminal code, and also in the Colorado Medical Assistance Act,” said Ruth Moore, an appellate attorney at Richards Carrington and Moore Williams. “And I think that the majority’s decision does not seem to be mindful of that basic concept.”
Moore added that the majority’s decision “threatens to potentially turn a lot of individuals into criminals” and, “in the worst-case scenario,” could deter people from applying for Medicaid. She noted that in Vidauri’s case, “the facts are bad.” But many people who are eligible for Medicaid have incomes that fluctuate, and a failure to submit timely updates could make them criminals.
According to Moore, the decision is likely to change how defense attorneys approach Medicaid fraud cases. Instead of arguing that the prosecution failed to prove the value of the amount stolen, she said, they might “repackage that information into either the reliance element for theft or the mental state — the mens rea — for theft.”
In her dissent, Berkenkotter urged the legislature to adopt a statute that “specifically addresses theft of public benefits and fairly balances the prosecution’s burden with the rights of recipients of public assistance.”
“I do think the legislature is reasonably likely to take up Justice Berkenkotter’s request and make some changes to the statutes,” Moore said.