     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
